Sometimes an acceptor from abundance of caution inserts a condition in his acceptance which merely expresses what
73 Gilbert v. Baxter, 71 Iowa, 327, 32 N. W. 364; Northwestern Iron Co. v. Meade, 21 Wis. 474,94 Am. Dec. 557. See also Greenwalt v. Este, 40 Kans. 418, 19 Pac. 803; Robinson v. Weller, 81 Ga. 704, 8 8. E. 447; Sawyer v. Brossart, 67 Iowa, 678, 25 N. W. 876, 56Am. Rep.371; Rogersv. French, 122 Iowa, 18, 96 N. W. 767; Hall v. Jones, 164 N. C. 199, 80 S. E. 228; Cram v. Long, 154 Wis. 13, 142 N. W. 267.
74Arthur v. Gordon, 37 Fed. 558; Wilkins Mfg. Co. v. Lumber Co., 94 Mich. 158, 53 N. W. 1045; DeJonge v. Hunt, 103 Mich. 94, 61 N. W. 341; United States Heater Co. v. Apple-baum, 126 Mich. 296, 85 N. W. 743.
75 Young's Market Co. v. Pioneer Produce Co., 192 Fed. 822; Four Oil Co. v. United Oil Producers Co., 145 Cal. 623, 79 Pac. 366, 68 L. R. A. 226; Brophy v. Idaho Produce Co., 31 Mont. 279, 78 Pac. 493; Kirwan v. Byrne, 9 N. Y. Misc. 76,29 N. Y. Supp. 287; Melchers v. Springs, 33 S. C. 279, 11 S. E. 788.
76Jones v. Daniel, (1894) 2 Ch. 332; Batie v. Allison, 77 Iowa, 313,42 N. W. 306.
77See Travis v. Nederland L. Ins. Co., 104 Fed. 486, 43 C. C. A. 653; Pike County v. Spencer, 192 Fed. Rep. 11, 112 C. C. A. 433; Phoenix Iron & Steel Co. v. Wilkoff Co., 253 Fed. 165,
166 C. C. A. 66, 1 A. L. R. 1497; Cage v. Black, 97 Ark. 613, 134 S. W. 942; Strong ft Trowbridge Co. v. Baars, 60 Fla. 253, 54 So. 92; Maclay v Harvey, 90 111. 525; Anglo-American Provision Co. v. Prentiss, 157 111. 506, 513, 42 N. E. 157; Davis v. Fidelity Fire Ins. Co., 208 111. 375, 383, 70 N. E. 359; Wheaton Building, etc., Co. v. Boston, 204 Mass. 218, 90 N. E. 598; Bastian Bros. Co. v. Wemott-Howard Co., 113 Minn. 196, 129 N. W. 369; Atwood v. Rose, 32 Old. 366,122 Pac. 929.
78 In Poel v. Brunswick-Balke-Col-lender Co., 216 N. Y. 310, 110 N. E. 619, an acceptance which contained the addition that prompt acknowledgment must be made was held ineffectual. The court said (at p. 622): "In Hough v. Brown, 19 N. Y. 111, 114, it was held that a letter referring to a previous verbal proposition which stated the terms of the oral proposition according to the understanding of the writers and accepted them and added to the acceptance the words, 'You will acknowledge the acceptance of the above,' etc., was held not to constitute a contract, but merely a proposition for a contract. In his opinion in that case Judge Comstock, referring to the requirement that the acceptance should be acknowledged, said: would be implied in fact or in law from the offer. As such a condition does not interfere with the expression of assent to all the terms of the offer, a binding contract is formed.79 Thus an offer to sell land may be accepted subject to the condition that the title is good. For unless the offer expressly specify that the offeree must take his chance as to the validity of the title, the meaning of the offer is that a good title will be conveyed.80 So where the defendant by letter offered to sell land, a reply, which requested the defendant to send the abstract and stated that the plaintiff would close the matter, was a valid acceptance.81 A further distinction has been suggested in regard to added terms in an acceptance. It has been held that if an acceptance in positive terms is made, the addition of a demand for some performance to which the acceptor would not be entitled under a proper construction of the agreement will not invalidate the acceptance and prevent the formation of a contract.82 It may be asked if one who is offered a contract of employment can reply "I accept your offer and demand that my work shall not exceed two hours a day;" and thereafter effectively assert that there is a binding contract. In other words, can an acceptance be valid if it is accompanied by a repudiation of one or more of the legal consequences of the supposed contract? It seems clear that if before a contract is finally concluded the parties become aware that they are insisting on different constructions of their duties thereunder no contract will arise.83
"This language, in such a connection, can mean nothing else than that the defendant was expected to signify his assent to the terms thus set forth. That being done, the agreement would be complete, and it would also be in writing, so as to leave no room for future controversy. This, we are satisfied, is the true interpretation of the letter; and it follows that no contract was made consisting merely of the proposal at Buffalo, and the letter of the two films referring to that proposal."
"In Barrow Steamship Co. v. Mexican Central Railway Co., 134 N. Y. 15, 22, 31 N. E. 281,263,17 L. R. A. 359, the parties negotiated by letter for the transportntion by the plaintiff of a party of immigrants from New York to Rome. In answer to a letter from the defendant which stated that there would probably be 250 or more in the party the plaintiff wrote, confirming the understanding between the parties that the defendant would ship not less than 250. The letter dosed with the words, 'Please confirm this and oblige.' To this letter defendant replied that there was a probability that the party would exceed 250. The number fur-nished was 134, and in an action to re-cover for the breach of a contract to furnish 250 passengers it was held that as 'no evidence of any definite understanding in respect to the number of pilgrims to constitute the party for transportation prior to that letter appears in the record, the statement in the letter must be treated as a proposition on the part of the plaintiff. And to give it the effect of a contract between the parties the accepts ance or adoption of it by the defendant was essential.'" See also Phoenix Iron & Steel Co. v. Wilkoff Co., 253 Fed. 165, 165 C. C. A. 65, 1 A. L. R. 1497.
79 Bennett v. Cummings, 73 Kan. 647, 85 Pac. 755; Cavender v. Waddingbam, 5 Mo. App. 457; Grimsrud Shoe Co. v. Jackson, 22 S. Dak. 114, 115 N. W. 666; Curtis Land & Loan Co. v. Interior Land Co., 137 Wis. 341, 118 N. W. 853, 129 Am. St. 1068.
80 Hussey v. Home-Payne, 8 Ch. D. 670, 4 App. Cas. 311; Morse v. Til-lotson etc., Co., 253 Fed. 340, 165 C. C. A. 122; I A. L. R. 1486; Ryder v. Johnson, 153 Ala. 482, 45 So. 181; cf. Fort Edward v. Fish, 86 Hun, 548, 33 N. Y. S. 784, 156 N. Y. 363, 60 N. E. 973.
81 Bushmeyer v. McGarry, 112 Ark. 873,1668. W. 168; cf. James v. Darby, 100 Fed. 224, 40 C. C. A. 341; Pacific Rolling Mill Co. v. Riverside Ac. R. Co., 90 Cal. 627, 27 Pac. 525.