In order to make a bargain it is necessary that the acceptor shall give in return for the offeror's promise exactly the consideration which the offeror requests. If an act is requested, that very act and no other must be given. If a promise is requested that promise must be made absolutely and unqualifiedly. This does not mean necessarily that the precise words of the requested promise must be repeated, but by a positive and unqualified assent to the proposal the acceptor must in effect agree to make precisely the promise requested; 38 and if any provision is added to which the offeror did not assent, the consequence is not merely that this provision is not binding and that no contract is formed; 39 but that the offer is rejected.40
The new condition is as fatal when its inconsistency with the offer appears by implication only as when it is explicitly stated. Thus when an offer is made by mail to sell stock, a reply in terms accepting the offer, and adding "ship with draft attached" adds a new condition since by implication the place of delivery under the offer was the seller's residence, and the reply transfers it to the buyer's.41
37 Ozzola v. Musolino, 225 Maes. 512, 114 N. E. 733. This principle qualifies the statement sometimes made that the whole of a continuous correspondence must be considered. Hussey v. Home-Payne, 4 A. G. 311; Stro-bridge Co. v. Randall, 73 Fed. 619, 19 C. C. A. 611.
38 Young's Market Co. v. Pioneer Produce Co., 192 Fed, 822,113 C. C. A. 146; Nieschburg v. Nothera, 101 Kan. 110,165 Pac. 857; W. C. Sterling & Son Co. v. Watson ft Bennett Co., 193 Mich. 11, 159 N. W. 381; Bute v. Robertson, (Mo.), 191 S. W. 989; Glenn v. S. Birch ft Sons Const. Co., 52 Mont. 414, 158 Pac. 834; Morrison v. Parks, 164 N. C. 197, 80 S. E. 85, and see cases in this and the following sections.
39Compania Bilbaine v Spanish' American Co., 146 U. 8. 483, 36 L. Ed. 1054, 13 S. Ct. Rep. 142. In this case the insertion in a charter party of unauthorised clauses was held to invalidate the whole instrument. In Porter v. Gossell, 112 Ark. 380, 166 S. W. 533, the defendant offered to sell a car of oats at 42 cents, if the plaintiff would accept the city scale weights. A reply, requesting the shipment to be rushed, but demanding an affidavit attached to the scale weights, did not create a binding contract. See also Hayes v. Possehl, 92 Kan. 609, 141 Pac. 559.
40See infra,Sec. 587.
Where the plaintiff sent the defendant a contract calling for 4,000 poles and the defendant signed it after adding the words "more or less," and on its return the plaintiff signed it after striking out the words 'or less,' the conduct of the parties was held to amount to no more than a series of offers, no one of which was assented to. W. C. Sterling & Son Co. v. Watson ft Bennett Co., 193 Mich. 11, 159 N. W. 381, 382.