One of the necessary terms of any proposed contract is the person with whom the contract is to be made. Accordingly an offer made to one person cannot be accepted by another, even though the offeree purports to assign it.86 Nor does it make any difference whether it was important for the offeror to contract with one person rather than another.87 Whether this is true of an offer which has been made irrevocable by consideration, or a seal, and which is therefore a contract,88 is hereafter considered.89 Even a revocable offer, however, may be made not only to the public generally,90 but it may be made to a specified person or his assigns, and in such a case or has, in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into." The same principle is applied in Wheeling Creek Gas, etc., Co. v. Elder, 170 Fed. 215, 221; Schoonover v. Osborne, 108 Ia. 453, 79 N. W. 263; Fifer v. Clearfield Coal Co., 103 Md. 1, 62 All. 1122; Brighton Packing Co. v. Butchers' Association, 211 Mass. 398, 97 N. E. 780; Bushnell v. Chamberlain, 44 Neb. 751, 62 N. W. 1114; Kelly Asphalt Block Co. v. Barber Paving Co., 211 N. Y. 68, 105 N. E. 88, L. R. A. 1915 C. 256; Friedlander v. New York, etc, Ins. Co., 38 N. Y. App. Div. 147, Rease v. Kittle, 56 W. Va. 269, 49 8. E. 150. See also Werlin v. Equitable Surety Co., 227 Mass. 157, 116 N. E. 484.
Iowa, 718, 61 N. W. 384; Knox v. McMurray, 159 Ia. 171,140 N. W. 652, 657; Brown v. Cairns, 63 Kara. 693, 60 Pac. 1033; Phillips v. Moor, 71 Me. 78; Stotesburg v. Massengale, 16 Mo. App. 221; American Woolen Co. v. Moakowits, 159 N. Y. App. Div. 382, 144 N. Y. Supp. 532; Turner v. McCor-mick, 56 W. Va. 161, 49 S. E. 28, 67 L. R. A. 853; Curtis Land Ac Co. v. Interior Land Co., 137 Wis. 341, 118 N. W. 853, 129 Am. St. Rep. 1068.
86Simpson v. Hughes, 66 L. J. Ch. (N. S) 143,334; Neville v. Merchants', etc., Ins. Co., 17 Oh. 192.
87Boulton v. Jones, 2 H. & N. 584; Boston Ice Co. v. Potter, 123 Mass. 28 (25 Am. Rep. 9), the court said on page 30-"A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with soother to paint a picture, or write a hoot, or furnish articles of a particu-lar kind, or when he relies upon the charcter or qualities of an individual.
87 School Sisters v. Kusnitt, 125 Md. 323, 93 Atl. 928, and see cases cited in the preceding note.
88See supra, Sec. 61.
89See infra, Sec.415.
90See supra, Sec.32.
an assignee of the offeree, being within the terms of the offer, may accept it.91 Moreover, if after an offer is made to one person only, performance is tendered by another, though the offeror may refuse the tendered performance,92 yet if he does receive performance knowing that it is not tendered by or on behalf of the offeree, he will be liable. The tender of the performance is, in effect, a counter-offer, and receipt of the performance an acceptance of the counter-offer.93 Even if performance is received by the offeror under the supposition that it was rendered by the offeree, the offeror on learning the truth must surrender the performance if this is possible (or if the performance consisted of property which he has resold, he must pay over the proceeds of the resale) or he will in effect have accepted a counter offer.94 If, however, before notice of the facts such a situation has arisen that neither the performance nor any equivalent received for it can be returned the offeror is certainly not liable on any theory of contract and probably not liable quasi-contractually;95 for the conduct of the seller in failing to disclose his identity is wanting in the good faith which the law generally requires of one who seeks to base a claim on a benefit received without request.
91 Wheeling Creek Gas, etc., Co., v. Elder, 170 Fed. 215; Watkins v. Robertson, 105 Va. 269, 54 S. E. 33, 5 L. R. A. 1194, 115 Am. St. Rep. 880; Tibbs v. Zirkle, 55 W. Va. 59, 46 S. E. 701, 104 Am. St. Rep. 977. See Rease v. Kittle, 56 W. Va. 260, 279, 49 8. E. 150.
92 Mitchell v. LePage, Holt, N. P. 253; Barcus v. Domes, 64 N. Y. App. D. 109, 71 N. Y. Supp. 695, and cases in this section, passim. Cases should be carefully distinguished where the performance is furnished or tendered by a third person merely as agent for the offeree. Unless the performance is personal in character this is permissible. Thus where goods are ordered by A of B, who thereupon directs C to furnish them, and C does so, charging the cost to B, who in turn charges A, this is neither a rejection nor an assignment of the offer but a fulfilment of it. Petroleum Products Distributing Co. v. Alton Tank Line, 165 Ia. 398, 146 N. W. 52.
93Cincinnati Gas Co. v. Western Siemens-Lungren Co., 152 U. S. 200, 202, 38 L. Ed. 411, 14 S. Ct. 523; Barnes c. Shoemaker, 112 Ind. 512, 14 N. E. 367; Orcutt v. Nelson, 1 Gray, 536; Boston Ice Co. v. Potter, 123 Mass. 28, 30, 25 Am. Rep. 9. But in Deane p. Gray Bros. Paving Co., 109 Cal. 433, 42 Pac. 443, it was held that the mere fact that the defendant knew that a physician was treating a third person at the request of another, on the defendant's account, and was relying for compensation on the defendant, and that it made no objection, did not make it liable.
94Burton Lumber Co. p. Wilder, 108 Ala. 669, 18 So. 552; Mudge v. Oliver, 1 Allen, 74. See also Randolph Iron Co. p. Elliott, 34 N. J. L. 184.
95 Boulton v. Jones, 2 H. A N. 664; Barnes v. Shoemaker, 112 Ind. 512, 14 N. E. 367; Boston Ice Co. v. Potter, 123 Mass. 28,25 Am. Rep. 9; Dempsey v. Billinghurst, 7 So. Dak. 564,64 N. W.
Sec. 81. Acceptance in contracts by correspondence may be completed by mailing an acceptance. Frequently contracts are made between parties at a distance and it is of vital importance to determine at what moment the contract is complete. If the mailing of an acceptance completes the contract, what happens thereafter, whether the death of either party, the receipt of a revocation or rejection, or a telegraphic recalling of the acceptance, though occurring before the receipt of the acceptance, will be of no avail. Whereas if a contract is not completed until the acceptance has been received, in all the situations supposed no contract will arise. It was early decided that the contract was complete upon the mailing of the acceptance.96 The reason influencing the court was evidently that at the time of mailing acceptance there had been an overt manifestation of assent to the proposal. The court failed to consider that since the proposed contract was bilateral, as is almost invariably any contract made by mail, the so-called acceptance must also have become effective as a promise to the offeror in order to create a contract. The result thus early reached, however, has definitely established the law in England97 and in the United States98 and in