tract is bilateral. It is not contended that, having accepted and brought the principal contract into existence, he has a right in all cases to go ahead with performance on his side and hold the other to full performance or the contract price; this will depend entirely upon the nature of the principal contract. If that ultimate contract is of the class to which the doctrine of Clark v. Marsiglia applies, the fact that the repudiation was announced before the contract was created seems immaterial, because the innocent party knows before he begins his performance that the other party has renounced.

Though the offeree, where the "paid-for" offer contemplates a bilateral contract, may accept after a repudiation, the question may arise whether he must do so as a prerequisite to bringing an action for damages. It is assumed above that he need not. That he must do so before suing for specific performance of the principal contract is quite clear. Logically the same is true if he sues for damages as for a breach of the principal contract. If, however, he sues as for a breach of the defendant's promise to keep the offer open, the gist of the action is the repudiation of that promise and the measure of damages is the profits that would have been gained from the prospective contract. The defendant may show that there would have been no profit, but it would not lie in his mouth to say that the plaintiff had not accepted the offer and entitled himself to a profit, if there would have been any, for the ready answer is that defendant's repudiation dispensed with acceptance by rendering it vain,22 for in this litigation acceptance figures only as a condition to the defendant's liability for the profits, the suit not being on the ultimate contract. If the suit were for breach of the latter contract, acceptance would appear in another light, viz., as an essential element to the formation of the contract sued on.

This principle that the defendant's wrongful revocation dispenses with acceptance of the principal offer as a condition precedent to his liability for breach of the contract to keep the offer open is obvious in the cases just discussed, of "paid-for" offers contemplating unilateral contracts where the rule against enhancement prevents the offeree from completing performance, for since he

22 But see Abbott v. '76 Land & Water Co., 53 Pac. 445 (Sup. Ct. Cal., 1898).

cannot complete he cannot accept, completion being acceptance. Acceptance is certainly dispensed with.

Summing up: An offer under seal, where seals have not lost their efficacy, or for consideration, may be regarded as a principal offer and a contract to keep that offer open for the express or implied time given. Such an offer cannot be revoked. That is, the principle that an ordinary offer is revocable at any time before acceptance is entirely inapplicable. An attempt to recall or renounce the offer can be nothing more than a repudiation of the contracted duty to keep the offer open. If the offer contemplates a bilateral contract the offeree may ignore the repudiation and accept the offer. When he has so accepted he has whatever form of remedy would have been available to him in case of a breach of the ultimate contract. If the nature of that contract permits he may sue in equity for specific performance. In any case he has an action for damages as for a breach of the ultimate contract without putting the defendant further in default, unless in a jurisdiction where his acceptance might be construed as "keeping the contract alive for the benefit of the other party.”23

Even without accepting, it seems that a plaintiff who is content with damages has an equally fruitful action based upon the repudiation of the contract to keep the offer open. Acceptance, however, is logically a prerequisite to suit as for breach of the ultimate contract, either for specific performance or damages. But, excepting extraordinary cases, if the "paid-for” offer contemplates a unilateral contract, the rule against needless enhancement of damages requires the offeree to heed the repudiation and his only remedy in such case is an action for damages for the repudiation of the contract to keep the offer open.

II.

OFFERS CONTEMPLATING UNILATERAL CONTRACTS.

Where an offer contemplates a unilateral contract, that is, where it is made in terms that call for acceptance not by a promise either express or implied but by the doing of an act or a series of acts,

23 See the rules as to repudiation formulated in the English and Illinois cases, as discussed by Professor Williston in his edition of Wald's Pollock on Contracts, pp. 348-350.

to admit that the offer may be withdrawn of right after the act is begun, or the series of acts is partly done, would work a hardship on the offeree in many cases. It has generally been supposed, however, that in all such cases the offerer merely exercises a legal right in revoking and that consequently the offeree is without a remedy, unless it be a quasi-contractual one, which is doubtful in any case, and at most would exist only if the circumstances were such that the partial performance "enriched" the offeree. It is to be assumed that the offer is not under seal, and no consideration is expressly given to keep it open. If it should be found that a promise for a consideration, to keep such an offer open, is inferentially involved in such a proposal the principles of irrevocable offers would apply and the hardship would not exist. It is the purpose of the following discussion to ascertain whether such implied contract is made in such cases. But first the problem and its supposed difficulties should be set forth.

In Biggers v. Owen 24 a reward had been offered for "delivery (of the person who had committed a designated crime) to the sheriff, with evidence to convict." The plaintiff delivered a woman to the sheriff. On trial before a committing magistrate the woman was discharged for want of sufficient evidence. The offer was then withdrawn. Subsequently the woman was indicted and convicted of the crime upon evidence furnished by the plaintiff. In an action to recover the reward, the Georgia court held that the plaintiff was not entitled to recover. The only reason for the decision is thus expressed: "An offer of reward is nothing more than a proposition; it is an offer to the public; and until someone complies with the terms or conditions of that offer, it may be withdrawn." The inference from the opinion is sound that there is no acceptance of such an offer until the acts called for are completed, but was the court right in its assumption that it was dealing with an ordinary revocable offer?

Opposed to Biggers v. Owen, on the latter point, is the opinion of Preston, J., in the Supreme Court of Louisiana. A reward was offered for the conviction of an incendiary, and plaintiffs, suing for the reward, had procured an arrest and were ready with evidence to convict; but the offer was withdrawn before conviction

24 79 Ga. 658, 5 S. E. 193 (1887).

and even before the evidence was given at the trial. Justice Preston, dissenting from an opinion in which the majority disposed of the case upon other grounds, said: "The prosecution having been commenced, at the instance of the plaintiffs, they acquired an inchoate right to the reward, which the defendants could not afterward defeat.” 25

Professor Williston has thus stated the problem:

"One of the most troublesome questions in regard to revocation relates to the right of an offerer to revoke an offer to make a unilateral contract after the consideration has been partly performed but before it has been completely performed. On principle it is hard to see why the offerer may not thus revoke his offer. He cannot be said to have already contracted, because by the terms of his offer he was only to be bound if something was done, and it has not as yet been done, though it has been begun. Moreover, it may never be done, for the promisee has made no promise to complete the act, and may cease performance at his pleasure. To deny the offerer the right to revoke is, therefore, in effect to hold the promise of one contracting party binding, though the other party is neither bound to perform nor has actually performed the requested consideration. The practical hardship of allowing revocation under such circumstances is all that can make the decision of the question doubtful. The only reference to the matter in the English books is in Offord v. Davies, 12 C. B. n. s. 748 (1862), 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 is 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 Earle, 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 Ill. 101, 107, 18 N. E. 790 (1888): Appellant (the offerer) 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 would bind him to complete it, and third, by actual performance.' See also Blumenthal . Goodall, 89 Cal. 251, 26 Pac. 906 (1891); Los Angeles Traction Co. v.

25 Cornelson v. Sun Mutual Insurance Co., 7 La. Ann. 345, 347 (1852). This opinion does not rest upon any principle peculiar to Louisiana law. The common-law doctrine of consideration prevails in that State.

Wilshire, 135 Cal. 654, 658, 67 Pac. 1086 (1902); Society v. Brumfiel, 102 Ind. 146, 1 N. E. 382 (1885).

"The difficulty with these solutions of the problem is that they fail to take into account the offerer's right to impose such conditions as he chooses in his offer. An offer conditional on the performance of an act does not become a contract by the doing of anything else, such as part performance or giving the offerer a promise to do the act. See White v. Corlies, 46 N. Y. 467 (1871). Nor can it be admitted that beginning performance by one to whom an offer of a unilateral contract has been made imports any promise on his part to complete the performance. The decision in Biggers v. Owen, supra, therefore, seems sound, although the result is harsh. In that case it was held that an offer of reward might be withdrawn, after the plaintiff had nearly completed the performance requested. See also Cook v. Casler, 87 N. Y. App. Div. 8, 83 N. Y. Supp. 1045 (1903)." 26

The cases referred to by Professor Williston other than Biggers v. Owen are not cited as directly in point. They have been discussed at length in an article by Professor Ashley,27 who makes a tentative suggestion that an equitable estoppel might sometimes be invoked as a solution of the difficulty. He suggests that the manifest injustice done the offeree by a revocation after performance has begun might be held sufficient ground to estop the offerer's revoking. He pertinently inquires, "Have we too readily acquiesced in the idea that an offer must necessarily be revocable under all circumstances?" He says, however, "certainly these cases do not fall strictly within the equitable doctrine of estoppel in pais, as that subject has heretofore been developed, but a doctrine somewhat analogous thereto and depending upon the same ideas would seem to be possible, even though there may be some more suitable nomenclature." Stretching the doctrine of estoppel beyond the vaguest meaning in which it is now applied will scarcely meet with approval. Moreover, Professor Ashley admits that his suggestion does not meet the two cases that he puts as most typical.

Sir Frederick Pollock has taken the problem too lightly.28 In his last English edition he says:

26 Wald's Pollock on Contracts, 3 ed., p. 34, note 39.

27 23 HARV. L. REV. 159. See also Ashley, The Law of Contracts (1911), pp. 78-88. 28 He refers to Professor Ashley's article as a very ingenious exercise in legal sophistry."