21 This criticism is applicable to Harvey v. Facey , A. C. 552. The plaintiff there telegraphed the defendant, "Will you sell us Bumper Hall Pen. Telegraph lowest cash price." In reply the defendant telegraphed,- "Lowest price for Bumper Hall Pen, £900." And the plaintiff again telegraphed,-"We agree to buy Bumper Hall Pen for £900 asked by you. Please send us your title-deed in order that we may get early possession."
The court held no contract had been made, saying that the defendant's telegram contained no agreement to sell to the persons making the inquiry. Such construction of language is certainly not based on the natural inference which would be drawn by a
In any event there can be no doubt that a positive offer may be made even by an advertisement or general notice.22 Even a catalogue of an institution of learning,23 has been held in connection with other circumstances to amount to an offer. Offers of reward have been frequently made by means of advertisement.24 The only general test which can be submitted as a guide is the inquiry whether the facts show that some performance was promised in positive terms in return for something requested.
The mere expectation that a contract will be entered into and reasonable person under the circum-
In Smith v. Gowdy, 8 Alien, S66, the plaintiff wrote inquiring the quantity of rags defendant had and their price. The defendant replied "We have about a ton, and our price is 3 1/2cts." The plaintiff thereupon agreed to take the rags but the court held no offer had been made.
Again, in Lincoln v. Erie Preserving Co., 132 Mass. 129, the plaintiff telegraphed to the defendant "Telegraph bow much com you will sell, at lowest ash price." The defendant replied "Three thousand cases, one dollar five cents, open one week." On receipt of this message, the plaintiff sent a telegram "Sold corn, will see you tomorrow." The plaintiff had acted previously as a broker for the defendant, but had also dealt with the defendant as a principal. The court said: "The telegrams do not contain any offer by the defendant to sell to the plain-till ... the defendant says to the plaintiff that it will sell a certain quantity of corn, on certain terms, and within a certain time; but it does not say that it will sell to the plaintiff." In Nebraska Seed Co. v. Harsh, 98 Neb. 80,152 N. W. 310, L. R. A. 1915 F. 821, a letter of the defendant stated that be had about 1800 bushels of mil-let need of which he was mailing a sample and added "I want $2.25 per cwt. for this seed f. o. b. Lowell." The plaintiff immediately replied: Sample and letter received, accept your offer." The court held no contract was created. On the other hand, where in reply to an inquiry for the price of a specified quantity of goods an answer was made stating the price, this answer was given the natural construction of an offer to sell the goods to the inquirer at that price, in Fairmont Glass Works v. Crunden-Martin Co., 106 Ky. 659, 51 S. W. 196, and in Cros-sett v. Carteton, 23 N. Y. App. Div. 366, 48 N. Y. Supp. 309.
22 Carlill v. Carbolic Smoke Ball Co. (1893], 1 Q. B. 256 (an advertisement that the manufacturers of certain carbolic smoke balls would pay £50 to any person who used the smoke balls ss prescribed without success); Seymour v. Armstrong, 62 Kans. 720, 64 Pac. 612. (An advertisement positively offering certain price for all eggs shipped to the advertiser.) Vigo Ac. Society v. Brumfiel, 102 Ind. 146, 1 N. E. 382, 62 Am. Rep. 657; Tarbell v. Stevens, 7 Iowa, 163; Anderson v. Public Schools, 122 Mo. 61, 27 S. W. 610, 26 L. R. A. 707. See also Sheperd v. Kain, 5 B. & Ald. 240.
23 Niedermeyer v. Curators of University of Missouri. 61 Mo. App. 654; Horner School v. Wescott, 124 N. C. 518, 32 S. E. 885.
24 See, e. g., Williams v. Carwardine, 4 B. ft Ad. 621; Gibbons v. Proctor, 64 L. T. (N. S.) 694; Shuey v. United that negotiations have been made to carry that expectation into effect, do not constitute a contract.25