The same principle may find application in any form of contract. Especially is it to be observed that where an offeror requests a promise in return for his offer, the incurring of a detriment by beginning to perform the act which the offeree was requested to promise to perform will not create a contract;55
548, 142 N. W. 785; Whitcher v. State, 68 N. H. 605, 34 Atl. 745; Fargo v. Arthur, 43 How. Pr. 193; Tobin v. Mo-Comb (Tex. Civ. App), 156 S. W. 237. But see Stair v. Heska Amone Congregation, 128 Tens. 190, 159 S. W. 840.
51 Hawk v. Marion County, 48 Iowa, 472; Symmee v. Frasier, 6 Maw. 344, 4 Am. Dec. 142. In both these cases the reward was offered for the return of a sum of money and recovery of a proportionate part of the reward was allowed for the return of part of the
52See cases cited supra in this section, and especially Williams v. West Chicago St. R. Co., 191 111. 610, 61 N. B. 456, 85 Am. St. Rep. 278; Blain v. Pacific Exp. Co., 69 Tex. 74, 6 S. W. 679.
53Zwolanek v. Baker Mfg. Co., 150 Wis. 617, 137 N. W. 769, 44 L. R. A. (N.S.)1214. See further supra,Sec. 160a.
54 Clinton County Commissioners v. Davis, 162 Ind. 60, 69 N. E. 680, 64 L. R. A. 780.
55Whiter. Corliee, 46 N. Y.467. In this case the defendant wrote to the plaintiff: "Upon an agreement to finish the fitting up of offices, 57 Broadway in two weeks from date, you can begin at once." On receipt of this note the plaintiff purchased lumber and began work thereon. It was held that no contract was thereby created. What was requested was an agreement to finish the work, and starting performance was not a compliance with this offer. If the performance had been started in the presence of the offeror, it would probably have indicated such an agreement as the offer requested.
In Chicago & Great Eastern Ry. Co. v. Dane, 43 N. Y. 240, an offer was made to transport "not exceeding 6000 tons" . . . "during the months of April, May, June, July and August." It was held that this offer contemplated an acceptance defining the amount unless, at least the beginning of performance was in the presence or knowledge of the offerer and might fairly be interpreted as implying in fact a promise. So, if the offeror requests the performance of an act as the consideration of his promise, no contract is created by a mere promise to perform the act. Thus, where an option is conditional upon the payment of a sum of money, a promise by the offeree to pay the money is not an acceptance of the option.56
Sec. 76. If an offer prescribes the place, time, or manner of acceptance, its terms must be complied with. Not only may the offeror dictate the consideration which he demands as the return for the promise in his offer, but he may also dictate the way in which acceptance shall be indicated.57 As has been seen,58 the offeror may limit the time within which an offer may be accepted. So he may dictate the place at which acceptance must be made;59 likewise the manner for which the offeree accepted and no contract was performed by merely writing "I assent to your agreement," or by the subsequent tender of particular lots of iron for transportation. In Beckwith v. Cheever, 21 N. H. 41, the owner of land, proposed to the plaintiff, that he might take timber from the land upon paying for it in a certain way. The plaintiff said he would accept the proposition if he could get his brother to assist him. The owner told him he need not give a decided answer then, but might do bo thereafter. The plaintiff afterwards engaged his brother to assist him in cutting the timber, but never notified the owner that he had accepted his proposition. The court held that the offer had not become binding and that the plaintiff suffered no legal injury when the owner sold the timber to a third of communication which reached the offeror before twelve o'clock would be sufficient. If the offer contained the sentence "address me at Harper's Ferry," doubtless an acceptance addressed elsewhere would be sent at the peril of the acceptor, but if the offeree, while the offer was still pending, met the offeror in Washington, or, knowing that he was there, sent a note of acceptance to him, which actually reached him while the offer was still open, it may be well argued that a contract has been formed. The exact place of acceptance can be made an absolute condition of the offer, but it would seem that a reasonable man would naturally understand the clause in the offer referring to Harper's Ferry as meaning no more than "this is the address for which I am responsible. This is where a letter will surely reach me." On this principle it has been held that where an offer stipulates for an answer by return mail, it is not essential that the acceptance shall actually be sent by return mail, but merely that it shall reach the offeror as soon as a letter sent by return mail,61 and where there are a number of mails a day, an acceptance mailed in time for an outgoing mail on the same day on which the offer was received, though not in time for the first return mail, would probably be sufficient.62 Even though the offer prescribes as a condition and not merely a suggestion a particular mode of acceptance, a different mode adopted by the acceptor will become effectual if the offeror thereafter expresses his assent to the other party63 but it seems not otherwise. To allow a unilateral waiver of the method originally prescribed is open to objection.64 The irregular acceptance is a counter-offer and as such must itself be accepted.
56Lockman v. Anderson, 116 Iowa, 236, 89 N. W. 1072; Winders v. Kenan, 161 N. C. 628, 77 S. E. 687. See also Rickard v. Taylor, 122 Fed. 931, 69 C. C. A. 466.
57 Mott v. Jackson (Ala.), 66 So. 628, and see cases in this section, passim.
58 See supra, Sec. 53.
59 The leading case to this effect is Eliason v. Henahaw, 4 Wheat. 225. An offer requested an answer by return of wagon to Harper's Ferry. The acceptance was sent to Georgetown and received by the offeror at that place. The court said-"It waa entirely unimportant whether it was sent by that or another wagon, or in any other manner, provided it was sent to Harper's Ferry, and was not delayed beyond the time which was ordinarily employed by wagons engaged in hauling flour from the defendant's mill to Harper's Ferry. Whatever uncertainty there might have been as to the time when the answer would be received, there was none as to the place to which it was to be sent; this was distinctly indicated by the mode pointed out for the conveyance of the answer. The place, therefore, to which the answer was to be sent constituted an essential part of the plaintiffs' offer. Their offer, it is true, was accepted by the terms of a of acceptance may be a condition of the offer. Thus, if an offer requests an answer by telegram, an answer by mail will not create a contract.60 Care must be taken, however, in construing offers to make sure whether the offer does impose an absolute condition as to time, place, or manner of accepts ance, or merely suggests a method which will be satisfactory to the offeror; and in determining the construction of an offer in this respect, as in other respects, it is frequently necessary to look beyond the literal meaning of the language used. Thus, suppose an offer contains this language: "if you wish to accept this offer, send your office boy with your note of acceptance before 12 o'clock." Instead of sending his office boy, the offeree takes a note of acceptance himself to the offeror within the specified time. It can hardly be doubted that a contract has been formed. The statement in regard to the office boy in the offer is merely a suggestion as to a convenient method of getting the answer to the offeror. Probably any mode letter addressed Georgetown, and revived by the plaintiffs at that place; but an acceptance communicated at a place different from that pointed out by the plaintiffs, and forming a part of their proposal, imposed no obligation binding upon them, unices they hid acquiesced in it, which they declined doing." It seems possible that the court somewhat over-emphasised the importance of an acceptance at Harper's Ferry. Doubtless the offeror could make this a positive condition of his offer, but it may be questioned if this was the true construction of the offer. In this connection may be considered the numerous authorities that bold that title will not pass to goods shipped in response to an order unless the directions of the buyer are exactly observed. See Williston on Sales, Sec. 278. These decisions, however, do not decide that title may not pass when the goods actually arrive, but in Sun Publishing Co. v. Minnesota Type Foundry, 22 Or. 49, 29 Pac. ft, this question was presented. The plaintiff in ordering goods directed the defendant to mark them "Sun Publishing Co. Marshfield, Oregon, care of Coos Bay Coal & Navigation Co., San Francisco, Cal." Instead thereof, the defendant marked and shipped the goods to Flanagan & Bennett, bankers, at Marshfield, Oregon, together with an invoice of the goods so shipped, and bills of lading thereof, accompanied by a draft for the price. The court said: "Whether this departure from the plaintiff's instructions would of itself be sufficient to justify its refusal to take the goods, it seems is unnecessary for us to determine at this time; but some of the authorities to which our attention has been directed appear to hold as much. (Bruce v. Pearson, 3 Johns. 534; Corning v. Colt, 5 Wend. 263; Mason v. Henshaw, 4 Wheat 225.)" See also Knox v. McMurray, 159 Ia. 171,140 N. W. 652. Cf. infra, Sec.87.