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.
While the offeror has no right to withdraw such an offer, he not infrequently attempts to do so: and an important question arises as to the effect upon the offer of the attempted revocation. Is the attempted revocation a nullity, leaving the original offer open, so that acceptance within the time limited will make it a contract; or does it revoke the offer, leaving the offeror liable for breach of his contract not to revoke the offer Many of the cases which declare that an offer to be open for a fixed time on a valuable consideration is irrevocable do so in obiter, as in such cases the offer was either accepted before revocation,1 or was not accepted until after the offer had lapsed by efflux of time.2 Of the cases in which an attempted revocation was made before the expiration of the time fixed by the offer, many are cases in which specific performance would have been given had the offer been accepted before revocation. In cases of this sort, if the offer is to remain open a fixed time and is on valuable consideration, equity ignores the attempted revocation, and treats a subsequent acceptance exactly as if no attempted revocation had been made; that is, unless the rights of third persons have intervened, it gives specific performance wherever that remedy would have been given had such attempted revocation not been made.3 Equity has enjoined a subsequent purchaser with notice of the outstanding option for value from taking possession.4 In giving specific performance, it is true that equity could, in one suit, give specific performance of the contract not to revoke the offer and of the contract as made by the offer which the offeree is thus specifically compelled to make. In many of these cases the decision is actually put by the court upon the ground that the offer is irrevocable, and that the attempted revocation is a nullity.5 No reason appears for denying the correctness of this theory. In the absence of statute decrees for specific performance were not self-executing. The defendant in a suit for specific performance of a contract to sell land, could be ordered to make a deed, and, if possible, coerced into making a deed; but the legal title to land passed by the deed and not by the decree. No attempt is actually made by equity in suits on offers for value to compel the offeror to renew his offer; but it is treated as if it never had been revoked.
1 Stamper v. Combe, 164 Ky. 733, 176 S. W. 178; Axe v. Tolbert, 179 Mich. 556, 146 N. W. 418; Smith v. Cauthen, 98 Miss. 746, 54 So. 844.
2 Stamper v. Combs, 164 Ky. 733, 176 S. W. 178; Smith v. Cauthen, 98 Miss. 746, 54 So. 844.
3 Axe v. Tolbert, 179 Mich. 556, 146 N. W. 418.
4 Bethea v. McCullough, 195 Ala. 480, 70 So. 680: George v. Schuman, - Mich. - , 168 N. W. 486.
5 George v. Schuman, - Mich. - , 168 N. W. 486.
1 See ch. LXXX1V. 2 Livesley v. Muclde, 46 Or. 420, 80 Ac. 901.
3 Livesley v. Muckle, 46 Or. 420, 80 Ac. 901.
4 Bethea v. McCullough, 195 Ala. 480, 70 So. 680; Fargo v. Wade, 72 Or. 477, L. R. A. 1915A, 271, 142 Ac. 830.
5 Fargo v. Wade, 72 Or. 477, L. R. A. 1915A, 271, 142 Ac. 830.
1 Alabama. Linn v. McLean, 80 Ala. 360.
Indiana. Herrman v. Babcock, 103 Ind. 461, 3 N. E. 142.
Iowa. Goodpaster v. Porter, 11 la. 161.
Michigan. Gustin v. School District, 94 Mich. 502, 34 Am. St. Rep. 361, 54 N. W. 156.
New Jersey. Trustees of Congregation v. Gerbert, 57 N. J. L. 395, 31 Atl. 383.
Pennsylvania. Yerkes v. Richards, 153 Pa. St. 646, 34 Am. St. Rep. 721, 26 Atl. 221.
Tennessee. Bradford v. Foster, 87 Tenn. 4, 9 S. W. 195.
2 Weaver v. Burr, 31 W. Va. 736, 3 L. R. A. 94, 8 S. E. 743.
3 United States. Watts v. Kellar, 56 Fed. 1.
California. Swanston v. Clark, 153 Cal. 300, 95 Ac. 1117.
Georgia. Black v. Maddox, 104 Ga. 157, 30 S. E. 723.
Illinois. Adams v. Peabody Coal Co., 230 111. 469, 82 N. E. 645.
Michigan. Solomon Mier Co. v. Had-den, 148 Mich. 488, 111 N. W. 1040.
Missouri. Tebeau v. Ridge, 261 Mo. 547, L. R. A. 1915C, 367, 170 S. W. 871.
Oregon. Clarno v. Grayson, 30 Or. Ill, 46 Ac. 426.
Virginia. Cummins v. Beavers, 103 Va. 230, 106 Am. St. Rep. 881, 48 S. E. 981; Watkins v. Robertson, 105 Va. 269, 115 Am. St. Rep. 880, 5 L. R. A. (N.S.) 1194, 54 S. E. 33.
West Virginia. Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220.
Wisconsin. Peterson v. Chase, 115 Wis. 239, 91 N. W. 687; Eau Claire v. Eau Claire Water Co., 137 Wis. 517, 119 N. W. 555.
4 Seyferth v. Groves & S. R. R. Co., 217 III. 483, 75 N. E. 522.
5 Solomon Mier Co. v. Hadden, 148 Mich. 488, 111 N. W. 1040; Cummins v. Beavers, 103 Va. 230, 106 Am. St. Rep. 881, 48 S. E. 981; Peterson v. Chase, 115 Wis. 239, 91 N. W. 687; Eau Claire v. Eau Claire Water Co., 137 Wis. 517, 119 N. W. 555.
If the offeree brings an action at law against the offeror, the theory of his case is sometimes that he is maintaining an action for the breach of the contract by the offeror not to revoke the offer;6 and sometimes that he is bringing an action upon the con-tract which is made by the acceptance of the offer, which under his theory is not revoked, in spite of the attempt of the offeror to revoke it.7 At law it has been assumed that the action could be brought upon the contract made by the original offer and the acceptance thereof,8 even where the terms of the original agreement were such that it might have been claimed with some show of reason that the transaction was a conditional contract and not an outstanding offer.9 A entered into a contract with B, by which A bought "three to five hundred tons"; and after A had ordered three hundred tons, B attempted to revoke such contract as to the remaining two hundred tons. A was held to be entitled to recover damages, apparently upon the theory that the offer was irrevocable -and was completed by his acceptance after the attempted revocation.10 Whichever theory the offeree may adopt, he usually alleges facts which show the contract not to revoke the offer, as well as facts which show the contract which is made by his attempted acceptance of such offer. In jurisdictions in which the rights of the parties depend upon the allegations in their pleadings and the evidence which is introduced, rather than upon their theory of the case, the plaintiff may recover, whichever theory he may adopt. If he sues for breach of the contract not to revoke the offer, it is generally necessary for him to allege the attempted revocation and his attempted acceptance in order to show a breach of such contract; while if he brings his action upon the theory that his acceptance of the irrevocable offer has made a contract, he usually alleges facts which show the existence of a contract not to revoke such offer in order to meet the effect of the attempted revocation. As a rule the measure of damages is the same whichever theory is adopted; and the same evidence must be offered under one theory as under the other. Accordingly, it is frequently very difficult, if not impossible, to determine whether the court looks upon the offer as irrevocable and as making a contract when it is accepted; or whether the court looks upon the offer as irrevocable, and upon its revocation as a breach of the contract not to revoke.
6 Smith v. Cauthen, 98 Miss. 746, 54 So. 844.
7 Erie City Iron Works v. Thomas, 139 Fed. 995; Connersville Wagon Co. v. McFarlan Carriage Co., 166 Ind. 123, 3 L. R. A. (N.S.) 709, 76 N. E. 294.
8 Dambmann v. Rittler, 70 Md. 380, 14 Am. St. Rep. 364, 17 Atl. 389.
9 Dambmann v. Rittler, 70 Md. 380, 14 Am. St. Rep. 364, 17 Atl. 389.
10 Dambmann v. Rittler, 70 Md. 380, 14 Am. St. Rep. 364, 17 Atl. 389.