"Industrial America" Inc. v. Fulton Indus., Inc.

285 A.2d 412 (Del. 1971)



Overt manifestation of assent, not subjective intent, controls the formation of a contract. The only intent of the parties to a contract which is essential is an intent to say the words or do the acts which constitute their manifestation of assent. The intention to accept is unimportant except as manifested. 


Plaintiff acted as broker in the purchase of defendant manufacturing company by defendant holding company, following an advertisement by defendant holding company in which it offered to guarantee payment of brokers' fees. Plaintiff filed suit to recover his fee. The trial judge submitted an interrogatory to the jury on the question of whether plaintiff intended to rely on the advertisement when plaintiff approached defendant holding company. The jury answered in the negative, and judgment was entered only against defendant manufacturing company. The supreme court held that plaintiff was also entitled to judgment against defendant holding company.


Did plaintiff rely upon the advertisement in acting as broker between the defendants?




The trial court erred in submitting the issue of subjective reliance to the jury. It appears unquestionable that defendant's offer invited acceptance by performance; it is uncontroverted that plaintiff knew of the offer at the time of performance; by the jury's finding of procuring cause, it has been established that the plaintiff did in fact and in law perform. It follows as a matter of law, in the absence of any manifestation of intention to the contrary, that the plaintiff's performance constituted an acceptance of the offer of defendant which was found by the jury to be an offer of guaranty outstanding and viable at the time of the performance.

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