§ 491. So, also, the silence of either party will import assent to the terms of a contract, whenever it would have been incumbent on him to express his dissent, if he did not agree thereto; or where his silence is explicable only by the presumption of his assent.1 But whether the facts of the case indicate a mutual agreement, is for a jury to determine.2
1 Real Estate M. F. Ins. Co. v. Roessle, 1 Gray, 336.
2 Chicago, etc, Railway v. Dane, 43 N. Y. 240 (1870).
3 2 Black. Comm. 448; Toullier des Contrats, § 33; 2 Heinecc. de Jure Ant. Germ. § 335; Ruth. Inst. ch. 4, p. 8, 9; Bracton, L. 2, c. 27; Inst. L. 3, tit. 23.
4 Payne v. Cave, 3 T. R. 148.
6 Godwin v. Francis, Law R. 5 C. P. 295 (1870); McBlain v. Cross, 25 Law Times (n. s.), 804 (1872).
6 Trevor v. Wood, 36 N. Y. 307 (1867), following Mactier v. Frith, 6 Wend. 103; and Vassar v. Camp, 1 Kern. 441.
7 Henkel v. Pape, Law R. 6 Exch. 7 (1870).
8 Beach v. Raritan &Del. Bay Railroad, 37 N. Y. 457 (1868).
§ 492. Where a verbal proposal is made, without any stipulation as to the time within which it shall be accepted, it should be accepted on the spot, or the proposer will not ordinarily be bound.3 For, however willing and desirous he may be to have his offer accepted at the time and place when and where he makes it, it does not follow that he will be willing to abide by that offer at a different time and under other circumstances. Yet, if the custom of the trade, or the previous usage between the parties, or any peculiar circumstances of the case indicate an intention on the part of the offerer to allow reasonable time, his offer will be accepted within reasonable time.4 "What would constitute reasonable time must, of course, depend upon the peculiar circumstances of the case.6
§ 493. The offer of a reward or compensation for the performance of any service - as, for instance, for the finding and returning of money or any lost article - is a case of a conditional promise; and if any one coming within the terms of the offer, shall, before its revocation, perform the service, a legal and binding contract arises to pay the reward.6 It is essential, however, that the offer of a reward must have been known and acted upon by the party claiming it, before he performed the service on which he founds his claim. There is no mutual assent or agreement, unless such knowledge exists.1 Such an offer of reward is not, however, to be considered as unlimited in time, and continuing until a formal withdrawal is made, but to be restricted to what, under the circumstances, is a reasonable time.2 But an offer of reward to a public officer to do what it is incumbent on him to do by law, is not binding, because it is contrary to public policy.3
1 Hubbard v. Coolidge, 1 Met. 93; Train v. Gold, 5 Pick. 380; Toullier des Contrats, § 32. 2 Thruston v. Thornton, 1 Cush. 89.
3 Johnson v. Fessler, 7 Watts, 48.
4 See Peru v. Turner, 1 Fairf. 185, where six years afterwards was held an unreasonable time.
5 Mactier v. Frith, 6 Wend. 103; Beckwith v. Cheever, 1 Fost. 41; Peru v. Turner, 1 Fairf. 185.
6 Freeman v. Boston, 5 Met. 56; Lancaster v. Walsh, 4 M. & W. 16; Thatcher v. England, 3 C. B. 254; Gerhard v. Bates, 2 El. & B. 476; 20 Eng. Law & Eq. 133; Williams v. Carwardine, 4 B. & Ad. 621. See also Janvrin v. Exeter, 48 N. H. 83 (1868); Crawshaw v. Roxbury, 7 Gray, 374; Crowell v. Hopkinton, 45 N. H. 9; Fitch v. Snedaker, 38 N. Y. 248 (1868); Jones v. Phoenix Bank, 4 Seld. 228; Morse v. Bellows, 7 N. H. 549; Wentworth v. Day, 3 Met. 352; Symmes v. Frazier, 6 Mass. 344; Fallick v. Barber, 1 M. & S. 108. Officers as well as others who comply with an offer of reward for information which will lead to the conviction of persons, may recover the reward. See Neville v. Kelly, 12 C. B. (n. s.) 740; Smith v. Moore, 1 C. B. 438; England v. Davidson, 11 Ad. & El. 856.
§ 494. A circular offer for sale of a stock in trade, with a conclusion that "tenders will be received and opened at our office," does not bind the party to accept the highest bid, although no right be expressly reserved to decline all bids.4
§ 495. If, by the terms of an offer, a certain time be prescribed, within which it may be accepted by the other party, it must be accepted within that time. The rule of law is, that the party making such an offer may retract it at any time previous to its acceptance by the other party, and an acceptance subsequent to such retraction would create no contract, although it should be within the time originally prescribed; and the ground upon which this rule is said to be founded, is that the offer being merely gratuitous, there is no sufficient consideration to support it, until it is accepted.5 Thus, where A. proposed to exchange horses with B., and to give B. a specific sum as difference, upon which proposition B. had the privilege of reserving his determination until a certain day, and before that day A. retracted his proposal, it was held that B. could not enforce against him his proposal, it not having been accepted before it was withdrawn.1 So, also, where X. offered to purchase a house of Z., and gave him six weeks to consider whether he would accept it or not, it was held that X. could retract his proposal at any time within the six weeks, before it was accepted.2 The assent of the party having the option of accepting or rejecting such an offer must be either express or necessarily implied from his acts or words, in order to bind the party making the proposal. And if he be silent, or do no act manifestly expressive of assent, no contract arises.3
1 Fitch v. Snedaker, 38 N. Y. 248 (1868).
2 Loring v. Boston, 7 Met. 409.
3 Pool v. Boston, 5 Cush. 219; Smith v. Whildin, 10 Barr, 39. See also post.
4 Spencer v. Harding, Law R. 5 C. P. 561 (1870), distinguishing Williams v. Carwardine, 4 B. & Ad. 621; Thatcher v. England, 3 C. B. 254; Tarner v. Walker, Law R. 1 Q. B. 641; Law R. 2 Q. B. 301.