2 Cooke v. Oxley, 3 T. R. 653, which is supposed to rule that an offer which is to remain open till a specified date does not bind the proposer, does not, as will be seen, sustain that position. In this reported, the evidence was that Oxley proposed to sell Cooke certain tobacco at a certain price, Cooke having till four o'clock on the same afternoon "to agree to or dissent from the proposal." Before the hour designated, Cooke notified Oxley that he agreed to take the tobacco. Oxley, however, refused to deliver it, and a suit was brought against him for damages. A verdict was taken for the plaintiff, but judgment was arrested. (See Benjamin on Sales, 3d Am. ed. sec 64-67 ; Leake on Contracts, 2d ed. 44, cited by Wald, note to Pollock, 9.) Lord Kenyou said: "Nothing can be clearer than that, at the time of entering into this contract, the engagement was all on one side; the other party was not bound ; it was therefore nudum pactum." To this Buller, J., added: "It is not stated that the defendant did agree, at four o'clock, to the terms of the sale." From these expressions we must infer that, in the opinion of the court, the cause of action set forth in the declaration amounted simply to a promise, not accepted or acted on by the promisee, to make a sale at a future date. There was no averment in the declaration either that the promise was a continuing one, or that it had been accepted by Cooke ; and hence, being a mere vague tentative proposal, not accepted by Cooke, Cooke could not play with it fast and loose. He was bound, if he received the proposal subject to this option, to say so ; he could not repel or ignore the proposal, and then afterwards treat it as continuing. If he wished to have bound Oxley, he should have said: "I accept your proposal to sell the tobacco to me in case I call for it before four o'clock." Because the declaration did not aver any such relation between the parties, judgment was arrested: That this is the purport of the decision in this famous case is shown by the comments does not differ in principle from the rule here advocated. It is not disputed that a parol contract without consideration is of Bayley, J., in Humphries v. Car-valho, 16 East, 47: "The question in Cooke v. Oxley," so said this learned judge, who may be regarded almost as a contemporaneous expositor, "arose upon the record, and a writ of error was afterwards brought on the judgment of this court, by which it appears that the objection made was that there was only a proposal of sale by the one party, and no allegation that the other party had acceded to the contract of sale." In other words, as is stated by Judge Metcalf (who rejects, as "unreasonable and inconsistent with good faith, and at variance with acknowledged principles of law," the rule that an offer to sell within a specific limit does not bind the proposer), "in setting forth an offer on a given day, and averring an acceptance afterwards, though on the same day, a party does not show necessarily that there was any mutual assent. The offer, as has before been stated, may have been retracted, or rejected, or have expired, within an hour from the time it was made. And as this depends on such a variety of circumstances, peculiar to each case, it would be a great stretch of credulity, as well as of legal presumption, to assume that an acceptance of an offer, on the same day it was made, does, of course, evince a mutual concurrent assent of the parties, according to the principles above suggested." Judge Metcalf further argues that Cooke v. Oxley is inconsistent with Adams v. Lindsell, 1 B. & Ald. 683, which held that an offer in a letter is to be regarded as continuing during all the time it is in the mail. Such (unless revoked by telegram or other more rapid mode of communication) is undoubtedly the intention of the party making the offer. But if, as in Cooke v. Oxley, I say to a customer, face to face, "I will hold this matter open for you till four o'clock," and if, as may have been the case so far as the declaration in Cooke v. Oxley averred, instead of agreeing to this, he turns his back on me and walks off, a continuing offer on my part cannot be inferred. There must, in such case, be a continuing offer on which the party addressed relied ; and this, if he seeks to recover on the proposal, he must aver and prove. To this effect, see Routledge v. Grant, 4 Bing. 653; Dickinson v. Dodds, L. R. 2 Ch. D. 463 ; Larmon v. Jordon, 56 111. 204.

In Dickinson v. Dodds, L. R. 2 Ch. D. 463, the defendant's memorandum, on which suit was brought, was as follows : " I hereby undertake to sell to Mr. George Dickinson the whole of the dwelling-houses, garden ground, stabling, and out-buildings, etc., for the sum of £800, etc. (Signed) John Dodds. P. S. This offer to be left over until Friday, 9 o'clock A.M. (the twelfth) 12th June, 1874. (Signed) J. Dodds." The plaintiffs notified their acceptance before the expiration of the time specified, but were informed that the defendant had sold the property on June 11th to a third party. A bill for specific performance was decided in the plaintiffs' favor by Bacon, V. C. This was reversed by the court of appeal. James, L. J., said: "It is clear settled law, on one of the clearest principles of law, that this promise being a nudum pactum was not binding, and that, at any moment before a complete acceptance by Dickinson of the offer, Dodds was as free as Dickinson himself. Well, that being the state of things, it is said a nullity, and that a promise to hold open a proposal, if without any consideration, cannot, therefore, be enforced. What is here maintained is that a proposal to hold open an offer is, if accepted, a bargain from which ordinarily a consideration is to be inferred. It is true that if the party addressed should say, "You may do as you please; I will abandon no right, even in the slightest degree, in consequence of what you tell me; I will pursue my inquiries just as if I never heard from you ; I shall not take the least amount of trouble in looking into your offer; I will behave as if I never heard it;" then we might say, "This is all speaking to the winds ; the party addressed has done nothing and omitted nothing in consequence of what has been said to him ; the proposal does not bind." This would undoubtedly be the case with a proposal to a party who takes no action whatever on the proposal.

that the only mode in which Dodds could assert that freedom would be by actually and distinctly saying to Dickinson, Now I withdraw my offer. I apprehend there is neither principle nor authority for the proposition that there must be an express and actual withdrawal of the offer, or what is called a retractation. It must, to constitute a,contract, appear that the two minds were one at the same moment of time, that is, that there was an offer continuing up to the moment of acceptance. If there was not such a continuing offer, then the acceptance comes to nothing." The objection to the above reasoning is the assertion with which it starts that the agreement was a nudum pactum. So far as the particular case went, this may hare been so. But ordinarily the proposal means : "I will agree to keep the matter open for a day (or week, as the case may be), if you will consider the matter and not commit yourself at once to some other pending proposal." This is a sufficient consideration.

As approving Cooke v. Oxley, see Tucker v. Woods, 12 Johns. 190;

Chic. etc. R. R. v. Dane, 43 N. Y. 240; Gillespie v. Edmonston, 11 Humph. 553.

In Benj. on Sales, 3d Am. ed. sec 64 et seq., Cooke v. Oxley is elaborately vindicated ; and to the position in the text that the detriment to the vendee by keeping the matter open is a consideration, it is replied that this takes such detriment, or "inconvenience," for granted. But this is the case with all propositions for conditional sales. (Infra, sec 547.) Here the offer is substantially this : "I will keep this thing for you until to-morrow in consideration of your putting aside other competing openings." If the promisee, having this offer in view, rejects other offers which he might otherwise accept, this detriment is a good consideration. In Hallock v. Ins. Co., 2 Dutch. 268, Cooke v. Oxley is spoken of as having been effectually overruled in England; and in Boston, etc. R. R. v. Bartlett, 3 Cush. 228, Fletcher, J., says that Cooke v. Oxley "has certainly, in later cases, been entirely disregarded, and cannot now be considered as of any authority."

But if any action whatever be taken on the proposal, whether this action consists in trouble, no matter how trivial, taken in consequence of the proposal by the party addressed, or in a suspension by him, no matter how brief, of inquiries elsewhere, the proposer being cognizant thereof, this makes a binding contract. Even the mere holding the matter under advisement is a consideration that binds. The party proposing says: "If you will consider this proposal, I will give you a day to decide." This the party addressed, accepts. The fact that it is thus to be acted on is a concession that forms an adequate consideration.1 Sometimes it may be a matter of much importance to the proposer to be able to say : "I have ottered the matter to Mr. A., who has it under consideration." But, be the benefit thus arising to the proposer great or little, the party entertaining the proposition, if it be seriously entertained (of this as of all other contracts seriousness being a condition), gives it the time and examination necessary for due deliberation. And this is a sufficient consideration.