In the nature of the case it is impossible for an offeree actually to assent to an offer unless he knows of its existence. A simple contract when not based on actual consent at least requires what the parties are justified in regarding as such. There can be obviously no real assent until the offer has been communicated; and unless an act done or language spoken by the offeree in ignorance of the offer, was of a character which a reasonable person in his position ought to have known or mines connection, or delivers a passenger at his destination after the schedule time, unless the delay is erased by no fault of the carrier, the passenger has a right to recover compensation for his loss of time and actual expense." Coleman v. Railroad Co., 138 N. C. 351, 354, 50 S. £. 690. If it were true that the pointed schedule was an offer, there would be no condition implied in the offer that deity caused by no fault of the carrier mould be an excuse. Such conditions are not implied in real offers. The instances when impossibility is a defense are narrowly limited. See infra, Sec.1935.
69 De La Bero v. Pearson (1907), 1 K. B. 483, aff'd in (1908) 1 K. B. 280.
70 The case is criticised on this ground in 23 L. Quarterly Rev. 133. The English courts by unduly narrowing the boundaries of liability in tort seem to have been driven to extend unwarrantably the province of contract. See an article on liability for Honest Misrepresentation, 24 Harv. L. Rev. 415.
was calculated to deceive, there is nothing which the other party is justified in regarding as assent, and it may be shown that the act done, or language used, did not really mean assent.71 This seems clear upon principle, but in one class of cases, especially, there are a number of decisions which disregard the rule. Where an offer of reward has been published, one who performs the offer requested in ignorance of the existence of the offer, has been held entitled in some jurisdictions to recover the promised reward.72
Doubtless the reason for these decisions is the feeling of the court that the defendant has received the benefit for which he asked, and for which he expected to pay, and therefore that he should be required to pay. It is impossible, however, to find a contract in any proper sense of that word in such a case. If it is clear the offeror intended to pay for the service, it is equally certain that the person rendering the service performed it voluntarily and not in return for a promise to pay. If one person expects to buy, and the other to give, there can hardly be found mutual assent. These views are supported by the great weight of authority, and generally a plaintiff in the sort of case under discussion is not allowed to recover.73 The view that unless there is some estoppel to deny communication, nothing can properly be called an offer which has not been communicated, is supported, moreover, not simply by the bulk of American cases on rewards which hare been referred to above, but also by decisions which hold that an offer cannot be supplemented by a subsequent letter of the offeror which had been sent but not received by the acceptor at the time when he gave his acceptance.74
71 Richardson v. Rowntree , A. C. 217; The Majestic, 166 U. S. 375, 41 L. Ed. 1039; Saunders v. Southern Ry. Co., 128 Fed. 15, 62 C. C. A. 523; Malone v. Boston ft Worcester R. R., 12 Gray, 388, 74 Am. Dec. 598; Martin v. Central R. R-, 121 N. Y. App. Div. 552, 106 N. Y. Supp. 226; Black v. Atlantic Coast Line R. Co., 82 S. C. 478, 64 S. E. 418. See also Robertson v, Rowell, 158 Mass. 94, 97, 32 N. E. 898, 35 Am. St. Rep. 466.
72 Williams v. Carwardine, 4 B. ft Ad. 621; Gibbons v. Proctor, 64 L. T. (N. S.) 594; Eagle v. Smith, 4 Houst. 293; Dawkins c. Sappington, 26 Ind. 199; Sullivan v. Phillips, 178 Ind. 164, 98 N. E. 868; Everman v. Hyman, 26 Ind. App. 165, 28 N. E. 1022; Auditor v. Ballard, 9 Bush, 572, 15 Am. Rep. 728; Coffey v. Commonwealth, 18 Ky.
L. Rep. 646, 37 S. W. 576; Russell v. Stewart, 44 Vt. 170. See also Drum-mond v. United States, 35 Ct. Claims, 356. A distinction may be taken where the right to a reward is based upon a statute. It is of course possible for a statute to provide for a reward to one who does a certain act whether he did it in expectation of the reward or not. See Taft v. Hyatt, (Kans., 1919), 180 Pac. 213; Broadnax v. Ledbetter, 100 Tex. 375, 99 S. W. 1111, 9 L. R. A, (N. S.) 1057; Choice v. Dallas (Tex. Civ. App.), 210 S. W. 753.
73 Morrell v. Quarles, 35 Als. 544, 550; Hewitt v. Anderson, 56 Cal. 476, 38 Am. Rep. 65; Wilson v. Stump, 103 Cal. 255, 37 Pac. 151; Williams v. West Chicago St. Ry. Co., 191 111. 610, 61 N. E. 456, 85 Am. St. Rep. 278; Taft v. Hyatt, (Kans., 1919), 180 Pac.
Sec. 33a. The whole consideration most be given after knowledge of the offer. It is essential on principle also that the offeree shall know of the existence of the offer, not only before he has completely performed the consideration requested, but before he has performed any part of it; otherwise the consideration requested is not given as a whole in exchange for the offer75 The contrary has been held in several cases 76 where the plaintiff was allowed to recover a reward offered for the apprehension of a criminal though he had not acquired knowledge of the reward until after part of the requested services had been rendered, but knew of the offered reward and intended to claim it before the completion of the requested services. But a consideration of supposititious cases involving the same principle shows that such a result cannot be supported. If E makes R a Christmas present of $20 in ignorance of the fact that R has offered to give a set of books to any one who will give him $25, he surely cannot by giving the remaining $5 after Christmas, when he has learned of the offer, and intends to accept it, entitle himself to the reward.
213; Ball p. Newton, 7 Cush. 599; For-sythe v. Mumane, 113 Minn. 181, 129 N. W. 134; Smith p. Vernon County, 188 Mo. 601, 87 N. W. 949, 70 L. R. A. 59; (Cf. Haggard v. Dickeraon, 180 Mo. App. 70, 165 S. W. 1136); Furman v. Parke, 21 N. J. L. 310; Mayor of Ho-boken c. Bailey, 36 N. J. L. 490; Fitch v. Snedaker, 38 N. Y. 248, 97 Am. Deo. 791; Howland v. Lounda, 51 N. Y. 604, 10 Am. Rep. 654; Vitty v. Fley, 51 N. Y. App. D. 44, 64 N. Y. Supp. 397; Sheldon p. George, 132 N. Y. App. D. 470, 116 N. Y. S. 969; Rubenstein v. Frost, 116 N. Y. Supp. 681; Couch v. State, 14 N. Dak. 361, 103 N. W. 942; Stamper p. Temple, 6 Humph. 113, 44 Am. Dec 296; Broad-nax v. Ledbetter, 100 Tex. 375, 99 S. W. 1111, 9 L R. A. (N. S.) 1057; Tobin v. McComb (Tex. Civ. App.), 156 S W. 237; Choice v. Dallas (Tex. Civ. App.), 210 S. W. 753.
74 Than v. Hoffman, 29 L. T. (N. S.) 271, stated supra, Sec. 23, n. 7; James v. Marion Fruit Jar Co., 69 Mo. App. 207. See also Harris v. Scott, 67 N. H. 437, 32 Atl. 770, and supra, Sec. 23. Cp. Mactier's Adm. v. Frith, 6 Wend. 103, 21 Am. Dec. 262. See also Cox p. Troy, 5 B. & Ald. 474, where it was held that a drawee who had written his acceptance upon the draft was entitled to cancel the acceptance prior to the redelivery of the draft to the holder and prior to any communication to him of the acceptance.
75 This was so held in Williams p. West Chicago Street Ry. Co., 191 11I. 610,61 N. E. 456,85 Am. St. Rep. 278, where it was held that the plaintiff was not entitled to a reward because, among other reasons, the services were largely though not entirely rendered before the plaintiff knew of the reward.
76Coffey p. Commonwealth, 18 Ky. L. Rep. 646, 37 S. W. 575; Smith p. Vernon County, 108 Mo. 501, 87 8. W. 949, 70 L. R. A. 59; Hoggard p. Dickeraon, 180 Mo. App. 70,165 S. W. 1135.
It must be borne in mind, however, that the fact that the offeree has made preparation for the performance which is requested, will not debar him from accepting the offer later by doing the requested act. Thus if a reward is offered for the apprehension of a criminal and the plaintiff, before knowledge of the reward, has gone to great labor in detecting the criminal, and learning his whereabouts, and is about to apprehend him, he may entitle himself to the reward by making the actual apprehension after the offer comes to his knowledge.