This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The actual knowledge of the offer on the part of the offeree is sufficient, but not always necessary. The communication which is requisite may not be an actual communication. A standardized form of communication is frequently sufficient. For the purposes of the law, an offer is communicated when it is brought to the attention of the adversary party in such a manner that by the use of ordinary intelligence he will learn its terms. Thus in case of written contracts, one who accepts a written offer which he has a fair opportunity to read, is bound by its terms in the absence of fraud or misrepresentation, even though he has not read them and does not know them;1 or if he misapprehends their legal effect.2
Connecticut Kearns v. Nickse, 80 Conn. 23, 10 L. R. A. (N.S.) 1118, 10 Am. & Eng. Ann. Cas. 420, 66 Atl. 779.
Illinois. Glucose Sugar Refining Co. v. Flinn, 184 III. 123, 56 N. E. 400.
Iowa. John Gund Brewing Co. v. Peterson, 130 Ia. 301, 106 N. W. 741; Hankins v. Young, 174 la. 383, 156 N. W. 380.
Michigan. Young v. Stein, 152 Mich. 310, 125 Am. St. Rep. 412, 17 L. R. A. (N.S.) 231, 116 N. W. 195.
Minnnesota. Ballard v. Lyons, 114 Minn. 264, 38 L. R. A. (N.S.) 301, 131 N. W. 320.
New Mexico. Jasper v. Wilson, 14 N. M. 482, 23 L. R. A. (N.S.) 982, 94 Ac. 951.
Ohio. Aetna Insurance Co. v. Stam-baugh-Thompson Co., 76 O. S. 138, 81 N. E. 173.
Oregon. McLeod v. Despain, 49 Or. 536, 124 Am. St. Rep. 1066. 19 L. R. A. (N.S.) 276, 90 Ac. 492, 92 Ac. 1088.
Pennsylvania. Douglas v. Hustead, 216 Pa. St. 292, 65 Atl. 670.
Washington. Keenan v. Lauritzen Malt Co., 57 Wash. 367, 106 Ac. 1122.
West Virginia. State v. McNeal, 66 W. Va. 411, 135 Am. St. Rep. 1038, 25 L. R. A. (N.S.) 178, 66 S. E. 512.
9 See ch. LIV.
10 Hankins v. Young, 174 la. 383, 156 N. W. 380.
1 Alabama. Martin v. Smith, 116 Ala. 639, 22 So. 917; Terry v. Ins. Co., 116 Ala. 242, 22 So. 532.
Illinois. Macpherson v. Morrill, 190 111. 194, 60 N. E. 86.
Indiana. Miller v. Powers, 119 Ind. 79, 4 L. R. A. 483, 21 N. E. 455.
Kansas. St. Louis & S. F. R. Co. v. Thirlwell, 88 Kan. 275, 128 Ac. 199.
Missouri. Crim v. Crim, 162 Mo. 544, 54 L. R. A. 502, 63 S. W. 489.
North Dakota. Little v. Little, 2 N. D. 175, 49 N. W. 736.
Ohio. Union, etc., Ins. Co. v. Hook, 62 O. S. 256, 56 N. E. 906.
2 Duaenberry v. Ins. Co., 188 Pa. St. 454, 41 Atl. 736.
On the other hand, a term of a written contract so inserted as not to be brought fairly to the attention of the adversary party does not bind him.4 A term in a written contract which is so inserted that a reasonably careful man could not be expected to see it, and which the offeree does not, in fact, see, is not regarded as a part of the offer.5
If a revenue stamp is placed over a provision in a note for interest so as to render it illegible, such provision will not be regarded as a part of the contract.6
A provision which is written on a sheet following that on which the contract is signed, is not treated as a part thereof.7 If, however, express reference in the contract is made to provisions which follow the signature, the parties are bound by such subsequent provisions.8
A provision found in a letter-head, bill-head, and the like, is not a part of the offer made by such letter or bill if the offeree does not read such provision and does not know that it is offered as a part of the contract.9 If, however, the offeree reads such provisions and they appear, by their terms, to be a part of the contract, the offeror can not avoid liability upon such terms on the ground that they were contained in the letter-head or the head of the order, and not in the body thereof.10
A printed statement upon the margin of a contract in small type which is not referred to in the body of the contract, is not a part thereof if the offeree does not know of such provision.11 If a contract is written upon letter paper, a provision printed in small type on the margin of such letter paper to the effect that all proposals are subject to the approval of the executive office, does not prevent such contract from taking effect at once if the promisor is represented by one having authority to make such contract, and if the promisee did not know of such provision.12 If the marginal provisions are printed in such type as to be as conspicuous as the remaining provisions of the contract, they are to be regarded as a part of the contract.13
3Taussig v. Bode, 134 Cal. 260, 54 L. R. A. 774, 66 Ac. 259.
4 Roe v. Naylor (1917), 1 K. B. 712; Lilly v. Person, 168 Pa. St. 219, 32 Atl. 23.
5 Roe v. Naylor (1917), 1 K. B. 712.
6 Peirpoint v. Peirpoint, 71 W. Va. 431, 43 L. R. A. (N.S.) 783, 76 S. E. 848. [Probably, from the context, it was the intention of the parties to eliminate the words over which the stamp was placed.]
7 Lilly v. Person, 168 Pa. St. 219, 32 Atl. 23.
8 Dickson v. Conde, 148 Ind. 279, 46 N. E. 998.
9 Sturm v. Boker, 150 U. S. 312, 37 L. ed. 1093; Summers v. Hibbard, 153 111. 102, 46 Am. St. Rep. 872, 38 N. E. 899; R. J. Menz Lumber Co. v. E. J. McNeeley & Co., 58 Wash. 223, 28 L. R. A. (N.S.) 1007, 108 Ac. 621.
10 Yorston v. Brown, 178 Mass. 103, 59 N. E. 654.
11 B. F. Sturtevant Co. v. Fireproof Film Co., 216 N. Y. 199, L. R. A. 1916D, 1069, 110 N. E. 440. See also, Stevens v. Venema, - Mich. - , 168 N. W. 531.
If the entire contract is in very small type, full effect must be given to each of its provisions,14 especially if the contract is a short one.15 If a by-law of a bank is brought to the attention of a customer as a part of the contract between the bank and its customers, such customer is bound thereby, even though he can not read.16
If B accepts the benefits which A offers as performance of A's oral offer which is made at the same time, B can not avoid liability upon the contract made by such offer and acceptance by claiming that he did not understand or hear the offer, if it was so made that he would have understood it if he had used ordinary care.17 If A offers money to B as a compromise, and B accepts such money, B can not avoid the contract of compromise by claiming that he did not hear the oral offer, if he could have heard such offer by the exercise of ordinary care.18