Sec 26

From general proposals for interchange of services are to be distinguished bids for customers. A merchant may advertise to sell a particular article at a particular price. This, however, does not bind him to sell to all persons who may apply. A contractor bids for labor, but he is not bound to take all persons who offer to serve him on the terms he mentions. A landlord advertises to lease his house at a fixed price, but he is not bound to accept as a tenant any person offering to take the house at the rent specified. The distinction between advertisements of this class and proposals is that the advertisement is conditioned on the party advertising continuing able to make good his announcement, and on the person applying being acceptable; the proposal, on the other hand, makes a specified offer, by which, if accepted, the proposer is bound. Hence an advertisement offering goods for sale by tender, does not imply a promise to sell to the highest bidder, when such an offer is not expressly made;4 and the advertisement of a sale at auction does not, as we have seen, bind the auctioneer to put up all the property advertised.5 It is true that where there is a definite offer of shares from a company, or a prior definite agreement in respect to them, the application for the shares in pursuance of the offer or agreement may make a complete contract without any further notice of allotment.1 But a general offer of stock or other commodity to bidders is to be construed as reserving to the parties advertising a discretionary power in the acceptance of bids.2

From genera] proposals are to be distinguished bids for customers.

1 Payne v. Cave, 3 T. R. 148 ; Sweeting v. Turner, L. R. 8 Q. B. 310 ; Fisher v. Seltzer, 23 Penn. St 308 ; Groten-kemper v. Achtermayer, 11 Bush, 222 ; supra, sec 6.

2 Lewis, C. J., Fisher v. Seltzer, 23 Penn. St. 310.

3 Ibid. Mr. Langdell, Sum. Cont. sec 19, doubts the conclusion in Payne v. Cave, and argues "that the true view seems rather to be that the seller makes the offer when the article is put up, namely, to sell to the highest bidder ; and that when a bid is made there is an actual sale, subject to the condition that no one else shall bid higher.".

4 Spencer v. Harding, L.. R. 5 C. P. 561.

5 Harris v. Nickerson, L. R. 8 Q. B. 286.

Sec 27

Telegrams may be employed either to propose or to accept, and become, in either case, part of the evidence by which a contract can be established.3 The original written proposal or acceptance by telegraph is a sufficient memorandum in writing under the statute of frauds; but to satisfy the statute the writing must be signed by the party charged. When so signed, and assented to orally by the other side, it constitutes a contract of sale under the statute;4 supposing that it adequately expresses the terms of the proposal or acceptance, as the case may be.5 To satisfy the statute, it has been held that the original message must be produced.6 But in those jurisdictions in which the telegraph company is the agent of the sender, the message as delivered by the company must be regarded as the message of the sender, under the statute, and if duly signed or attested by the company must be regarded as duly signed or attested by the sender.1 -A party may agree to make a contract dependent on receipt of telegram, and such contract is binding on a telegraphic acceptance.2 - Whether the sender of a telegram makes the telegraph company his agent so that he becomes responsible for the message delivered by the company at its place of destination, has been much discussed. In England, in a case in which, after some negotiations for the purchase of "fifty" rifles, a telegram ordering "three" rifles was delivered so as to read "the rifles," so that fifty rifles were sent by the plaintiff (the receiver of the telegram) to the defendant (the sender of the telegram), it was held that the company was not to be regarded as the agent of the sender, and that therefore the plaintiff could not recover.3 In this country, however, the prevalent opinion is that the sender is bound by the message as delivered by the telegraph company,4 though where no agency on the part of the telegraph company is established, the original must be produced, or its loss explained.5 It has been objected that this, in consequence of the numerous mistakes incident to the transmission of letters by telegraph, exposes the sender of telegrams to undue risk; and no doubt blunders in the transmission of telegraphic messages are serious and constant.6 But to this may be given the following answers. (1) The mistakes of agents charged orally with specific duties are likely to be far more numerous and more serious than those of telegraphic operators charged with the transmission of messages, and if we refuse to impute to the principal the blunders of telegraphic agents, there is no blunder of other agents that can be so imputed. (2) To relieve telegraphic communications from the restrictions of the law of agency would be to expose the business of the country to a far greater peril than it is exposed to by treating the operator as the sender's agent. It is only by insisting on this agency, and then holding the company responsible to the sender under the law of agency, that general accuracy can be secured.1- It follows, also, from what has been stated, that the deposit of an acceptance in a telegraphic office, duly addressed to a proposer by telegram, is a due acceptance of the proposal, although never received by the proposer, supposing the acceptance to follow within reasonable time. It is true that this has been doubted in England ;2 but in cases where the proposer has selected a telegraphic company as his agent in making his proposal, or where he by letter authorizes his correspondent to reply by telegraph, there is good reason on principle to hold that it is sufficient if the acceptance be deposited in due time with the telegraphic company.3 That this is the case in respect to letters has been already seen.4

Telegrams may constitute contract.

' See Adam's case, L. R. 13 Eq. 474 ; Hamilton's case, L. R. 8 Ch. 548 ; Ham-ley's case, L. R. 5 C. D. 705; Jenner's case, L. R. 7 C. D. 132.

2 Spencer p. Harding, L. R. 5 C. P. 561; Thetcher v. England, 3 C. B. 254; Tamer p. Walker, L. R. 1 Q. B. 641; 2 Q. B. 301.

3 Wh. on Ev. sec 67, 618; Williamson v. Freer, L. R. 9 C. P. 393; Coup-land v. Arrowsmith, 18 L. T. (N. S.) 755; Henkel v. Pape, L. R. 6 Ex. Ch. 7; Unthank v. Ins. Co., 4 Biss. 357; Minn. Oil Co. v. Lead Co., 4 Dill. 431; Durkee v. R. R., 29 Vt. 127; Trevor v. Wood, 36 N. Y. 306 ; Beach v. R. R., 37 N. Y. 457; Leonard v. Tel. Co., 41 N. Y. 544; Benford v. Sanner, 40 Penn. St. 9 ; Robinson Works v. Chandler, 56 Ind. 575; Matteson p. Noyes, 25 111.

591; Saveland v. Green, 40 Wis. 431; West. Un. Tel. Co. v. Meyer, 61 Ala. 158; Williams v. Brickell, 37 Miss. 682; Taylor p. St. Robert Campbell, 20 Mo. 254.

4 Wh. on Ev. sec 617, 872; Godwin v. Francis, L. R. 5 C. P. 295; Reuss p. Pickley, L. R. 1 Ex. 342; Coupland v. Arrowsmith, 18 L. T. (N. S.) 755 ; Unthank p. Ins. Co., 4 Biss. 357 ; Dunning v. Roberts, 35 Barb. 463; Crane v. Ma-loney, 39 Iowa, 39; Wells v. R. R., 30 Wis. 605 ; see Stevenson v. McLean, L. R. 5 Q. B. D. 346.

5 Trevor v. Wood, 36 N. Y. 307; McElroy v. Bush, 35 Mich. 434; Saveland p. Green, 40 Wis. 431.

6 Durkee v. R. R., 29 Vt. 127. That this is the English rule may be inferred from Henkel v. Pape, L. R. 6 Ex. 7.

1 Hawley v. Whipple, 48 N. H. 487; Dunning v. Roberts, 35 Barb. 463; Trevor v. Wood, 36 N. Y. 307. A telegram in the words, "you may draw on me for $700," is not an acceptance of a bill in the technical sense, but it is an authority to draw at sight, and involves a promise to accept and pay, Franklin Bank v. Lynch, 52 Md. 270.

2 Household Ins. Co. v. Grant, L. R. 4 Ex. D. 223; Lewis v. Browning, 130 Mass. 195.

3 Henkel v. Pape, L. R. 6 Ex. 7.

4 Durkee v. R. R., 29 Vt. 127 ; Dunning v. Roberts, 35 Barb. 463 ; Trevor v. Wood, 36 N. Y. 307 ; Crane v. Maloney, 39 Iowa, 39; Saveland v. Green, 40 Wis. 431; Taylor v. St. Robt. Campbell, 20 Mo. 254; Scott & J. on Tel. sec 345.

5 Wh. on Ev. sec 1128; Benford v. Sanner, 40 Penn. St. 9 ; Matteson v. Noyes, 25 111. 591; Williams v. Brickell, 37 Miss. 682.

6 See article in Blackwood's Mag. for April, 1881, Eng. ed. vol. 129, p. 468. See infra, sec 1056.