Sec 14

"We have seen2 that a continuous proposal only binds for a reasonable time. Whether a proposal is continuous depends not only upon the language used, but upon the mode of the negotiation. If it should be said, " these goods are yours if called for during business hours to-day," and the party addressed accepts, either expressly or tacitly, in conformity with the usages of business, the proposal, this is a sale defeasible on part of the vendor in case the purchaser does not comply with the condition of calling for the goods. An action for the price, based on the contract, would lie against the vendee if he took the goods; an action for the damages incurred would lie on the contract against the vendor in case he did not deliver the goods when called for within the time limited. Yet, on the other hand, the proposal may be simply this: "If you call at any time within ten days, I will procure a certain article for you at a certain price." In such case there is no sale, though (if the transaction be not void as a gambling adventure) the proposer would be liable, in case his promise was not made good, for any damages accruing to the other party from its breach. Or the proposal may be to sell if called for at a particular time, and the proposal may be made face to face, but may not be assented to when assent would be practicable and in accordance with business usage. In such case the proposal is not binding if not continuing, though if continuing it binds.1-Mr. Leake2 gives the following examples of rulings on offers limited in continuance : A tender to supply goods at certain prices during twelve months may be accepted from time to time during the twelve months, provided the tender is not otherwise withdrawn, by ordering goods upon the terms of the tender.3 An agreement to carry all goods presented for carriage at a certain rate during twelve months is to be construed as a mere offer that may be accepted from time to time by delivering goods for carriage ;4 and an analogous interpretation has been applied to an offer to guarantee the payment of a particular line of bills for twelve months.5 In such case the guarantee may be revoked at any period during the continuance, except so far as it has been acted on.6-The modification, before acceptance, of the law under which a continuing proposal is made, if material, may operate as a revocation.7

Proposal not binding if not continuous.

1 See infra, sec 505, 515, 516.

2 Supra, sec 9.

Sec 15

Whatever we may think as to the questions abovestated,it is plain that, when the party addressed has a specific time within which to accept a proposal, the proposal falls if not accepted within the limit.8 The proposal, also, may fix a limit as to the place of acceptance. If so, unless the condition is complied with, no contract is perfected.1 "The proposal," says Mr. Pollock,2 "may prescribe a certain time within which the proposal is to be accepted, and the manner and form in which it is to be accepted. If no time is prescribed, the acceptance must be communicated to him within a reasonable time."3 Even a partial payment, by the promisee, if made conditionally, does not bind him to a proposal which he does not accept. Thus, in an Illinois case in 1880, the evidence was, that V. made the following memorandum in his books: "Sold this day to P. a bill of lumber to complete a house for himself at the following prices." This was followed by a specification of prices but not of quantity. It was held that this was a mere proposal which was not a contract until accepted, and that P. making a payment on account was not of itself an acceptance.4 sec 16. An acceptance, as well as a proposal, may be conditional ; that is to say, it may be conditioned upon something at present uncertain.5 Thus a proposal to take goods, on trial may be accepted dependent on the contingency contemplated in the offer, and the contract, supposing there be no unfair advantage taken by the purchaser, does not bind unless the goods prove satisfactory.6 When the proposal is thus made, the purchaser is entitled to hold the goods during the period limited for trial.7 And where the proposal is to take with a right to return if not liked, this makes a sale with a right of contingent rescission.8 On the other hand, the acceptance, though partial, must be unqualified to be operative, that is to say, the accept-

If not accepted within designated limit as to time or place, proposal falls.

1 See authorities cited to sec 9, 13 ; Mactier v. Frith, 6 Wend. 103 ; Lang-dell, Ca. Cont. 1091. As to continuing considerations, see infra, sec 515. That a party delivering goods to a proposed purchaser on trial, is bound by his proposal to sell, see Hunt v. Wy-man, 100 Mass. 198.

2 2d ed. 41.

3 Great North. R. R. v. Witham, L. R. 9C. P. 16.

4 Burton v. R. R., 9 Ex. 507.

5 Offord v. Davies, 12 C. B. N. S. 748.

6 Ibid. As to continuous guarantees, see infra, sec 570.

7 Mercer Co. v. R. R., 27 Penn. St. 389.

8 Infra, sec 881 et seq.; Vangerow, ut supra; Jackson v. Galloway, 5 Bing. N. C. 75 ; Mactier v. Frith, 6 Wend. 103 ; White v. Corlies, 46 N. Y. 467; Potts v. Whitehead, 5 C. E. Green, 55 ; Long-worth v. Mitchell, 26 Ohio St. 334; Maclay v. Harvey, 90 111. 525 ; Smith v. Wetherell, 4111. App. 655 ; Eskridge v. Glover, 5 St. & P. 264. That when required an answer must be sent by return mail, see infra, sec 19.

Proposal and acceptance may be conditional.

1 Infra, sec 881; Savigny, viii. sec 371; Puchta, Pandekt. sec 251; Adams v. Lindsell, 1 B. & Ald. 681 ; Stocken v. Collen, 7 M. & W. 515 ; Eliason v. Hen-shaw, 4 Wheat. 225, and cases cited; Wh. Con. of L. sec 421.

2 3d ed. 24.

3 Supra, sec 9 ; infra, sec 19.

* Smith v. Weaver, 90 111. 392. That by business usage the proposal may be conditioned on acceptance by next convenient mail, see Carniichael v. Newell, ance must go to some one specified thing put forth by the proposal.1 A promise, also, to pay on performance of an act from which the promisee will incur a loss, becomes binding on the performance of the act.2 Nor is the promise less binding from the fact that the consideration is contingent, being dependent on the option of the promisee.3 But if the promise be on a condition not afterwards complied with, there is no contract.4 And, where an application was made to an institute for an allotment of space in its hall for exhibition, the applicant paying the stipulated entrance fee, and the institute reserving the right of rejection, it was held that this did not constitute a contract to award the desired space.5-Agreements contingent upon the action of other parties are hereafter distinctively considered.6

2 Phila. 289; Bowney v. Clark, 22 Pitts. L. J. 69.

5 Infra, sec 545 et seq.

6 Hunt v. Wyman, 100 Mass. 198 ; infra, sec 589.

7 Ellis v. Mortimer, 1 B. & P. 257; see infra, sec 589 et seq.; Reed v. Upton, 10 Pick. 522. That a provisional concurrence is not final, see supra, sec 5.

8 Witherby v. Sleeper, 101 Mass. 138.