§ 58. (Contracts, Sec. 26.) Termination of offer by death or insanity of offeror or offeree.

Case 47. Beach v. M. E. Church, 96 Illinois Reports, 177.

Facts: Lorenzo Beach in February, 1874, signed the following paper:

"Fairbury, February 14, 1874. "We, the undersigned, agree to pay the sum set opposite our respective names, for the purpose of erecting a new M. E. church in this place, said sums to be paid as follows: One-third to be paid when contract is let, onethird when building is enclosed, one-third when building is completed. Probable cost of said church from ten thousand dollars ($10,000) to twelve thousand dollars ($12,000)."

To which he attached and subscribed the following: "Fairbury, 1874. "Dr. Beach gives this subscription on the condition that the remainder of eight thousand dollars is subscribed.

"Lorenzo Beach

.$2,000."

Beach was adjudged insane and conservators appointed in April, 1875; other subscriptions to the amount of $8,000.00 were received and the building begun in September, 1876; in 1878 Beach died. This suit was begun shortly before Beach's death against his conservators; dying before trial, his heirs were made parties.

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Point Involved: If, after an offer is made, and before its acceptance, the offeror becomes insane, or dies, does the offer thereby lapse? Incidentally, what is the nature of a charitable subscription to pay money? MR. CHIEF JUSTICE DICKEY: "** There is nothing in the record tending to show that the church, in this case, took any action, upon the faith of the subscription, until after Dr. Beach was adjudged insane, or that the church paid money, or incurred any liability. His insanity, by operation of law, was a revocation of the offer. In Pratt, Administratrix, etc., v. The Trustees of the

Baptist Society of Elgin, 93 Ill. 475, this court said, in relation to such a subscription:

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"The promise, in such case, stands as a mere offer, and may, by necessary implication, be revoked at any time before it is acted upon. It is the expending of money, etc., or incurring of legal liability on the faith of a promise (of this kind) which gives the right of action. Until acted upon, there is no mutuality, and, being only an offer, and susceptible of revocation at any time before being acted upon, it follows that the death of the promisor, before the offer is acted upon, is a revocation of the offer. * The continuance of an offer is in the nature of its repetition, which, of course, necessarily requires some one capable of making a repetition. Obviously, this can no more be done by a dead man than a contract can, in the first instance, be made by a dead man.'

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"Conservators of the person and property of an insane man may perform personal contracts of their ward legally subsisting, under some circumstances; but in this case there was no contract between Dr. Beach and the church. The paper signed by Dr. Beach was of such a nature that no binding contract sprung therefrom until the church had accepted the same by incurring some legal liability, or expending money upon the faith of it. There being no binding contract upon Dr. Beach at the time that his conservators made the payments, they had no lawful authority to make the same, and the estate of Dr. Beach was not bound thereby."

Question 47: What was the date of Beach's offer? When was he adjudged insane? Had anything been done in reliance on his offer at that time? What reason does the court give that death or insanity should terminate an unaccepted offer?

(Note to Case 47: A promise to contribute to charitable enterprise is essentially in the nature of a gift and therefore unenforceable. Generally held, that action upon the subscription makes it binding. Subscriptions often recite that they are given in consideration of other subscriptions. If this is true, they are

contractual, but it is generally not true, some being received prior to others.

§ 59. (Contracts, Sec. 27.) Revocation of offer.

Case 48. Kempner v. Kohn.

(See Case No. 43, supra.)

Question 48: In a revocation of an offer must the revocation to be effective actually reach the offeree before he has accepted, assuming that otherwise he has accepted in time?

§ 60. (Contracts, Sec. 28.) Contracts to keep offers open.

Case 49. Shubert Theatrical Co. v. Roth, 271 Fed. 827. (Set out as Case No. 55, post.)

Question 49: What is an option? What are the two elements therein? Can an offer in an option contract be withdrawn?

(Note: In an option, there is an offer made, and then, in addition thereto, a promise by the offeror to keep it open a definite time, in consideration of something paid, given or definitely promised by the offeree. Options are frequently tied up in other contracts, as in the Shubert case, or as an option to renew a lease. In such cases the consideration for the option is the making of the original contract itself.)

D. The Acceptance.

§ 61. What constitutes acceptance.

§ 62.

Acceptance by promise or act.

§ 63. Communication of acceptance.

§ 61. (Contracts, Sec. 29). What constitutes acceptance.

Case 50. Four Oil Co. v. United Oil Producers, 145 Cal. 623.

Facts: Suit to recover for breach of alleged contract to buy oil. The evidence showed an offer to sell petroleum of a "guaranteed gravity of not less than 15 degrees Beaume," and a reply to that offer stating, "but we wish this distinctly understood under this agreement

to be 15 degrees Beaume at a temperature of 60 degrees Fahrenheit."

Point Involved: If the offeree responds upon terms and conditions not stated in the offer, is the response an acceptance of such offer?

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HINSHAW, J., delivered the opinion of the court: An offer imposes no obligation unless it is accepted upon the terms upon which it was made. A qualified acceptance is a new proposal. Under these principles of law it is clear

that the minds of the parties had not met in the creation of a legal obligation, and for the reason that the acceptance of the defendant was conditional and imported into the contract a term not found in the original proposal, and one requiring the assent of the plaintiff before either could be bound."

Question 50: (1) State the facts in the above case, the question presented and the court's decision thereupon.

(2) A offered a reward for the apprehension and evidence leading to B's conviction. C, after B's apprehension by another, furnished the information upon which B was convicted. Is he entitled to the reward?

Case 51. Curtis Land & Loan Co. v. Interior Land Co. 137 Wis. 341, 118 N. W. 853 (1908).

Facts: The plaintiff sues to enforce an alleged contract with defendant whereby defendant agreed to sell and plaintiff to buy certain real estate. The defendant claims there was no contract because the plaintiff added to his acceptance of the offer the words "We note that this description (land) was sold in 1903 and 1904 to F. J. Smith for delinquent taxes. Please take care of these taxes." Defendant's claim is that this meant "we accept your offer to sell provided you will clear up the title." Plaintiff's answer to this is that this proviso adds nothing to what the law would imply anyway.

Points Involved: Whether an offeree unqualifiedly accepts an offer if he adds to his acceptance conditions or qualifications which are otherwise impliedly present.

Whether an offer to sell real estate carries with it an obligation to transfer a merchantable title.

BARNES, J.: "Plaintiff's letter of acceptance also contained the following statement: 'We note that this description was sold in 1903 and 1904 to F. J. Smith for delinquent taxes. Please take care of these taxes.' This letter makes it clear that the plaintiff expected the defendant to take care of the outstanding tax certificates mentioned in the letter. If this portion of the letter contained any requirement that was not comprehended in the defendant's offer to sell, then it may well be asseverated that plaintiff did not make an unqualified acceptance, but a conditional one, and that therefore no contract was made. If the legal effect of defendant's offer to sell the land at a stated price was that it should furnish a marketable title free and clear of outstanding liens and incumbrances, then the paragraph quoted added nothing to the defendant's proposition to sell, and did not constitute a counter proposition. The defendant's offer to sell is silent as to the nature of its title and as to the character of the conveyance which it purposed giving. But the law seems to be well settled that an agreement in general terms to convey real estate, without specifying the nature of the title held by the vendor, or the kind of a deed which is to be given, calls for a conveyance of the entire interest in the land sold by a good and sufficient deed. In other words, an agreement to sell at a sound price, without reservation or exception, implies that a marketable title free of incumbrances will be passed to the vendee upon compliance with his obligations. Young v. Wright, 4 Wis. 144, 65 Am. Dec. 303; Id; 6 Wis. 127, 70 Am. Dec. 453; Bateman v. Johnson, 10 Wis. 1, 3; Arentsen v. Moreland, 122 Wis. 167, 175, 99 N. W. 790, 65 L. R. A. 973, 106 Am. St. Rep. 951. On an agreement by the vendor of lands to execute a good and sufficient conveyance, the purchaser may demand a clear title, as well as that it be assured him by proper covenants. Davis v. Henderson, 17 Wis. 105, 107; Taft