Lefkowitz v. Great Minneapolis Surplus Store, Inc.

• Decision Date: 20 December 1957
• Docket Number: No. 37220,37220
• Citation: 251 Minn. 188,86 N.W.2d 689
• Parties: Morris LEFKOWITZ, Respondent, v. GREAT MINNEAPOLIS SURPLUS STORE, Inc., Appellant.
• Court: Minnesota Supreme Court

Page 689

86 N.W.2d 689

251 Minn. 188

Morris LEFKOWITZ, Respondent, v. GREAT MINNEAPOLIS SURPLUS STORE, Inc., Appellant.

No. 37220.

Supreme Court of Minnesota.

Dec. 20, 1957.

Syllabus by the Court

1. Where one offers for sale by newspaper advertisement a certain article of definite value at a quoted price, which offer is clear, definite, and explicit and leaves nothing open for negotiation, it constitutes an offer, acceptance of which may complete the contract.

2. While an advertiser has the right at any time before acceptance to modify his offer, he does not have the right, after acceptance, to impose new or arbitrary conditions not contained in the published offer. Louis F. Davis, Minneapolis, for appellant.

Morris Lefkowitz, pro se.

MURPHY, Justice.

This is an appeal from an order of the Municipal Court of Minneapolis denying the motion of the defendant for amended findings of fact, or, in the alternative, for a new trial. The order for judgment awarded the plaintiff the sum of $138.50 as damages for breach of contract.

This case grows out of the alleged refusal of the defendant to sell to the plaintiff a certain fur piece which it had offered for sale in a newspaper advertisement. It appears from the record that on April 6, 1956, the defendant published the following advertisement in a Minneapolis newspaper:

'Saturday 9 A.M. Sharp 3 Brand New Fur Coats Worth to

$100.00

First Come First Served $1 Each'

On April 13, the defendant again published an advertisement in the same

newspaper as follows: 'Saturday 9 A.M. 2 Brand New Pastel

Mink 3-Skin Scarfs Selling for.$89.50

Out they go Saturday. Each ... $1.00

1 Black Lapin Stole Beautiful, worth $139.50 ... $1.00

First Come First Served'

The record supports the findings of the court that on each of the Saturdays following the publication of the above-described ads the plaintiff was the first to present himself at the appropriate counter in the defendant's store and on each occasion demanded the coat and the stole so advertised and indicated his readiness to pay the sale price of $1. On both occasions, the defendant refused to sell the merchandise to the plaintiff, stating on the first occasion that by a 'house rule' the offer was intended for women only and sales would not be made to men, and on the second visit that plaintiff knew defendant's house rules.

The trial court properly disallowed plaintiff's claim for the value of the fur coats since the value of these articles was speculative and uncertain. The only evidence of value was the advertisement itself to the effect that the coats were 'Worth to $100.00,' how much less being speculative especially in view of the price for which they were offered for sale. With reference to the offer of the defendant on April 13, 1956, to sell the '1 Black Lapin Stole * * * worth $139.50 * * *' the trial court held that the value of this article was established and granted judgment in favor of the plaintiff for that amount less the $1 quoted purchase price.

1. The defendant contends that a newspaper advertisement offering items of merchandise for sale at a named price is a 'unilateral offer' which may be withdrawn without notice. He relies upon authorities which hold that, where an advertiser publishes in a newspaper that he has a certain quantity or quality of goods which he wants to dispose of at certain prices and on certain terms, such advertisements are not offers which become contracts as soon as any person to whose notice they may come signifies his acceptance by notifying the other that he will take a certain quantity of them. Such advertisements have been construed as an invitation for an offer of sale on the terms stated, which offer, when received, may be accepted or rejected and which therefore does not become a contract of sale until accepted by the seller; and until a contract has been so made, the seller may modify or revoke such prices or terms. Montgomery Ward & Co. v. Johnson, 209 Mass. 89, 95 N.W. 290; Nickel v. Theresa Farmers Co-op. Ass'n, 247 Wis. 412, 20 N.W.2d 117; Lovett v. Frederick Loeser & Co. Inc., 124 Misc. 81, 207 N.Y.S. 753; Schenectady Stove Co. v. Holbrook, 101 N.Y. 45, 4 N.E. 4; Georgian Co. v. Bloom, 27 Ga.App. 468, 108 S.E. 813; Craft v. Elder & Johnson Co., 38 N.E.2d 416, 34 Ohio L.A. 603; Annotation, 157 A.L.R. 746.

The defendant relies principally on Craft v. Elder & Johnston Co.supra. In that case, the court discussed the legal effect of an advertisement offering for sale, as a one-day special, an electric sewing machine at a named price. The view was expressed that the advertisement was (38 N.E.2d 417, 34 Ohio L.A. 605) 'not an offer made to any specific person but was made to the public generally. Thereby it would be properly designated as a unilateral offer and not being supported by any consideration could be withdrawn at will and without notice.' It is true that such an offer may be withdrawn before acceptance. Since all offers are by their nature unilateral because they are necessarily made by one party or on one side in the negotiation of a contract, the distinction made in that decision between a unilateral offer and a unilateral contract is not clear. On the facts before us we are concerned with whether the advertisement constituted an offer, and, if so, whether the plaintiff's conduct constituted an acceptance.

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