Every offer, as has already been seen, is a promise.85 It follows that if a seal is put upon an offer, it becomes a binding promise.86 The promise is, of course, conditional and until the performance of the condition is made or tendered, there will be no liability upon the promise, but in this respect the promise does not differ from any conditional promise in a contract. So, if consideration is paid for an offer, though no seal is attached, the offer is a contract. Such contracts are generally called options.87
83 A typical case of this sort is an offer to buy or sell for cash. In Ide v. Leiaer, 10 Mont. 5, 24 Pac. 695, 24 Amer. St. Rep. 17, the plaintiffs pleading stated an offer by the defendant to sell land for $1000. The plaintiff alleged tender within the time limited by the offer and a refusal. The court without discussing the point suggested, and assuming apparently that a bilateral contract was formed (and it is not perhaps clear that the offer might not properly-have been so construed), held the defendant liable. So McKen-aie v. Stewart, 106 Als. 241, 72 So. 109; Fisk v. Batterson, 106 N. Y. App. Div. 952, 150 N. Y. S. 242, where the offers were for the purchase of stock.
84 As it was in McKensie p. Stewart, 196 Ala. 241, 72 So. 109.
85 See supra, Sec. 25.
86O'Brien v. Boland, 166 Mass. 481, 44 N. E. 602; Thomason v. Bescher, 176 N. Car. 622,97 S. B. 664,2 A. L. R. 626, and note 2 A. L. R. 631; Gaar Scott Co. v. Ottoson, 21 Manitoba. L. R. 462, 19 West. L. R. 472. See also infra, Sec.217.
87 "In the case of Black v. Maddox, 104 Ga. 157, 30 S. E. 723, an option is defined to be 'the obligation by which one binds himself to sell and leaves it discretionary with the other party to buy . . . which is simply a contract by which the owner of property agrees with another person that he shall hare
Instead of making the promise contained in an offer directly enforceable by means of a seal or consideration, not infrequently a collateral promise is made by the offerer that he will leave the offer open for a specified time, and this collateral promise is supported by seal or consideration. It has been suggested that in such cases the offeror has the power to revoke his offer, thereby rendering himself liable in damages, not on the main contract which he offered to enter into but on the subsidiary promise to leave his offer open;88 but since the agreement on the part of the offeree that his offer shall remain open can readily be enforced, and the intention of the parties carried out by simply regarding the offer as irrevocable during the agreed period, it is hard to find a good reason why the law should not thus specifically enforce the contract; and, in fact, without regard to whether the offeror expressly promised for consideration to leave his offer open for a fixed period by a collateral promise, or simply made the main promise in the offer though conditional upon some future performance binding by present consideration, the courts in both cases have held the offer irrevocable.89 the right to buy the property at a fixed price within a certain time.' See also Lits v. Gooding, 93 Ky. 185, 19 S. W. 627, 21 L. R. A. 127; Trogdon v. Williams, 144 N. C. 192, 56 S. E. 866, 10 L R. A. (N. 3.) 867." Swift v. Erwin, 104 Ark. 469, 148 S. W. 267, 209. It is, of course, equally possible for the discretion to be given to the seller, while the buyer is under an absolute obligation.
88 Langdell, Summary, Sec. 178; Aeh-ley on Contracts, Sec. 13.
89 Mathews Slate Co. v. New Empire Bate Co., 122 Fed. 972; Johnston v. Trippe, 33 Fed. 530; Ross v. Parks, 93 Ala. 153, 8 So. 368, 11 L. R. A. 148; Walter G. Reese Co. p. House, 162 Cal 740, 124 Pac. 442; Marsh v. Lott, 8Cal. App. 384, 97 Pac. 163; Simpson v. Sanders, 130 Ga. 266, 60 S. E. 641; Hayes v. O'Brien, 149 111. 403, 37 N. E. 73, 23 L. R. A. 666; Seyferth v. Groves etc R. Co., 217 111. 483, 76
N. E. 622; Adams v. Peabody Coal Co., 230 111. 469, 82 N. E. 646; Souffrain v. MacDonald, 27 Ind. 269; Herrman v. Babcock, 103 Ind. 461, 3 N. E. 142; Thompson v. Reid, 31 Ky. L. Rep. 176, 101 S. W. 964; Gustin v. Union School District, 94 Mich. 602, 64 N. W. 166, 34 Am. St. Rep. 381; Cameron c. Shumway, 149 Mich. 634, 113 N. W. 287; Smith v. Cauthen, 98 Miss. 746, 64 So. 844; Hawrslty v. Warren, 18 N. J. Eq. 124, 90 Am. Dec. 613; New England Box Co. v. Prentiss, 75 N. H. 246, 72 Atl. .826; Fuller v. Artman, 69 Hun, 646, 24 N. V. Supp. 13; Winders v. Kenan, 161 N. C. 628, 77 S. E. 687; House v. Jackson, 24 Ore. 89, 32 Pac. 1027; Bradford v. Foster, 87 Tenn. 4, 9 S. W. 195; Walker v. Bamberger, 17 Utah, 239, 64 Pac. 108; Cummins v. Beavers, 103 Vs.. 230, 48 S. E. 891, 106 Am. St. Rep. 881; Baker p. Shaw, 68 Wash. 99, 122 Pac. 611; Weaver v. Burr, 31 W. Va. 736, 743, 8 S. E. 743.
And so in jurisdictions where a seal still has its early significance if the offer was under seal.90
Most of the cases cited on the point relate to options for the sale of land, and the suggestion is possible that as the contract proposed by the offer in such a case would be specifically enforceable because it relates to land the subsidiary contract to keep the offer open might also be specifically enforced, without admitting that such subsidiary agreements are specifically enforceable when the offer is of a different character. But none of the cases take this distinction and there is authority for the same rule in the case of an offer to sell chattel property.91 An offer or option made binding by consideration or a seal differs only in this respect from other conditional contracte:-In most contracts, even conditional contracts,-it is the giving of the consideration, if the contract is unilateral, or the performance of the promise given as consideration if the contract is bilateral, which is the real price or equivalent of the performance of the promise by the other side. The performance of conditions, however essential to the right to enforce performance from the opposite party, is not itself the performance requested in exchange by that party. But in an option performance of the condition is also giving the requested price for the performance of the other side to the contract.