Delivered the opinion of the court.
A suit in contract was filed by Calo, Inc., an Illinois corporation, also known as Calo Bowl, Chicago
Calo’s theory is that the contract was made up of various writings, and that it was effective to bind the defendants, even though it was not signed, since it had been acted on.
The defendants contend that the written offer submitted by Calo was not accepted either in accordance with its provisions or by any act or acts on the part of the defendants which would constitute even a partial performance or acceptance of Calo’s proposal; that no written contract was entered into between the parties, and if a verbal agreement had been reached it would have been within the prohibitions of the pertinent provisions of the statute of frauds; and that hence plaintiffs’ third amended statement of claim fails to state a cause of action.
The third amended statement of claim of the plaintiffs contains two counts. Count two was filed on behalf of Albert H. Sakolsky. He takes no appeal and consequently we are here not concerned with that count. In count one the statement of claim alleges that the plaintiffs had leased certain рremises' formerly used as a public theater and that under the terms of the lease the premises were being remodeled for use by Calo as a bowling alley and cocktail lounge; that by the terms of the lease Calo, as lessee, and the lessor were required respectively to do certain things in the remodeling; and that no rentals would accrue
The offer made by Calo to the defendants is entitled “Purchase Order,” and states that Calo “does
Initial Cash Payment
Down payment on Contract
Price ............ $3,122.91
Other Cash Payments
Due upon notice from seller
approximately 90 days before shipment............ 5,000.00
Due upon notice from seller
approximately 30 days before shipment............ 5,000.00
Total Prepayments on Contract Price. .$13,122.91.”
It further provides that the balance shall be evidenced by a note signed by the purchaser and secured by a chattel mortgage, and shall be payable in 32 equal instalments beginning in 1959. On the reverse side of the order it is stated: “Said Order is Subjеct to the Following Conditions.” These conditions, among other things, provided: “Acceptance of this order by Seller at Seller’s office in New York or Chicago shall be necessary to constitute a contract .... The receipt and retention of cash advances received with or in connection with this order shall not be considered as an acceptance of it but only as a deposit on account in the event that the order is accepted in whole or in part.” The purchase order had written on it “Calo Bowl” and the signatures of Herbert H. Miller, president, and Ruth Miller, secretary.
A letter of the same date, exhibit C attached to the statement of claim, was addressed to Mr. H. H. Miller
It is elementary law that in order for a contract to come into being there must be mutual assent of all of the parties thereto. Contracts are ordinarily made by an offer and acceptance. “An offer is an expression by one party of his assent to certain definite terms, provided that the other party involved in the bargaining transaction will likewise express his assent to the identically same terms. An offer looks forward to an agreement — to mutual expression of assent.” Corbin on Contracts, sec. 11. An offer is always a conditional promise and it may become a contract. Williston on Contracts, 3rd ed., sec. 25. If no specific time limit is fixed with reference to the offer it continues for a reasonable time. If no specific mode of acceptance is specifically fixed in the offer, the acceptance need not be in any particular form nor evidenced by express words. Where the parties make the reduction of the agreement to writing and its signature by them a condition precedent
“If an offer prescribes the place, time or manner of acceptance its terms in this respect must be complied with in order to create a contract. If an offer merely suggests a permitted place, time or manner of acceptance, another method of acceptance is not precluded.” Restatement of the Law of Contracts, sec. 61. “Acceptance of an offer is an expression of assent to the terms thereof made by the offeree in a manner requested or authorized by the offeror. If anything except a promise is requested as consideration no contract exists until part of what is requested is performed or tendered. If a promise is requested, no contract exists, except as stated in § 63, until that promise is expressly or impliedly given.” Restatement of the Law of Contracts, sec. 52. In Comment b it is stated: “A bilateral contract by definition consists of mutual promises. It is therefore essential that the offеree shall give the promise requested by the offeror, and doing this clearly indicates acceptance of the offer. The fact that this promise is given may be shown by any words or other acts which indicate the offeree’s assent to the proposed bargain.”
“An assent to an offer is an act of the mind. If the party making an offer does not require an immediate response, and the offer itself seems to contemplate acceptance, assent of the other party will be implied, in the absence of a revocation, from his acting pursuant to it within a reasonable time. (6 RCL 605, 606.) The assent to the offer must be substantiallyas made.” Johnson v. Whitney Metal Tool Co., 342 Ill App 258, 96 NE2d 372 .
Where a bilateral contract is in the contemplation of the parties, in order to have a completed contract there must be reciprocal promises. Where an offer has been made it may be accepted by an overt act, and Professor Corbin in his work on contracts (Corbin on Contracts), sec 62, says:
“Acceptance by words, whether written or oral, is acceptance by overt action. The words ‘I accept your offer’, spoken by the offeree, are overt action by him. It will be seen, therefore, that acceptance is by overt act, without regard to whether the resulting contract is bilateral or unilateral, whether the acceptance is promissory or non-promissory. Ordinarily, the making of a promise is by overt action.
U
“Without doubt, many cases can be found in the reports illustrating the offer of a promise for an act, in which the act is promissory and the resulting contract bilateral. . . .”
In a footnote to this section the statemеnt is made: “There are many cases in which the only acceptance of an offer was the performance of some action from which a promise would be inferred.” In section 562 it is said:
“. . . The process of implication is treated instead as a process of interpretation, a process of logical and factual inference and not a pure construction or creation by the court. An implied promise, therefore, is here treated as a promise implied in fact, a promise that the promisor himself made, but a prоmise that he did not put into promissory words with sufficient clearness to be called an ‘express promise.’ When a court findsand enforces such a promise as this, it finds it by interpretation of the promisor’s words and conduct in the light of the surrounding circumstances. This is the exact process by which the meaning of any contract is determined, whether it be described as an express contract or an implied contract. It is the same whether the contractor expressed his intentions in the form of words, oral or written, or expressed them by conduct wholly non-verbal, or used bоth forms of expression together. The meaning of his words and acts is found by relating them to the usage of the past; this is interpretation.”
In Soelzer v. Soelzer, 382 Ill 393, at 399,
“The law is well settled that, as to contracts generally, a party named in the contract may by his acts and conduct become bound by its provisions even though he has not signed it.”
In Memory v. Niepert, 131 Ill 623,
“The delivery of a writing аnd its acceptance and adoption by the party to whom it is delivered, are necessarily facts dehors the writing itself, and must therefore be proved by extrinsic evidence; and where mutuality is established by proof of the acceptance of the writing, the contract is, notwithstanding such resort to parol evidence, a contract all of which is in writing. Of course where the writing is on its face a mere offer or proposition, the acceptance of the paperdoes not necessarily bind the party accepting to its terms. There must in suсh case be some further act manifesting an acceptance of the proposition, and whether the contract, after acceptance, will be deemed to be a contract in writing, within the meaning of the fifteenth and sixteenth sections of the Statute of Limitations or not, must depend upon a variety of circumstances.”
In Ludowici-Celadon Co. v. McKinley,
“The proposal which was signed on April 14, 1941, was merely an offer to purchase, because it was ‘subject to the approval of’ the seller’s executive department. Thus, the sole question presented is whether the offer to purchase tile оf the value of $2,526 was accepted by the seller so as to effectuate a binding contract.
“In Malooly v. York Heating & Ventilating Corp.,270 Mich 240 , 253,258 NW 622 , 626, the court quoted from Lang & Gros Mfg. Co. v. Fort Wayne Corrugated Paper Co., 7 Cir, 278 F 483, 487, as follows: ‘The contract of a party in making performance in pursuance of a definite proposition is an acceptance of the proposition.’
“It was there held that ‘an acceptance of an offer to contract may be implied from the acts and circumstances of the parties.’ This same rule is expressed in the Restatement of the Law ofContracts, § 21, as follows: ‘Thе manifestation of mutual assent may be made wholly or partly by written or spoken words or by other acts or conduct.’
“The written proposal was ‘subject to the approval’ of the executive department of plaintiff corporation. When it manufactured the special tile and shipped a portion thereof to defendants, such acts and conduct constituted an approval of the proposal. . . .
“The West Virginia court said in the Wood case [89 W Va 254,109 SE 244 , 19 ALE 467]: ‘. . . an offer to buy becomes a binding agreement when the offeree performs an act from which acceptance may be implied. 35 Cyc 52; Colgin v. Henley, 6 Leigh, Va, 85. It follows, therefore, that since plaintiff’s offer prescribed no specific form of acceptance, it may be implied from conduct as well as from words. 1 Page, Contracts, § 188; Clark, Contracts, p 24. . . . The law is settled that the shipment of a part of an order of goods is an acceptance of the whole order.’ ”
The court cites Columbia Weighing Machine Co. v. Vaughan, 123 Kan 474,
“. . . The court held that acceptance may be shown by any act or conduct cleаrly evincing an intention to accept the offer made and that delivery of the merchandise ordered clearly evinces the intention to accept. It was held that the offer was not divisible with respect to the mechanical parts required, and that, when plaintiff accepted the offer, it was accepted in its entirety, and that it could not be accepted in any other way. Therefore, it was held that both parties became boundby all the conditions and provisions of the written offer.”
See also Keirsey v. Hirsch,
In the instant case the offer of November 26, 1958 made by Calo to the defendants must be considered with the defendants’ letter of November 26, 1958 to Calo. In its offer Calo agreed to purchase certain items of equipment and to rent other items of equipment from the defendants for installation and use in the premises of Calo. The offer further provided for the total price that Calo promised to pay by way of a down payment, a further sum of $5,000 “upon notice from seller approximately 90 days before shipment” and a further $5,000 “upon notice from seller approximately 30 days before shipment,” and the balance to be paid over a period of fоur years, which balance was to be evidenced by a note secured by a chattel mortgage. The letter of November 26th provided that the defendants would agree to return the deposit in case Calo was unable to “obtain complete permits, liquor license and other agreements to fulfill your bowling project.” Consequently the offer of Calo to the defendants was a conditional offer depending upon the obtaining of the necessary licenses and permits. Under that conditional offer Calo had made a down payment which by the terms оf the offer was a deposit and was to be treated as a payment on account in case the order was accepted. The purchase order also provided: “Acceptance of this order by Seller at Seller’s office in New York or Chicago shall be necessary to constitute a contract . . . .” No particular mode of acceptance was provided for in the purchase order.
"When the defendants accepted the offer there would have been in existence a promise on the part of Cаlo to purchase and rent certain equipment from the defendants
The question presented to us is whether there was an acceptance on the part of the defendants which would bring into existence a contract. That question, of course, must be decided from the allegations made in the third amended statement of claim.
In the statement of claim Calo alleges that the defendants had accepted the offer as evidenced by exhibit C attached to the statement of claim. However the exhibit does not support that statement, and consequently the allegation may be disregarded. In the statement of claim Calo further alleges:
“7. Thereafter, said Calo, Inc. informed the defendants all necessary permits and licenses mentioned in said Exhibit ‘B’ were available and said Calo, Inc. was then ready to proceed with its said offer to purchase and rent from the defendants.
“8. When said Calo, Inc. so informed the defendants concerning the permits and licenses, the dеfendants requested and said Calo, Inc. paid to the defendants the further' sum of $5,000.00 on account of the contract price which said Calo, Inc. paid to said defendants and the same was accepted by the defendants on December 23, 1958.
“9. The defendants caused to be prepared and delivered to said Calo, Inc. plans and specifications for the purpose of having said premises so remodeled as to fit them specifically for the installation of the equipment to be sold and rented by the defendants to said Calo, Inc. which plans аnd specifications are Plaintiffs’ Exhibit ‘D’; that defendants represented to said Calo, Inc. that such installation would be completed by defendants in ample time to permit said Calo, Inc. to solicit and accept 1959 summer bowling league business.
“10. Said remodeling in said premises according to said plans and specifications, being Plaintiffs’ Exhibit ‘D’ was then done under the direction and supervision of the defendants.”
Calo also in its statement of claim alleges that upon receiving the defendants’ letter of January 7, 1959 “for the purpose of installing the other comparablе equipment, said Calo, Inc. found it necessary to again remodel and make changes in said premises to fit the same to properly receive the comparable other equipment . . . .” These statements are not conclusions. They are statements of fact, and as such are admitted by the motion to strike.
The offer made by Calo, conditioned upon its obtaining certain licenses and permits, became a firm offer at the time when it informed the defendants that such licenses and permits were available and that it was then ready to proceed with its said offer to purchase and rent, the equipment. The offerees then asked for an additional deposit of $5,000, which by the terms of the offer was to be made 90 days before the equipment was shipped. The offeror paid the $5,000 to the offerees. At the same time the offerees submitted plans and specifications indicating the method of installing
The contract here by the acceptance of the defendants became a contract in writing, and a down payment was made upon the goods ordered. The provisions of the statute of frauds (Ill Rev Stat, chap 121%, par 4) do not prohibit the enforcement of the contract.
In Ames v. Moir, 130 Ill 582,
“The complaint, in order to stand, must contain sufficient averments of facts to state a cause of action. We concede that many of the allegations in this complaint are mere conclusions of the pleader, but there are also many statements of fact included. Section 42 of the Civil Practice Act (Ill Rev Stat 1945, chap 110, par 166), provides that no pleading shall be deemed bad in substance which shall contain such information as reasonably informs the opposite party of the nature of the claim or defense, and section 33 of the act provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties. Crosby v. Weil, 382 Ill 538,48 NE2d 386 ; Frasier v. Finlay, 375 Ill 78,30 NE2d 613 .”
In our opinion count one of the third amended statement of claim sets out a cause of action.
The judgment order of the Municipal Court of Chicago striking count one of the third amended statement of claim and dismissing the suit as to Calo, Inc.,
Reversed as to count one, and cause remanded.