Sec. 60a. Attempted Solutions Of The Difficulty
The same problem exists in the civil law and has been met in modern codes by enacting that the offer is irrevocable until the offeree has had a reasonable time for performance.73 property, and a commission for making a Bale. The plaintiff endeavored to make such a sale, published advertisements and solicited purchasers, but, about a month after making the offer, the defendant himself sold the property. It was held that the plaintiff had no cause of action. The facta were similar in Kolb v. Bennett Land Co., 74 Miss. 667, 21 Bo. 233; Taylor if. Barbour, 90 Miss. 888, 44 So. 988, 122 Am. St. Rep. 328.
71 Valery, Contrats par Correspond-auce, p. 167.
72See further a discussion of the problem by Professor Corbin, 26 Yale L. J. at pp. 194-196.
73See Valery, Contrats par Cor-reepondanoe, Sec. 172. In the absence of such legislation the weight of opinion in the civil law is that an offer may be revoked, id., Sec. 170, though it is to be observed that the fundamental reason why an offer is revocable in our law- namely, because no consideration has been given for it, and promises without consideration are not binding, does not exist in the Civil Law.
This solution seems desirable but hardly attainable without a statute. It has also been suggested in the Civil Law that the offerer should be held liable in tort for inducing the offeree to begin performance and then withdrawing the offer.74 There seems little warrant for such a suggestion in our law. No doubt in so far as the offeror has accepted a benefit from the offeree's part performance, he would be liable on principles of quasi-contract for its value.75 Frequently, however, part performance by the offeree will not enure to the offeror's benefit, and unless the defendant has violated a legal duty the right to recover on a quantum meruit based on a quasi-contractual obligation is -based not on the detriment which the plaintiff may have suffered, but upon the benefit which the defendant has received.76 The remedy previously suggested of holding the offeror liable in tort for inducing the offeree to begin performance and then withdrawing the offer, seems therefore, if it were permissible, more complete and satisfactory.77 As a matter of positive decision the right of the offeror to revoke his offer even after part performance by the offeree has the support of a few American cases,78 but in view of the practical hardship of the situation it is by no means improbable that the theory of a collateral contract will find favor.79 In most of the few cases where the question has arisen, the offeror has been held bound, but it is not clear on what theory. Sometimes at least the court seems to have thought it possible to turn the transaction into a bilateral contract by a beginning of performance on the part of the offeree. What obligations the offeree assumes by beginning to perform is. however, not always considered.80 The death contemplating a promise by the offeree of immediate performance, which being tendered gives a right of action on the contract. This method of reasoning, however, evades rather than meets the problem for it seems undeniable that an offeror may propose a unilateral contract which shall be preceded by no bilateral agreement, and shall require as consideration not the mere tender of an act, but actual performance, which can only be accomplished with the cooperation of the offeror.83 If it be conceded that no bilateral contract existed and the offeree was under no obligation to perform,84 does the tender create such an obligation? If not what is the nature of the contract? The offeror has received no consideration, and the fact that this is his own fault, seems insufficient to supply this requisite.
74This theory of the offeror's liability was first carefully elaborated by ton Ibering, Jahrbellcher for Dog-matik, IV. p. 1 seq., under the designation of culpa in contrachendo. For the varying views of other writers, see Winsccheid, Lehrbuch des Pandekten-rechts, II,Sec. 1807, n. 5 (8th ed.); Valery, Sec. 185; Swiss Code of Obligations, Art. 8.
75In Biain v. Pacific Express Co., 89 Tex.74, 78, 6S.W.679. The court said, obiter in regard to partial performance of an offer of reward for the arrest of two persons, "No facts are stated, such as that the plaintiffs were prevented from arresting both the persons for whom a reward was offered by the fault or fraud of the defendant, from which the law would raise a new contract and give a remedy on a quantum meruit." And in Zwolanek v. Baker Mfg. Co., 150 Wis. 517, 137 N. W. 769, 44 L. R. A. (N. S.), 1214 the mart said, speaking of such an offer, "he is entitled to the whole reward, or at least to compensation on quantum meruit."
76 Infra, Sec. 1478, et seq.
77 The case of G. Ober & Sons Co. v. Katzenstein, 160 N. C. 439, 76 S. E. 476, lends some support to one who claims such a remedy. The court there held that though an agreement for the sale of fertiliser gave the seller the option to cancel the order, the seller was liable on cancelling it for damages sustained by the buyer before exercise of the option, such as the expense of preparing the land for the crops, which was useless because of lack of fertiliser, and the loss of profits on such part thereof as the buyer before exercise of the option, had contracted to resell, unless the buyer could have obtained, and his customers would have taken, any other brand. An agreement with an absolute right reserved to either party to cancel it, is not a contract. See supra, Sec. 46. It seems in effect an offer for a unilateral contract. See also Welch v. Lawson, 32 Miss. 170.
78Biggers v. Owen, 70 Ga. 658, 5 S. E. 193; Lascelles v. Clark, 204 Mass. 362, 372, 90 N. E. 875; Smith v. Cau-then, S8 Miss. 746, 64 So. 844. See also Stensgaard v. Smith, 43 Minn. 11, 44 N. W. 669, 19 Am. St. Rep. 205; Cook v. Casler, 87 N. Y. App. D. 8, 83 N. Y. Supp. 1045; White v. Allen, Kingston Ac. Co., 69 N. Y. Misc. 627, 126 N. Y. Supp. 150; Butchers' Advocate Co. v. Berkof, 94 N. Y. Miac. 299, 158 N. Y. S. 160 (cf. North Side News Co. v. Cypres, 75 N. Y. Misc. 129, 132 N. Y. S. 806, Post v. Frank, 75 N. Y. Misc. 130,132 N. Y. S. 807).
79In Brackenbury v. Hodgkin, 116 Me. 399, 102 Atl. 106, the court admitted that "the offer was the basis, not of a bilateral contract requiring a reciprocal promise, a promise for a promise, but of a unilateral contract requiring an act for a promise," yet held that in spite of repudiation by the promisor after part perfomance, there was "a completed and valid contract" because the plaintiffs had in acceptance of the offer moved from Missouri to Maine, entered upon the performance of the specified acts and continued performance as long as they were permitted to do so.
80 The only reference to the matter in the English books is in Offord v. Davies, 12 C. B. (N. S.) 748, where in the course of the argument Williams, J., asked: "Suppose I guarantee the price-of a carriage to be built for a third party who, before the carriage to finished, and consequently before I am bound to pay for it, becomes insolvent, may I recall my guaranty?" The counsel replied "Not after the coach builder has commenced the carriage," and Erle, C. J., added; "Before it ripens into a contract, either party may withdraw, and so put an end to the matter. But the moment the coach builder has prepared the materials he would probably be found by the jury to have contracted." A somewhat similar suggestion is made by the Illinois Supreme Court in Plumb v. Campbell, 129 111. 101, 107, 18 N. E. 790. The court says that the appellant (the offeror) could be bound in three ways: "First by appellee engaging within a reasonable time to perform the contract on his part; second, by beginning such performance in a way which should bind him to complete it, and, third, by actual performance." See also A. B. Dick Co. v. Fuller, 213 Fed. 98; Blumenthal v. Goodall 89 Cal. 251, 26 Pac. 906; Los Angeles Traction Co. v. Wilshire, 135 Cal. 654, 658, 67 Pac. 1086; Miller v. Moffat, 153 111. App. 1; Vigo Agricultural Soc v. Brumfiel, 102 Ind. 146,1 N. E. 382,52 Am. Rep. 657; Loyd Mercantile Co. v. Long, 123 La. 777, 49 So. 521. In Zwolanek v. Baker Mfg. Co., 150 Wis. 617,137 N. W. 769, 773, the court said, "It is true, as a of either party after part performance but before full performance by the offeree under an offer for a unilateral contract, since death effeces a revocation of an offer which has not yet ripened into a contract,81 presents the same problem.82
Sec. 60b. Whether refusal of tendered performance prevents unilateral contract. An analogous difficulty concerning revocation of offers for unilateral contracts exists where the act requested by the offer is one which can be performed only with the cooperation of the offeror as by accepting goods tendered. It may be supposed that the offeror refuses to give such cooperation when tender of performance is made to him. On theory it seems impossible to say that a contract has been formed in such a case and yet the hardship ensuing may be great. There can be no doubt that where the offer contemplates either a unilateral or bilateral contract, the offeror may revoke up to the very instant that acceptance is made. The offeror may see the approach of the offeree and know that an acceptance is contemplated. If the offeror can say "I revoke" before the offeree accepts, however brief the interval of time between the two acts, there is no escape from the conclusion that the offer is terminated. Where, however, the offeree actually tenders performance while the offer is still open, the same result though no less clear in theory, seems harsher. Doubtless the difficulty would generally be avoided in practice by dealing with the offer as if it were for a bilateral contract general proposition, that a party making in offer of a reward may withdraw it before it is accepted. But persons offering rewards must be held to the excrise of good faith, and cannot arbitrarily withdraw their offers, for the purpose of defeating payment, when to do so would result in the perpetration of a fraud upon those who, in good faith, attempted to perform the service for which the reward was offered. First Natl Bank v. Hart, 55 111. 62." See tin Ashley on Contracts Sec.30 and 28 L Qu. Rev. 101, and cf. cases of subscriptions held binding as soon as expenses have been incurred. See infra, Sec. 116.
81See infra, Sec. 62.
82In Ridlon v Davis, 61 Vt. 457, the performance by the plaintiff was in part rendered after the offeror's death, as was indeed the offeror's expectation. The court enforced the promise, but it does not clearly appear that a unilateral contract was requested, and no recognition is given of the importance of distinguishing in this matter between a unilateral and a bilateral agreement.
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