3

handing the price to the bookseller, in which case there is no outstanding obligation at any time. This criticism is largely a matter of words and does not affect the substance of the principle. In the first example, the agreement to dissolve a contract, while in a certain sense it does not create an obligation, yet it does create a new legal relation between the parties, it binds each not to enforce the former undertaking. The word contract is to be taken in a broad sense as embracing all enforceable agreements of the parties concerning their legal relations. So in the case of a sale for cash, or the simultaneous exchange of property for money, while it does not create a personal obligation, it does create a property right changing the ownership of the thing and thus relating to the legal rights of the parties. The object of the agreement therefore, may be the creation of an obligation binding upon one or both of the parties or the transfer of ownership or the extinguishment or modification of an existing obligation.

§ 8. Forms of Offer, An offer may be:

(a) A mere naked absolute promise.

(b) A promise accompanied by an express or implied request for acceptance by an act.

(c) A promise with a request for a counter promise.

(d) An act accompanied by a request express or implied for a promise.1

(a) In the case of an absolute promise, where the con tract is concluded by simple assent or acceptance, the promise must be under seal, because in our law only those promises

3 This particular criticism is not applicable to Pothier's definition (Oblig. n. 3): “An agreement or pact is the consent of two or more persons to create between themselves an engagement, or to dissolve one previously existing or to modify it."

1 In Roman law one division of the consensual contracts was into these four classes. Aut enim do tibi ut des, aut do ut facias, aut facio ut des, aut facio ut facias. Dig. 19, 5, 5, pr.

But he may "If I by deed

are enforced which are either under seal or are supported by a consideration. The acceptance of the offeree is presumed, since the promise is for his benefit. declare his dissent and then the offer falls. promise to give you £ 20 here you shall have an action of debt upon this deed, and the consideration is not examinable; it is sufficient to say it was the will of the party who made the deed."3 As a general rule, the instrument must be delivered to the other party or to someone for him.1 But if the promisor retains possession of it after showing that he intended it to go into effect at once, that is sufficient.5

A promise under seal to sell certain property if the promise pays the purchase price within a designated time is an irrevocable unilateral contract binding on the promisor, which may be converted into a bilateral contract, at the option of the promisee by his acceptance in the mode prescribed. (b) The offer of a promise for an act is made when a man offers a reward for the return of lost property, in which case the contract is completed by performance according to the terms of the offer. If one promises to pay the debt of a third party, provided the creditor will not institute suit against him, and the creditor does forbear, such forbearance is an act by which the promise is accepted. If a man is lawfully appointed District Attorney, that is a request made to him by the proper authority to render the services demanded of that office and a promise to pay the com

2 Leppocr. Nat. Union Bank, 32 Md. 145; Standing . Bowring, L. R. 31 Ch. D. 282, 290.

3 Sharington r. Stratton. Plowden, 308.

4 See post, ch. iii, as to contracts under seal generally.

5 Xenos r. Wickham, L. R. 2 H. L. 296.

6 See post, Conditional Contracts, Part v, ch. 1.

7 See post, § 18.

. Tipton, C4 Md. 275.

8 Bowen Four of the five endorsers of a promissory note executed and delivered an instrument under seal by which they requested the fifth endorser-the plaintiff to pay the note at maturity, and agreed to refund the amount thereof in certain proportions. Upon payment of the note by the plaintiff a binding contract to reimburse him was made by such act, and no other acceptance of the offer was necessary. Sharp r. Bates, 102 Md. 344.

pensation fixed by law. When the services are rendered as requested, the obligation to pay is perfect, and no element of a contract is lacking."

(c) In the offer of a promise for a promise, the acceptance consists in making the promise asked for. When an order for the manufacture of goods is given, the promise of the manufacturer to make them completes the contract.10 If the offer requires a counter promise, it is not sufficient for the offerce to do the act called for without the knowledge of the offeror. Thus, if one writes to a carpenter saying that upon his agreeing to do certain work within a designated time, he will be employed, he must communicate his promise, and the mere fact that he makes preparations for doing the work without the knowledge of the proposer is not an acceptance, and the offer may be revoked.11

(d) In the offer of an act for a promise, the act must be done with the knowledge of the offeree so that he may know that the creation of a legal obligation is contemplated. If you are standing at your window after a snowstorm, when a man comes along with a shovel, who after motioning to you and seeing an affirmative nod of your head, begins to clear, the snow away from your sidewalk, he offers an act for a promise, and your acquiescence implies a promise on your part to pay a reasonable price. If he had done the work without your knowledge, no contract would have been made because there was no communication of the offer.12 Generally, the rendition of services for another with the expectation of being paid for them and with the knowledge of the latter, is prima facie evidence of the occeptance of the services and of a promise to pay.13

Most contracts are made by the mere agreement of the parties, and nothing more is essential, neither the performance of the work, nor the delivery of a thing, nor a writing

9 Fisk r. Jefferson Police Jury, 116 U. S. 134.

10 Eckenrode r. Chemical Co., 55 Md. 51.

11 White . Corlies, 46 N. Y. 417.

12 Doan r. Badger, 12 Mass. 65. See cases, post, § 10, as to communication of offer by conduct.

13 Cases, post, $10.

nor any special form of words. But there are some contracts formed, not so much by the offer of an act for a promise as by the doing of the act, which do not become effective until an act has been done or the thing to which they relate has been delivered. In the case of the loan of an article or of money, or the bailment of depositum, a promise to make the loan or to accept custody of the article, although assented to by the other party, does not create a contract for lack of consideration to support the promise. But when the money or the article has been delivered, then a contractual obligation to repay or to redeliver is created. The doing of the act is the consideration which supports the promise.

It will be observed that in all these four modes by which offer and acceptance create a contract, there is a promise on one side at least.

§ 9. Rules Governing Offer and Acceptance:

i. The offer must be intended to create a legal obligation. ii. The offer may be communicated by conduct or by words, but must be communicated.

iii. The offer must be certain and definite.

iv. The offer may lapse or be revoked before acceptance. An offer is terminated by its rejection.

V.

vi. The acceptance must be communicated, unless communication be dispensed with.

vii. The acceptance may be by conduct or silence.

viii. The acceptance must be absolute and in conformity with the offer.

ix. The acceptance must be by the person to whom the offer is made unless made to the public.

X. An absolute acceptance creates the final contract. These rules will first be explained and illustrated and then their application to contracts formed by correspondence and telegraph will be shown.

§ 10 (i). The Offer Must be Intended to Create a Legal Obligation. Since the object of the agreement is to create an obligation, the offer by which it is initiated must be the

expression of a real and definite intention to make one's self a debtor to another. This purpose does not exist if the proposer intended to assume only an obligation of courtesy or honour or charity. Where the manager of a summer resort hotel telegraphed saying, "There are many cases of yellow fever at the Well. Send out physician without fail this evening;" it was held that he was actuated by motives of humanity and did not intend to assume liability to the physician who responded to his call, and that the message was not an offer to pay for his services.1

When that which is in form an offer was not intended seriously but only as a jest, it is not converted into a contract by an acceptance if the other party knew, or ought to have known, that the proposer did not intend to create a legal obligation. A marriage ceremony between a man and a woman, although actually performed by a legally qualified celebrant, is not a marriage when both parties at the time intended it as a jest.3

The intention to create an obligation is also lacking when one's proposition was designed to begin negotiations, or as the first step in bargaining, or as the asking for an offer from the other party. In certain instances, it is difficult to determine whether a party intended to make a definite offer, or merely to ask for offers or to begin negotiations. It is a question of interpretation, to be answered by considering the nature of the proposition, the circumstances under which it was made, and the relations between the parties.

Invitations to negotiate and not serious and final offers are made by such propositions as these: A. wrote a letter to B. saying, "Advise us by wire Monday, if you can use about 1,500 creosote barrels, between now and January 1st, at 95c. each, delivered in carload lots." B. answered, "We accept your offer fifteen hundred bbls. as per yours of the 7th." It was held that no contract was made, since A's letter was

1 Williams r. Brickell, 37 Miss. CS2.

2 Keller r. Holderman, 11 Mich. 248; Theiss r. Weiss, 166 Pa. 9. 3 McClurg v. Terry, 21 N J. Eq. 225.