It is the universal rule that an offer must be accepted before it will become a binding promise, and result in a contract.30 This rule springs from the very nature of contract as involving the element of agreement.31 An unaccepted offer, therefore, cannot create any rights, or bind the party making it to the party to whom it is made. A fortiori, it cannot bind the party to whom courts hold that, where a contract limiting the common-law liability of the carrier is contained in a bill of lading, the burden is on the carrier to show that the limitations were assented to. See Michigan Cent. R. v. Manufacturing Co., 16 Wall. 318, 21 L. Ed. 297; 9 Cyc. Law & Proc. 263. One who accepts a document reasonably purporting to be a mere check or voucher, and not a contract, without knowledge of stipulations contained in it, does not assent to such stipulations. Malone v. Railroad Corp., 12 Gray (Mass.) 388, 74 Am. Dec. 598. See Fonseca v. Steamship Co., supra. See "Carriers," Dec. Dig. (Key-No.) §§ 62, 153; Cent. Dig. §§ 195-206 1/2, 687-690.
29 As to whether an offer under seal, which has been communicated, may be revoked, see post, 40.
30 PRESCOTT v. JONES, 69 N. H. 305, 41 Atl. 352, Throckmorton Cas. Contracts, 10 [cit Clark on Contracts]; Payne v. Cave, 3 Term R. 148; Tuttle v. Love, 7 Johns. (N. Y.) 470; Tucker v. Woods, 12 Johns. (N. Y.) 190, 7 Am. Dec. 305; First Nat. Bank v. Hall, 101 U. S. 43, 25 L. Ed. 822; McKinley v. Watkins, 13 111. 140; Bruce v. Bishop, 43 Vt, 161; Weiden v. Woodruff, 38 Mich. 130; Brown v. Rice, 29 Mo. 322; Belfast & M. L. R. Co. v. Inhabitants of Unity, 62 Me. 148; Bower v. Blessing, 8 Serg. & R. (Pa.) 243; King v. Warfield, 67 Md. 246, 9 Atl. 539, 1 Am. St. Rep. 384; Missouri Pac. Ry. Co. v. Railway Co. (C. C.) 31 Fed. 864; Etheredge v. Barkley, 25 Fla. 814, 6 South. 861; Hodges v. Sublett, 91 Ala. 588, 8 South. 800; Graff v. Buchanan, 46 Minn. 254, 48 N. W. 915; Bronson v. Herbert, 95 Mich. 478, 55 N. W. 359; McCormick Harvesting Mach. Co. v. Richardson, 89 Iowa, 525, 56 N. W. 682; State v. Board of Public Service of Columbus, 81 Ohio St 218, 90 N. E. 389; Wm. J. Lemp Brewing Co. v. Secor, 21 Okl. 537, 96 Pac. 636. See "Contracts," Dec. Dig. (Key-No.) § 16; Cent. Dig. §§ 71-92.
31 Ante, p. 3. Suppose A. makes an offer by letter to B. to sell him certain goods at a certain price, and B., not knowing of the offer, makes an offer by letter to A. to buy the goods at that price, and the letters cross each other. This is not sufficient to constitute a contract, for there is no acceptance by either of the other's offer, though it may be said that the minds of the parties are ad idem. See Tinn v. Hoffman, 29 L. T. (N. S.) 271. See "Contracts," Dec. Dig. (Key-No.) § 16; Cent. Dig. §§ 71-92.
it is made.32 "A contract," it has been said by Pothier, "includes a concurrence of intention in two parties, one of whom promises something to the other, who, on his part, accepts such promise. A pollicitation is a promise not yet accepted by the person to whom it is made. Pollicitatio est solius offerentis promissum. A pollicitation, according to the rules of mere natural law, does not produce what can be properly called an obligation; and the person who has made the promise may retract it any time before it is accepted; for there cannot be any obligation without a right being acquired by the person in whose favor it is contracted against the party bound. Now, as I cannot, by the mere act of my own mind, transfer to another a right in my goods, without an intention on his part to accept them, neither can I by my promise confer a right against my person, until the person to whom the promise is made has, by his acceptance of it, concurred in the intention of acquiring such right."33
An offer, as we shall presently see, can be revoked at any time before acceptance. Acceptance, whether by words or by conduct, supplies the element of agreement, which binds the party making it to a fulfillment of its terms.34 It changes the character of the offer, and makes it a promise.38
32 Stensgaard v. Smith, 43 Minn. 11, 44 N. W. 6G9, 19 Am. St. Rep. 205; Melchers v. Springs, 33 S. C. 279, 11 S. E. 7S8. See "Contracts," Dec. Dig. (Key-No.) § 16; Cent. Dig. §§ 71-92.
33 Poth. Obl. p. 1, c. 1, § 1, art. 2.
34Harris' Case, L. R. 7 Ch. App. 587; Thruston v. Thornton, 1 Cush. (Mass.) 91; Bowen v. Tipton, 64 Md. 275, 2S9, 1 Atl. 861; Equitable Endowment Ass'n v. Fisher, 71 Md. 430, 18 Atl. SOS; Fried v. Insurance Co., 50 N. Y. 243; White v. Baxter, 71 N. Y. 254; Hamilton v. Insurance Co., 5 Pa. 339; Wheeler v. Railroad Co., 115 U. S. 29, 5 Sup. Ct. 1061, 1160, 29 L. Ed. 341; Hawkinson v. Harmon, 69 Wis. 551, 35 N. W. 28; Wilcox v. Cline, 70 Mich. 517, 38 N. W. 555; Merchant v. O'Rourke, 111 Iowa, 351, 82 N. W. 759. A bid at an auction sale is accepted when the hammer is struck down, and the contract is then complete. Payne v. Cave, 3 Term R. 148; Blossom v. Railway Co., 3 Wall. 196, 18 L. Ed. 43; Ives v. Tregent, 29 Mich. 390. Where an offer is made containing conditions, an acceptance without qualification is an acceptance of the conditions, and makes a binding contract. Lawrence v. Railway Co., 84 Wis. 427, 54 N. W. 797. See "Contracts," Dec. Dig. (Key-So.) § 22; Cent. Dig. §§ 82-92, 104-108.
35 See Gartner v. Hand, 86 Ga. 558, 12 S. E. 878. See "Contracts," Dec. Dig. (Key-No.) § 22; Cent. Dig. §§ 82-92, 104-108.