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.
A conditional or qualified acceptance of an offer does not constitute an agreement unless the condition is complied with.1 Such an acceptance is a counter-offer, which, even if it purports to be an acceptance, is equivalent to a rejection. Among examples of conditional acceptance which do not create a contract are the following: an acceptance of an offer to obtain land at execution sale, conditioned on the offeror's giving an obligation that the land would not cost over a certain sum;2 an offer to give to a party who was trying to secure the title to certain realty for two owners thereof, by which the owners agreed to give him "your share as well as my sister and I," followed by a counter-proposition to secure the title for one-half of the realty;3 an acceptance of a request to borrow money on real estate security, which was never given;4 an acceptance conditioned on giving certain security, which was never given;5 or of transmitting certain information to the party accepting;6 or of furnishing the written legal opinion of the city attorney that the bonds offered for sale were legal;7 an acceptance conditioned on the assent of a third person, which is never given;8 a letter stating that the writer's acceptance when confirmed by a certificate of agency from the sendee is an agreement of agency, the letter not being assented to and the certificate not signed;9 an acceptance conditioned on payment to acceptor of insurance received by adversary party for loss of a building on the land contracted for, which was refused.10 A counter-proposition operates as a rejection of an offer even if the offeree performs some services referable to such offer.11
7 Philp v. Knoblauch (1907), S. C. 904, 15 Scots Law-Times Reports 61.
1 England. Perry v. Suffields, Lim. (1916), 2 Ch. 187.
Alabama. Southern Ry. Co. v. Hunts-ville Lumber Co., 191 Ala. 333, 67 So. 695.
Massachusetts. Beach & Clarridge Co. v. American Steam Gauge & Valve Mfg. Co., 208 Mass. 121, 94 N. E. 457.
Montana. Walsh v. School District, 17 Mont. 413, 43 Ac. 180.
Wisconsin. Agnew v. Baldwin, 136 Wis. 263, 116 N. W. 641. See Sec. 165.
2 McLean v. Gymnasium Association, 64 Mo. App. 55.
3 See ch. LXXV.
4 See ch. LXXXIV.
1 United States. Beaumont v. Prieto, - U. S. - , 39 Sup. Ct. 383.
California. Wristen v. Bowles, 82 Cal. 84, 22 Ac. 1136; Meux v. Hogue, 91 Cal. 442, 27 Ac. 744.
Kansas. Nieschburg v. Nothern, 101 Kan. 110, 165 Ac. 857.
Massachusetts. Kehlor Flour Mills Co. v. Linden, 230 Mass. 119, 119 N. E. 698; Putnam v. Grace, 161 Mass. 237, 37 N. E. 166.
Minnesota. Kull v. Wilson, 137 Minn. 127, 162 N. W. 1072.
Missouri. Anderson v. Hall, - Mo. - , 202 S. W. 539.
Michigan. Grunow v. Salter, 118 Mich. 148, 76 N. W. 325.
New Hampshire. Harris v. Scott, 67 N. H. 437, 32 Atl. 770.
Pennsylvania. Henry v. Black, 213 Pa. St. 620, 63 Atl. 250.
Utah. Woodward v. Edmunds, 20 Utah 118, 57 Ac. 848.
Washington. Jahn v. McClaine, 97 Wash. 95, 165 Ac. 1060.
Wisconsin. Clark v. Burr, 85 Wis. 649, 55 N. W. 401.
An option to sell certain property is terminated by an offer to purchase which fixes the time for payment different from that indicated by the terms of the option. Beaumont v. Prieto, - U. S. - , 39 Sup. Ct. 389.
Since the acceptance with an attempted modification is at least a counter-offer, it may be accepted by the original offeror, and thus may constitute a contract.12
2 Boyd v. Hankinson, 83 Fed. 876.
3Franck v. McGilvray, 144 Mich. 318, 107 N. W. 886.
4 National Bank v. Monger, 95 Fed. 87, 36 C. C. A. 659.
5 Lamar, etc., Co. v. Craddock, 5 Colo. App. 203, 37 Ac. 950; Woodward v. Edmunds, 20 Utah. 118, 57 Ac. 848.
6 Harris v. Scott, 67 N. H. 437, 32 Atl. 770 (condition that offerer send names of parties who had bid for certain stock which was the subject of the contract).
7 Coffin y. Portland, 43 Fed. 411.
8 Strobridge, etc., Co. v. Randall, 73 Fed. 619 (condition that a third person release a debt); Putnam v. Grace, 161 Mass. 237, 37 N. E. 166 (condition on assent of lessor and the court, if necessary, to the assignment of a lease); Grunow v. .Salter, 118 Mich. 148, 76 N. W. 325 (condition that third person join in release of liability on a contract to buy land given by acceptor to adversary party); Watson v. Neal, 38 S. Car. 90, 16 S. E. 833 (condition that others join with acceptor in contract) .
9 Bergmeier v. Eisenmenger, 59 Minn. 175, 60 N. W. 1097.
10 Clark v. Burr, 85 Wis. 649, 55 N. W. 401.
11 Franck v. McGilvray, 144 Mich. 318, 107 N. W. 886.
12 United States. Sloan v. Wolf Co., 124 Fed. 196.
An acceptance which adds a condition not incorporated in the offer does not prevent the contract from existing if both parties treat it as in existence,13 or if the parties assume that such added term is a part of the contract.14 Thus a valid agreement is produced by A's offer to B's agent to sell subject to B's approval, B's approval subject to new conditions, and A's acceptance of such new conditions,15 and so where the offer was to take a thirty-day acceptance of a draft, and a note was offered and accepted.16 If the so-called acceptance provides for a delay in delivery, the delivery and acceptance of the goods is an acceptance of such counteroffer.17 An offer to sell railway ties, "to be delivered this year and next," is not accepted by a letter which offers to take all the ties "delivered within the next twelve months"; but shipping ties under such counter-offer is in effect an acceptance thereof.18 A telegram of acceptance by the party who originally asked for an offer on certain terms, is an acceptance of a modification of such terms in the offer which is actually made.19 If the offeror acquiesces in an acceptance on the part of the offeree, whereby the offeree refuses to reduce the contract to writing as provided in the terms of the offer, a contract is made by such acquiescence on the part of the offeror in the modification of the original offer thus made by the offeree.20 Where A made an offer to act as agent on certain terms and suggested that it should be put in writing and B replied, "It isn't necessary to have this in writing with me. My word is as good as my bond," A's acquiescence in B's proposition completes the contract.21
Arkansas. Iron Works v. Douglass, 49 Ark. 355, 5 S. W. 585.
Illinois. Chicago, etc., Co. v. Arming-ton, 67 111. App. 538.
Kansas. Bennett v. Cummings, 73 Kan. 647, 85 Ac. 755.
Kentucky. Fairmount, etc., Works v. Woodenware Co., 106 Ky. 659, 51 S. W. 196.
Massachusetts. Earle v. Angell, 157 Mass.. 294, 32 N. E. 164.
Michigan. Mueller v. Spring Co., 88 Mich. 390, 50 N. W. 319.
New York. Sanders v. Fruit Co, 144 N. Y. 209, 43 Am. St. Rep. 757, 29 L. R. A. 431, 39 N. E. 75.
Sonth Carolina. Atlantic, etc., Co. v. Sullivan, 34 S. Car. 301, 13 S. E. 539.
Wisconsin. Saveland v. Green, 40 Wis. 431.
13 General Lithographing & Printing Co. v. Washington Rubber Co., 55 Wash. 461, 104 Ac. 650.
14 McKell v. Chesapeake & Ohio Ry. Co., 175 Fed. 321, 99 C. C. A. 109.
15 Atlantic, etc., Co. v. Sullivan, 34 S. Car. 301, 13 S. E. 539.
16 Tatnall v. Rome, etc., Co., 98 Ala. 532, 13 So. 271.
17 Sheridan Coal Co. v. C. W. Hull Co., 87 Neb. 117, 127 N. W. 218.
18 Louisville & Nashville R. Co. v. Coyle, 123 Ky. 854, 97 S. W. 772 [rehearing: new trial denied, 123 Ky. 854, 99 S. W. 237].
19 Bennett v. Cummings, 73 Kan. 647, 85 Ac. 755.
20 Serhant v. Gooch Milling & Elevator Co., 96 Neb. 754, 148 N. W. 911.
If A mails an offer to B in State X, and B attempts to accept such offer in State Y by mailing a so-called acceptance which contains an additional term, and A acquiesces in such additional term in State X, such contract is made in State X and not in State Y.22