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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 § 3.28

§ 3.28 Acceptance Must Manifest Assent and Be Unconditional

[Go To Supp]

Frequently, the practice of an offeree is to acknowledge receipt of an offer prior to making a decision whether or not to accept it. Such an acknowledgement is not an acceptance.n1 An acceptance requires a manifestation of intention to consent to the terms of the offer.n2 The first Restatement contained this illustration: ''A sends an order for goods to B. B replies that the order will receive his attention. There is no contract.''n3 Such a result may be appropriate but is subject to all of the rules and processes of interpretation, including consideration of any trade usage or course of dealing. To have attempted to lay down such a firm answer to such an equivocal reply was unsound.

Modern business practices frequently involve the logging-in of purchase orders. Such a log kept by the seller communicates no acceptance even if there is an intent to accept.n4 The communication of a computer tracking number is no acceptance. It is merely a ministerial act to facilitate the tracking of an order.n5

A communicated offer creates a power to accept the offer that is made and only that offer. Any expression of assent that changes the terms of the offer in any material respect may be operative as a counter-offer; but it is not an acceptance and consummates no contract.n6 An expression that purports to be an acceptance, but is so expressed as to be operative as an acceptance only on a condition that is not specified in the offer, is not an acceptance at all. It may be described as a ''conditional acceptance'', but this does not mean that it is operative as an acceptance or even that it will become so operative if the condition afterwards occurs. It is operative only as a counter-offer, and unless the original offeror expressesn7 unconditional assent to it, there will be no contract.n8 Conduct by the parties recognizing the existence of a contract may create a contract, the terms of which are subject to the rules of interpretation.n9

One offers to sell Blackacre to another for a stated price, saying that the offer will remain open until Christmas. The other replies: ''I accept your offer now, at the price named, on condition that the price of cotton shall rise to twelve cents by Christmas.'' This makes no contract, either now or hereafter, even though cotton reaches the specified price. This counter-offer creates an immediate power of acceptance in the original offeror who need not wait for the price of cotton to rise.

The question whether a communication by an offeree is a conditional acceptance is not always easy to answer. It must be determined by the same common-sense process of interpretation that must be applied in so many other cases.n10 In an old case that has been much discussed,n11 one who had been offered certain brandy in which both parties had an interest, at a price, replied as follows: ''I shall delay coming to any determination till I again hear from you... The prospect of war between France and Spain may defeat the object of this speculation [one previously agreed upon], in which case I will at once decide to take the adventure to my own account.'' This was held not to be an acceptance on condition and not to prevent the offeree from making a valid acceptance later.n12 Nor was it a counter-offer creating a power of acceptance in the other party.

The words of an ''acceptance'' must indeed accord with the terms of the offer. Such ''accord,'' or lack of accord, can be determined only by the process of interpretation, discussed below in Chapters 24 & 25.n13 The subsequent actions and communications of the parties, showing their own interpretation, are certainly admissible in the judicial process. This is well illustrated in Foard v. Snider, n14 a case in which a deed of conveyance gave to the grantor an option to repurchase within six months. The day before expiration of that time, the option holder gave a rather doubtful notice. Evidence of much subsequent negotiation was admitted, tending to show that the grantee did not regard this notice as insufficient. In acceptance of an option, time is generally (§ 2.15) of the essence, but in its holding the court was not (as the dissenting judge asserts) giving effect to a belated acceptance. See also §§ 4.4, 264, 1174.

When a traveling salesman or soliciting agent submits an order form and induces a customer to sign the order or to mark it ''accepted,'' the order expressly providing that it is ''subject to approval of the home office,'' the customer is making an offer, not accepting one. The order is not a conditional acceptance or counter-offer; it is the only offer that is made, being revocable until acceptance at the home office. The fact that the dealer's own representative submitted the terms which the customer used in making the offer to buy may have an important effect in determining whether remaining silent will bind the dealer and whether marking the order ''approved'' will bind the customer without the dealer sending the customer a notice.n15

An offer to lease or to sell property to a specific person cannot be accepted by a different person, and a purported acceptance by the offeree is inoperative if it requires that the offeror lease or sell to a third person who is to be the lessee or buyer.n16 This is true even if the offeree is empowered to accept and then assign the contractual rights to the third person. If such an offeree accepts so as to be bound as lessee or buyer, the acceptance should not be held to be conditional and inoperative by reason of a request that the lease or bill of sale or delivery shall be made to another.

Legal Topics:

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

Contracts LawFormationAcceptanceMethods of AcceptanceGeneral OverviewContracts LawFormationAcceptanceGeneral Overview

FOOTNOTES:

(n1)Footnote 1. Southern Spindle & Flyer Co. v. Milliken & Co., 53 N.C.App. 785, 281 S.E.2d 734, 736 (1981) , petition denied, 304 N.C. 729, 288 S.E.2d 381 (1982) .

(n2)Footnote 2. Restatement (Second) of Contracts § 19.

(n3)Footnote 3. Restatement of Contracts § 58 ill. 1.

(n4)Footnote 4. Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 539, 1983-1 Trade Cas. (CCH) P65239 (9th Cir.1983) , cert. denied, 465 U.S. 1038 .

(n5)Footnote 5. Corinthian Pharmaceutical Systems, Inc. v. Lederle Laboratories, 724 F.Supp. 605 (S.D.Ind.1989) .

(n6)Footnote 6. In the following cases it was held that there was no contract, for the reason that the acceptance was conditional and not in accord with the terms of the offer:

U.S. - Minneapolis & St. L. Railway Co. v. Columbus Rolling-Mill, 119 U.S. 149, 7 S.Ct. 168, 30 L.Ed. 376 (1886) ; In re Pago Pago Aircrash, 637 F.2d 704 (9th Cir.1981) ; United States v. Newport News Shipbuilding and Dry Dock Co., 571 F.2d 1283 (4th Cir.1978) , cert. denied, 439 U.S. 875 ; Stuart v. Franklin Life Ins. Co., 165 F.2d 965 (5th Cir.1948) , cert. denied, 334 U.S. 816 ; Machine Tool & Equip. Corp. v. Reconstruction Fin. Corp., 131 F.2d 547 (9th Cir.1942) ; Rothstein v. Edwards, 94 F.2d 488 (9th Cir.1937) ; Cleborne v. Totten, 57 F.2d 435, 61 App.D.C. 69 (1932) ; American Smelting & Refining Co. v. Hyman, 16 F.2d 39 (6th Cir.1926) , offer to buy copper at ''15 cents basis Louisville,'' acceptance ''15 cents delivered Louisville'' or ''f.o.b. Louisville''; Columbia Malting Co. v. Clausen-Flanagan Corp., 3 F.2d 547 (2d Cir.1924) ; Rushing v. Manhattan Life Ins. Co., 224 Fed. 74 (8th Cir. 1915) ; Ferrero v. Amigo, Inc., 703 F.Supp. 890 (D.Kan.1988) ; Kurio v. United States, 429 F.Supp. 42 (S.D.Tex.1970) ; Banking & Trading Corp. v. Reconstruction Finance Corp., 147 F.Supp. 193 (S.D.N.Y.1956) , aff'd, 257 F.2d 765 (2d Cir.) citing this section; Hoffstot v. Dickinson, 71 F.Supp. 897 (S.D.W.Va.1947) , aff'd, 166 F.2d 36 (4th Cir.1948) . In Nolan Bros., Inc. v. Century Sprinkler Corp., 220 F.2d 726 (4th Cir.1955) , the defendant offered to install a sprinkler system on stated terms. The plaintiff replied: ''We accept your quotation in good faith; however, we must ask that you mail us a tentative schedule of work in order that we may make up the sub-contract which will constitute formal acceptance and agreement.'' The court held that this was not an operative acceptance of defendant's offer. Several slight differences between the offer and the acceptance were disregarded by the Court of Appeals in Newspaper Readers Service, Inc. v. Canonsburg Pottery Co., 146 F.2d 963 (3d Cir.1945). The court below had thought the differences important and may have been correct in so thinking.

Cal. - McRae v. Ross, 170 Cal. 74, 148 P. 215 (1915) ; Fugate v. Cook, 236 Cal.App.2d 700, 46 Cal.Rptr. 291 (1965) .

Conn. - Lucier v. Norfolk, 99 Conn. 686, 122 A. 711 (1923) , offer to do work at a certain rate per week not accepted by a vote to accept at the equivalent per diem rate; Ocean Ins. Co. v. Carrington, 3 Conn. 357 (1820) , application for an insurance policy containing separate valuations of items covered not accepted by furnishing a policy containing valuation of all the items in the aggregate.

Del. - Weishut v. Layton, 28 Del. 364, 93 A. 1057 (Super.1915) .

Idaho - Hoskins v. Michener, 33 Idaho 681, 197 P. 724 (1921) , difference in time of payment.

Ill. - Worley v. Holding Corp., 348 Ill. 420, 181 N.E. 307 (1932) ; Brook v. Oberlander, 49 Ill.App.2d 312, 199 N.E.2d 613 (1964) ; Goodridge v. Wood, 133 Ill.App. 483 (1907) .

Ind. - Avery v. Citizens' Loan and Trust Co., 94 Ind.App. 161, 180 N.E. 23 (1932) , bid for work at a fixed total price, acceptance at a price per unit and requiring a bond; Shane Bros. & Wilson Co. v. Barrett, 71 Ind.App. 331, 124 N.E. 780 (1919) , difference as to time of delivery.

Iowa - Musch v. Frost, 319 N.W.2d 286 (Iowa 1982) , acceptance of offer for sale of a house subject to owner repainting and fixing plumbing; Shell Oil Co. v. Kelinson, 158 N.W.2d 724 (Iowa 1968) , recognizes the rule but finds acceptance to be unconditional; Jameson v. Joint Drainage Dist., 191 Iowa 920, 183 N.W. 512 (1921) , conditional acceptance of a contractor's bid.

Kan. - Seymour v. Armstrong, 62 Kan. 720, 64 P. 612 (1901) .

Ky. - Hartford Life Ins. Co. v. Milet, 105 S.W. 144, 31 Ky.L.R. 1297 (1907) ; Casner v. Oldham, 279 S.W.2d 252 (Ky.1955) , attempt to accept only a part of the offer.

La. - Bennett v. Treadaway, 134 So.2d 668 (La.App.1961) , noted under § 3.29.

A notice of acceptance by a lessee who had an option to buy was held not to be made ineffective by the fact that it was conditional on an extension of time by a mortgagee, when in fact the mortgagee had already consented to the extension. The express condition having already occurred, the acceptance was unconditional. Amster v. Tenney, 139 N.J.Eq. 335, 51 A.2d 257 (1947) .

Mass. -This section is cited (also §§ 3.35 and 4.1) in In re Opinion of the Justices, 344 Mass. 770, 184 N.E.2d 353, 357 (1962) , holding that the proposed legislation in Massachusetts was in all essentials in agreement with the similar legislation of other New England States to constitute a ''compact'' between the States as had been authorized by the federal Constitution and Congress.

Me. - Jenness v. Mt. Hope Iron Co., 53 Me. 20 (1864) , offer to sell 450 kegs nails is not accepted by ordering 303 kegs.

Md. - Chertkof v. Philadelphia, B. & W.R. Co., 254 Md. 557, 255 A.2d 14 (1969) .

Mass. - Moss v. Old Colony Trust Co., 246 Mass. 139, 140 N.E. 803 (1923) ; Putnam v. Grace, 161 Mass. 237, 37 N.E. 166 (1894) , ''subject to the assent of Mr. Grace''.

Mich. - Kraus v. Hansen, 182 Mich. 52, 148 N.W. 373 (1914) ; Jordan Bros. Co. v. Walker, 154 Mich. 394, 117 N.W. 942 (1908) .

Mich. -An offer to buy certain property ''subject to leases outlined in 'Exhibit A' attached hereto was followed by a reply accepting subject to a specified tenant's option to buy as contained in his lease.'' This was held to be a conditional acceptance varying from the offer. Harper Bldg. Co. v. Kaplan, 332 Mich. 651, 52 N.W.2d 536 (1952) . Although the offer did not specifically mention the tenant's option, that option was a part of the lease to which the offer was expressly said to be ''subject.''

Minn. - Lewis v. Johnson, 123 Minn. 409, 143 N.W. 1127 (1913) ; Markmann v. H.A. Bruntjen Co., 249 Minn. 281, 81 N.W.2d 858 (1957) , quoting this section and § 3.29. See the note herein under § 3.7.

Mo. - Southern Real Estate & Finance Co. v. Park Drug Co., 344 Mo. 397, 126 S.W.2d 1169 (1939) ; State ex rel. Equitable Life Assur. Soc. v. Robertson, 191 S.W. 989 (Mo.1916) , insurance policy issued different from the one applied for; Egger v. Nesbit, 122 Mo. 667, 27 S.W. 385 (1894) , an attempted acceptance of an offer to sell land was held ineffective because it was said: ''with the understanding that you will deliver to me all the papers you have in reference to the land, U.S. patent, and other deeds.'' In Revere Copper & Brass, Inc. v. Manufacturers' Metals & Chemicals, Inc., 662 S.W.2d 866 (Mo.App.1983) , the offeree's studied avoidance of repeating the terms of the offer in full was deemed a counter-offer. See also Londoff v. Conrad, 749 S.W.2d 463 (Mo.App.1988) .

Mont. - In re Marriage of Lyman, 240 Mont. 336, 783 P.2d 1362 (1989) . In Kuchinski v. Security General Ins. Co., 141 Mont. 515, 380 P.2d 889 (1963) , the plaintiff by telephone, ordered cargo insurance on the contents of a truck. The agent misconstrued the order. He testified that he ''bound the defendant for collision and upset coverage,'' because he thought that was what was wanted. The truck was injured by collision. The court held that there was no contract for collision coverage. The agent's attempted acceptance did not correspond to the offer; it added coverage not requested. Observe that the plaintiff could not have been compelled to pay for the added coverage.

Neb. - Logan Ranch v. Farm Credit Bank, 238 Neb. 814, 472 N.W.2d 704 (1991) ; Gleeson v. Frahm, 211 Neb. 677, 320 N.W.2d 95 (1982) .

N.H. - Harris v. Scott, 67 N.H. 437, 32 A. 770 (1893) , acceptance ''if you have a bona fide offer'' from another party.

N.J. - Giovanola v. Fort Lee Building & Loan Ass'n, 123 N.J. Eq. 103, 196 A. 357 (1938) . A notice of acceptance by a lessee who had an option to buy was held not to be made ineffective by the fact that it was conditional on an extension of time by a mortgagee, when in fact the mortgagee had already consented to the extension. The express condition having already occurred, the acceptance was unconditional. Amster v. Tenney, 139 N.J.Eq. 335, 51 A.2d 257 (1947) .

N.M. - Polhamus v. Roberts, 50 N.M. 236, 175 P.2d 196, 170 A.L.R. 991 (1946) .

Okla. - Anderson v. Garrison, 402 P.2d 873 (Okl.1965) , an offer to sell for cash not accepted by tender of a portion of price and a time draft for the balance. In Tooks v. Carroll, 284 P.2d 1032 (Okl.1955) , a written offer was made to purchase an apartment house and its furniture. The offeree wrote accepting the offer but at the same time removed the furniture. The court held that the owner's action made the acceptance a conditional acceptance. The seller was denied specific performance and the offer and accompanying promissory note were canceled. The decision is certainly correct, the inclusion of the furniture being a condition of the buyer's promise. But it is believed that the seller was bound by a contract that could have been enforced by the buyer.

Or. - Hall v. Olson, 58 Or. 464, 114 P. 638 (1911) , offer to sell 18,000 acres of land with warranty of 40 million feet of timber-acceptance, subject to a ''cruise'' showing warranty correct. C.R. Shaw Wholesale Co. v. Hackbarth, 102 Ore. 80, 198 P. 908 (1921), different results reached on rehearing, 102 Ore. 80, 201 P. 1066, offer to sell lumber, attempted acceptance stating a definite time for payment and delivery; Mallory v. Sen Sin Ching, 230 Or. 239, 369 P.2d 734 (1962) , before attaching a signature, the plaintiff vendor inserted the words ''60 days, foreclosure,'' a material alteration of offer, even though ambiguous.

Pa. - Cohn v. Penn Beverage Co., 313 Pa. 349, 169 A. 768 (1934) , offer to sell for $15,000, the acceptance suggesting ten percent cash balance in 60 days.

R.I. -In John Hancock Mut. Life Ins. Co. v. Dietlin, 97 R.I. 515, 199 A.2d 311 (1964) , defendant applied for life insurance on all members of his family. The policy as issued contained an amendment excluding one daughter. The defendant refused to sign the amendment. Subsequently the daughter died. In the insurer's suit for a declaratory judgment, it was held that no contract had been consummated. Ardente v. Horan, 117 R.I. 254, 366 A.2d 162 (1976) , noted under § 3.13 above.

S.Car.- Sossamon v. Littlejohn, 241 S.C. 478, 129 S.E.2d 124 (1963) , offer to sell property for $100,000. Reply: ''your offer ... is hereby accepted,'' enclosing a draft of contract that provided for transfer on April 1, with 60 days for raising the money to pay. The offer, without specification, implied concurrent transfer and payment.

S.D. - Rossum v. Wick, 74 S.D. 554, 56 N.W.2d 770 (1953) , offer to sell subject to an existing lease, acceptance conditional on an assurance of possession at end of the lease.

Tenn. -In Lexington Housing Auth. v. Continental Cas. Co., 210 F.Supp. 732 (W.D.Tenn.1962) , the acceptance of a bid was ineffective because, (1) it was conditional on approval by the Public Housing Authority; (2) it was not in writing as the bid itself required; and (3) the provision for irrevocability for three days was unsupported by consideration or action in reliance. Canton Cotton Mills v. Bowman Overall Co., 149 Tenn. 18, 257 S.W. 398 (1924) , difference in terms of payment.

Tex. -In Civic Plaza Nat. Bank v. First Nat. Bank, 401 F.2d 193 (8th Cir.1968) , where defendant offered to purchase for a stated time a promissory note to be made in connection with a loan by plaintiff to a third party, the offer specifying the note to bear interest payable quarterly, there was no acceptance by proffering a note which failed to specify quarterly interest payments.

Utah - R.J. Daum Constr. Co. v. Child, 122 Utah 194, 247 P.2d 817 (1952) , after using subcontractor's bid, the general contractor submitted to the subcontractor a form of written contract containing material variations.

Vt. - Hill v. Bell, 111 Vt. 131, 11 A.2d 211 (1940) , offer to buy with warranty deed, acceptance saying quitclaim deed.

Wash. - City of Roslyn v. Paul E. Hughes Constr. Co., Inc., 19 Wash.App. 59, 573 P.2d 385 (1978) , review denied, 90 Wash.2d 1012 ; Coleman v. St. Paul & Tacoma Lumber Co., 110 Wash. 259, 188 P. 532 (1920) ; Blue Mountain Constr. Co. v. Grant County School Dist., 49 Wash.2d 685, 306 P.2d 209 (1957) , acceptance of a bid with variations, citing this section.

In Owens-Corning Fiberglas Corp. v. Fox Smith Sheet Metal Co., 56 Wash.2d 167, 351 P.2d 516 (1960) , a subcontractor submitted a bid on specified work. The contractor replied sending an ''Interim Purchase Order'' as a ''prospective authorization'' to begin fabrication, but expressly providing that ''A firm Purchase Order will be forwarded to you within five days.'' Thereafter, the specifications of the prime contract were varied, and no ''firm Purchase Order'' was ever sent. Subsequent negotiations arrived at no agreement. No contract was consummated. The ''Interim Purchase Order'' was merely a further step in preliminary negotiation. See also § 2.1.

Wis. - Todorovich v. Kinnickinnic Mut. Loan & Bldg. Ass'n, 238 Wis. 39, 298 N.W. 226, 135 A.L.R. 818 (1941) .

Eng. -Bishop & Baxter v. Anglo-Eastern, etc., Co., [1944] 1 K.B. 12 (C.A.), acceptance of order for goods ''subject to government restrictions and war clause''; Crossley v. Maycock, L.R. 18 Eq. Cas. 180 (1874) ; Duke v. Andrews, 2 Ex. 290 (1848), application for shares not accepted by allotting ''nontransferable'' shares: Hutchinson v. Bowker, 5 M. & W. 535 (1839), offer of ''good'' barley, acceptance for ''fine'' barley; Jordan v. Norton, 4 M. & W. 155 (1838), offer to buy horse warranted quiet in harness, acceptance giving warranty quiet in double harness; Routledge v. Grant, 4 Bing. 653 (1828) , offer to buy house, possession July 25, acceptance specifying possession August 1; Carter v. Bingham, 32 Up.Can.Q.B. 615 (1872).

(n7)Footnote 7. Tencza v. Hyland, 171 A.D.2d 1057, 569 N.Y.S.2d 242 (1991) . The offerors initialed the counter-offer and turned the document over to their attorneys. This was not communicated to the offeree who therefore could (and did) properly revoke.

Lembo v. Schlesinger, 15 Conn.App. 150, 543 A.2d 780 (1988) . Defendant allegedly signed the counter-offer, but this was not communicated until many months after the counter-offer was revoked.

(n8)Footnote 8.

Ala. - Hall v. Integon Life Ins. Co., 454 So.2d 1338 (Ala.1984) , under one version of the facts, the counter-offer was accepted; summary judgment was denied.

Cal. -In Born v. Koop, 200 Cal.App.2d 519, 19 Cal.Rptr. 379 (1962) , a broker obtained a purchaser who signed a ''deposit receipt'' that differed from the vendor's listed terms of sale, as to number and amount of installment payments, time and manner of making the prescribed down payment. Since the vendor did not assent to the deposit receipt, there was no contract consummated, and the broker was not entitled to a commission.

Colo. -In Nucla Sanitation Dist. v. Rippy, 140 Colo. 444, 344 P.2d 976 (1959) , the defendant was the lowest bidder on sewer construction. The plaintiff drew up a written contract and sent it to the defendant. The latter signed it and returned it with a letter attached stating that the acceptance was conditional on an extension of the time for completion. The plaintiff removed the letter, and after telling defendant that everything was all right returned a signed copy of the contract with a letter of its own attached. The defendant had made a counter-offer, one to which the plaintiff did not assent. There was no contract.

Del. - Friel v. Jones, 42 Del. Ch. 148, 206 A.2d 232 (1964) , aff'd, 42 Del.Ch. 371, 212 A.2d 609 , a bid at a real estate auction was held to be a counter-offer because of several conditions contained therein. Query, whether the seller had made an offer that could be countered or only an invitation for bids.

Ind. -In Foltz v. Evans, 113 Ind.App. 596, 49 N.E.2d 358 (1943) , a conditional acceptance was itself accepted.

Iowa - In re Marriage of Masterson, 453 N.W.2d 650 (Iowa App.1990) , a series of counter-offers did not amount to a contract; National Produce Co. v. Dye Yaus Co., 199 Iowa 286, 201 N.W. 572 (1925) , offer to sell as agent, acceptance treating offeror as principal.

Kan. - Steele v. Harrison, 220 Kan. 422, 552 P.2d 957 (1976) . Three writings were involved in this case. Steele offered to buy land, provided he could get immediate possession and one-third of the crop. Harrison replied, accepting, provided he did not have to give up possession before harvest nor give Steele the one-third of the crop. Steele thanked Harrison for the acceptance but said he needed to get some income pretty rapidly, maybe they could work out a deal or even trade some land, and enclosed a $1,000 check. Later a lease for one year was signed which said it in no way ''affects the agreements entered into.'' The court said the writings made no contract, and an oral agreement, as seemingly recognized by the lease, would be unenforceable under the statute of frauds.

Md. -In Post v. Gillespie, 219 Md. 378, 149 A.2d 391 (1959) , the owner of land signed a written offer to sell on stated terms, reciting that it was made ''in consideration of ... $10,000, check in hand paid, receipt of which is hereby acknowledged....'' After a vain effort to induce better terms, the offeree notified the owner that his offer was accepted and that the $10,000 deposit had been made with a named third person in escrow. This escrow deposit was held to be such a variation of the terms of the offer that the attempted acceptance operated as no more than a counter-offer. In rejecting this counter-offer, the owner expressed a willingness to proceed on the original terms, but the offeree still failed to pay him the $10,000, and the owner revoked.

Ohio -Acceptance of counter-offer for the sale of realty, containing an additional condition, is not an acceptance. Hairston v. Goodman, 1991 Ohio App. LEXIS 1176 (Ohio App. 1991); United States Steel Corp. v. Ohio Dep't of Transp., 577 N.E.2d 157 (Ct.Cl.1988) .

See Housing Authority of Lake Arthur v. T. Miller & Sons, 239 La. 966, 120 So.2d 494 (1960) , noted herein at § 3.36.

(n9)Footnote 9. Walker v. Goodson Farms, Inc., 90 N.C.App. 478, 369 S.E.2d 122 (1988) , review denied, 323 N.C. 370, 373 S.E.2d 556 . The defendant offered the plaintiff the job of general manager for a five-year term. The offer was in writing and contained detailed terms. The plaintiff wrote, accepting, but proposed two additional terms and one deletion. Nothing further was said by the parties as to the terms of employment. Plaintiff commenced working as president and general manager and continued to do so for two and a half years, when he was discharged without cause. Since performance on both sides was consistent with the terms of the original offer, it was held that these terms constituted the contract. On the other hand, it generally will be held that the parties' conduct amounts to creation of a contract based on the terms of the counter-offer. State v. U.S. Oil Co., Inc., 194 Ga.App. 1, 389 S.E.2d 498 (1989) cert. & rehearing denied.

(n10)Footnote 10. ''Where the contract, as here, is in several writings-as offer and acceptance-and not contained in a single document which both parties have executed, the Court will not, of course, be astute to detect immaterial differences in the phrasing of offer and acceptance which might defeat the contract, but will try to give each writing a reasonable interpretation under which substantial justice may be reached according to the intent of the parties.'' Richardson v. Greensboro Warehouse & Storage Co., 223 N.C. 344, 26 S.E.2d 897, 149 A.L.R. 201 (1943) . But the court here found that the acceptance was ''conditional.''

(n11)Footnote 11.

N.Y. - Mactier's Adm'rs v. Frith, 6 Wend. 103 (N.Y.1830) .

(n12)Footnote 12. Marcy, J., said: ''This concluded nothing. If the event [war between France and Spain] had actually happened, and Frith had insisted on enforcing this conditional acceptance, it would not have been in his power to do so. The most that Mactier said was that if an expected event happened, he would do an act which would complete the bargain. The happening of the event could not, without the act, complete it.''

Even if Mactier's letter should be interpreted as a conditional acceptance, it did not affect Frith's willingness to sell as expressed in his offer. This fact was evidenced by letters written by him to Mactier, although they were not received by Mactier.

An otherwise sufficient acceptance of an offer to sell land is not made conditional or inoperative by expressing a willingness to make a down payment ''while search of title is being made.'' Townsend v. Stick, 158 F.2d 142 (4th Cir.1946) .

(n13)Footnote 13. Ardente v. Horan, 117 R.I. 254, 366 A.2d 162 (1976) . Vendee offered to buy, vendors orally accepted, and sent vendee a written proposed contract to sell realty. Vendee returned the executed contract with a cover letter asking vendors to confirm that the dining room set and some other furniture were included in the sale, and enclosing a deposit check. Vendors denied any intent to sell furniture and returned the check. Vendee sued for specific performance but the court held that no contract was made despite vendee's claim that the condition for inclusion of the furniture was a mere suggestion.

Dotolo v. Petrucelli, 5 Conn.Cir. 274, 250 A.2d 336 (1968) . Plaintiff offered to settle a personal injury case for $975. The defendant replied: ''The case is settled. You don't have to get a lawyer. I am getting the money.'' This last phrase did not make the acceptance conditional on ''getting'' money.

(n14)Footnote 14. 205 Md. 435, 109 A.2d 101 (1954) .

(n15)Footnote 15.

Tenn. - Cole-McIntyre-Norfleet Co. v. Holloway, 141 Tenn. 679, 214 S.W. 817, 7 A.L.R. 1683 (1919) .

Tex. - International Filter Co. v. Conroe Gin, Ice & Light Co., 277 S.W. 631 (Tex.Com.App.1925) .

See also § 3.18, Silence as Acceptance.

An order for goods on a printed form supplied by the seller contained a provision that it would not be binding until authorized by an officer and purchaser's credit approved. There was a blank line below the words ''Authorized by.'' Prior to such an approval the order was revocable; a deposit by the purchaser was adjudged to be repaid to him. Kuzmeskus v. Pickup Motor Co., 330 Mass. 490, 115 N.E.2d 461 (1953) .

In Nakatsukasa v. Wade, 128 Cal.App.2d 86, 274 P.2d 918 (1954) , the plaintiff signed a written agreement to buy on stated terms and made a cash deposit on account. But the agent's ''Deposit Receipt'' containing the agreement stated: ''Said property is sold subject to approval of owner.'' Before any approval by the owner, the buyer gave notice of withdrawal and demanded his money back. The court held the notice of revocation to be timely and effective.

(n16)Footnote 16.

N.Mex. - Polhamus v. Roberts, 50 N.M. 236, 175 P.2d 196, 170 A.L.R. 991 (1946) .

See the similar cases:

Iowa - Federal Land & Securities Co. v. Hatch, 147 Iowa 18, 125 N.W. 837 (1910) .

N.J. - Wilson v. Windolph, 103 N.J.Eq. 275, 143 A. 346 (1928) .