(1927) 40 CLR 227
High Court of Australia
The Government of Western Australia offered a reward
"for such information as shall lead to the arrest and conviction of the person or persons who committed the murders"
of two police officers. Clarke, who knew of the offer, gave the required information in order to clear himself of a false charge of murder and not in order to claim the reward. Later Clarke claimed the reward.
The issue before the court was whether Clarke had accepted the offer of the reward; had he in mind the offer when 'did the act' required by the unilateral offer?
Higgins J
... On 6th June, Clarke gave false information in order to screen the murderers; and, as he says, "I had no intention then of doing anything to earn the reward... On 10th June, I began to break down under the strain. Manning took down my statement on 10th June at my request. I had no thought whatever then of the reward that had been offered. My object was my own protection against a false charge of murder... Up to 10th June I had no intention of doing anything to earn the reward. At the inquest" (where he gave evidence without asking to be allowed to give evidence) "I was committed for trial as an accessory... When I gave evidence in the Criminal Court I had no intention of claiming the reward. I first decided to claim the reward a few days after the appeal had been dealt with. Inspector Condon told me to make application. I had not intended to apply for the reward up to that date. I did not know exactly the position I was in. Up to that time I had not considered the position . . . I had not given the matter consideration at all. My motive was to clear myself of the charge of murder. I gave no consideration and formed no intention with regard to the reward." These statements of Clarke show clearly that he did not intend to accept the offer of the Crown, did not give the information on the faith of, or relying on, the proclamation. He did not mentally assent to the Crown's offer; there was no moment of time at which there was, till after the information was given, as between Clarke and the Crown, a consensus of mind. Most of the cases turn on the communication of assent, from the "offeree" to the "offeror"; communication is necessary, and it may be by act as well as by words; but there can be no communication of assent until there be assent. If the case so much relied on for Clarke, the case of Williams v Carwardine, can be taken as deciding that mutual consent to the terms is not necessary, as well as communication of assent by the offeree, I can only point to higher and more recent authority, such as that of Lord Westbury LC in Chinnock v Marchioness of Ely: "An agreement is the result of the mutual assent of two parties to certain terms, and if it be clear that there is no consensus, what may have been written or said become immaterial." This pronouncement is cited by Leake on Contracts, 7th ed; and the author adds: "A consensus ad idem is a prime essential to the validity of a contract." The distinction should be clear between the essential mental assent, and the essential communication of that assent; as in In re National Savings Bank Association; Hebb's Case: "I am of opinion that an offer does not bind the person who makes it until it has been accepted, and its acceptance has been communicated to his or his agent."
But I do not regard Williams v Carwardine as deciding anything to the contrary of this doctrine. That case seems to me not to deal with the essential elements for a contract at all: it shows merely that the motive of the informer in accepting the contract offered (and the performing the conditions is usually sufficient evidence of acceptance) has nothing to do with his right to recover under the contract. The reports show (as it was assumed by the Judges after the verdict of the injury in favour of the informer), that the informer knew of the offer when giving the information, and meant to accept the offer though she had also a motive in her guilty conscience. The distinguished jurist, Sir Frederick Pollock, in his preface to vol. 38 of the Revised Reports, makes comments adverse to the case; but I concur with Burnside J. in his view that we cannot treat such comments as equivalent to an overruling of a clear decision. The case of Gibbons v Proctor is much more difficult to explain. There a policeman was held entitled to recover a reward offered by handbills, for information given to the superintendent of police which led to arrest and conviction, although the policeman did not know of the handbills before he sent the information by his agents, or before the handbills reached the superintendent. This would seem to mean that a man can accept an offered contract before he knows that there is an offer - that knowledge of the offer before the informer supplies the information is immaterial to the existence of the contract. Anson on Contracts (16th ed), thinks that this decision must be wrong. I venture to think so too; and, though we cannot well overrule it, we ought not to follow it for the purposes of this Court. It should be noted in this connection that the great judgement of Lord Blackburn in Brogden v Metropolitan Railway Co is addressed to the other condition of contract, that acceptance must be communicated; but the whole judgement assumes that consensus of mind pre-existed - "simple acceptance in your own mind, without any intimation to the other party, and expressed by a mere private act, such as putting a letter into a drawer," does not complete a contract (and see per Lord Cairns LC). The reasoning of Woodruff J in Fitch v Snedaker seems to me to be faultless; and the decision is spoken of in Anson as being undoubtedly correct in principle: - "The motive inducing consent may be immaterial, but the consent is vital. Without that there is no contract. How then can there be consent or assent to that of which the party has never heard?" Clarke had seen the offer indeed; but it was not present to his mind - he had forgotten it, and gave no consideration to it, in his intense excitement as to his own danger. There cannot be assent without knowledge of the offer; and ignorance of the offer is the same thing whether it is due to never hearing of it or to forgetting it after hearing. But for this candid confession of Clarke's it might fairly be presumed that Clarke, having once seen the offer, acted on the faith of it, in reliance on it; but he has himself rebutted that presumption.