A nice distinction may be taken here between (1) a so-called acceptance by which the acceptor agrees to become immediately bound oil a condition not named in the offer, and (2) an acceptance which adopts unequivocally the terms of the offer but states that it will not be effective until a certain contingency happens; or that it will become ineffective in a certain contingency. In the first case there is a counteroffer and rejection of the original offer; in the second case there is no counter-offer, since there is no assent to enter into an immediate bargain. There is, so to speak, an acceptance in escrow, which is not to take effect until the future. In the meantime, of course, neither party is bound and either may withdraw. Moreover, if the time at which the acceptance was to become effectual is unreasonably remote, the offer may lapse before the acceptance becomes effective. But if neither party withdraws and the delay is not unreasonable, a contract will arise when the contingency happens.14
8 The suggestion in Acme Grain Co. v. Wenaus, 36 Dom. L. Rep. 347, that a telegram purporting to "accept" a supposed offer cannot itself be an offer is unsound. It is immaterial that parties put an erroneous legal label on their acta.
9"Acceptance upon terms varying from those offered is a rejection of the offer-" Bank 9. Hall, 101 U. S. 43, 50, 26 L. Ed. 822.
10Stevenson v. McLean, 5 Q. B. D. 346. In this case in reply to an offer lor iron at 40 shillings, the offeree replied-" please wire whether you would sccept forty for delivery over two months, or, if not, longest limit you would give." After receiving this reply the offeror sold his iron and dispatched a notification of the sale to the offeree. Before this notice was received, however, the offeree had dispatched an unconditional acceptance.
It was held that a contract was thereby created.
11Mactier p. Frith, 6 Wend. 103, 21 Am. Dec. 262. Compare Howells v. Stroock, 50 N. Y. App. D. 344, 347, 63 N Y. Supp. 1074, where the court intimate that a suggestion in the reply of an offeree that he would "submit the defendants' offer to the mill" was "in the nature of a counter-proposition or offer." Undoubtedly the offer bad lapsed in this case by failure to accept promptly, but the intimation that the reply amounted to a counteroffer and therefore rejection seems unwarranted.
12 Addinell's Case, L. R. 1 Eq. 225; Cultonp. Gilchrist, 92 Ia. 718,61N. W. 384; Purrington v. Grimm, 83 Vt. 408, 76 Atl. 168.
13 Pennsylvania &, Delaware Oil Co. v. Klipstein, 175 N. Y. S. 640.