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 rule that the mailing of an acceptance completes the contract in a proper case, is affected by the application of the doctrine that an offer lapses if not accepted within a reasonable time or within the time fixed by the offer, as the case may be.1 If the offer does not fix the time within which it must be accepted, such offer is to be accepted within a reasonable time from the date at which it is received by the offeree, at least if the offer is not, to the knowledge of the offeree, unduly delayed in transmission, and if the offeror knows that the offer is to be forwarded to the offeree. In such cases the only question is whether the offer was accepted within a reasonable time from the receipt of the offer.
If the offer fixes a certain time within which it can be accepted, the question arises as to the liability of the offeror where the acceptance is mailed within the time limited, but at such a time that it will not reach the offeror within the time limited, even if it is transmitted with all possible speed. If we regard the mail as the agent of the offeror, it would seem that mailing the acceptance within the time limited would be sufficient, even if the offeree must know that the offeror will not receive such acceptance until after the expiration of the time limited. If the true reason is that the offeror contemplates acceptance by mailing the letter of acceptance, the question is then presented in such cases whether such offer in legal effect provides for mailing the letter of acceptance at any time during the time limited, or at such time as would in the ordinary course of post or telegraph bring such letter or telegram to the offeror before the expiration of the time thus limited. This latter view seems to be held by the courts.2 No contract was created, where A offered to settle claim for a certain sum if paid in ten days, and B mailed A a check within ten days, but it was not received till afterwards.3 Another question that is presented involves the effect of delay in transmission or of loss where the letter of acceptance was mailed in sufficient time to reach the offeror before the end of the time thus limited in the ordinary course of transmission. In this case, too, if we assume that the post office is the agent of the offeror mailing the letter of acceptance within the time limited, should complete the contract. If we attempt to enforce the probable intention of the offeror, the question is presented whether in such offer, he does not in effect provide that the acceptance must actually reach him within the time limited. It has been held that if an offer is by its terms to remain open a certain time, notice of acceptance must actually be received within the time thus limited, if there is no specific provision to the contrary, and if the offeror has done nothing to prevent the offeree from accepting the offer within the time thus fixed by the terms of such offer.4 Mailing such acceptance within the time limited is said not to be sufficient.5 If an offer is, by its terms, to be accepted within a certain time, the offeree can not extend such time by mailing a letter of acceptance within the time limited, if such letter is received after the time limited.6 In such case, contrary to the usual rule,7 the contract is not made unless the letter of acceptance is received within the time limited. If an offer requires acceptance by a certain time, depositing a telegram of acceptance with the telegraph company within such period of time, is not an acceptance.8 As has already been stated,9 the act of the offeror in preventing the acceptance of an offer given for value within the time specified in such offer, may operate so as to prevent the offer from lapsing with the expiration of the time fixed by the offer. In such case, mailing the acceptance within the time specified, may be sufficient, even if it is not received until after the expiration of such period.10 This results, however, from the wrongful act of the offeror, in making acceptance by the offeree impossible; and not from any special peculiarities of contracts by correspondence. The same result would be reached in cases in which a personal acceptance was contemplated; and not an acceptance by mail or telegraph.11
5 Holmes v. Miles, 141 Ala. 401, 37 So. 588. 1 See Sec. 139 et seq.
2 Hutchinson & Southern R. R. Co. v. Wallace, 7 Kan. App. 612, 52 Ac. 458.
3 Hutchinson, etc., Co. v. Wallace, 7 Kan. App. 612, 52 Ac. 458.
4 Kibler v. Coplis, 140 Mich. 28, 112 Am. St. Rep. 388, 103 N. W. 531.
5 Kibler v. Caplis, 140 Mich. 28, 112 Am. St. Rep. 388, 103 N. W. 531.
6 Kibler v. Caplis, 140 Mich. 28, 112 Am. St. Rep. 388, 103 N. W. 531.
7 See Sec. 199.
8 Postal Telegraph-Cable Co.v. Louisville Cotton Seed Oil Co., 140 Ky. 506, 131 S. W. 277.
9 See Sec. 145.
10 Holmes v. Myles, 141 Ala. 401, 37 So. 588.