5 Eskridge v. Glover, 5 Stew. & Port. 264; 20 Am. Jur. p. 15-32; Oooke v. Oxley, 3 T. R. 653; Routledge v. Grant, 4 Bing. 661; Payne v. Cave, 3 T. R. 148; Boston & Maine Railroad v. Bartlett, 3 Cush. 225; Wright v. Bigg, 15 Beav. 592; 21 Eng. Law & Eq. 591; Jordan v. Norton, 4 M. & W. 155.
§ 496. It would, however, seem to be more consonant with justice, and with the agreement of the parties, to enforce a different rule, and to hold, that whenever an offer is made, granting to a party a certain time within which he is to be entitled to decide as to whether he will accept it or not, the party making such offer is not at liberty to withdraw it before the lapse of the appointed time, unless by agreement with the other. The reason which is given, that the offer is without consideration and gratuitous until accepted, does not seem to be well founded. The consideration is the expectation or hope, that the offer will be accepted, and this is sufficient legally to support the promise. The agreement is, therefore, to be looked upon as an engagement by the one party, that he will not sell within a certain time, in consideration that the other party will consider the matter, and not give a refusal at once. Again, the making of such an offer might betray the other party into a loss of time and money, by inducing him to make examination, and to inquire into the value of the goods offered; and this inconvenience assumed by him is a sufficient consideration for the offer.4 Suppose that, on faith of the offer, he prohas been induced to rely on such an engagement, should have no remedy in case of disappointment. If, for example, a merchant propose to sell to another a cargo of sugar or of tobacco, and agree to give him a certain time to determine whether he will buy the goods or not, engaging not to dispose of them till the time has elapsed, and in the meanwhile he dispose of them, and disappoint the person to whom the promise has been made, who may have rejected an advantageous offer from another dealer, it seems unjust that, for the disappointment thus occasioned, there should be no remedy. The only answer to this in the English law, appears to be, that no one is entitled to rely on a unilateral engagement gratuitously made and without consideration. But one cannot help feeling that a rule so different from what commonly happens in the intercourse of life raises that inconsistency between law and justice which is sometimes complained of. The subtleties of lawyers never ought to interfere with the common sense and understanding of mankind; and the law is on a better footing where an engagement, seriously made, is enforced by the law without regard to the motive from which it proceeds."
1 Eskridge v. Glover, 5 Stew. & Port. 264. 2 Routledge v. Grant, 4 Bing. 661.
3 Corning v. Colt, 5 Wend. 253.
4 Com. Dig. Action on the Case, Assumpsit, B.; Violett v. Patton, 5 Cranch, 142, 152; Knight v. Rushworth, Cro. Eliz. 469; Brooks v.
Ball, 18 Johns. 337; Perkins v. Binke, 2 Sid. 123; Traver v. ---------, 1
Sid. 57; Brett v. Pretyman, 1 Sid. 283; Loo v. Burdeux, 1 Sid. 369; Train v. Gold, 5 Pick. 384; Willetts v. Sun Mut. Ins. Co., 45 N. Y. 45 (1871). See also White v. Demilt, 2 Hall, 405; Babcock v. Wilson, 17 Me. 372; Appleton v. Chase, 19 Me. 74. In Violett v. Patton, 5 Cranch, 142, it is said by Mr. Chief Justice Marshall: "To constitute a ceed to make arrangements to enable him to purchase, or to make calculations to determine whether he is in a condition to buy, or whether the offer is worth accepting, and is fairly exerting his best judgment on the matter, is there any justice in allowing the other party to interfere and break his promise, after inducing a loss of time, or money, or convenience ? Nor does this view of the matter want authority. The doctrine contended for has been asserted by Toullier in France, and obtains in Scotland and Holland.1 "In France," says Toullier, "when he who makes an offer has fixed a determinate time for acceptance, or has expressly or tacitly engaged not to revoke before the answer of the other party, the promise is not revocable during the terms; so, if I offer to you 100 pipes of wine at a certain price, and add, that I wait your answer before selling them to another, I cannot revoke my offer before the time necessary for having your answer. But if that answer is unduly delayed, I regain my freedom, which I had suspended only for a limited time."2 Professor Bell, also, in his late work on Sales, reprobates the English rule. "It seems inconsistent," he says, "with the plain principles of equity, that a person who consideration, it is not necessary that a benefit should accrue to the person making the promise. It is sufficient that something valuable flows from the person to whom it is made, and that the promise is the inducement to the transaction." So, in Train v. Gold, it is said, "Any gain to the promisor, or loss to the promisee, however trifling, is a sufficient consideration to support an express promise; "and this is affirmed in all the cases above cited. The mere fact that the consideration is trifling, is not sufficient to render the promise gratuitous. In the case in question, if there were no consideration for the promise, what inducement could there be for the offerer to make his offer ? It must be evident that he expected an advantage, or hoped it at least. See post, for the doctrine as to what constitutes a sufficient consideration. Again, it is not true that all gratuitous promises are void. Exceptions are allowed in cases of salvage, and of a mandate, and of the contracts by infants, and of work and labor done, with the acquiescence of the party in whose favor it is done, though without his order, and in some cases of subscriptions. See Phillips Limerick Acad. v. Davis, 11 Mass. 113; Story on Bailm. § 137, 164; Abbott on Shipping, pt. 4, ch. 10. Voluntary subscriptions are valid. See Mirick v. French, 2 Gray, 420.