See also, on this question, The Question of Time In Accepting an Offer by Performing an Act, by William S. Bansemer, 36 American Law Review, 707.

6 Elkins v. Board of Commissioners, 86 Kan. 305, 46 L. R. A. (N.S.) 662, 120 Ac. 542; Zwolanek v. Baker Manufacturing Co., 150 Wis. 517, 137 N. W. 769.

7 Elkins v. Board of Commissioners, 86 Kan. 305, 46 L. R. A. (N.S.) 662, 120 Ac. 542.

The difficulties here presented have not been discussed by the courts to any great extent. In some of the cases revocation did not take place until the act which was called for by the offer had been substantially, though not literally, performed.13 A worked for the X company under a profit-sharing scheme by which A was to receive a certain share of the profits if he worked four thousand five hundred hours in one hundred consecutive weeks, and did not quit the employment of the X company, and was not discharged before January first of any year. A performed in compliance with the terms of such offer up to December thirtieth, on which date he was discharged. It was held that the X company could not withdraw such offer arbitrarily to defeat payment to A of his share of such profits, if such revocation would operate as a fraud upon one who had attempted in good faith to perform the service for which the reward was offered.14 If A has offered a prize to be paid to anyone who gives the correct answer as to the number of dots in an advertisement, B's act in counting such dots and in reporting the answer to A correctly, is an acceptance of such offer; and A can not subsequently change the rules of the contest so as to make an allowance for neatness and legibility in awarding the prize.15 If a prize is offered to the one who receives the highest number of votes upon ballots which are issued to subscribers to the newspaper which offers such prize, such newspaper can not change the rules of the contest after ballots have been secured and voted.16

8 See Sec. 1, 49.

9 See ch. LXXXVII. 10 See Sec. 117.

11 See Sec. 164.

12 Wilkinson v. Oliveira, 1 Bing. N. C. 400.

13 Zwolanek v. Baker Mfg. Co., 150 Wis. 517, 137 N. W. 769.

In other cases it seems that the offeree has not attempted to continue performance, but has sued upon the theory that his right is one for the damages which he has sustained by reason of such revocation;17 and that the damages in such cases are to be measured by the amount which he has lost by not being permitted to complete performance and to recover the contract price. In other cases performance has progressed so far that even if damages are mitigated as much as possible the promisor is liable to the full amount of his promise.18 While the theory as to the measure of damages may not be worked out in greater detail, it would seem that the offeror ought not to be allowed, by preventing the offeree from finishing the performance of the contract, to keep him from accepting the offer, without liability on the part of the offeror, in damages for the loss thus caused; and it would seem on the other hand, that the offeree ought neither to be required nor to be permitted to waste property or labor by continuing performance after the offeror has given notice of revocation, in order to enable himself to recover the full contract price.

If the contract is one which is to be accepted by doing an act, several distinctions should be noted with reference to the kind of act which is to be done, and with reference to the extent to which performance has gone. The offer may be one which requires for its acceptance the performance of an act which requires an appreciable interval of time; or it may require the performance of a series of different acts to which no separate consideration has been apportioned, and which by the terms of the offer must all be performed before the promisor can be required to perform. The offer may by its terms require the performance of a number of different acts to each of which the consideration has been apportioned by the terms of the offer.19 If A promises to pay B a certain sum per day for whatever work B may be willing to do and for whatever number of teams B may be willing to furnish, and A has paid B for the time for which B actually worked, A is not liable for refusal to continue B's employment, even though B had subsequently stated that he would put a certain number of teams at work as soon as he finished certain work of his own, on which he was using such teams, and although A assented thereto.20 The offer may be one in which a consideration is apportioned to certain of the acts to be done by the offeree, but which can not be performed unless the offeree also performs one or more acts for which no consideration is apportioned, but are necessary for the performance of the contract as a whole. If A promises to permit B to mine coal on A's land if B wishes to, in consideration of which B is to pay to A a certain amount for each ton which is mined, but B does not undertake to mine any coal, it is held that B's act in laying a track and in making preparations to mine coal at a considerable expense, amounts to an acceptance so that A can not thereafter revoke such offer.21 If A promises to pay a commission to B, as exclusive agent, if B sells certain land for A, and B does not promise to sell such land or to do anything thereto, it has been held that after B has expended time and energy in attempting to find a purchaser, A can not revoke such offer.22 The broker has been allowed to recover his commission, although he did not obtain a purchaser until after notice of revocation.23

14 Zwolanek v. Baker Mfg. Co., 150 Wis. 517, 137 N. W. 769.

15 Minton v. F. G. Smith Piano Co., 36 D. C. App. 137, 33 L. R. A. (N.S.) 305.

16 Mooney v. Daily News Co., 116

Minn. 212, 37 L. R. A (N.S.) 183, 133 N. W. 573.

17 Christie v. Patton, 148 Ala. 324, 42 So. 614.

18 Los Angeles Traction Co. v. Wil-shire, 135 Cal. 654, 67 Ac. 1086.

19 Christie v. Patton, 148 Ala. 824, 42 So. 614.

20 Christie v. Patton, 148 Ala. 324, 42 So. 614.

21 Pratt Consolidated Coal Co. v. Short, 191 Ala. 378, 68 So. 63.

22 Arkansas. Bluthental v. Bridges, 91 Ark. 212, 24 L. R. A. (N.S.) 279, 120 S. W. 974.

Kansas. Braniff v. Baier, 101 Kan. 117, L. R. A. 1917E, 1036, 165 Ac. 816.

Michigan. Axe v. Tolbert, 179 Mich. 556, 146 N. W. 418.

Mississippi. Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 810.

Oklahoma. Cloe v. Rogers, 31 Okla. 255, 38 L. R. A. (N.S.) 366, 121 Ac. 201.

Wisconsin. John E. DeWolf Co. v. Harvey, 161 Wis. 535, 154 N. W. 988.

23 Bluthental v. Bridges, 91 Ark. 212, 24 L. R. A. (N.S.) 279, 120 S. W. 974; Braniff v. Baier, 101 Kan. 117, L. R. A. 1917E, 1036, 165 Ac. 816; John E. DeWolf Co. v. Harvey, 161 Wis. 535, 154 N. W. 988.

In general it may be said that with little regard to abstract theory, the courts have generally assumed that such offers are irrevocable after performance had begun, in accordance with the terms of the offer.24 B sold a patent to A, and as part of such contract B agreed not to compete with A,'and to disclose to A any improvements in such patent which he might make; but B did not covenant to attempt to make any improvements. Subsequently A promised to compensate B for his services if he would invent and perfect a certain specified improvement. B began such work and perfected such improvement, but refused to transfer such invention to A. A sued for specific performance and injunction. It was held that A's promise became binding on A as soon as B began work; and that accordingly B was bound to transfer to A any invention which he might make.25 It is said the offer which by its terms requires the offeree to do certain acts in performance of the contract, may be accepted by the offeree's beginning such performance if such acts of the offeree are communicated to the offeror.26 Whether the offeror must know that such performance has begun, is discussed elsewhere.27