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.
An acceptance may state with emphasis certain terms which are contained in the offer by construction or by implication of the law. If the terms thus insisted on in the acceptance are the same as those of the offer, an agreement is thereby created.1 Adding to an acceptance of an offer to sell oil, "Memphis exchange rules and arbitration," if such was the legal effect of the offer,2 does not prevent the acceptance from completing the contract. An offer to sell "terms of sale cash" and an acceptance providing that bills for goods delivered shall be paid daily,3 or an offer to pay an account due from a third person, and an acceptance providing that such account must be paid at once,4 amount to a contract; and so where the offer provides that the work shall be done in a certain time and the acceptance adds that time is of the essence of the contract,5 or where the offer is to sell land at $3,500; and the acceptance is, "I will pay the $3,500 cash. Send you hereby $500 and pay balance on delivery of warranty deed,"6 or where an acceptance of an offer to sell flour adds, "If the sacks are branded must be resacked in plain sacks,"7 or an offer is made to sell goods, "to be shipped from the factory," and an acceptance of such offer provides that the goods are to be "f. o. b. cars" at the station at which the factory is located,8 or where an ordinance provided that the contractor should accept assessments on abutting property except as to intersections and improvements in front of the city and other property not subject to assessment and the bid accepted the offer provided the city would guarantee the certificate of assessment as to certain specified property, which belonged to the state.9 If A makes an offer to B to buy certain property, and B accepts, adding that he may not be able to deliver before a certain date,10 or if he suggests a better grade of goods in his acceptance,11 a valid contract exists. An offer to sell a certain number of pilings ten inches at the small end and forty feet long, which is accepted "above pilings to be ten inches in diameter at small end and to be practically straight," is said to make a complete executory contract.12 An offer to buy bonds, to ran thirty years is governed by statute making them redeemable in five years; and hence acceptance by city is binding.13 If A makes an offer to B to pay X's account, B's acceptance on condition that A pay such account at once is a sufficient acceptance; since such offer implied payment on acceptance.14 Since an offer to borrow money upon certain property as security implies that the title to such property is marketable, an acceptance of such offer which provides that the loan will be made when the lender's attorneys "advise us that the title is good," is held to complete the contract on the theory that such provision is in effect a reiteration of the requirement that the title must be marketable.15
1 Johnston v. Boyes (1899), 2 Ch. 73.
2 Jacob Johnson Fish Co. v. Hawley, 150 Wis. 578, 137 N. W. 773: New York Life Insurance Co. v. Levy's Admr. 122 Ky. 457, 5 L. R. A. (N.S.) 730, 92 S. W. 325. (In this case A died before the agent of the insurance com-pany had delivered the five thousand dollar policy; and it was held that such policy never took effect.)
4 Ropers V. French, 122 la. 18, 96 N. W. 767.
5 Kelley v. Sibley, 137 Fed. 586, 69 C. C. A. 674.
6 Seymour v. Armstrong, 62 Kan. 720, 64 Ac. 612 [affirming 10 Kan. App. 10, 61 Ac. 675].
7 Navarre Realty Co. v. Coale, 122 Md. 494, 89 Atl. 728.
8 Sillman v. Spokane Savings & Loan Soc., - Wash. - , 175 Ac. 296.
1 United States. Morse v. Tillotson & Wolcott Co., 253 Fed. 340, 1 A. L. R. 1485.
11llinois. Anglo-American, etc., Co. v. Prentiss, 157 111. 506, 42 N. E. 157.
Iowa. Ottumwa, etc., Co. v. Ainley, 109 la. 386, 80 N. W. 510.
Kansas. Bennett v. Cummings, 73 Kan. 647, 85 Ac. 755.
Kentucky. Postal Telegraph-Cable Co. v. Louisville Cotton Oil Co., 136 Ky. 843, 122 S. W. 852 [rehearing denied, Postal Telegraph-Cable Co. v. Louisville Cotton Oil Co., 136 Ky. 843 at 859, 125 S. W. 266].
Michigan. Hubbell v. Palmer, 76 Mich. 441, 43 N. W. 442.
2 Postal Telegraph-Cable Co. v. Louisville Cotton Oil Co., 136 Ky. 843, 122 S. W. 852 [rehearing denied, Postal Telegraph-Cable Co. v. Louisville Cotton Oil Co., 136 Ky. 843 at 859, 125 S. W. 2661.
3 Anglo-American, etc., Co. v. Prentiss, 157 111. 506, 42 N. E. 157 (at least where the goods were afterwards furnished).
4 Grimsrud Shoe Co. v. Jackson, 22 S. D. 114, 115 N. W. 656.
5 Hubbell v. Palmer, 76 Mich. 441, 43 X. W. 442.
6 Veith v. McMurtry, 26 Neb. 341, 42 N. W. 6.
7 King v. Dahl, 82 Minn. 240, 84 N. W. 737 (since it was held not to require vendor to do it or to pay for it).
8 Crystal Case Co. v. Arnett, 73 Kan. 774, 85 Ac. 302.
9 Ottumwa, etc., Co. v. Ainley, 109 la. 386, 80 N. W. 510.
It has been held, however, that if the so-called acceptance not only adds a term which is implied by law, but also requires the offeror to consent to the addition of such term,16 such as a term providing expressly for a right of inspection of goods delivered which is already secured by the Uniform Sales Act,17 the provision which expressly requires the offeror to assent to such term amounts to such a variance from the offer as to prevent the contract from existing.18