removed one of the most useless and unjustifiable costs in federal equity procedure.

The Supreme Court has likewise done everything in its power to clear its own docket of pending cases. Current reports show that instead of waiting for approximately three years before hearing a case pending before it, a hearing may be now had in about a year after the appeal is perfected.

Such action on the part of the Supreme Court itself is in many instances doing quite as much to stimulate prompt action in the disposition of equity causes as the rules promulgated by it.

Wallace R. Lane.

CHICAGO, ILL.

IT.

IRREVOCABLE OFFERS.

I.

is elementary that an offer not under seal and without consideration may be revoked at any moment prior to its acceptance, even though a stated time is given for deliberation, for in the Common Law this giving of time is viewed as at most a promise to keep the offer open, which, being without consideration, is not binding. It has recently been reasserted that even an offer in terms to remain open a stated time, given under seal or for consideration, may in all cases be revoked before the time expires so as to render a subsequent acceptance ineffectual though given within the time allowed.1

Suppose an offer is made to sell land for $10,000, and in consideration of $50 paid by the offeree the offerer agrees to keep the offer open for ten days. It is asserted that if the offerer communicates a revocation on the third day, for instance, an acceptance thereafter, though within the ten days, will not create a contract to buy and sell the land. It is admitted, of course, that the revocation exposes the offerer to an action for damages for the breach of his contract to keep the offer open. The contention is that, while the contracted obligation to keep the offer open is wrongfully broken and the wrongdoer is liable in damages, the wrong is effectual to revoke the offer. This smacks of the exploded notion that a promissor has an alternative “right” either to perform his promise or to pay damages for his non-performance,2

1 Ashley, The Law of Contracts (1911), pp. 25-27.

2 This fallacy is a very catching one and at first blush seems a sound generalization from the fact that ordinarily only damages can be recovered for a breach of contract. It was relied upon in Lattimore v. Harsen, 14 Johns. (N. Y.) 330 (1817) for a result since repudiated [see also Munroe v. Perkins, 9 Pick. (Mass.) 298 (1830)] and was unfortunately given currency in The Common Law, p. 301, by Justice Holmes, whose statement, says Pollock, can only be regarded as a brilliant paradox." Pollock on Contracts, 3d Am. ed., p. 202 n. (g). The law regards damages assessed against the defendant as compensation for the wrong he has done, and not as the performance of an alternative "right." Decrees for specific performance and negative injunctions show that a promisor has no such alternative. That a decree for specific performance does not get the thing done at the time promised and is really

4

"3

but Professor Ashley puts the proposition in this form: An irrevocable offer "is contrary to the legal conception of an offer,' following Langdell, who said: "An offer. . . which the party making it has no power to revoke is a legal impossibility." True, the latter did partly rest this dogmatic statement on the further assertion that "A contract incapable of being broken is also a legal impossibility," but the reason, at bottom, assigned by both authors is that no meeting of the minds results from an acceptance given after the offerer has signified his change of mind, even though by so signifying he has broken his agreement.

The error here is not a reversion to the notion that mutual assent necessary to the formation of a legal agreement means actual concordance of the inner thought or unrevealed intentions. All accept the figurative language that it is sufficient that a meeting of the minds appears in the expressions of the parties; that the law does not go behind the expressed intentions. Familiar examples are: (1) Where a change of mind is manifested by the offerer but not communicated to the offeree before the acceptance; here if the acceptance is within the time limit, express or implied, of the offer, even though there was no contract to keep it open, a contract arises. (2) So also if an offerer says what he does not mean, in terms and under circumstances that do not apprise the offeree of the discrepancy between intention and expression, a contract comprising the terms as expressed results from an acceptance. The offerer must stand by what he said, and cannot insist upon what he meant, no matter how clearly he can prove the latter. The error consists in overlooking the fact that the law may regard the wrongful revocation as unexpressed. If the law is that the wrongful revocation is entirely negligible and to be a lame specific reparation, illustrates a common defect of remedial justice. That a negative injunction commands the defendant merely not to sing for any other employer and does not affirmatively order the defendant to sing for the plaintiff, is also a confession of the inadequacy of remedial machinery. For similar reasons society regards compensatory damages as the best practical remedy for the wrongful breaking of ordinary contracts. No one finds fault with Pollock's definition of a contract as a promise which the law will enforce. The sanction is imperfect. Nevertheless the substantive law regards one who has contracted to do something as bound to do it. Moreover the remedy is not always faulty; see, for instance, Manchester Ship Canal Co. v. Manchester Race Course Co., [1901] 2 Ch. Div. 37, referred to infra, p. 647. * Ashley, The Law of Contracts (1911), p. 26.

• Summary of Contracts, § 178.

left out of account, the only operative expressions are the offer and the acceptance, manifesting mutual assent.

This is the sole question, does the law regard a wrongful revocation negligible? If, in breach of a contracted obligation to keep an offer open, the offerer attempts to revoke, may the "revocation" be treated by the offeree as unexpressed?

Why should mere words of revocation under such circumstances be given legal effect? The attempted revocation is not one of those faits accomplis which has altered the relations of the parties as a matter of fact and which courts may not ignore. If a de facto officer does an act affecting the rights of individuals the law may well give effect to the act, though the actor had no legal right to do it. So as to torts of a corporation committed in an ultra vires enterprise, the law may well say that they are the acts of the corporation, though done without right. In general, acts done beyond legal right when they have produced effects in fact must also produce legal consequence, but solely for the purpose of doing justice to the person injuriously affected, and in his behalf only. But why should mere words, wrongfully uttered, which produce no physical, material or actual effect be given legal effect and given that effect contrary to the desires and insistence of him who might be injured thereby and to effectuate the wrongful purpose of the utterer? Every one admits that a promise on a consideration to keep an offer open creates a contractual duty to keep it open; and that a revocation of such an offer would be wrong if legally operative at all. The question here, however, is not the bald one - why should he profit by his own wrong, for the admitted action for damages is a theoretical compensation for that; but the query is, why should any legal effect whatever be given to the words of revocation if the person to whom you have promised not to address them sees fit to ignore them?

If no satisfactory answer can be given to this question the supposed theoretical objection to irrevocable offer falls to the ground, and the result reached by the courts is sound in principle.

The cases are neither few nor in conflict. They are uniform to the effect that an offer under seal, where seals have not lost their efficacy, or for a consideration, is irrevocable."

5 O'Brien v. Boland, 166 Mass. 481, 44 N. E. 602 (1896); Seyferth v. Groves & S. R. R. Co., 217 Ill. 483, 75 N. E. 522 (1905); Souffrain v. McDonald, 27 Ind. 269 (1866);

6

In several of these cases striking illustration is given of the theory that the attempt at wrongful revocation is entirely negligible, for in them specific performance is decreed of the contract created by acceptance given after a "revocation" had been communicated.

It has also been held that an offeree of land may enjoin a proposed sale to another, the offerer having contracted to keep the offer open, on the ground, not that the offeree had an interest in the land (being merely an offeree he could not have), but because the contract to keep the offer open implied a negative promise not to sell the land to another within the time given.7

The injunction in this instance is more nearly equivalent to an affirmative order to the defendant to perform his promise than negative injunctions ordinarily are; the usual futility and impolicy of attempting governmental coercion of acts of personal service are not involved. In the cases referred to in the preceding paragraph, there is in effect a double specific performance; for, before decreeing specific performance of the ultimate contract, the courts, first, in holding the "revocation" ineffectual to prevent acceptance, hold the offerer specifically to his promise to keep the offer open.

Solomon Mier Co. v. Hadden, 148 Mich. 488, 111 N. W. 1040 (1907); Marsh v. Lott, 8 Cal. App. 384, 97 Pac. 163 (1908); Tibbs v. Zirkle, 55 W. Va. 49, 46 S. E. 701 (1904); Rease v. Kittle, 56 W. Va. 269, 49 S. E. 150 (1904); Bradford v. Foster, 87 Tenn. 4, 9 S. W. 195 (1888); Watkins v. Robertson, 105 Va. 269, 54 S. E. 33 (1906); McMillan v. Ames, 33 Minn. 257, 22 N. W. 612 (1885); Smith v. Cauthen, 98 Miss. 746, 54 So. 844 (1911); Mueller v. Nortmann, 116 Wis. 468, 93 N. W. 538 (1903), holding death of offerer, where for a consideration he has agreed to keep the offer open, does not revoke the offer. And see Adams v. Peabody Coal Co., 230 Ill. 469, 82 N. E. 645 (1907).

The doctrine of the above decisions has been recognized by dicta in numerous cases, especially deliberate in the following: Weaver v. Burr, 31 W. Va. 736, 755, 8 S. E. 743, 754 (1888); Linn v. McLean, 80 Ala. 360, 4 So. 777 (1888); Couch v. McCoy, 138 Fed. 696 (1905); Mansfield v. Hodgdon, 147 Mass. 304, 17 N. E. 544 (1888); Cummins v. Beavers, 103 Va. 230, 48 S. E. 891 (1904); Willard v. Tayloe, 8 Wall. (U. S.) 557 (1869); Johnston v. Trippe, 33 Fed. 530 (1887); Peterson v. Chase, 115 Wis. 239, 91 N. W. 687 (1902); Frank v. Stratford-Handcock, 13 Wyo. 37, 77 Pac. 134 (1904); Black v. Maddox, 104 Ga. 157, 30 S. E. 723 (1898); Ross v. Parks, 93 Ala. 153,8 So. 368 (1890); Murphy Thompson Co. v. Addington, 31 Ky. L. Rep. 176, 101 S. W. 964 (1907); Barnes v. Hustead, 219 Pa. 287, 68 Atl. 839 (1908).

Souffrain v. McDonald, supra; O'Brien v. Boland, supra; Seyferth v. Groves & S. R. R. Co., supra; Solomon Mier Co. v. Hadden, supra; Marsh v. Lott, supra; Couch v. McCoy, 138 Fed. 696 (semble); and see McMillan v. Ames, supra.

7 Manchester Ship Canal Co. v. Manchester Race Course Co., [1901] 2 Ch. Div. 37.