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§ 52. (Contracts, Sec. 20.) Preliminary announcement intended to secure offers distinguished from offers.

Case 40. Montgomery, Ward & Co. v. Johnson, 209 Massachusetts Reports, 89.

Facts: Mary Johnson, transacting business as Iver Johnson's Arms and Cycle Works, sent out a circular letter setting forth the terms and conditions under which she would supply revolvers to the jobbing trade. Montgomery, Ward & Company was a customer to whom one of such circulars was sent. This company sent in an order for revolvers, which Johnson refused to fill. Suit is brought upon the theory that a contract was made by the letter and the order.

Point Involved: Whether a circular letter sent generally to the trade for the purpose of attracting orders is an offer which ripens into a contract upon receipt of an order sent in by a person to whom such letter was sent.

BRALEY, J.: "We are of opinion that a fair interpretation of the letter and document very plainly shows that it was not a general offer to sell those addressed, but an announcement, or invitation, that the defendant would receive proposals for sales on the terms and conditions stated, which she might accept or reject at her option. No contract between the parties having been created, the defendant's refusal to accept and fill the plaintiff's orders was not an actionable wrong.

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Question 40: (1) Why is a circular letter sent generally to prospective customers announcing goods on hand for sale at prices quoted, not an offer to sell such goods to the parties to whom sent? If such circular letter used the words "We are offering," etc., would that make any difference?

(2) Is a display advertisement in a newspaper quoting articles and prices an offer?

Case 41. Harsh (Defendant) v. Nebraska Seed Co. (Plaintiff), 152 Northwestern (Nebraska) 310.

Facts: Harsh was a farmer living near Lowell, Nebraska. He wrote the Nebraska Seed Co. as follows:

"I have about 1800 bu. or thereabouts of millet seed of which I am mailing you a sample. This millet is recleaned and was grown on sod and is good seed. I want $2.25 per cwt. for this seed f. o. b. Lowell."

The Seed Company immediately telegraphed a reply as follows:

"Sample and letter received. Accept your offer. Millet like sample $2.25 per hundred. Wire how soon can load."

Harsh refused to sell and the Seed Company sues.

Point Involved: Whether the statement by Harsh was an offer which was accepted by the addressee's order thereby creating a contract between the parties.

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MORRISSEY, Ch. J.: "In our opinion the letter of defendant cannot be fairly construed into an offer to sell to the plaintiff. The language used is general and such as may be used in an advertisement or circular addressed generally to those engaged in the seed business, and is not an offer by which he may be bound, if accepted, by any and all the persons addressed.

"We do not think the correspondence made a complete contract. To so hold, where a person sends out letters to a number of dealers would subject him to a suit by each one receiving a letter or invitation to bid, even though his supply of seed were exhausted. In Lyman v. Robinson, 14 Allen, 242, 254, the Supreme Court of Massachusetts has sounded the warning. 'Care should always be taken not to construe as an agreement letters which the parties intended only as a preliminary negotiation.'

"Decision for the defendant."

Question 41: What was Harsh's proposition in this case? Was it an offer so that acceptance completed a contract between the parties? Why?

(Note to Case 41: Cases of this sort are sometimes close to the line and difficult to decide. Harsh would have saved a law suit. and we would have been deprived of this illustration, had

he used some qualifying words, as that the order would be subject to his acceptance. Such words would not have changed the legal effect of his letter, but would have saved him expense and difficulty.

If a letter is sent to a prospective customer and is in the form of a circular letter, clearly it is for advertising purposes and is not an offer even if it has sufficient definiteness as to quantity, etc. But if it is an individual letter and contains sufficient definiteness, is it an offer or a request for an offer? That depends on its terms and character. If it is so phrased as to indicate to the reasonable mind that it is such a letter that might go generally to customers then it is clearly in substance a circular letter and is not to be taken as an offer.

The word "offer" itself is not very material. "We are offering" is a frequent phrase.)

§ 53. (Contracts, Sec. 21.) Offer indefinite.

Case 42. Sherman v. Kitsmiller, Adm'r, 17 Sargeant & Rawle's Reports, 45.

Facts: Elizabeth Sherman, nee Koons, lived as housekeeper for the deceased until her marriage, upon his promise to convey her 100 acres of land for her services. No particular 100 acres were stated. This is a suit against the administrator for the enforcement of the alleged contract.

DUNCAN, JUSTICE: "*

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Express promises ought to be explicit, to a common intent at least.

In the present case

the prom

isor himself would not know what to convey, nor the promisee what to demand. If it had been a promise to give her 100 pieces of silver, this would be too vague *-what denomina

* ; for what pieces?

tion? One hundred cows would be sufficiently certain, because the intention would be that they should be of middling quality; but 100 acres of land, without locality, without estimation of value, without relation to anything that could render it certain, does appear to me to be the most vague of all promises; and if any contract can be void for its uncertainty this must be. One hundred acres

on the Rocky Mountains, or in the Conestoga manor— 100 acres in the mountain of Hanover County, Virginia, or in the Conewango rich lands of Adams county-100 acres of George Sherman's mansion place at $80 per acre, or 100 acres of his barren lands at $5!

"This vague and void promise, incapable of specific would not prevent the plaintiff from

execution

recovering

for the value of the woman's services until her marriage," (i. e., though the offer of 100 acres of land was too uncertain for its acceptance to constitute a contract, yet for services actually performed, she could recover a reasonable compensation as on an implied offer and acceptance.-Ed.)

Decision of the Court: For defendant, on the express contract as too indefinite; for the plaintiff on a contract implied in law (quasi contract) for services rendered.

Question 42: (1) What was the promise in Case 42? Why was it unenforceable? Would a promise to give claimant 100 cows for her services be too indefinite? Why a difference in that case?

(2) The S. O. Co. agreed to sell M oil on such reasonable terms as would enable him to compete with others in the same territory. M sues for breach of contract. Is there a contract? (Marble v. S. O. Co., 169 Mass. 553.)

§ 54. (Contracts, Sec. 22.) Proposition incomplete.

(Note: A proposition is not an offer if it is unfinished, that is to say, requires a further statement to make it an enforceable proposition; but where terms can be and are meant to be implied, they are a part of the alleged offer and in such a case there may be a contract by the help of the implied terms.)

C. Duration of Offer.

§ 55. Duration of offer.

§ 56. Termination of offer by rejection.

§ 57. Termination of offer by destruction of subject matter.

§ 58. Termination by death or insanity of offers or offeree.

§ 59. Revocation of offer.

§ 60. Contracts to keep offers open.

§ 55. (Contracts, Sec. 23.) Duration of offer.

Case 43. Kempner v. Kohn, 47 Ark. 519.

Facts: January 30, 1885, P, at Little Rock, offered his real estate lot to D, at Hot Springs; Feb. 7, D wrote attempting to accept the offer on the terms proposed. Feb. 7, and before P received D's letter, P wrote attempting to withdraw his offer. Feb. 9, P received D's attempted acceptance. Assume that the attempted revocation was placed in the Post Office prior to the time that D's attempted acceptance was posted.

Point Involved: Where no length of time is stated in an offer, how long will the offer continue open for acceptance? May such period be cut down by actual withdrawal? What constitutes effective withdrawal?

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SMITH, J.: The defendant, having caused the question to be submitted to the jury, under an instruction drawn by his counsel, and having met with an adverse decision, now asks us to declare as a matter of law, that Kohn's acceptance was unreasonably delayed. But we think the question was properly resolved in favor of the plaintiff. The subject of negotiation was real estate, which requires more deliberation than if it had been a transaction in cotton or other particle of merchandise. It is also less subject to sudden and violent fluctuations in price. Five days was not an unreasonable time.

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"Then as to the attempted retraction: An offer made by letter which is to be answered in that way, cannot be withdrawn unless the withdrawal reaches the party to whom it is addressed before he has accepted. The acceptance was effectual to complete the contract notwithstanding Kempner had previously mailed a letter to Kohn announcing the retraction of the offer.'

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Question 43: What was the subject matter of the offer in Case 43 Is the nature of the subject matter an element in determining how long an offer remains open? Why? Is the jury the judge of the reasonableness or unreasonableness of the time?

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