Sec 10

Supposing a proposal to be made orally, the negotiators conversing face to face, or by telephone, there can be no question that if the person addressed hesitates, the person proposing can withdraw the proposal before the person addressed signifies his acceptance. A similar right of withdrawal exists when the proposal is made by mail or by telegraph.1 "If there be no contract until acceptance, there is nothing by which the proposer can be bound."2 Before acceptance a proposal is "but an ofter to contract, and the parties making the offer might undoubtedly withdraw it at any time before acceptance."3- The right to revoke before acceptance is one which prior conditions cannot limit.-Thus, at an auction sale, the bidder may recall his bid at any time before the hammer falls, though the conditions of sale are that no bidding shall be retracted,4 and the seller may retract though the sale was to be without reserve.5 It would be a petitio principii to say that the party retracting was bound by contract not to retract, since it is to this very contract not to retract that his retracting applies.6 But as we will soon see more fully, when an acceptance has been duly posted or telegraphed, a revocation is ordinarily too late.7-Whether there is a revocation, is, in all cases of conflicting inferences, a question of fact. Thus in a New York case in 1880, in a contract for the sale of 5000 feet of lumber was the following clause: "and I agree to pay said Q. four and a half cents per foot for from six to fourteen thousand feet of the same kind and quality of the timber as aforesaid, and delivered at place aforesaid during the winter, to be paid on the first day of June, 1874." There was no acceptance by Q. of the proposal to deliver the additional lumber. It was held that the clause quoted was a mere proposal, not binding until acceptance, and that it could therefore be revoked at any time before acceptance; but that the proof of revocation before acceptance must be made out by the party setting up the revocation, and that the question whether there was a revocation, supposing there was no order revoking produced, and there was conflicting testimony, was one of fact to be decided on all the circumstances of the case.1-It is also to be kept in mind that, as the performance of the consideration involves an acceptance, and as it is not necessary that the performance of the consideration should at the time be communicated to the proposer unless required by the terms of the contract, a proposal cannot be revoked after the consideration has been performed.2 But the consideration must be entirely performed before the promisee can sue. It is not enough for it to be begun. The condition must be performed entire.3

Until accepted a proposal may be revoked, but not afterwards.

1 Vangerow, sec 603; Windscheid, sec 305 ; Pollock, 3d ed. 22; Routledge v. Grant, 4 Bing. 653; Honeyman v. Mar-ryatt, 21 Beav. 14; 6 H. L. C. 112; Harris's case, L. R. 7 Ch. 587 ; Stitt v. Huidekopers, 17 Wall. 384 ; Beckwith v. Cheever, 21 N. H. 41; Faulkner v. Hebard, 26 Vt. 452; Boston & Me. R. R. Co. v. Bartlett, 3 Cush. 224; Crocker v. R. R., 24 Conn. 249 ; Moline Co. v. Beed, 52 Iowa, 307; Burton v.

Shotwell, 13 Bush, 271; and cases hereafter cited.

2 Benj. on Sales, 3d Am. ed. sec 41.

3 Fletcher, J., Boston, etc. R. R. v. Bartlett, 3 Cush. 224.

4 Sugden, V. & P. 11; Dart, V. & P. 3d ed. 80; Leake, 2d ed. 42; as to auctions, see infra, sec 25 6, 267, 443.

5 Warlow v. Harrison, 1 E. & E. 295 ; Harris v. Nickerson, L. R. 8 Q. B. 286.

6 Benj. on Sales, 3d Am. ed. sec 41.

7 Infra, sec 11, 18, 27.