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 offer is frequently made by A, which he probably intends to have accepted by B, by B's giving a promise to perform on his part, followed by such performance; while B intends to accept such offer and with such intention begins to perform without giving to A an express promise to perform. The offeree may undoubtedly accept by conduct as well as by express words, unless the offeror has prescribed some definite method of acceptance. The practical difficulty is found in determining what acts show such an intention. If A makes an offer to B, which is to be accepted by making a promise, B's conduct in performing certain acts which he could perform lawfully if such offer were accepted, but which he would have no right to perform if such offer were not accepted, amounts to a promise on B's part, at least if his declarations do not show that he does not intend to accept such offer; and if such conduct is properly brought to A's notice, a contract exists.1 A sent to B an order for certain goods which contained a provision that in consideration of such sale and of a certain sum of money, B should load upon the same car on which A's goods were loaded, certain goods belonging to X, which X had bought from Y. B filled such order, and loaded such goods on the car, without any other act of acceptance apparently. It was held that by such act B accepted such order so as to become liable for improperly loading such goods.2 If A conveys certain realty to B by an instrument which is a deed in form but which is intended as a mortgage to secure a debt which A owes to B, and A offers to transfer all his interests to B for a certain sum if B wishes to take the land, B's act in conveying such land to X amounts to an acceptance of such offer.3 If A offers to sell certain goods to B, and B takes possession of such goods,4 or if B delivers such goods to X as B's property,5 or if B orders such goods to be shipped to a place different from that to which they were originally consigned,6 such conduct amounts to an acceptance. If A offers to B goods which are in X's custody, B's act in making arrangements with X to keep such goods for B, is an acceptance of A's offer.7 Where a machine was delivered for a test by the prospective purchaser, who was to return the machine if the test proved unsatisfactory and to keep it if satisfactory, delivering certain notes and a chattel mortgage therefor, it was held that the offeree's act in keeping such machine and making use of it after the expiration of the period fixed for the test, was an acceptance of the offer, even if the notes and the mortgage were not delivered. It was accordingly held that title passed and that the seller could not replevin as against attaching creditors.8
33 Metropolitan Coal Co. v. Boutell Transportation & Towing Co., 196 Mass. 72, 81 N. E. 645; Walter v. Boutell Transportation & Towing Co., 196 Mass. 90, 81 N. E. 650.
84 Metropolitan Coal Co. v. Boutell Transportation & Towing Co., 196 Mass. 72, 81 N. E. 645: Walter v. Boutell Transportation & Towing Co., 196 Mass. 90, 81 N. E. 650.
35 Sumner v. Thompson, 31 N. S. 481.
American Express Co., 250 Pa. St. 527. 95 Atl. 706],
Colorado. Michigan Stove Co. v. Pueblo Hardware Co., 51 Colo. 160, 116 Ac. 340.
Iowa. Aultman v. Nilson, 112 la. 634, 84 N. W. 692.
Michigan. Long Bell Lumber Co. v. Nyman, 145 Mich. 477, 116 Am. St. Rep. 310, 108 N. W. 1019; Farmers' Handy Wagon Co. v. Newcomb, 192 Mich. 634, 159 N. W. 152.
Oklahoma. Newcomer v. Sheppard (Okla.), 152 Ac. 66.
Washington. Lord v. Miller, 86 Wash. 436, 150 Ac. 631.
If B does some act with reference to the subject-matter of the offer which B could do lawfully if he accepted such offer, but which he could not do lawfully otherwise, it is generally held that his performance of such act amounts to an acceptance of such offer, even if he declares when he performs such act that he rejects such offer.9 If A offers goods to B and B refuses such offer, but accepts such goods when he has a fair opportunity to refuse to accept them,
2 Michigan Stove Co. v. Pueblo Hardware Co., 51 Colo. 160, 116 Ac. 340.
3 Newcomer v. Sheppard, 61 Okla. 335, 152 Ac. 66.
4 Lord v. Miller, 86 Wash. 436, 150 Ac. 631.
5 Long Bell Lumber Co. v. Nyman, 145 Mich. 477, 116 Am. St. Rep. 310, 108 N. W. 1019.
6 Farmers' Handy Wagon Co. v. Newcomb, 102 Mich. 634, 159 N. W. 152.
7Aultman v. Nilson, 112 la. 634, 84 N. W. 692.
8 Star Drilling Machine Co. v. Mc-Leod, 122 Ky. 564, 92 S. W. 558.
9 Fred W. Wolf Co. v. Monarch Refrigerating Co., 252 111. 491, 50 L. R. A. (N.S.) 808, 96 N. E. 1063; Austin v. Burge, 156 Mo. App. 286, 137 S. W. 618.
his conduct in receiving such goods is an acceptance of such offer.10 If A has been sending a newspaper to B for a valuable consideration, B's act in continuing to receive such paper after he orders A to stop sending it, amounts to an acceptance of A's offer.11 If a purchaser has bought machinery on approval, to be returned within a certain time if not satisfactory, the fact that he continues to use such machinery after such period operates as an acceptance thereof, although he has given written notice that he rejects it, the seller having claimed that such machinery is operating in compliance with the terms of the contract.12 If B makes an offer by letter to A, enclosing a part payment and stipulating for delivery on credit in thirty days and A accepts such payment, A must accept or reject within a reasonable time, which can not exceed thirty days; and A's retention of such cash payment after thirty days is equivalent to an acceptance.13 If A offers to B a payment in full of a claim which is in dispute between A and B, B's act in receiving such payment amounts to an acceptance of A's offer, even if B declares when he receives such payment that he does not accept such offer, but will merely credit such payment on account.14 The authorities are not unanimous upon this question, and in some cases it seems to be assumed that B's conduct does not amount to an acceptance if B notifies A of his refusal. Taking possession of the land which was offered for sale on condition that the title be satisfactory to the vendee, but refusing to pay the purchase price because of the defective condition of the title, is not such acceptance that the vendee may have specific performance if the vendor subsequently sells such land to a third person.15 A made an offer to B to buy an article at a certain price and enclosed a check therefor. B rejected the offer, and deposited the check for collection; but subsequently offered to return the amount thereof. Such conduct of B's was held not to amount to an acceptance.16 If A receives property from B under a contract by which A is to return it within a given time or to pay for it, A's notice to B within such time that A can not resell such property and that he wishes instructions as to disposing of it, shows that A elects not to buy it.17 If the offeree performs an act which can reasonably be referred only to his intention to accept the offer and which involves some forbearance on the part of the offeree, such act is as much an acceptance as express words would be, since it shows his intention to accept the offer; and if properly communicated where communication is necessary, such act will complete the contract if we assume that the offer does not specify some other method of acceptance.18 So an offer for the erection of a waterworks,19 or a railroad,20 may be accepted by erecting the required improvement. So an offer to do some specified act if the other party will forbear suit for a certain time may be accepted by forbearing suit for such time in reliance on such promise, where the circumstances bring such form of acceptance to the knowledge of the party making the offer.21 So if A offers to B to guarantee C's debt to B if B will forbear suit, B's forbearance in reliance thereon if known to A is a sufficient acceptance.22 For this reason A's offer to B to guarantee X's debt to B in consideration of B's forbearance to sue X, may be accepted by actual forbearance.23 Another reason given for this rule is that the guarantor should learn from his principal "with whom he is supposed to be on intimate terms," whether his guaranty is accepted.24 In many of these cases, moreover, it is possible that the offeror intended the act to operate as the acceptance and not the notice of such acceptance. An offer by a mortgagor to one who has assumed the mortgage on purchasing the mortgaged property, to release him personally and look solely to the property for payment may be accepted by conduct in refraining from any attempt to have such property applied on such debt.25 So entering a school or college in reliance upon the terms of the catalogue is an acceptance of the offer there made.26 An offer to pay B a certain sum per week if B would quit selling books, pictures, etc., in the public streets, and would render to A certain services when A should require them, is accepted by B's quitting such business and rendering such services.27 A promise to buy a piano, in part for cash and in part for advertising, is accepted when the promisor furnishes advertising matter and the promisee publishes it.28 An offer to lease a store to a corporation and to take a certain amount of stock in a new issue, is accepted by the action of the corporation in increasing its stock in accordance with such offer and to the knowledge of the offeror, and by electing the offeror a director of such corporation.29 A written offer to render certain services is accepted by permitting such services to be furnished.30 After an express contract was entered into for building two engines, the foreman of the corporation for which such engines were building, stated that he was going to have another engine built by the same manufacturer. Subsequently he sent certain materials which the manufacturer used in building such third engine. These facts were held to amount to a contract for building such third engine, on the same terms as those of the former contract.31 If A offers a prize in a voting contest, on votes which are given with subscriptions to A's paper, and B enters such contest, collects a certain number of votes, and sends them in to A, this is such acceptance by B that A can not thereafter change the original rules which governed such contest with reference to the method of crediting votes.32