Carlill v. Carbolic Smoke Ball Co.

A company advertised that it would pay £100 to anyone who caught influenza after using its smoke ball as directed. It said £1,000 was deposited with a bank to show its sincerity. The plaintiff used the ball as directed and caught influenza. The Court of Appeal held that she could recover the £100.

Quick Revision

Parties

Carlill — plaintiff (respondent in the Court of Appeal). The report calls her a lady. She bought and used the smoke ball and sued for £100.

Carbolic Smoke Ball Company — defendants (appellants). They were the proprietors and vendors of The Carbolic Smoke Ball and issued the advertisement.

Hawkins, J. — the judge whose decision was appealed. He held that the plaintiff could recover £100.

Procedural History

1. The plaintiff sued the defendants for the £100. Hawkins, J., held that she was entitled to recover it. His decision is reported at [1892] 2 Q. B. 484.
2. The defendants appealed to the Court of Appeal. The appeal was heard on 6 and 7 December 1892, the dates printed in the report.
3. The defendants argued that there was no binding contract. They argued in the alternative that any contract was a wager or a policy of insurance.
4. The Court told the plaintiff's counsel that they need not argue whether the contract was a wager or a policy of insurance.
5. Lindley, L.J., Bowen, L.J., and A. L. Smith, L.J., each gave a judgment. The appeal was dismissed.

Facts

1. The defendants were the proprietors and vendors of a medical preparation called The Carbolic Smoke Ball.
2. On 13 November 1891 they inserted an advertisement in the Pall Mall Gazette and in other newspapers.
3. The advertisement said a £100 reward would be paid by the Carbolic Smoke Ball Company. It would go to any person who contracted the increasing epidemic influenza, colds, or any disease caused by taking cold. The person must have used the ball three times daily for two weeks, according to the printed directions supplied with each ball.
4. The advertisement said £1,000 was deposited with the Alliance Bank, Regent Street, to show the company's sincerity in the matter.
5. It said many thousand carbolic smoke balls were sold during the last epidemic of influenza. It said the disease was not contracted, in any ascertained case, by those using the ball.
6. It said one ball would last a family several months. It called the ball the cheapest remedy in the world at 10s., post free. The ball could be refilled at a cost of 5s.
7. The advertisement gave the company's address as 27, Princes Street, Hanover Square, London.
8. The plaintiff, a lady, bought one of the balls at a chemist's on the faith of this advertisement.
9. She used the ball as directed, three times a day, from 20 November 1891 to 17 January 1892.
10. On 17 January 1892 she was attacked by influenza.
11. Hawkins, J., held that she was entitled to recover the £100. The defendants appealed.

Issues Raised

1. Was the advertisement a mere puff (an empty advertising boast), or a promise intended to bind the defendants?
2. Was the advertisement too vague to be enforced, because it fixed no time limit for catching the influenza?
3. Was it too vague as to the persons with whom the contract was made, since it was addressed to the world at large?
4. Was the offer accepted, although the plaintiff did not notify her acceptance to the defendants before using the ball?
5. Was there consideration (something given in return) for the promise, or was it a nudum pactum (a bare promise without consideration)?
6. Was the transaction a wager under 8 & 9 Vict. c. 109, or a policy of insurance under 14 Geo. 3, c. 48, s. 2?

Arguments Contended

For the defendants (appellants) — Finlay, Q.C., and T. Terrell:

• The facts show there was no binding contract. The case differs from Williams v. Carwardine, where money became payable on the plaintiff's own acts.
• Here the plaintiff could not establish her claim by any act of her own. She also had to be attacked by influenza, an event she did not control.
• The words express an intention but do not amount to a promise. Week v. Tibold was cited for this. Harris v. Nickerson was said to be similar.
• The advertisement is too vague to be the basis of a contract. It has no time limit, and there is no means of checking use of the ball.
• Anyone who had influenza could say he had used the ball for a fortnight, and it would be impossible to disprove it.
• Guthing v. Lynn supports the view that the terms are too vague. Without a time limit, a person might claim after taking influenza ten years after using the remedy.
• There is no consideration moving from the plaintiff. Gerhard v. Bates was cited.
• The case differs from Benton v. Great Northern Ry. Co., where the plaintiff did an overt act (an open, visible act) on the faith of the defendants' statement.
• To make a contract by fulfilment of a condition, there must be communication of intention to accept the offer, or the performance of some overt act. Doing an act in private is not enough. Lord Blackburn's statement in Brogden v. Metropolitan Ry. Co. was cited.
• The terms would let a person who stole the balls claim the reward, though his use was no benefit to the defendants.
• At all events, the advertisement should apply only to persons who bought directly from the defendants.
• If there is a contract, it is a wagering contract, because liability depends on an event beyond the parties' control. It would be void under 8 & 9 Vict. c. 109.
• If it is not a wager, it is bad under 14 Geo. 3, c. 48, s. 2. That is because it is a policy of insurance on an uncertain event that does not follow the section.

For the plaintiff (respondent) — Dickens, Q.C., and W. B. Allen:

• The advertisement was an offer by the defendants. It was published to be read and acted on. They cannot say it was an empty boast they had no obligation to fulfil.
• The advertisement was addressed to all the public. As soon as a person does the act mentioned, there is a contract with that person.
• Lord Blackburn's language in Brogden v. Metropolitan Ry. Co. shows that merely doing the acts indicated is acceptance.
• The offer was never meant to make a person go to the defendants' office and obtain a repeat of the advertisement's statements.
• The defendants are trying to add words saying that use must be with their privity (a direct contractual link) or under their supervision. Where an offer is made to all the world, nothing can be added beyond fulfilment of the conditions.
• Notice before the event cannot be required. Spencer v. Harding explains that the offer is made to any person who fulfils the condition.
• Williams v. Carwardine shows strongly that notice to the offeror is not necessary. The promise is to the person who does the act, not to the person who says he will do it.
• Notice after the event could have no effect. The case falls within Lord Blackburn's language in Brogden v. Metropolitan Ry. Co.
• The terms are not too uncertain as to parties. There is no more uncertainty than in all other advertisement cases.
• Only a person who lawfully acquired the preparation could claim, so the stolen-balls point fails.
• The words do not limit the offer to direct buyers, and there is no reason to imply that limit. An increased sale is a benefit to the defendants even through a middleman. Use of the balls also acts as an advertisement.
• The lack of a time limit can be read in several ways. It may mean safety while the person goes on using the ball, or safety during the epidemic, or safety for a reasonable time after a fortnight's use.
• On consideration, Lord Campbell in Gerhard v. Bates did not mean that a direct invitation to take shares, acted on, had no consideration. The decision turned on the form of the declaration, which did not say the contract extended to future holders.
• The finding of no consideration in Gerhard v. Bates was qualified by the words as between these parties. The plaintiff there had not alleged that he belonged to the class to whom the promise was made.

Reply for the defendants — Finlay, Q.C.:

• There is no binding contract. The money is payable on taking influenza after a fortnight's use of the ball. The language would fit a person who used the ball before the advertisement as well as one who used it on its faith.
• The advertisement only expresses an intention to pay £100 to a person who fulfils two conditions. It is not a request to do anything, and there is no more consideration in using the ball than in catching influenza.
• A contract completed by a private act is against Lord Blackburn's language in Brogden v. Metropolitan Ry. Co. Using the ball at home is like writing a letter and keeping it in a drawer.
• In Denton v. Great Northern Ry. Co. the fact was ascertained by a public act, not a secret one.
• The plaintiff's reward cases, such as Williams v. Carwardine, involved a service done for the advertiser. Here no service to the defendants was requested, since their interest was only in sales.
• Those cases also involved a service that only a limited number of people could perform. So there was no difficulty in finding who made the contract.
• It is said that the advertisement was a promise in honour that the defendants would have fulfilled if approached properly.
• A request is as necessary for an executed consideration (already performed) as for an executory one (still to be performed). Lampleigh v. Braithwait was cited. Here there was no request.
• On time, the defendants concede they cannot have meant to contract without some limit. Three limits were suggested.
• The limit during the prevalence of the epidemic fails, because the advertisement covers colds as well as influenza.
• The limit during use is excluded by the words after having used. The third, within a reasonable time, is probably what was intended. But it cannot be drawn from the words, so there was no legal contract at all.

Court's Reasoning

Opinion of Lindley, L.J.

1. Noted: He stated the facts, then dealt first with two points raised in the court below. He dismissed both.
2. Held: The suggestion that the contract was a policy fails. One need only look at the advertisement to dismiss it.
3. Held: The suggestion that it was a bet also fails. Hawkins, J., concluded that nobody ever dreamt of a bet. Lindley, L.J., agreed and passed over the point as not worth serious attention.
4. Noted: The Court is not dealing with any inference of fact. It is dealing with an express promise to pay £100 in certain events.
5. Held: "here is a distinct promise expressed in language which is perfectly unmistakable".
6. Held: The advertisement was not a mere puff. Why: it says £1,000 is deposited with the Alliance Bank to show the company's sincerity.
7. Noted: The bank deposit was stated to negative the suggestion that the advertisement was a puff meaning nothing. The Court is not inferring a promise. The promise is there, as plain as words can make it.
8. Held: It is not a valid objection that the offer was made with nobody in particular. That point is common to all advertisements offering rewards.
9. Held: This advertisement is in law an offer to pay £100 to anybody who performs the conditions. Performing the conditions is the acceptance of the offer.
10. Noted: This rests on a string of authorities. The earliest is Williams v. Carwardine, followed by many other decisions on reward advertisements.
11. Noted: As a general proposition, a binding contract needs the offer to be accepted and the acceptance to be notified. Lindley, L.J., asked whether reward cases are an exception to that rule.
12. Held: Reward cases are an exception to the rule, or at least the notice of acceptance need not come before performance.
13. Noted: This is a continuing offer that was never revoked (withdrawn).
14. Noted: If notice of acceptance is required, the offeror gets it with notice of performance of the condition. He said he doubted that notice is required, and preferred Lord Blackburn's view in Brogden v. Metropolitan Ry. Co.
15. Held: If the offeror gets notice of acceptance before the offer is revoked, that is enough in principle.
16. Held: In a case of this kind, the offeror shows by his language and by the nature of the transaction that he does not expect or require notice of acceptance apart from notice of performance.
17. Noted: All the elements of a binding contract are present, subject to two observations. The first is that the advertisement is said to be too vague to be a promise.
18. Noted: The language is vague in some respects. In particular, no time is fixed for using the balls or for catching the epidemic. Construing the offer most strongly against the offeror, one might infer that any time was meant.
19. Held: That was not meant. To hold otherwise would push too far the rule of taking language most strongly against the person using it.
20. Noted: Business people or reasonable people would not understand the words as a guarantee against influenza for the rest of one's life.
21. Noted: It is for the defendants to show what the advertisement does mean. He saw two, possibly three, reasonable constructions, any one of which would suit the plaintiff.
22. Noted: The first is that it covers persons catching the increasing epidemic during its prevalence. He said that did not commend itself to him.
23. Noted: The second is that the user is guaranteed free from the epidemic, colds or diseases caused by taking cold, while using the remedy after two weeks. On that meaning the plaintiff is right, since she went on using the ball until she got the epidemic.
24. Held: He preferred a third meaning. The reward is offered to any person who contracts the epidemic or other disease within a reasonable time after using the smoke ball.
25. Noted: A reasonable time can be found in a business sense and a lawyer's sense. One finds from a chemist what the ingredients are. One finds from a skilled physician how long their effect could protect a person. That gives a standard for a jury, or a judge without a jury.
26. Held: The true construction is that £100 will be paid to anybody who uses the ball three times daily for two weeks according to the printed directions. The person must get influenza, a cold or another disease caused by taking cold within a reasonable time after so using it. If that is right, it is enough for the plaintiff.
27. Noted: The last point is consideration. It was argued that this is nudum pactum with no consideration.
28. Noted: The defendants argued that use of the ball is no advantage to them, since only sales benefit them. They said a thief or others might use stolen balls.
29. Held: The advertisers plainly see that public use, if the public gain confidence in the remedy, will produce sales that directly benefit them.
30. Held: This advantage is enough to constitute consideration.
31. Held: There is another view. A person who acts on the advertisement and accepts the offer puts himself to inconvenience at the defendants' request.
32. Held: Using the ball three times daily for two weeks according to the directions is a distinct inconvenience, not to say a detriment. There is ample consideration for the promise.
33. Noted: In Gerhard v. Bates, a company promoter promised bearers of share warrants dividends for so many years. The promise as alleged was held not to show consideration.
34. Noted: Lord Campbell's judgment can be explained on the ground that the promise, if any, was to the original bearer and not to the plaintiff. The plaintiff was not suing in the original bearer's name, so there was no contract with him.
35. Noted: Lord Campbell's observations would have been very different if the plaintiff had been an original bearer. They would also differ if the declaration had alleged a promise to anybody who should become the bearer.
36. Noted: The Court said it did not know judicially what a societe anonyme was. The declaration did not explain it or allege a promise to whoever became the bearer. So the Court found no consideration alleged.
37. Held: In the present case there is no difficulty in finding consideration.
38. Held: The defendants must perform their promise. "if they have been so unwary as to expose themselves to a great many actions, so much the worse for them."

Opinion of Bowen, L.J.

1. Noted: He agreed with Lindley, L.J. The defendants asked the Court to say that the document was a contract too vague to be enforced.
2. Held: The document is not a contract at all. It is only an offer made to the public.
3. Noted: The defendants argued that the terms are too vague for a definite offer because no time limit is fixed for catching influenza.
4. Noted: They said the terms are also vague as to persons. They could cover persons who used the ball before the advertisement, and it is an offer to the world in general.
5. Noted: They said it is unreasonable to suppose a definite offer. Nobody in their senses would give up the chance to check an experiment made at their own expense.
6. Noted: They said the advertisement is more like a puff or a proclamation than an offer intended to become a contract when accepted.
7. Noted: The main point was that the vagueness of the document shows that no contract was intended.
8. Held: The advertisement must be read in its plain meaning, as the public would understand it. It was issued to the public to be read by the public.
9. Held: It was intended to make people use the smoke ball. Its suggestions and allegations are directed to use of the ball, as distinct from purchase.
10. Held: The ball need not be bought directly from the defendants or their agents. The intention was to promote circulation and use of the smoke ball.
11. Held: The words do not cover persons who caught influenza before the advertisement was published. He read it as written in colloquial language: £100 will be paid to any person who contracts the epidemic after using the ball three times daily for two weeks.
12. Held: The public would read it to mean that a person who, after publication, used the ball as directed and then caught cold would be entitled to the reward.
13. Noted: Then came the question how long the protection lasts. He saw two constructions, each good sense and each enough for the present action.
14. Noted: One construction is that protection lasts during the epidemic, and the plaintiff caught the disease during the epidemic.
15. Held: More probably, the ball is a protection while it is in use. An ordinary person would understand an advertisement about medicine and a specific against influenza that way.
16. Noted: Nobody could suppose that after you stop using it you are protected for ever, as if a stamp were set on your forehead that you would never catch influenza.
17. Noted: Later language of the advertisement supports the during use reading. It says the disease was not contracted by those using the ball, and not by those who had used it. It also says one ball lasts a family several months, and that the ball can be refilled at 5s.
18. Held: On the construction of the advertisement, the protection was to last during the time the ball was being used.
19. Noted: Lindley, L.J., thought the contract sufficiently definite if protection was warranted for a reasonable period after use. Bowen, L.J., said he had some difficulty on that point. He did not need to consider it further, because the disease here was contracted during use of the ball.
20. Held: The statement that £100 would be paid was not meant as a mere puff, because the advertisement says £1,000 is lodged at the bank for that purpose. It was intended to be understood by the public as an offer to be acted upon.
21. Noted: The defendants argued there was no check on persons who issued the advertisement. They said it would be senseless to promise £100 to a person who used the ball unless you could check or superintend his manner of using it.
22. Held: "if a person chooses to make extravagant promises of this kind, he probably does so because it pays him to make them". The extravagance of the promises is no reason in law why he should not be bound by them.
23. Noted: It was also said that the contract is made with all the world, and one cannot contract with everybody.
24. Held: "It is an offer made to all the world". It is not a contract made with all the world, and that is the fallacy of the argument.
25. Held: An offer can be made to all the world to ripen into a contract with anybody who comes forward and performs the condition. It is an offer to become liable to anyone who, before it is retracted, performs the condition.
26. Held: Although the offer is made to the world, the contract is made with the limited portion of the public who come forward and perform the condition on the faith of the advertisement.
27. Noted: Advertisements that one has a stock of books to sell, or houses to let, are different. They are offers to negotiate (invitations to make offers), or offers to receive offers, or offers to chaffer (to haggle), and not offers to be bound.
28. Held: If an advertisement is an offer to be bound, it is a contract the moment the person fulfils the condition. This is the ground on which all the advertisement cases have been decided during the century.
29. Noted: He quoted Willes, J., in Spencer v. Harding. In the advertisement cases there was never any doubt that the advertisement was a promise to pay the person who first gave information. The difficulty suggested was that it was a contract with all the world, and that was soon overruled.
30. Noted: Willes, J., described it as an offer to become liable to any person who, before it was retracted, happened to fulfil the contract. He added that if a circular went on to say we undertake to sell to the highest bidder, the reward cases would apply.
31. Noted: Willes, J., said that as soon as the highest bidder presented himself, the person who held the vinculum juris (the legal bond) on the other side was ascertained, and the contract was settled.
32. Noted: The defendants argued there was no notification of acceptance. As an ordinary rule, acceptance ought to be notified to the offeror so that the two minds come together. Without that, there is no consensus, which English law requires. He said nothing about other countries' laws.
33. Held: There is a clear qualification to that rule. Notification of acceptance is required for the offeror's benefit, so the offeror may dispense with notice to himself.
34. Held: Where an offeror expressly or impliedly indicates a particular mode of acceptance as enough to make the bargain binding, the other party need only follow that mode.
35. Held: If the offeror expressly or impliedly says it will be enough to act on the proposal without communicating acceptance, performance of the condition is a sufficient acceptance without notification.
36. Noted: This principle underlies the acceptance cases. Two instances are the judgment of Mellish, L.J., in Harris's Case and Lord Blackburn's judgment in Brogden v. Metropolitan Ry. Co. He took exactly the line indicated.
37. Noted: To find whether the offeror indicates that notification is unnecessary, one looks to the offer itself. In many cases one extracts it from the character of the transaction.
38. Held: In the advertisement cases, a person need not notify acceptance before performing the condition. If he performs the condition, notification is dispensed with. Common sense allows no other view.
39. Noted: He gave an example. If a person advertises that his dog is lost and anyone who brings it to a place will be paid, the police and others need not write to accept. They just look for the dog.
40. Held: The essence of the transaction is that the dog should be found. Performance of the condition is sufficient acceptance without notification, and the offeror impliedly indicates that he does not require it.
41. Noted: The defendants also argued nudum pactum. They said taking influenza and using the ball were only conditions, and there was no request, express or implied, to use the ball.
42. Noted: He would not enter an elaborate discussion of requests. He referred to Victors v. Davies and Serjeant Manning's note to Fisher v. Fyne.
43. Held: There is a request to use the ball involved in the offer.
44. Noted: He cited the definition of consideration in Selwyn's Nisi Prius, 8th ed., p. 47, adopted by Tindal, C.J., in Laythoarp v. Bryant. It covers any act by the plaintiff from which the defendant gets a benefit or advantage. It also covers any labour, detriment or inconvenience the plaintiff suffers, with the defendant's express or implied consent.
45. Held: Applying the ball to one's nostrils thrice daily for a fortnight is not nothing. The law does not measure the adequacy of consideration. Inconvenience suffered by one party at the other's request is enough.
46. Held: It is consideration enough that the plaintiff took the trouble of using the smoke ball.
47. Held: The defendants also received a benefit. They contemplated that use of the balls would indirectly promote their sale.
48. Noted: Gerhard v. Bates arose on demurrer (a pleading objection that the claim shows no case). The action failed because the plaintiff did not allege that the promise was made to the class of which alone he was a member. So there was no privity (direct contractual link) between the parties.
49. Noted: Lord Campbell gave a second reason. If the parties there had come together as contracting parties and only consideration was in issue, his reasoning would not be sound. It can only be supported as an additional reason for finding no contractual relation, and so it was superfluous.
50. Held: If a contract had been found between the parties in Gerhard v. Bates, there would have been no difficulty about consideration. Here, once one finds a promise made to the plaintiff as one of the public, her using the ball was sufficient consideration.
51. Noted: He gave an example. If I say to a person, if you use such a medicine for a week I will give you £5, and he uses it, there is ample consideration for the promise.

Opinion of A. L. Smith, L.J.

1. Noted: The first point is whether the advertisement was an offer that, once accepted and its conditions performed, became a promise to pay. This assumes there was good consideration. The alternative is that it was only a puff, or, as Finlay put it, a statement of confidence in the remedy.
2. Noted: He put the question in Lord Campbell's words in Benton v. Great Northern Ry. Co.: whether the advertisement was mere waste paper.
3. Noted: He said the unascertained person will be ascertained by performing the condition, as Lindley, L.J., and Bowen, L.J., had pointed out.
4. Noted: He paraphrased the advertisement as saying: if you, one of the public not yet ascertained, use my smoke ball as directed, I will pay you £100 if you catch influenza within the period mentioned.
5. Noted: He said there is a request in that. It comes to this: in consideration of your buying my smoke ball and using it as I prescribe, I promise to pay you £100 if you catch influenza within a certain time.
6. Held: The advertisement is not a mere expression of confidence. It states that £1,000 is lodged at the bank as security and proof of sincerity, to satisfy any demands from persons who fulfil the conditions.
7. Held: The advertisement was an offer intended to be acted on. Once accepted and the conditions performed, it was a binding promise on which an action would lie, assuming consideration.
8. Noted: The defendants said it was a promise in honour, or an agreement in honour. He understood that only to mean a promise without consideration, or nudum pactum. If anything else was meant, he did not understand it.
9. Held: The first point fails. This was an offer intended to be acted on and, when the conditions were performed, it was a promise to pay.
10. Noted: Next it was said the promise was too wide, because it had no time limit for catching the epidemic.
11. Noted: He listed three possible limits. The first is catching the epidemic while it continues. The second is catching influenza during the time you use the ball. The third is catching influenza within a reasonable time after the two weeks of use.
12. Held: It was not necessary to say which is correct, because no question arises on it. On any construction, there is a sufficient time limit, so the contract is not too vague on that account.
13. Noted: It was argued that the plaintiff did not accept in the manner contemplated. The defendants said notice of acceptance had to be given before use, so that they could supervise the experiment.
14. Held: There is no such clause in the advertisement, and none can be read into it.
15. Held: This is one of those cases in which performing the condition, by using the smoke balls for two weeks three times a day, is an acceptance of the offer.
16. Noted: It was said no person was named in the advertisement, so there was no contract with anyone. He observed that this has been so in every advertisement case since Williams v. Carwardine.
17. Held: A person becomes a persona designata (a person specially identified) and able to sue when he performs the conditions mentioned in the advertisement.
18. Noted: The last argument was that there was no consideration and the promise was nudum pactum.
19. Held: There are two considerations. One is the inconvenience of using the ball for two weeks three times a day. The other, more important one, is the money gain likely to reach the defendants through enhanced sales because of the plaintiff's use.
20. Held: There is ample consideration to support the promise.
21. Held: On the policy and wagering points, there is nothing in either of them.

Provisions discussed

• 8 & 9 Vict. c. 109: the wagering statute. The defendants argued that if there was a contract, it was a wagering contract and void. Lindley, L.J., and A. L. Smith, L.J., held there was nothing in the point.
• 14 Geo. 3, c. 48, s. 2: the section on policies of insurance. The defendants argued that the contract was a policy of insurance that did not comply with the section. The Court rejected the point.

Authorities

• Williams v. Carwardine, 4 B. & Ad. 621: cited by both sides. Lindley, L.J., called it the earliest authority in a string of reward-advertisement cases. A. L. Smith, L.J., relied on it for the point that no named person is needed.
• Week v. Tibold, 1 Roll. Abr. 6 (M.): cited by the defendants for the view that the words express an intention, not a promise.
• Harris v. Nickerson, Law Rep. 8 Q. B. 286: cited by the defendants as similar to this case.
• Guthing v. Lynn, 2 B. & Ad. 232: cited by the defendants to show terms too vague, with no time limit.
• Gerhard v. Bates, 2 E. & B. 476: cited by the defendants for no consideration. Lindley, L.J., and Bowen, L.J., explained it as a case where there was no promise to the plaintiff's class and no contract with him.
• Benton v. Great Northern Ry. Co., 5 E. & B. 860: cited by the defendants, who distinguished it because the plaintiff there did an overt act. A. L. Smith, L.J., borrowed Lord Campbell's phrase waste paper from it.
• Brogden v. Metropolitan Ry. Co., 2 App. Cas. 666, 691: cited by both sides on acceptance. Lindley, L.J., preferred Lord Blackburn's view. Bowen, L.J., said Lord Blackburn took the line he described.
• Spencer v. Harding, Law Rep. 5 C. P. 561, 563: cited by the plaintiff. Bowen, L.J., quoted Willes, J., on offers to the world and on the reward cases.
• Denton v. Great Northern Ry. Co., 5 E. & B. 860 (the report prints 86, with an erratum to 860): cited by the defendants in reply, where the fact was found by a public act.
• Lampleigh v. Braithwait, 1 Sm. L. C., 9th ed., pp. 153, 157, 159: cited by the defendants in reply on the need for a request.
• Harris's Case, Law Rep. 7 Ch. 587: cited by Bowen, L.J., as an instance of the acceptance cases, with the judgment of Mellish, L.J.
• Victors v. Davies, 12 M. & W. 758: cited by Bowen, L.J., on requests in this kind of contract.
• Fisher v. Fyne, 1 M. & G. 265 (name as printed in the report): Serjeant Manning's note cited by Bowen, L.J., on requests.
• Laythoarp v. Bryant, 3 Scott, 238, 250 (name as printed in the report): cited by Bowen, L.J., for Tindal, C.J.'s adoption of a definition of consideration from Selwyn's Nisi Prius.
• Selwyn's Nisi Prius, 8th ed., p. 47: a textbook definition of consideration, quoted by Bowen, L.J.

Judgement

1. Appeal dismissed. The Court of Appeal affirmed the decision of Hawkins, J.
2. The facts established a contract by the defendants to pay the plaintiff £100 in the event that happened.
3. The contract was not a wagering contract within 8 & 9 Vict. c. 109. It was not a policy within 14 Geo. 3, c. 48, s. 2. The plaintiff was entitled to recover.
4. Lindley, L.J., Bowen, L.J., and A. L. Smith, L.J., each gave reasons. The judgment does not state any order as to costs.

Legal Principle / Ratio

An advertisement can be an offer to the whole world. Anyone who performs its stated conditions on the faith of it accepts the offer, and the contract is made with that person. Where the offeror shows, expressly or by the nature of the transaction, that notice of acceptance is not needed, performance of the condition is enough.

Key holding: "performance of the condition is a sufficient acceptance without notification".

Critical Analysis

Analysis based on the judgment text.

• The judges do not agree on the time limit. Lindley, L.J., preferred a reasonable time after use. Bowen, L.J., preferred protection during use. A. L. Smith, L.J., left it open.
• Lindley, L.J., said he doubted that notice of acceptance is required. He also said that if it is required, notice of performance supplies it. The judgment does not settle which explanation is the rule.
• Bowen, L.J., admitted some difficulty with the "reasonable time" construction. He did not decide it because the plaintiff caught influenza during use.
• The Court did not require full argument on wager and insurance. Lindley, L.J., and A. L. Smith, L.J., rejected those points in a few lines. Bowen, L.J., did not mention them.
• The stolen-balls point was answered mainly through the benefit of use to the defendants. The judgment does not separately decide whether a thief or a non-purchaser could claim.

Significance

• The case shows that an advertisement can be a binding offer if it shows real intent to be bound. All three judges relied on the bank deposit.
• It shows that a general offer can be accepted by performing the stated conditions, without notice to the offeror.
• It shows that inconvenience suffered at the offeror's request, or a benefit to the offeror, can be consideration.
• It shows that extravagant promises bind the promisor. Extravagance is no reason in law for escaping them.

Exam-Important Points

• Rule: a general offer to the world ripens into a contract with anyone who performs its conditions before it is retracted. Trap: it is not a contract with all the world.
• Rule: an offeror may dispense with notice of acceptance. Performance of the condition is then sufficient acceptance.
• Rule: the £1,000 deposit showed the advertisement was not a mere puff.
• Rule: consideration was using the ball as directed and the benefit of sales to the defendants. Trap: the plaintiff need not have bought from the defendants directly.
• Rule: the advertisement was not a wager and not a policy of insurance. Trap: those points were rejected briefly, not argued at length.
• Contrast: advertisements offering stock for sale or houses to let are offers to negotiate, not offers to be bound.
• Trap: the judges did not agree on the time limit of protection. It was not necessary to decide, since the plaintiff fell ill during use.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so no paragraph numbers are cited. The citation is as printed at the head of the report.