244 Ill. App. 61 | Ill. App. Ct. | 1927
delivered the opinion of the court.
This is an appeal by plaintiff from an adverse judgment entered upon a verdict directed by the trial court.
Plaintiff sought to recover $600 with interest, said to be the balance due on an alleged contract in writing under which defendant agreed to pay plaintiff $200 a year for five years for an annual bank directory. The writing is as follows:
“Central Guarantee Company
Fifth Avenue Building "New York City, N. Y.
City of Cincinnati, 0. 1919
Sept. 15/19
Please send to our address for 5 years
The Merchants’ Bank Directory for which we will pay the sum of $200.00 Dollars per year on receipt of the first copy following date of contract, and annually thereafter.
The Central Trust Company,
Cincinnati, Ohio.
Name H. P. Colville,
AJda^ss..........Y. P...........
Subscription commences Jan. 1/1920
Subscription ends Jan. 1/1925
Including name of bank in Merchants Bank Directory, names of officers, capital, surplus and undivided profits and deposits. This bank to have sole representation in this city in Merchants Bank Directory Subject to cancellation at end of 1st year
T. Starr.”
On January 3,1920, a copy of the directory was sent to the defendant and $200 was paid by it to plaintiff. January 7, 1921, a copy for the year 1921 was sent to defendant, and on March 3, 1921, it inclosed its check for $200, with a letter to plaintiff as follows:
‘ ‘ Gentlemen:—
“We are herewith enclosing you our check for $200 being in payment of the Merchants Bank Directory from January 1st, 1921, to January 1st, 1922.
“We now desire to inform you thalHwe wish to cancel this contract, as we find that this*service is of no use to us whatever.
“Very trufV flours,
£%>P. Colville,
‘ Vi§e President. ’ *
Plaintiff claims it is entitled to $200 for each of the years 1922, 1923 and 1924.
Defendant argues that the^ writing is a unilateral contract, void for want of mutuality, and says that this was the view of the trial court, which directed a verdict for defendant. In Alexander Hamilton Institute v. Jones, 234 Ill. App. 444, we had occasion to consider a somewhat similar contract and held that it was unilateral; that it contained an offer by the defendant to make periodical payments and that plaintiff had not undertaken nor promised to do anything. We held that in writings of this sort tfyefÉEeree (plaintiff) may be bound in either of three wajUj^fl) by the offeree engaging, in a reasonable time, to ■reform the contract; (2) by beginning such performance in a way which would bind him to complete it; and (3) by actual performance. We approved of what was said in Williston on Contracts, vol. I, p. 100, § 60, as follows: “After the offeree has begun to perform under such an offer he may unquestionably stop performance halfway if he concludes that after all he does not care to enter into the contract, and if the offerer also may not revoke at that time he is bound by a promise for which he has not received, and may never receive, the consideration requested, since the whole transaction is still optional with the offeree.”
This is squarely applicable to the writing before us. The only undertaking and promise is made by the defendant. There is no obligation to perform on the part of plaintiff.
A witness for plaintiff testified that she mailed a letter to the defendant, dated September 18, 1919, which referred t<? the alleged contract and contained the words, “We hereby accept and thank you for same.” There was no evidence that this letter was received by or brought to th^ attention of the defendant. Objection to an alleged copy of this letter was overruled. No proper foundation was laid for the introduction of such secondary evidence. Furthermore, Williston on Contracts, p. 146, § 83, states that a contract may be completed *by níailing a letter of acceptance when the offerer has authorized or indicated that acceptance may be made in this way. The record before us is entirely silent on this point.
Plaintiff insists, however, that a letter .of acceptance is not necessary to bind the parties, but in view of what we have said, we conclude that, in the absence of some of the legal modes of acceptance on the part of the offeree, the writing is merely a unilateral offer by the defendant •
We also^re of the opinion that, even considered as a bilateralSontract, the defendant properly exercised its option to cancel it. It is subject to “cancellation at end of 1st year.” The subscription commenced January 1, 1920. On March 3, 1821, defendant wrote plaintiff canceling it, and inclosing $200 in payment for the directory for the year 1921. In Farmers’ & Mechanics’ Nat. Bank v. Central Guaranty Co. (Tex. Civ. App.), 241 S. W. 600, in construing a like contract it was held that the cancellation must be made on or before the last day of the term, but the court had in mind that the directory for that year was already “off the press, completely bound and ready for distribution,” and apparently was of the opinion that it would be a hardship, after the plaintiff in that case had completed the volume, to permit the defendant to cancel the contract after the period of limitation had passed. That feature is not in "the present case.
The phrase “at the end of” or “at the expiration of” does not always necessarily imply that action must take place on the day of expiration in order to be a literal compliance with the contract. The word “at” is not invariably used to denote a fixed and definite time. It sometimes may be used to mean “about” or “after.” Magoffin v. Holt, 1 Duv. (62 Ky.) 95. In Rogers v. Burr, 97 Ga. 10, it was held that the phrase “at the expiration of three years,” when a subscriber to stock should elect whether he would keep it, was equivalent to meaning “after,” and that the subscriber was not required to give the notice immediately on the expiration of the three years, but could do so within a reasonable time thereafter. In Davidson v. Crump Mfg. Co., 99 Mich. 501, the words “at the end of this term” were construed to give a reasonable time after the expiration of the term. In Annan v. Baker, 49 N. H. 161, the words “at the end of one year” were construed as meaning “after” the expiration of the year.
When one undertakes to pay a note or do a certain thing “at” a certain definite date, the word undoubtedly means on the date named and not after-wards; but in the present circumstances where it made no difference to plaintiff whether defendant exercised the right of cancellation on or before December 31, 1920, or in March, 1921, we hold the cancellation to be within the provisions of the contract. We would have a different question to determine had plaintiff not received payment for the directory for 1921.
The record justifies the peremptory instruction to the jury, and the judgment is affirmed.
Affirmed.
Matchett and Johnston, JJ., concur.
