LEFKOWITZ v.

GREAT MINNEAPOLIS SURPLUS STORE

215 Minn. 188, 86 N.W2d 689 (1957)

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.

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 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.oo

First Come

First Served

The record supports the findings of the court that on each of the Saturdays lowing the publication of the above-described ads the plaintiff was the first on each occasion to present himself at the apporpriate counter in the defendant’s store and on each occasion demanded the coat 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.

The defendant contends that a newspaper advertisement offering items of merchandise for sale at a named price is a "unilateral offe?' which may be withdrawn without notice.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.

There are numerous authorities which hold that a particular advertisement in a newspaper or circular letter relating to a sale of articles may be construed by the court as constituting an offer, acceptance of which would complete a contract.

The test of whether a binding obligation may originate in advertisements addressed to the general public is "whether the facts show that some performance was promised in positive terms in return for something requested." 1 Williston, Contracts (Rev. ed.) 5 27.

Whether in any individual instance a newspaper advertisement is an offer rather than an invitation to make an offer depends on the legal intention of the parties and the surrounding circumstances. We are of the view on the facts before us that the offer by the defendant of the sale of the Lapin fur was clear, definite, and explicit, and left nothing open for negotiation. The plaintiff having successfully managed to be the first one to appear at the seller's place of business to be served, as requested by the advertisement and having offered the stated purchase price of the article, he was entitled 1 performance on the part of the defendant. We think the trial court was co rect in holding that there was in the conduct of the parties a sufficient mutuality of obligation to constitute a contract of sale.

The defendant contends that the offer was modified by a "house rule » to the effect that only women were qualified to receive the bargains advertised. The advertisement contained no such restriction. This objection may be disposed of briefly by stating that, 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.

Affirmed.