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5.3 Applying Case Reading Strategies

Note: There is a list of vocabulary (including collocations and cultural explanations) that may help you in reading and understanding parts of this court opinion.

Lefkowitz v. Great Minneapolis Surplus Store, Inc.

251 Minn. 188, 86 N.W.2d 689 (1957)


MURPHY, Justice.

(1)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. (2)The order for judgment awarded the plaintiff the sum of $138.50 as damages for breach of contract.

(3)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. (4)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

(5)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

(6)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. (7)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.

(8)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. (9)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. (10)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.

(11)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. (12)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. (13)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 **691 may modify or revoke such prices or terms. Montgomery Ward & Co. v. Johnson, 209 Mass. 89, 95 N.E. 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; *191 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.

(14)The defendant relies principally on Craft v. Elder & Johnston Co. supra. (15)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. (16)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. (17)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.’ (18)It is true that such an offer may be withdrawn before acceptance. (19)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. (20)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.

(21)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. J. E. Pinkham Lumber Co. v. C. W. Griffin & Co., 212 Ala. 341, 102 So. 689; Seymour v. Armstrong & Kassebaum, 62 Kan. 720, 64 P. 612; Payne v. Lautz Bros. & Co., City Ct., 166 N.Y.S. 844, affirmed, 168 N.Y.S. 369, affirmed, 185 App.Div. 904, 171 N.Y.S. 1094; Arnold v. Phillips, 1 Ohio Dec. Reprint 195, 3 West.Law J. 448; Oliver v. Henley, Tex.Civ.App., 21 S.W.2d 576; Annotation, 157 A.L.R. 744, 746.

(22)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.) s 27.

(23)The authorities above cited emphasize that, where the offer is clear, definite, and explicit, and leaves nothing open for negotiation, it constitutes an offer, acceptance of which will complete the contract. (24)The most recent case on the subject is *192 Johnson v. Capital City Ford Co., La.App., 85 So.2d 75, in which the court pointed out that a newspaper advertisement relating to the purchase and sale of automobiles may constitute an offer, acceptance of which will consummate a contract and create an obligation in the offeror to perform according to the terms of the published offer.

(25)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. Annotation, 157 A.L.R. 744, 751; 77 C.J.S., Sales, s 25b; 17 C.J.S., Contracts, s 389. (26)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. (27)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 to performance on the part of the defendant. (28)We think the trial court was correct in holding that there was in the conduct of the parties a sufficient mutuality of obligation to constitute a contract of sale.

(29)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. (30)The advertisement contained no such restriction. (31)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. Payne v. Lautz Bros. & Co., City Ct., 166 N.Y.S. 844, 848; Mooney v. Daily News Co., 116 Minn. 212, 133 N.W. 573, 37 L.R.A.,N.S., 183.


Helpful Vocabulary for the Lefkowitz Case

  1. surplus store = a store that buys overstock from suppliers and sells the items at a discount
  2. “First come, first served” = whoever arrives first has the right to get or buy the item first
  3. municipal court =  city court
  4. motion = application or request made by a lawyer to the court during a trial
  5. in the alternative = alternatively
  6. order for judgment = the judge’s decision
  7. damages = money that the defendant has to pay; restitution
  8. alleged = supposed; purported; an unconfirmed statement or accusation
  9. from the record = based on the facts and other information from the lower court trial
  10. (lapin) stole = a fur wrap worn around the neck (Note: “lapin” comes from the French word meaning “rabbit.” So this is a rabbit fur item or accessory.)
  1. “First come, first served” = a phrase meaning that whoever arrives first has the right to receive the item
  2. “Out they go” = we want to sell all of them; This is usually a phrase you might say in a cheery, happy voice if you’re watching your children walk out the door and you describe what’s happening. The store owner is trying to make the ad sound cheery and happy.
  3. present (pree-ZENT) himself = show up; arrive at the store
  4. so advertised =  that was advertised
  5. to the effect that = which basically said
  6. “house rule” = an organization’s internal or informal rules; an informal set of rules
  7. disallowed = did not allow; rejected
  8. speculative = like taking a guess
  9. in view of = considering; in light of
  10. granted judgment in favor of = decided in favor of
  11. contends = argues
  12. unilateral = one-sided (two-sided = bilateral)
  13. withdraw = take back something that was offered
  14. without notice = without giving any notice or other communication
  15. authorities = precedent; other cases
  16. on certain terms = specific requirements
  17. dispose of = get rid of; sell
  18. signifies = means; indicates; communicates
  19. construed = interpreted
  20. so made = made in that way
  21. modify = change
  22. revoke = withdraw; take back
  23. relies = bases its decision
  24. principally = mainly
  25. one-day special = one-day special discount sale
  26. thereby = as a result of that…
  27. properly designated = correctly labeled
  28. consideration = Note:  This word has a special meaning in contract law.  It means “something of value that is promised in connection with a contract (e.g., money or an action).”  If you promise to give me $5 and then change your mind, that’s ok.  There is no contract because there was no “consideration.”  You weren’t getting anything of value from me in exchange for your $5.
  29. On the facts before us = based on the facts in this case (from the trial court)
  30. constituted = is; became the same thing as;  
  31. conduct = behavior; action
  32. circular letter = a newsletter or printed ad that is distributed widely
  33. binding obligation = something you agree to that you are required to do; i.e., a description of what a contract is
  34. originate (o-RIH-juh-nayt) in = come from; be created by; come to exist in
  35. “the authorities above cited” = the source of authority that we discussed or referenced earlier in this text; the cases/rules that we mentioned earlier in this case opinion
  36. consummate (CON-suh-mayt) (a contract) = complete; make a contract exist; Example:  If you buy a computer in a store, the transaction is consummated at the moment you give money to the cashier and take the computer.
  37. offeror = the person who makes an offer; (“offeree” is the person who receives the offer)
  38. place of business = a person’s store or office or wherever they work
  39. stated (purchase price) = the purchase price that was listed in the advertisement
  40. “We are of the view…” = It is our opinion that…
  41. “… on the facts before us…” = based on the facts we know about
  42. entitled to = have the right to
  43. performance = doing whatever was required by the contract.  Example:  If you promise to pay me $10 for writing a case brief, then my performance is writing the case brief, and your performance is giving me the $10.
  44. sufficient mutuality of obligation = enough of a feeling that both parties had an obligation to the other party; mutual = to each other.  Example:  Person A:  “I’m so happy to meet you.”  Person B:  “The feeling is mutual.”  (i.e., I’m happy to meet you too.)
  45. contained no such restriction = did not contain any limit like that
  46. impose = force onto someone
  47. arbitrary = without any reason or logic; random