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Corbin on Contracts

Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

CHAPTER 3 ACCEPTANCE AND REJECTION OF OFFER

1-3 Corbin on Contracts § 3.13

§ 3.13 When Notice of Acceptance Is Necessary

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Notice of acceptance may be a necessary requirement to the creation of a contract. At other times notice of acceptance may be a condition to the performance of the contract after it has been made.n1 It has been sometimes argued that notice of acceptance is always necessary, except when the offeror clearly indicates otherwise, and that ''notice'' means knowledge brought home to the offeror. This was thought to be applicable especially in the case of contracts made by correspondence. Thus, it was said by Bramwell, L.J.: ''It is necessary, as a rule, to constitute the contract that there should be a communication of acceptance to the proposer. As a consequence of or involved in the first proposition, if the acceptance is written or verbal-i.e., is by letter or message, as a rule, it must reach the proposer or there is no communication and so no acceptance of the offer.''n2

It is not easy to discover where Bramwell found this ''rule'' that there must be communication, or why it is a ''consequence'' of that rule that ''communication'' necessarily means ''receipt.'' It looks very much like the assumption of a major premise and a begging of the question as a means of proving a desired conclusion. Such a rule as he assumed does not come down out of the sky. It must be found, if at all, in our judicial and legislative history. The fact is that such a general requirement is not to be foundn3 and a majority of the court disagreed with him. Such a rule can indeed be found applied in certain types of cases, and it is necessary to classify the cases and to determine boundary lines and reasons for adhering to them.

In the first place, there is no question that the offeror can require notice of acceptance in any form.n4 The offeror can require that it shall be in any language and transmitted in any manner. The requirement may be that notice is to be given by a nod of the head, by flags, by wig-wag, by a smoke signal on a high hill. The offeror may require that notice be by letter, facsimile, telegraph or telex, and that there shall be no contract unless and until the offeror is made conscious of it.n5 The offeror can instead dispense with the requirement of communication of the acceptance.n6

Secondly, the offeror can specify a mode of making an acceptance of the offer, without making that method exclusive of all others. If the mode that the offeror specifies is one that may not bring home the knowledge that the offer has been accepted, then such knowledge is not a requisite. The offeror can specify a mode of acceptance without any knowledge of the law of contract and without thinking in terms of offer and acceptance at all. This will be considered hereafter.

Thirdly, if the offeror specifies no mode of acceptance, the law requires no more than that the mode adopted shall be in accord with the usage and custom of humanity in similar cases.n7 If proof of such usage and custom is wanting or uncertain, the court must consider probable convenience and results and then help by its decision to establish a custom for the future and a rule of law. The Uniform Commercial Code has helpful definitions that can provide guidance even outside the scope of its coverage. ''A person 'notifies' or 'gives' a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it.''n8 Nothing in the definition precludes an offeror from requiring actual receipt of notice. ''Actual receipt'' also requires definition.n9 The Uniform Commercial Code provides: ''A person 'receives' a notice or notification when (a) it comes to his attention; or (b) it is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.''n10

In cases of this third class,-where the offeror has not specified a mode of acceptance-it has been suggested that notice need not be given if the proposed contract is unilateral and must be given if it is bilateral. This is not a safe classification. Where the offeror makes a promise and requests some non-promissory action in return, the performance of that action will generally be enough without the giving of any notice to the offeror, but if the offeror offers some performance and requests a promise in return, the necessity of a notice of acceptance is usually the same as if the contract were to be a bilateral one. It should also be recalled that many offers are indifferent as to the proper manner of acceptance and can be accepted by promise or other reasonable means including performance or commencement of performance.n11 It is generally, but not always,n12 true that in cases in which the offer cannot be accepted without the making of a return promise, custom and the law require some notice of acceptance.n13 The effect of a communication of acceptance that fails to arrive at its destination will be discussed elsewhere.n14

The most reasonable rule, applicable in cases of the third class, seems to be that if the offer is of such a kind that the offeror needs to know of the acceptance in order to plan for performance or other subsequent action, and the offeree has reason to know this, a notice of acceptance must be given. The offeree's general words of satisfaction with an offer may be insufficient to indicate that the offeree accepts.n15 If the offer asks for a promise, it is not enough for the offeree to express assent secretly,n16 or to tell his or her spouse or neighbor of the acceptance, or to take the train expecting to go to the offeror's place of business,n17 or to begin work in preparation to perform.n18 It is important to stress that this paragraph deals strictly with cases in which the offeror has unambiguously bargained for a return promise. One who asks for a promise is asking for an expressed assurance for the purpose of guiding future conduct.

One who offers to pay or to become guarantor for the debt of another, in order to induce forbearance to enforce payment, and specifies with clarity that a promise of such forbearance within a specified or a reasonable time is wanted, merely beginning to forbear is not operative as an acceptance.n19 The requested promise must be made within the required time.

Even if the offeree is not asked to make a promise, the facts may be such as to show clearly the need of the offeror to know that acceptance has taken place in order to plan for the future. This is often the case where the offeror is a debtor who is seeking a discharge by a substituted contract, a release, or an accord and satisfaction. One against whom a claim for unliquidated damages is being made offers to substitute a definite promise of a sum of money, or of services, in return for immediate discharge. To accept, the offeree must send notice to the offeror.n20 Here, acceptance is not a promise; it is a mere expression of assent that operates to discharge his claim to unliquidated damages. As indicated in § 1.3 above, not all contracts involve promises. But the offeror needs to know that whether there is a discharge and freedom from duty, just as much as any offeror would need to know of the acquisition of new rights by means of a promise.

Whenever the case is such as to require a notice of acceptance, it is not enough for the offeree to express mental assent, or even to do some overt act that is not known to the offeror and is not one that constitutes a customary method of giving notice. If the overt act is one that clearly expresses an intention to accept the specific offer and is in fact known by the offeror, there is an effective acceptance. Here the offeror has actual knowledge.n21

Ordinarily one who makes an offer to sell property on stated terms contemplates a bilateral contract and expects a notice of acceptance. This is true even though the offer is in the form of an irrevocable option to buy at a price. Nevertheless, in such a case the offeree can make an operative acceptance by tendering the price without other notice. If the offeror accepts the tendered price, the buyer may have fully performed at once, so that the resulting contract is unilateral from the time it is made. If the offeree's tender is rejected, the seller is at once guilty of a breach of contract, for which the buyer can maintain suit for damages or for specific performance.n22

So a carpenter cannot accept an offer of a building contract, that looks to a promissory acceptance only, by merely buying materials and starting work on them in the carpentry shop.n23 But it would probably be enough if the carpenter had begun unloading such materials in the offeror's presence at the place of performance.n24

A subscription for shares probably cannot be accepted merely by passing a vote of the board of directors and entering the vote on the minutes of the corporation.n25 It may be that the vote and record thereof would make the subscriber a participating and voting shareholder, but the subscriber expects to be informed that the subscription offer has been accepted.

For similar reasons, it has been held that the vote of an official board to accept a bid is not operative as an acceptance. It must be officially communicated.n26 The vote of a school board, or other official board, electing to a position one who has made application for the appointment, has been held to be revocable by the board prior to the sending of an official notice to the applicant.n27 This is justifiable if the election is regarded as the acceptance of an offer, but it may be regarded otherwise and may be held to be an irrevocable act.

Many offers are made in such terms that they request the offeree to do specified acts constituting the entire consideration and exchange for the offered promise. These are considered elsewhere in discussing unilateral contracts. In these cases a notice is not required as the mode of acceptance, unless the offeror prescribes otherwise. The contract is consummated by the performance of the requested act. They are the acceptance as well as the performance of the requested subject of exchange. Illustrations are to be found in the reward cases, discussed separately in a previous section.n28

Legal Topics:

For related research and practice materials, see the following legal topics:

Contracts LawFormationAcceptanceMethods of AcceptanceGeneral OverviewContracts LawFormationAcceptanceGeneral OverviewContracts LawPerformanceTender & DeliveryContracts LawFormationAcceptanceMethods of AcceptanceOvert Acts

FOOTNOTES:

(n1)Footnote 1. See §§ 3.14 and 3.15 below.

(n2)Footnote 2. Household Fire & C. Acc. Ins. Co. v. Grant, 4 Ex.D. 216 (C.A.1879).

(n3)Footnote 3. In Lennox v. Murphy, 171 Mass. 370, 50 N.E. 644 (1898) , Mr. Justice Holmes said: ''There is no universal doctrine of the common law that acceptance of an offer must be communicated.''

See Thomson v. United States, 357 F.2d 683, 174 Ct.Cl. 780 (1966) where government authorization of plaintiff's bid for realty appraisal contract was given but notice thereof as to one parcel was not sent to plaintiff. Government agents, however, encouraged plaintiff to commence work in the belief that the bid would be authorized. It was held that plaintiff was entitled to recover the contract price for services. Actual notice of acceptance was not necessary where offeree's conduct led offeror to believe that acceptance would be forthcoming.

(n4)Footnote 4. In International Longshoremen's & Warehousemen's Union v. Cargill, Inc., 372 F.Supp. 807 (N.D.Cal.1974) , an arbitrator's award ordered the employer to pay back to the union. It was unclear whether the award included fringe benefits. To satisfy the award, the employer sent a check to the union with a cover letter and a statement, in the nature of a release, that it asked the union official to sign. The check was deposited but the statement was not signed. It was held that the offer of settlement had not been accepted. It should be noted that labor cases are often treated differently from commercial cases. Generally, it would be held that the cashing of the check without the acceptance of the offer would be a conversion, and, at the option of the offeror, the offeree would be estopped from denying that it had accepted. See § 3.8 above and § 3.21 below.

(n5)Footnote 5.

Mass. - Lewis v. Browning, 130 Mass. 173 (1881) .

Mo. -In Shortridge v. Ghio, 253 S.W.2d 838 (Mo.App.1952) the court held that the defendant's written offer to buy required in terms that acceptance must be by the signature of the seller.

Mont. -In Union Interchange, Inc. v. Allen, 140 Mont. 227, 370 P.2d 492 (1962) , a written offer provided: ''This agreement shall become effective only when accepted by your office in Seattle, Washington and you shall notify me of such acceptance by letter.'' The plaintiff alleged no such notice by letter. Its complaint was demurrable.

Tenn. -In Lexington Housing Authority v. Continental Cas. Co., 210 F.Supp. 732 (W.D.Tenn.1962) , the plaintiff advertised for bids, reserving the privilege of rejecting all bids but requiring that a bid should be irrevocable for 30 days after opening of bids and bid bond. The defendant surety's principal made the lowest bid and the bond was executed by the defendant. The bid expressly required that acceptance should be in writing. The bids were opened on July 21. The bidder was at once notified orally that its bid was accepted subject to approval by the Public Housing Authority. The next day, the bidder withdrew its bid, alleging a mistake. The court held there was no operative mistake but the withdrawal was effective because (1) there was no consideration for the promise of irrevocability; (2) the 'acceptance' was conditional; (3) it was not in writing as required by the offer; (4) there was no action in reliance by the offeree.

(n6)Footnote 6. International Filter Co. v. Conroe Gin, Ice & Light Co., 277 S.W. 631 (Tex.Com.App.1925) . But see Kendel v. Pontious, 261 So.2d 167 (Fla.1972) . The proposed contract provided: ''this contract shall be binding on both parties ... when this contract shall have been signed by both parties and their agents.'' The document was signed by one party and sent to the other for signature. The other signed. It was held that no contract could exist without communication-a dubious result indeed. The dissenting opinion was on target.

(n7)Footnote 7. In Ferguson v. West Coast Shingle Co., 96 Ark. 27, 130 S.W. 527 (1910) , usage required notice by telegram.

This section is cited in Spenard Plumbing & Heating Co. v. Wright, 370 P.2d 519, 523 (Alaska 1962) . The court held that the defendant's bid was so worded that it required a written notice as the only mode of acceptance and did not merely specify a written notice as one possible mode. It found, also, that, in the absence of a contrary provision, a written notice was required by the usage of contractors in like cases. The bidder had orally asked for an extension of time for filing a bond, but this was not the making of an oral offer or a waiver of the requirement of written notice. The bidder was entitled to the return of his deposit.

In Fine v. Property Damage Appraisers, Inc., 393 F.Supp. 1304 (E.D.La.1975) . A franchise agreement contained an option to renew but was silent as to the proper manner of renewal. The franchisee continued to operate the franchise after the expiration of the period. It was held that this conduct sufficiently manifested acceptance of the option.

(n8)Footnote 8. U.C.C. § 1-201(26).

(n9)Footnote 9. It is usage and custom that justify giving notice of acceptance by mail or telegraph. See § 3.24.

In Howard v. Daly, 61 N.Y. 362 (1875) , the offeree dropped her written acceptance in the private letter box of the offeror, kept by him for receipt of communications at his theater. This was held to be effective, even though the offeror did not get the letter. ''The plaintiff complied with the usual, or occasional, practice and left the acceptance in a place of deposit recognized as such by the defendant.'' Assuming actual receipt of the acceptance had been required, it was ''received''.

(n10)Footnote 10. U.C.C. § 1-201(26). As to the effective moment of receipt by an organization, see U.C.C. § 1-201(27), which for the most part points to the moment when it has been or should have been brought to the attention of the individual conducting the transaction.

In United Leasing v. Commonwealth Land Title Agency, 134 Ariz. 385, 656 P.2d 1246 (App.1982) , the offeree's agent hand-delivered a letter of acceptance to the offeror's office. The receptionist checked with the offeror and informed the agent that the offeror could not be disturbed. The agent left the acceptance with the receptionist, writing a note on the envelope, which said, in part that it ''is an acceptance.'' The unopened envelope was returned with the endorsement, ''Refused unopened by Loyd [the offeror].'' There clearly was an effective acceptance. The Commercial Code was inapplicable, but the common law approach is the same.

In Greater Bloomfield Real Estate Co. v. Braun, 64 Mich.App. 128, 235 N.W.2d 168 (1975) , the parties dealt through a real estate broker. The buyer made an offer through the broker which was rejected. Subsequently, through the same broker, the buyer made a new offer on a cash basis. The seller made a counter-offer in writing which was delivered to the buyer by the broker. The buyer told the broker he accepted and signed the counter-offer. The evidence conflicts whether the broker informed the seller of the acceptance prior to the seller's calling the deal off, that is, revoking the offer if there was no contract or repudiating a contract if there was a contract. The court rules that the communication of the acceptance to the broker created a contract, stating that the offeror takes the risk of the effectiveness of the communication if the acceptance is made in a manner implicitly authorized by the offeror. Here all communications between the parties had been through the medium of the broker.

(n11)Footnote 11. Hauk v. First Nat'l Bank, 680 S.W.2d 771 (Mo.App.1984) . The defendant, a junior lienholder, offered prepayment to a senior lienholder. In exchange it asked for documents and a release. No manner of acceptance was specified. A promissory acceptance created a contract. See also § 2.32 above.

(n12)Footnote 12. See, e.g., § 3.21 below.

(n13)Footnote 13.

Conn. - Lyon v. Adgraphics, 14 Conn.App. 252, 540 A.2d 398 (1988) . The counter-offer was signed, but this fact was not communicated to the other party. No contract was formed.

Ky. - Kentucky Portland Cement & Coal Co. v. Steckel, 164 Ky. 420, 175 S.W. 663 (1915) .

N.Y. -In Mactier's Adm'r v. Frith, 6 Wend. 103 (N.Y.1830) , Frith sent an offer by mail to sell certain brandy, already on shipboard consigned to Mactier, asking that Mactier credit him with the amount of the invoice price. This requested ''credit'' is a promise to pay. It is obvious that Frith expected some notice of the fact that Mactier accepted and promised to pay. It is believed that no contract existed until Mactier mailed his letter of acceptance.

Nova Scotia-Saltzberg & Rubin v. Hollis Securities Ltd., 48 D.L.R.2d 344 (1964). An offer to purchase property was signed as accepted by the vendor but not communicated to the offeror. Held: no contract.

Restatement (Second) of Contracts § 56 provides: ''Except as provided in § 69 [Acceptance by Silence or Exercise of Dominion] or where the offer manifests a contrary intention, it is essential to an acceptance by promise either that the offeree exercise reasonable diligence to notify the offeror of acceptance or that the offeror receive the acceptance seasonably.''

(n14)Footnote 14. See §§ 3.24-3.27 below.

(n15)Footnote 15. Mintzberg v. Golestaneh, 390 So.2d 759 (Fla.App.1980) ; Zamore v. Whitten, 395 A.2d 435 (Me.1978) .

(n16)Footnote 16.

R.I. -In Ardente v. Horan, 117 R.I. 254, 366 A.2d 162 (1976) , after negotiations, vendors sent vendee a proposed written contract to sell realty. Vendee returned the executed document with a cover letter expressing an understanding that certain furniture was included in the sale. The vendors denied any intention to include furnishings and returned the deposit check that vendee had attached to the document. Vendee sued for specific performance, but the court held there was no contract. Vendee apparently argued that he intended to accept unconditionally, but the court pointed out that it is the overt communication that determines whether there is an acceptance. Common sense determines whether any particular communication is an acceptance. See § 3.28 below.

In Lee v. Stroman, 470 S.W.2d 783 (Tex.Civ.App.1971) , writ denied n.r.e., Stroman offered to buy Lee's house, conditioned that Lee accept by a certain deadline. On the last day, Lee's agent told Stroman that Lee accepted and the acceptance had been signed by one Nadine Thomas who claimed to have a power of attorney from Lee. Stroman insisted upon seeing the power of attorney. It was not presented to him until well after the deadline. It was held that there was no contract. He did not have the requisite assurance that Lee had accepted.

(n17)Footnote 17.

D.C. -In Dunn v. Shane, 195 A.2d 409 (D.C.App.1963) , purchaser submitted a counter-offer conditioned on his ability to procure a specified loan. Because of delay in being notified of acceptance, he gave oral notice of revocation to the broker. Knowing that a written notice was on the way, the broker obtained the vendor's assent to the counter-offer. No contract was consummated, because the offeror needed to know of the acceptance in order to proceed with the negotiations for the loan, as the broker knew. His written revocation was received before the broker gave him any notice of the acceptance of the counter-offer.

Kan. - Trounstine v. Sellers, 35 Kan. 447, 11 P. 441 (1886) .

Ohio -In Toro v. Geyer, 117 N.E.2d 620 (Ohio App.1951) , plaintiff made an offer to buy defendant's property for acceptance on or before March 1, accompanying the offer with his check for $5,000. The defendant cashed the check on Feb. 23, but gave no notice to plaintiff. This was not operative as an acceptance. Plaintiff gave notice of revocation on March 1 and got judgment for restitution of $5,000.

(n18)Footnote 18.

N.Y. - White v. Corlies, 46 N.Y. 467 (1871) .

Under the rule in Uniform Commercial Code § 2-206 the beginning of the performance prescribed in an offer may make the offer irrevocable even though the offer contemplates a promise by the offeree. The provision is, ''(2) Where the beginning of a requested performance is a reasonable mode of acceptance an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance.''

In Armour & Co. v. Celic, 294 F.2d 432 (2d Cir.1961) , after negotiations, the plaintiff prepared a written contract for the consignment of goods to defendant for sale on commission, providing expressly that it should not be binding on plaintiff until confirmed in writing by plaintiff's division manager. The defendant signed the instrument and sent it to plaintiff for confirmation. The plaintiff's division manager approved and signed it; but no copy or other notice was sent to the defendant. However, performance proceeded thereafter, the plaintiff shipping goods with invoices referring to ''Agent's Contract.'' The defendant received and sold the goods but did not remit the proceeds. The court held that the evidence showed that defendant had knowledge that the plaintiff had confirmed and that the plaintiff shipped the goods to the defendant as a mere consignee and not as a purchaser on credit. No formal ''notice'' was necessary. It seems probable that the written ''Contract of Limited Agency'' was a mere statement of the terms on which the plaintiff was willing to supply goods to the defendant (a Cooperative Association). Even if it did not itself constitute a binding bilateral contract, it made the defendant fully aware that goods thereafter received had been shipped on consignment and were not being offered to the defendant for purchase by it on credit. Having such knowledge, the defendant's receipt of the goods operated as an acceptance as agent and not as purchaser. See also notes under §§ 3.21 and 3.24.

(n19)Footnote 19.

N.Y. - Strong v. Sheffield, 144 N.Y. 392, 39 N.E. 330 (1895) .

Eng. -In Gaunt v. Hill, 1 Starkie 10 (1815), the defendant wrote: ''Sir-That it may not be said that I have made no effort to save my brother from prison, I wish to know if you will give him a full discharge if I will pay one moiety of his debt. I have specified what I will pay and no more; if you will accept this, call upon me tomorrow morning''. The creditor did nothing for a week, and then wrote: ''I have taken an opinion on your letter, and am informed that I can recover upon it against you, therefore I shall not proceed against your brother.'' The court held that the defendant was not bound. This should be sustained. The expected acceptance was a ''promise'', not a mere forbearance; and the words ''tomorrow morning'' indicate a time limit.

(n20)Footnote 20. Such a case is Trounstine v. Sellers, 35 Kan. 447, 11 P. 441 (1886) . Goods had been sent by Trounstine to a local merchant, with respect to which some misunderstanding arose. The merchant wrote proposing to return the goods in settlement, paying for the part already disposed of. Intending to accept this offer, Trounstine started on a trip that would eventually take him to the merchant's place of business. Before his arrival there, the merchant had mortgaged his entire stock, including the goods in question. To accept the merchant's offer, it was necessary to send some notice to him, although the notice, if sent, would not have been a promise. It would have been a discharge of the merchant and the acquisition of new rights by Trounstine.

(n21)Footnote 21. Sometimes the question is whether the offeree, by starting performance without giving notice of acceptance, has made an implied promise to complete the performance begun. As against the offeree, such an inference may readily be drawn. An excellent case is Wood & Brooks Co. v. D.E. Hewitt Lbr. Co., 89 W.Va. 254, 109 S.E. 242, 19 A.L.R. 467 (1921) . The plaintiff ordered 500,000 feet of lumber on stated terms, saying: ''If you cannot deliver as ordered please advise us immediately.'' There was no notice of acceptance, but several months later the defendant shipped 160,000 feet, and requested inspection. From these and other circumstances, the jury was held justified in finding an implied promise to fill the order. The contract was bilateral. The decision is thoroughly consistent with the provisions of Uniform Commercial Code § 2-206 which provide that an offer which does not unequivocally provide for one manner of acceptance may be accepted in any reasonable manner, including the beginning of performance. Where the beginning of performance is reasonably chosen, a bilateral contract is formed, subject to a condition of notice. Clearly the delivery and receipt of part of the goods provided sufficient notice if no other had been given.

U.S. -See also Lang & Gros. Mfg. Co. v. Fort Wayne Corrugated P. Co., 278 Fed. 483 (7th Cir.1921) .

N.Mex. -In Keirsey v. Hirsch, 58 N.M. 18 , 265 P.2d 346, 43 A.L.R.2d 929 (1953) , the plaintiff wrote a letter to the defendant's agent saying: ''I wish to submit an offer of $4,800 for the Hurst place.'' A month later, the defendant executed her warranty deed for the place, to the plaintiff by name, and sent it to a bank for delivery on payment of the price. The bank notified the defendant. Later, because of some defect, the defendant executed a second warranty deed. This was sent by her attorneys, along with abstract of title, to the defendant's agent who had found the purchaser, saying that it was ''to complete the transaction under the terms of our last letter'' which had accompanied the first deed. The court said: ''The number of written exhibits here in evidence ... tends to obscure the few that are vital. Those few create a binding written contract. First, there is the written offer to purchase signed by Keirsey, dated Oct. 2, 1944, stating a price of $4,800; the fact that it was addressed to Milton Florsheim is immaterial so long as it was communicated to Viola Hirsch. Her subsequent execution of the warranty deed makes the fact of communication obvious. Second, there is the warranty deed dated Dec. 30, 1944, ... naming Keirsey as grantee ... which deed and abstracts were submitted on behalf of Hirsch to Keirsey's attorney for examination. Corbin on Contracts, Vol. 1, § 67 [§ 3.13], p. 210, [373], ... states:

'''If the overt act is one that clearly expresses an intention to accept the specific offer and is in fact known by the offeror, there is an effective acceptance.'

''We consider the execution and delivery to purchaser's attorney of the warranty deed for examination such an acceptance. Both the offer and acceptance are in writing, and together constitute a written contract.'' See also notes herein under §§ 2.10, 498.

Tex. - Fujimoto v. Rio Grande Pickle Co., 414 F.2d 648 (5th Cir.1969) . Fujimoto supervised defendant's plant and Bravo recruited its labor. They wanted more money and threatened to quit. Rio Grande orally promised a bonus equal to 10% of the profits, but they demanded a writing. So Rio Grande wrote them a letter offering the bonus. The letter said nothing as to how the offer should be accepted. Each of them retained the document, which said nothing about how they should accept, and continued working. Their continuing to work without further complaint about compensation effectively communicated acceptance.

(n22)Footnote 22.

Idaho - Kessler v. Pruitt, 14 Idaho 175, 93 P. 965 (1908) .

(n23)Footnote 23.

N.Y. - White v. Corlies, 46 N.Y. 467 (1871) .

Similar in effect is Beckwith v. Cheever, 21 N.H. 41 (1850) .

(n24)Footnote 24. When one by letters requests another to take care of their incompetent brothers and promises to make a monthly payment, the fact that the promisee begins service as requested and the promisor knows it consummates a contract. In re Bate's Will, 225 Wis. 564, 275 N.W. 450 (1937) .

(n25)Footnote 25. In re London & Northern Bank [1900] 1 Ch. 220 . And see Household Fire & C. Acc. Ins. Co. v. Grant, 4 Ex.D. 216 (1879), holding that it is enough that the company mailed a notice of allotment of shares, even though the letter was never delivered to the offeror.

(n26)Footnote 26.

Mass. - Benton v. Springfield Y.M.C.A., 170 Mass. 534, 49 N.E. 928 (1898); Edge Moor Bridge Works v. Bristol County, 170 Mass. 528, 49 N.E. 918 (1898) .

In Al's Lunch v. City of Revere, 324 Mass. 472, 87 N.E.2d 5 (1949) , the plaintiff made an offer to buy certain lots owned by the city. The mayor asked the city council to authorize the city solicitor to make the sale and the council passed the vote requested. This was not an acceptance of the offer.

Cal. -Where a statute required that a contract for public work should be let to the lowest bidder in competition, the court held that a resolution by the city council stating that the contract was awarded to the party who was the lowest bidder was an operative acceptance, even though no notice was sent to the bidder. The council had no power to rescind its resolution and award the contract elsewhere. Although a formal written contract was contemplated, the terms were already fully contained in the previous documents. City of Susanville v. Lee C. Hess Co., 45 Cal.2d 684, 290 P.2d 520 (1955) .

Mich. - Peek v. Detroit Novelty Works, 29 Mich. 313 (1874) .

(n27)Footnote 27.

Eng. -Powell v. Lee, 99 L.T. 284 (1908).

The following case is contra: ''It is said that the board did not notify the complainant of his election, nor did he notify the board of his acceptance, until after the abolition of the school. We think this position is not well taken, because no notice was necessary. The complainant having made an application, or one having been made on his behalf, and that application having been accepted, and election having been had by the board, the minds of the parties met, and the contract became complete.'' Weatherly v. Mayor, etc. of City of Chattanooga, 48 S.W. 136 (Tenn.1898) .

(n28)Footnote 28. In the case of Reif v. Paige, 55 Wis. 496, 13 N.W. 473 (1882) , the defendant's wife was in a burning building. He announced to the crowd that he would give $5,000 to anyone who would bring her body out of the building. Plaintiff without any notice of acceptance of the offer, rushed into the building and succeeded in bringing out the wife's body. The court held that he was entitled to recover the reward offered.

In Weaver v. Wood, 9 Pa. 220 (1848) , Gibson, C.J., said: ''If a party promise another a definite or a reasonable reward if he will do a particular thing, the party promised is not bound to do it; yet if he does it without more, he entitles himself to the reward. On the other hand, the promisor may retract before performance.''

See Carlill v. Carbolic Smoke Ball Co., [1892] 2 Q.B. 484 , aff'd [1893] 1 Q.B. 256 , public promise to pay Ј100 to anyone who caught the influenza after using smoke ball. The use of the smoke ball was an operative acceptance, without any notice.

In Harson v. Pike, 16 Ind. 140 (1861) , a reward was offered by publication for the finding of a buyer of land. The plaintiff found a buyer who actually bought the land as desired, but not until thereafter did the offeror know that it was the plaintiff who had found the buyer for him. The plaintiff was held entitled to the reward.

See also:

Ky. - Hopkins v. Phoenix F. Ins. Co., 200 Ky. 365, 254 S.W. 1041 (1923) .

Pa. - Patton's Ex'r v. Hassinger, 69 Pa. 311 (1871) , promise to pay anyone who would take care of John.

Va. - Richmond Eng. & Mfg. Corp. v. Loth, 135 Va. 110, 115 S.E. 774 (1923) .