Carlill v. Carbolic Smoke Ball Co. [1891-4] All ER 127

Carlill v. Carbolic Smoke Ball Co. [1891-4] All ER 127

Cases referred

Williams v. Carwardine [(1883) 4 B. & Ad. 621   para 6

Brogden v. Metropolitan Rail. Co.[(1877) 2 AC 666] para 6

Spencer v. Harding [(1870) L.R. 5 CP 561] para 17

Harris v. Nickerson [(1873) L.R. 8 Q.B. 286] para 18

Brogden v. Metropolitan Rail. Co. [(1877) 2 AC 666 at 691] para 18

Judgement

On Nov. 13, 1891, the following advertisement was published by the defendants in the “P’all Mall Gazette”:

“£ 100 reward will be paid by the Carbolic Smoke Ball Co. to any person who contracts the increasing epidemic influenza, colds, or any diseases caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. £ 1,000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter. During the last epidemic of influenza many thousand Carbolic Smoke Balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the Carbolic Smoke Ball. One Carbolic Smoke Ball will last a family several months, making it the cheapest remedy in the world at the price – 10s. post free. The ball can be refilled at a cost of 5s. Address: Carbolic Smoke Ball Co., 27, Princes Street, Hanover Square, London, W.”

2. The plaintiff, believing in the accuracy of the statements appearing in the advertisement with regard to the efficacy of the smoke ball in cases of influenza, or as a preventive of that disease, purchased one and used it three times every day, as directed by the instructions, for several weeks, from the middle of November, 1891, until Jan. 17, 1892, at which latter date she had an attack of influenza. Thereupon her husband wrote a letter for her to the defendants, stating what had occurred, and asking for the £100 promised by the defendants in the advertisement. The payment of that sum was refused by the defendants, and the present action was brought for its recovery. At the trial before Hawkins J. and a special jury the facts were not disputed, and the arguments of counsel on each side on the points of law involved in the case were heard by the learned judge on further consideration. It was denied on the part of the defendants that there was any contract between them and the plaintiff; and, alternatively, that, if there were any, it was void as a wagering contract. Hawkins J., gave judgment for the plaintiff and the defendants appealed.

LINDLEY, L.J. – This is an appeal by the defendants against a decision of Hawkins, J., rendering them liable to pay the plaintiff £100 under the circumstances to which I will allude presently. The defendants are interested in selling as largely as possible an article they call the “Carbolic smoke ball.” What that is I do not know. But they have great faith in it as an effectual preventive against influenza and colds, or any diseases caused by taking cold, and as also useful in a great variety of other complaints. They are so confident in the merits of this thing that they say in one leaflet that the carbolic smoke ball never fails to cure all the diseases therein mentioned when used strictly according to these directions. Like other tradespeople they want to induce the public to have sufficient confidence in their preparation to buy it largely. That being the position they put this advertisement into various newspapers. It is printed in black-faced type, that is to say, the striking parts of it are. It is, therefore, put in a form to attract attention, and they mean that it should attract attention for the purposes to which I have already alluded. [His Lordship read the advertisement.] The plaintiff is a lady who, upon the faith of one of these advertisements, went and bought at a chemist’s in Oxford Street one of these smoke balls. She used it three times daily for two weeks according to the printed directions supplied. But before she had done using it she was unfortunate enough to contract influenza, so that in her case this ball did not produce the desired effect. Whereupon she says to the Carbolic Smoke Ball Co.: “Pay me this reward of £ 100.” “Oh no”, they respond, “We will not pay you the £100.” She then brings an action, and Hawkins, J., has held that the defendants must pay her the £100. Then they appeal to us and say that judgment is erroneous. The appeal has been argued with great ingenuity by the defendants’ counsel, and his contentions are reduced in substance to this that, put it as you will, this is not a binding promise.

4. I will pass, before I proceed further, to some of the various contentions which were raised for the purpose of disposing of them. I will afterwards return to the serious question which arises. First, it was said no action will lie upon this advertisement because it is a policy of insurance. You have, however, only got to look at it, I think, to dismiss that contention. Then it was said that this is a wager or bet. Hawkins, J., examined that with his usual skill, and came to the conclusion that nobody ever thought of a bet, and that there is nothing whatever in common with a bet. I so entirely agree with him that I propose to pass that over as not worth serious attention.

5. The first observation I would make upon this is that we are not dealing with any inference of fact. We are dealing with an express promise to pay £ 100 in certain events. There can be no mistake about that at all. Read this how you will, and twist it about as you will, here is a distinct promise, expressed in language which is perfectly unmistakeable, that £100 reward will be paid by the Carbolic Smoke Ball Co. to any person who contracts influenza after having used the ball three times daily, and so on. One must look a little further and see if this is intended to be a promise at all; whether it is a mere puff – a sort of thing which means nothing. Is that the meaning of it? My answer to that question is “No”, and I base my answer upon this passage: “£1,000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter.” What is that money deposited for? What is that passage put in for, except to negative the suggestion that this a mere puff, and means nothing at all? The deposit is called in aid by the advertisers as proof of their sincerity in the matter. What do they mean? It is to show their intention to pay the £100 in the events which they have specified. I do not know who drew the advertisement, but he has distinctly in words expressed that promise. It is as plain as words can make it.

6. Then it is said that it is a promise that is not binding. In the first place it is said that it is not made with anybody in particular. The offer is to anybody who performs the conditions named in the advertisement. Anybody who does perform the conditions accepts the offer. I take it that if you look at this advertisement in point of law; it is an offer to pay £ 100 to anybody who will perform these conditions, and the performance of these conditions is the acceptance of the offer. That rests upon a string of authorities, the earliest of which is that celebrated advertisement case of Williams v. Carwardine [(1883) 4 B. & Ad. 621], which has been followed by a good many other cases concerning advertisements of rewards. But then it is said : “Supposing that the performance of the conditions is an acceptance of the offer, that acceptance ought to be notified. ” Unquestionably as a general proposition when an offer is made, you must have it not only accepted, but the acceptance notified. But is that so in cases of this kind? I apprehend that this is rather an exception to the rule, or, if not an exception, it is open to the observation that the notification of the acceptance need not precede the performance. This offer is a continuing offer. It was never revoked, and if notice of acceptance is required (which I doubt very much, for I rather think the true view is that which is as expressed and explained by Lord Blackburn in Brogden v. Metropolitan Rail. Co.[(1877) 2 AC 666], the person who makes the offer receives the notice of acceptance contemporaneously with his notice of the performance of the conditions. Anyhow, if notice is wanted, he gets it before his offer is revoked, which is all you want in principle. But I doubt very much whether the true view is not, in a case of this kind, that the person who makes the offer shows by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance apart from notice of the performance.

7. We have, therefore, all the elements which are necessary to form a binding contract enforceable in point of law subject to two observations. First of all, it is said that this advertisement is so vague that you cannot construe it as a promise; that the vagueness of the language, to which I will allude presently, shows that a legal promise was never intended nor contemplated. No doubt the language is vague and uncertain in some respects, and particularly in that the £ 100 is to be paid to any person who contracts influenza after having used the ball three times daily, and so on. It is said, “When are they to be used?” According to the language of the advertisement no time is fixed, and, construing the offer most strongly against the person who has made it, one might infer that any time was meant. I doubt whether that was meant, and I doubt whether that would not be pushing too far the doctrine as to construing language most strongly against the person using it. I doubt whether business people, or reasonable people would understand that if you took a smoke ball and used it three times daily for the time specified – two weeks – you were to be guaranteed against influenza for the rest of your life. I do not think the advertisement means that, to do the defendants justice. I think it would be pushing their language a little too far. But if it does not mean that, what does it mean? It is for them to show what it does mean; and it strikes me that there are two reasonable constructions to be put on this advertisement, either of which will answer the purpose of the plaintiff. Possibly there are three.

8. It may mean that the promise of the reward is limited to persons catching the increasing influenza, or any colds, or diseases caused by taking colds, during the prevalence of the epidemic. That is one suggestion. That does not fascinate me, I confess. I prefer the other two. Another is, that you are warranted free from catching influenza, or cold, or other diseases caused by taking cold, while you are using this preparation. If that is the meaning, then the plaintiff was actually using the preparation when she got influenza. Another meaning– and the one which I rather think I should prefer myself – is becoming diseased within a reasonable time after having used the smoke ball. Then it is asked: “What is a reasonable time?” And one of my brothers suggested that depended upon the reasonable view of the time taken by a germ in developing? I do not feel pressed by that. It strikes me that a reasonable time may be got at in a business sense, and in a sense to the satisfaction of a lawyer in this way. Find out what the preparation is. A chemist will tell you that. Find out from a skilled physician how long such a preparation could be reasonably expected to endure so as to protect a person from an epidemic or cold. In that way you will get a standard to be laid before a court by which it might exercise its judgment as to what a reasonable time would be. And it strikes me, I confess, that the true construction of this is that £ 100 will be paid to anybody who uses this smoke ball three times daily, for two weeks according to the printed directions, and who gets influenza, or a cold, or some other disease caused by taking cold, within a reasonable time after so using it. I think that is the fair and proper business construction of it. If that is the true construction, it is enough for the plaintiff. Therefore, I say no more about the vagueness of the document.

9. I come now to the last point, which I think requires attention, i.e., the question of consideration. Counsel for the defendants has argued with great skill that this a nudum pactum – that there is no consideration. We must apply to that argument the usual legal tests. Let us see whether there is no advantage to the defendants. Counsel says it is no advantage to them how much the ball is used. What is an advantage to them and what benefits them is the sale, and he has put the ingenious case that a lot of these balls might be stolen, and that it would be no advantage to them if the thief or other people used them. The answer to that I think is this. It is quite obvious that, in the view of the defendants, the advertisers, a use of the smoke balls by the public, if they can get the public to have confidence enough to use them, will react and produce a sale which is directly beneficial to them, the defendants. Therefore, it appears to me that out of this transaction emerges an advantage to them which is enough to constitute a consideration. But there is another view of it. What about the person who acts upon this and accepts the offer? Does not that person put himself to some inconvenience at the request of the defendants? Is it nothing to use this ball three times daily at the request of the defendants for two weeks according to the directions? Is that to go for nothing? It appears to me that is a distinct inconvenience, if not a detriment, to any person who uses the smoke ball. When, therefore, you come to analyse this argument of want of consideration, it appears to me that there is ample consideration for the promise.

10. It appears to me, therefore, that these defendants must perform their promise, and if they have been so unguarded and so unwary as to expose themselves to a great many actions, so much the worse for them. For once in a way the advertiser has reckoned too much on the gullibility of the public. It appears to me that it would be very little short of a scandal if we said that no action would lie on such a promise as this, acted upon as it has been. The appeal must be dismissed with costs.

BOWEN, L.J. – I am of the same opinion. We were asked by counsel for the defendants to say that this document was a contract too vague to be enforced. The first observation that arises is that the document is not a contract at all. It is an offer made to the public. The terms of the offer, counsel says, are too vague to be treated as a definite offer, the acceptance of which would constitute a binding contract. He relies on his construction of the document, in accordance with which he says there is no limit of time fixed for catching influenza, and that it cannot seriously be meant to promise to pay money to a person who catches influenza at any time after the inhaling of the smoke ball. He says also that, if you look at this document you will find great vagueness in the limitation of the persons with whom the contract was intended to be made – that it does not follow that they do not include persons who may have  used the smoke ball before the advertisement was issued, and that at all events, it is a contract with the world in general. He further says, that it is an unreasonable thing to suppose it to be a contract, because nobody in their senses would contract themselves out of the opportunity of checking the experiment which was going to be made at their own expense, and there is no such provision here made for the checking. He says that all that shows that this is rather in the nature of a puff or a proclamation than a promise or an offer intended to mature into a contract when accepted.

12. Counsel says that the terms are incapable of being consolidated into a contract. But he seems to think that the strength of the position he desires to adopt is rather that the vagueness of the document shows that no contract at all was intended. It seems to me that in order to arrive at this contract we must read it in its plain meaning as the public would understand it. It was intended to be issued to the public and to be read by the public. How would an ordinary person reading this document construe it upon the points which the defendant’s counsel has brought to our attention? It was intended unquestionably to have some effect, and I think the effect which it was intended to have was that by means of the use of the carbolic smoke ball the sale of the carbolic smoke ball should be increased. It was designed to make people buy the ball. But it was also designed to make them use it, because the suggestions and allegations which it contains are directed immediately to the use of the smoke ball as distinct from the purchase of it. It did not follow that the smoke ball was to be purchased from the defendants directly or even from agents of theirs directly. The intention was that the circulation of the smoke ball should be promoted, and that the usage of it should be increased.

13. The advertisement begins by saying that a reward will be paid by the Carbolic Smoke Ball Co. to any person who contracts influenza, and the defendants say that “contracts” there does not apply only to persons who contract influenza after the publication of the advertisement, but that it might include persons who had contracted influenza before. I cannot so read it. It is written in colloquial and popular language. I think that the expression is equivalent to this, that £ 100 will be paid to any person who shall contract influenza after having used the carbolic smoke ball three times daily for two weeks. It seems to me that would be the way in which the public would read it. A plain person who read this advertisement would read it in this plain way, that if anybody after the advertisement was published used three times daily for two weeks the carbolic smoke ball and then caught cold he would be entitled to the reward.

14. Counsel says: “Within what time is this protection to endure? Is it to go on for ever or what is to be the limit of time?” I confess that I think myself that there are two constructions of this document, each of them contains good sense, and each of them seems to me to satisfy the exigencies of the present action. It may mean that the protection is warranted to last during the epidemic. If so, it was during the epidemic that the plaintiff contracted the disease. I think more probably it means that it is to be a protection while it is in use. That seems to me the way in which an ordinary person would understand an ordinary advertisement about medicine and especially about a specific against influenza. It could not be supposed that after you had left off using it you would still be protected for ever as if there was a stamp set upon your forehead that you were never to catch influenza because you had used the carbolic smoke ball. I think it means during the use. It seems to me that the language of the advertisement lends itself to that construction. It says:

“During the last epidemic of influenza many thousand Carbolic Smoke Balls were sold, and in no ascertained case was the disease contracted by those using the Carbolic Smoke Ball.”

 15. The advertisement concludes with saying that one smoke ball will last a family several months – which means that it is to be continually used – and that the ball can be refilled at a cost of 5s. I, therefore, have no hesitation in saying that I think on the plain construction of this advertisement the protection was to ensure during the time that the carbolic smoke ball was being used. Lindley, L.J., thinks that the contract would be sufficiently definite if you were to read it in the sense that the protection was to be warranted during a reasonable period after use. I have some difficulty myself on that point, but it is not necessary for me to develop it, because as I read the contract it covered the exact moment during which the disease here was contracted.

16. Was the £ 100 reward intended to be paid? It not only says the reward will be paid, but it says: “We have lodged £ 1,000 to meet it.” Therefore, it cannot be said that it was intended to be a mere puff. I think it was intended to be understood by the public as an offer which was to be acted upon, but counsel for the defendants says that there was no check on the persons who might claim to have used the ball and become entitled to the reward, and that it would be an insensate thing to promise £ 100 to a person who used the smoke ball unless you could check his using it. The answer to that seems to me to be that, if a person chooses to make these extravagant promises, he probably does so because it pays him to make them, and if he has made them the extravagance of the promises is no reason in law why he should not be bound by them.

17. It is said it is made to all the world, i.e., to anybody. It is not a contract made with all the world. There is the fallacy of that argument. It is an offer made to all the world, and why should not an offer be made to all the world which is to ripen into a contract with anybody who comes forward and performs the conditions? It is an offer to become liable to anyone, who before it is retracted performs the conditions. Although the offer is made to all the world the contract is made with that limited portion of the public who come forward and perform the conditions on the faith of the advertisement. This case is not like those cases in which you offer to negotiate, or you issue an advertisement that you have got a stock of books to sell or houses to let, in which case there is no offer to be bound by any contract. Such advertisements are offers to negotiate, offers to receive offers, offers “to chaffer”, as a learned judge in one of the cases has said: per Willes J., in Spencer v. Harding [(1870) L.R. 5 CP 561]. If this is an offer to be bound on a condition, then there is a contract the moment the acceptor fulfils the condition. That seems to me to be sense, and it is also the ground on which all these advertisement cases have been decided during the century. It cannot be put better than in Willes, J.’s judgment in Spencer v. Harding, where he says (at p. 563):

“There never was any doubt that the advertisement amounted to a promise to pay the money to the person who first gave information. The difficulty suggested was that it was a contract with all the world. But that, of course, was soon overruled. It was an offer to become liable to any person who, before the offer should be retracted, should be the person to fulfil the contract of which the advertisement was an offer or tender. That is not the sort of difficulty which presents itself here. If the circular had gone on ‘and we undertake to sell to the highest bidder’, the reward cases would have applied, and there would have been a good contract in respect of the persons.”

As soon as the highest bidder presents himself – says Willes, J., in effect – the person who was to hold the vinculum juris on the other side of the contract was ascertained, and it became settled.

18. Then it was said that there was no notification of the acceptance of the offer. One cannot doubt that as an ordinary rule of law an acceptance of an offer made ought to be notified to the person who makes the offer, in order that the two minds may come together. Unless you do that, the two minds may be apart, and there is not that consensus which is necessary according to the English law to constitute a contract. But the mode of notifying acceptance is for the benefit of the person who makes the offer as well as for the opposite party, and so the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so. I suppose there can be no doubt that where a person in an offer made by him to another person expressly or impliedly intimates that a particular mode of acceptance is sufficient to make the bargain binding, it is only necessary for the person to whom the offer is made to follow the indicated method of acceptance. And if the person making the offer expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, and the offer is one which in its character dispenses with notification of the acceptance, then according to the intimation of the very person proposing the contract, performance of the condition is a sufficient acceptance without notification. That seems to me to be the principle which lies at the bottom of the acceptance cases, of which an instance is the well-known judgment of Mellish, L.J., in Harris v. Nickerson [(1873) L.R. 8 Q.B. 286], and Lord Blackburn’s opinion in the House of Lords in Brogden v. Metropolitan Rail. Co. [(1877) 2 AC 666 at 691]. It seems to me that that is exactly the line which he takes.

19.  If that is the law, how are you to find out whether the person who makes the offer does intimate that notification of acceptance will not be necessary in order to constitute a binding bargain? In many cases you look to the offer itself. In many cases you extract the answer from the character of the business which is being done. And in the advertisement cases it seems to me to follow as an inference to be drawn from the transaction itself that a person is not to notify his acceptance of the offer before he performs the conditions, but that, if he performs the conditions at once, notification is dispensed with. It seems to me, also, that no other view could be taken from the point of view of common sense. If I advertise to the world that my dog is lost and that anybody who brings him to a particular place will be paid some money, are all the police or other persons whose business is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Of course they look for the dog, and as soon as they find the dog, they have performed the condition. The very essence of the transaction is that the dog should be found. It is not necessary under such circumstances, it seems to me, that in order to make the contract binding, there should be any notification of acceptance. It follows from the nature of the thing that the performance of the condition is sufficient acceptance without the notification of it. A person who makes an offer in an advertisement of that kind makes an offer which must be read by the light of that common sense reflection. In his offer he impliedly indicates that he does not require notification of the acceptance of the offer.

20.  In the present case the promise was put forward, I think, with the intention that it should be acted upon, and it was acted upon. It seems to me that there was ample consideration for the promise, and that, therefore, the plaintiff is entitled to recover the reward.

[A.L. Smith, L.J., delivered judgment to the same effect: Ed].