CHERRY, J.

This is an action at law by the plaintiff to recover fees for furnishing defendant a copy of the official report of certain proceedings before the Interstate Commerce Commission. A trial before the court resulted in findings and judgment for the plaintiff, from which the defendant has appealed.

The sufficiency of the evidence to support the findings is the only question to be determined.

There is no substantial conflict in the evidence, the most important part of which consists of written communications between the parties.

Tim plaintiff resided in New York and was the official reporter for the Interstate Commerce Commission, and the defendant was a corporation engaged in buying and selling pelts, hides, and furs at Salt Lake City, Utah.

• On July 20, 1918, plaintiff sent letters to various large shippers of freight, including defendant, as follows:

“Re Consolidated Classification, Case No. 10204.

Dear Sir: At the request of the Director General of Railroads the Interstate Commerce Commission will conduct an investigation concerning the reasonableness and propriety of the descriptions, rules, regulations, ratings, and minimum weights provided in proposed consolidated freight classification No. 1, prepared by the special committee appointed by the United States Railroad Administration to consolidate the official, western, and southern classifications. Hearings will he held in several cities beginning at Boston, August 1, and concluding at Atlanta, September 19.

“A summary of the changes recommended in the proposed consolidated classification is inclosed. As these are of unusual interest and importance, those who want copies of the official reports of these hearings, which will he furnished at the usual rate fixed by the Commission, should advise us at once so that we may make enough to supply them without delay.”

On July 31, 1918, the defendant wrote plaintiff:

*228“We will be interested in your official report of the different changes in the handling of freight and would ask you to put our name down for a copy of same.”

On August 5, 1918, the plaintiff wrote defendant:

“Please accept our thanks for your order of July 31, for one copy of the official report of the proceedings in the Consolidated Classification Case No. 10204, which will have our prompt attention.”

In pursuance of the correspondence, the plaintiff prepared a copy of the official report of the hearings held up to August 17, which was shipped to defendant by express on September 13, 1918; and later prepared a copy of the official report of the hearings held subsequently, which was shipped to. defendant by express on October 5, 1918.

On October 10, 1918, the defendant wrote the plaintiff:

“We are just in receipt of another allotment of your Interstate Commerce Commission, and want to say to you that this is something that we cannot use at all and there is no use of you sending us anything further. We wish to return you what we have on hand at present and pay you anything that is reasonable for the trouble that you have been put to.

“In ordering these from you in the first place we expected to find all the information we wanted in one volume and did not think we were going to get a full library.

“Trusting you will look at this matter as a business proposition, with kindest regards.”

To this the plaintiff replied on October 15, 1918:

“Replying to your letter of. October 10, if agreeable to you, we will accept your cancellation effective at the- end of the hearing of September 27. A copy of the report having already been made for you up to that point. We cannot accept cancellation of your order for that part of the report, because we cannot return to our employees and get credit for the labor which they have expended in making the copy for you.”

Defendant wrote on October 21, 1918:

“Replying to yours of the 15th, would like you to let us know the cost of the literature we have already received. As stated to you before, this is no value to us whatever, and while we are perfectly willing to stand everything that is necessary to put you in the clear, we would think it more to your interest and all concerned, if you could manage to place this information with some other firm to whom it may be of some value.”

October 28, 1918, the plaintiff wrote:

*229“Replying to your letter of October 21, if an opportunity develops later in which we can use your copy elsewhere, we will communicate with you.”

On November 4, 1918, and November 13, 1918, plaintiff ■ prepared and shipped the copy of official reports of the remaining hearings had np to September 27, 1918, the various shipments together making one complete copy of the official reports of the hearings had between August 1, and September 27, aggregating 8,380 pages, for which plaintiff was permitted to charge at the rate of 12% cents per page.

Plaintiff sent defendant a statement of the amount due, amounting to $1,047.50, and received in response the following letter dated December 20, 1918:

“Your first and only statement of prices and account under date of December 14, just received. We are .certainly surprised at the price you attempted to charge for same, and amount of these goods attempted to be put upon us.

“Referring once again to this matter, as stated before, these reports are absolutely useless to us, and we absolutely refuse to pay this account, and hold these goods subject to your orders.”

On January 3, 1919, the plaintiff wrote:

“Replying to your letter of December 20, our charge for these reports is the rate fixed by the Commission in the inclosed order, and no lower rate has been paid by any one for the official reports of hearings before the Commission in the last ten years. It is, in itself, a fair and reasonable rate, and when compared with the rates charged for similar reports of investigations by other public bodies, it is an exceedingly low rate. The statutory rate for reports of hearings before the New York Public Service Commission and for proceedings in the New York Supreme Court, is 25 cents per page and the stautory rates in many states are 15 cents per folio of 100 words, which is equivalent to about 35 cents per page.

“Obviously no one could tell in advance how extensive the reports of this investigation would be, but our letter of July 27th gave you all the information we had, including the places of the hearings and the dates they were to begin, from which you. must have seen that hearings were to be held all over the country and last a couple of months.”

Tbe manager of defendant corporation testified that during tbe summer of 1918, be had bad difficulties with respect to shipping regulations; that bis attention was attracted to a circular inclosed in tbe plaintiff’s first leter, purporting to *230be a summary of tbe important changes recommended in the proposed consolidated freight classification; that he had this circular in mind when he wrote the letter dated July 31. He denied receiving the plaintiff’s letter dated August 5. He stated that the material sent him was not what he had ordered; that none of the shipments contained any report of the different changes relating to freights; that the material sent by the plaintiff was of no value to him; that he did not use it in any way; and that it was of no value whatsoever to the defendant in the business in which it was engaged.

Upon substantially the foregoing evidence, the trial court made findings of fact to the effect that the defendant had ordered the copy of reports offered by plaintiff, that in pursuance of the order the plaintiff had made for, and delivered to the defendant 8,380 pages of copy at 12% cents per page, and concluded that plaintiff was entitled to a judgment accordingly.

It is insisted by appellant that the correspondence did not create a contract because the offer contained in plaintiff’s letter was not accepted, and hence the minds of the parties never met. It is not contended that the letter relied upon as an acceptance contained anything which changed, added to, or qualified the terms of plaintiff’s offer, but it is claimed that plaintiff offered to furnish a copy of the hearings, etc., of the Interstate Commerce Commission, and that the defendant agreed to take a copy of an “official report of the different changes in the handling of freight,” and that therefore the parties did not refer to the same thing in the transaction, and never agreed upon the subject-matter of the contract.

Of course, if the defendant’s letter was not an acceptance of the particular thing plaintiff offered, there was no contract. The parties must contract ad idem. 13 C. J. 376.

The precise question thus presented is whether there is substantial evidence to warrant the conclusion, that the defendant’s acceptance related to the same thing 1 offered by the plaintiff, and therefore to support the finding of the trial court that a contract was made.

*231The inquiry is limited to evidence of the expressed intention of the parties, by words or acts, or both, as it is only from the words and conduct of the parties 2 that a Court can form any conclusion as to their intention.

In 13 C. J. 265, the rule is stated as follows:

“The apparent mutual assent of the parties, essential to the formation of a contract, must be gathered from the language employed by them, and the law imputes to a person an intention corresponding to the reasonable meaning of its words and acts. It judges of his, intentions by his outward expressions and excludes all questions in regard to his unexpressed intention. If his words or acts, judged by a reasonable standard, manifest an intention to agree to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of his mind upon the subject.”

The offer of the plaintiff was to furnish one specific thing, viz. a copy of .the official report of the hearings. There was no uncertainty or ambiguity in the offer. The thing offered was described with fairness and verity. The defendant’s response to the offer was that—

“We will be interested in your official report of the different changes in the handling of freight, and would ask that you put our name down for a copy of same.”

The defendant’s letter doés not describe the official report with exactness. Considered by itself, its meaning in that respect might be doubtful. But viewed in the light' of the pláintiff’s offer the reply is responsive and relevant. Plaintiff described and offered but one official report. Defendant referred to and requested a copy of “your official report,” etc., which phrase in ordinary commercial practice would be understood to sufficiently identify the matter referred to. The additional descriptive words used, “of different changes in the handling of freight,” while lacking in precision, are fairly referable to the subject of the plaintiff’s offer. -Especially is this true, since it is not made to appear that there was any other official report known to the parties to which the acceptance could refer. Under the circumstances, we think the communications of the parties above referred to, judged by a reasonable standard, manifest an in*232tention *231 3 *232to agree upon the same thing, and that the evidence was sufficient, as a matter of law, to support the finding of the trial court that the plaintiff’s offer was accepted by the defendant. The subsequent conduct of the parties lends much force to the conclusion reached. Upon receipt of defendant’s letter, plaintiff immediately wrote an acknowledgment of “your order of July 31, for one copy of the official report of the proceedings in the Consolidated Classification Case No. 10204,” etc., and subsequently furnished an installment of the same which defendant accepted without objection. When a second installment was later furnished, defendant complained, not because the wrong thing was furnished, but because the quantity was more than it expected. To use defendant’s words:

“In ordering these from you in the first place we expected to find all the information we wanted in one volume, and did not think we were going to get a full library.”

The later complaints of defendant were that the reports were of no value to defendant, that it could not use them, and that the price charged • was surprising. No objection upon the grounds that the defendant did not contract for the particular reports furnished was made until this action was filed.

There is no claim of misrepresentation or fraud against the plaintiff. It may well be that the reports proved useless and of no value to defendant, and that’ in volume and price they exceeded its expectations, but, in the absence 4 of. some misconduct on the part of the plaintiff, the defendant cannot be relieved from the consequences of its improvidence, merely because the bargain is burdensome and unprofitable.

Judgment affirmed.

WEBEE, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.

MEMORANDUM

GILES, District Judge.

I. Introduction

Before the court is Defendant Google, Inc.’s Motion to Dismiss Plaintiffs Amended Complaint, or in the alternative, to Transfer, which motion the court converted to a Motion for Summary Judgment. Also before the court is Plaintiff Lawrence E. Feldman’s Cross-Motion for Summary Judgment. The ultimate issues raised by the motions and determined by the court are whether a forum selection clause in an internet “cliekwrap” agreement is enforceable under the facts of the case and, if so, whether transfer of this case to the Northern District of California is warranted. The court finds in the affirmative as to both issues and, therefore, denies Plaintiffs Motion for Summary Judgment, grants Defendant’s Motion to Transfer, and transfers this case to the Northern District of California, San Jose Division. The reasons follow.

Defendant’s motion seeks to enforce the forum selection clause in an online “click-wrap” agreement, which provides for venue in Santa Clara County, California, which is within the San Jose Division. In his original complaint, Plaintiff based his claims on a theory of express contract. In his Amended Complaint, however, Plaintiff offers a wholly new legal theory. He argues that no express contract existed because the agreement was not valid. Withdrawing his express contract allegations, Plaintiff advanced the theory of implied contract because he argues he did not have notice of and did not assent to the terms of the agreement and therefore there was no “meeting of the minds.” Plaintiff also argues that, even if the agreement were controlling, it is a contract of adhesion and unconscionable, and that the forum selection clause is unenforceable.

The court will address these arguments in turn. First, the court will examine what law governs this action, Pennsylvania or California law, state or federal law. Turning to the question of whether the forum selection clause is enforceable, the court will determine whether an express or implied contract exists and whether there was reasonable notice of the contract’s terms. The court next will examine whether the contract and its terms are unconscionable.

If the forum selection clause is enforceable, the court will address whether dismissal or transfer is the appropriate remedy, and, if transfer is appropriate, whether 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406 applies. If § 1404(a) controls, the court will determine whether the language of the forum selection clause is permissive or mandatory in order to ascertain what weight to give it. Then, the court will examine the validity or reasonableness of the forum selection clause through application of the test in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). Finally, the court will weigh the private and public factors under § 1404(a) to determine whether transfer is warranted.

II. Factual Background

A. General Background

On or about January 2003, Plaintiff, a lawyer with his own law firm, Lawrence E. Feldman & Associates, purchased advertising from Defendant Google, Inc.’s “Ad-Words” Program, to attract potential clients who may have been harmed by drugs under scrutiny by the U.S. Food and Drug Administration.

*232In the AdWords program, whenever an internet user searched on the internet search engine, Google.com, for keywords or “Adwords” purchased by Plaintiff, such as “Vioxx,” “Bextra,” and “Celebrex,” Plaintiffs ad would appear. If the searcher clicked on Plaintiffs ad, Defendant would charge Plaintiff for each click made on the ad.

This procedure is known as “pay per click” advertising. The price per keyword is determined by a bidding process, wherein the highest bidder for a keyword would have its ad placed at the top of the list of results from a Google.com search by an internet user.

Plaintiff claims that he was the victim of “click fraud.” Click fraud occurs when entities or persons, such as competitors or pranksters, without any interest in Plaintiffs services, click repeatedly on Plaintiffs ad, the result of which drives up his advertising cost and discourages him from advertising. Click fraud also may be referred to as “improper clicks” or, to coin a phrase, “trick clicks.” Plaintiff alleges that twenty to thirty percent of all clicks for which he was charged were fraudulent. He claims that Google required him to pay for all clicks on his ads, including those which were fraudulent.

Plaintiff does not contend that Google actually knew that there were fraudulent clicks, but alleges that click fraud can be tracked and prevented by computer programs, which can count the number of clicks originating from a single source and whether a sale results, and can be tracked by mechanisms on websites. Plaintiff alleges, therefore, that Google had the capacity to determine which clicks were fraudulent, but did nothing to prevent the click fraud, and did not adequately warn him about click fraud or investigate his complaints about click fraud. Plaintiff alleges that Google informed him that it did not keep records on an advertiser’s account and click history for more than the most recent three months, and that Google disclaimed liability for clicks older than sixty days.

The issue of click fraud with respect to the AdWords program led to a class action suit in Arkansas, which was settled and court approval was given on or about July 26, 2006. (PL Opp. to Mot. to Dismiss, Ex. A.) Plaintiff alleges that he was a member of that class but timely opted out in order to pursue an individual action.

Plaintiff alleges Google charged him over $100,000 for AdWords from about January 2003 to December 31, 2005. Plaintiff seeks damages, disgorgement of any profits Defendant obtained as a result of any unlawful conduct, and restitution of money Plaintiff paid for fraudulent clicks.

B. The Online Agreement and Forum Selection Clause

This cross-summary judgment battle turns entirely on a forum selection clause in the AdWords online agreement. It is undisputed that the forum selection clause provides: “The Agreement must be construed as if both parties jointly wrote it, governed by California law except for its conflicts of laws principles and adjudicated in Santa Clara County, California. ” (Def. Mot. to Dismiss, Ex. A, at ¶ 7 (emphasis added).)

Annie Hsu, an AdWords Associate for Google, Inc., testified by affidavit that the following procedures were in place at the time that Plaintiff activated his AdWords account in about January 2003. (Hsu Deck ¶ 7). Although Plaintiff claims that the AdWords Agreement “was neither signed nor seen and negotiated by Feld-man & Associates or anyone at Ms firm” (Pl. Opp. to Mot. to Dismiss at 2) and that he never “personally signed a contract *233with Google to litigate disputes in Santa Clara County, California” (PL Reply at 1), Plaintiff does not dispute that he followed the process outlined by Hsu.

It is undisputed that advertisers, including Plaintiff, were required to enter into an AdWords contract before placing any ads or incurring any charges. (Hsu Decl. ¶ 2.) To open an AdWords account, an advertiser had to have gone through a series of steps in an online sign-up process. (Hsu Decl. ¶ 3.) To activate the AdWords account, the advertiser had to have visited his account page, where he was shown the AdWords contract. (Hsu Decl. ¶ 4.)

Toward the top of the page displaying the AdWords contract, a notice in bold print appeared and stated, “Carefully-read the following terms and conditions. If you agree with these terms, indicate your assent below.” (Hsu Decl. ¶ 4.) The terms and conditions were offered in a window, with a scroll bar that allowed the advertiser to scroll down and read the entire contract. The contract itself included the pre-amble and seven paragraphs, in twelve-point font. The contract’s pre-am-ble, the first paragraph, and part of the second paragraph were clearly visible before scrolling down to read the rest of the contract. The preamble, visible at first impression, stated that consent to the terms listed in the Agreement constituted a binding agreement with Google. A link to a printer-friendly version of the contract was offered at the top of the contract window for the advertiser who would rather read the contract printed on paper or view it on a full-screen instead of scrolling down the window. (Hsu Decl. ¶ 5.)

At the bottom of the webpage, viewable without scrolling down, was a box and the words, “Yes, I agree to the above terms and conditions.” (Hsu Decl. ¶ 4.) The advertiser had to have clicked on this box in order to proceed to the next step. (Hsu Decl. ¶ 6.) If the advertiser did not click on “Yes, I agree ...” and instead tried to click the “Continue” button at the bottom of the webpage, the advertiser would have been returned to the same page and could not advance to the next step. If the advertiser did not agree to the AdWords contract, he could not activate his account, place any ads, or incur any charges. Plaintiff had an account activated. He placed ads and charges were incurred.

III. Procedural History

This matter commenced by writ of summons in the Common Pleas Court of Philadelphia County on March 9, 2006. Plaintiff filed his original Complaint on June 5, 2006. The matter was removed to federal district court on June 14, 2006 pursuant to diversity jurisdiction under 28 U.S.C. § 1332. On July 10, 2006, Defendant filed its first Motion to Dismiss the original complaint.

On August 9, 2006, without leave of court, Plaintiff filed an Amended Complaint, which eliminated the express contract claim and asserted instead claims styled as (1) breach of implied contract, (2) breach of implied covenant of good faith and fair dealing, (3) fraudulent inducement, (4) negligence, (5) unjust enrichment, and (6) violation of California’s Business and Professions Code, § 17200, et. seq. Plaintiff reduced his demand for damages from $100,000 to $50,000. This court has jurisdiction based on diversity under 28 U.S.C. § 1332 because the amount in controversy measured as of the date of removal exceeded the jurisdictional threshold. See Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir.1993).

The court notes that Plaintiff did not seek leave of court or written consent of the adverse party in filing its Amended Complaint after a responsive pleading had been served. See Fed.R.Civ.P. 15(a). De*234fendant, however, did not object to or move to strike the Amended Complaint. Instead, on August 28, 2006, Defendant filed a Motion to Dismiss the Amended Complaint under Fed.R.Civ.P. 12(b) (6) or, in the alternative, to transfer the case pursuant to 28 U.S.C. § 1404(a) to the Northern District of California, whose San Jose Division is located within Santa Clara County (Def. Mot. to Dismiss at 4 n. 3). The court deems any objections waived and considers the claims in the Amended Complaint to have amended those in the original complaint. Furthermore, the court considered the Amended Complaint at oral argument. (See, e.g., Hrg. Tr. 14-15.) Consequently, the court deems the Amended Complaint to have legal effect.

When the briefing was complete, the court held oral argument on the motion to dismiss on November 1, 2006. At oral argument, the court converted the motion to dismiss into one for summary judgment under Fed.R.Civ.P. 56 pursuant to Fed. R.Civ.P. 12(b). Matters outside the pleadings had to be considered to address the motion adequately. The court ordered the parties to submit information regarding the clickwrap agreement and the manner into which it was entered. In response, Defendant submitted a Supplemental Memorandum on November 16, 2006, to which Plaintiff responded on December 26, 2006. On December 6, 2006, Plaintiff filed a Motion for Summary Judgment. Defendant filed a response to Plaintiffs summary judgment motion on January 8, 2007, to which Plaintiff replied on January 26, 2007.

IV. Legal Standard for Summary Judgment

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). In order to defeat a motion for summary judgment, disputes must be both 1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and 2) genuine, meaning the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. In reviewing a motion for summary judgment, the court “does not make credibility determinations and must view facts and inferences in the light most favorable to the party opposing the motion.” Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir.1995).

TV. Discussion

A. Choice of Law

Defendant argues that the court must apply California law. The AdWords Agreement contains a choice of law clause, specifying that the Agreement must be governed by California law. (Def. Mot. to Dismiss, Ex. A, at ¶ 7.) Defendant and Plaintiff both rely upon Pennsylvania and California substantive law in their briefs and arguments.

In a diversity case, a federal court must apply the conflict of laws principles of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496-97, *23561 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under Pennsylvania law, conflict of laws principles generally are not offended by the application of a contractual choice of law provision in a valid contract. Boase v. Lee Rubber & Tire Corp., 437 F.2d 527, 529 (3d Cir.1970); cf. Restatement (Second) of Conflict of Laws § 187 (1989). As discussed in detail below, the court finds that the AdWords Agreement is enforceable. California law therefore would govern this dispute. Cf. DeJohn v. TV Corp. Int’l, 245 F.Supp.2d 913, 918 (N.D.Ill.2003) (applying New York substantive law to claims involving an online agreement and its forum selection clause because the agreement at issue was valid and required New York law in its choice of law clause).

Most circuit courts, however, have found that federal, and not state law, applies in the determination of the effect given to a forum selection clause in diversity cases. See, e.g., Rainforest Café v. EklecCo, L.L.C., 340 F.3d 544, 546 (8th Cir.2003); Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1990); Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 512-13 (9th Cir.1988); Stewart Org., Inc. v. Ricoh Corp., 810 F.2d 1066, 1067-69 (11th Cir.1987) (en banc), aff'd, on other grounds, 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); see also Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31-32, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (holding that in diversity cases, federal law governs determination of what effect to give forum selection clause in contract). The Third Circuit has held that federal law controls because “questions of venue and the enforcement of forum selection clauses are essentially procedural, rather than substantive, in nature.” Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir.1995) (quoting Weibrecht, 901 F.2d at 19); see Wall Street Aubrey Golf, LLC v. Aubrey, 189 Fed.Appx. 82, 84 (3d Cir.2006) (following Jumara to apply federal law); AmericanAnglian Envtl. Techs., L.P. v. Doherty, 461 F.Supp.2d 359 (E.D.Pa.2006) (same). Thus, this court follows the Third Circuit precedent set out in Jumara and applies federal law in determining the validity of the forum selection clause at issue here.

B. The Online AdWords Agreement is a Valid Express Contract.

1. The Clickwrap Agreement is Enforceable.

Plaintiff contends that the online Ad-Words Agreement was not a valid, express contract, and that the law of implied contract applies. In support of this contention, Plaintiff argues that he did not have notice of and did not assent to the terms of the Agreement. Implying that the contract lacked definite essential terms, but failing to brief the issue, Plaintiff argues that the contract did not include fixed price terms for services. He further argues that the AdWords Agreement presented does not set out a date when Plaintiff may have entered into the contract. As to the latter argument, the unrebutted Hsu Declaration states that the AdWords Agreement and online process presented went into effect at the time that Plaintiff activated his AdWords account. (Hsu Decl. ¶ 7.) Plaintiff has not presented any evidence to the contrary, nor does he allege that any agreement he made was different from the one presented through the Hsu Declaration. Thus, there is undisputed evidence that the AdWords Agreement presented is the same that Plaintiff activated with Defendant.

“Contracts are ‘express’ when the parties state their terms and ‘implied’ when the parties do not state their terms. The distinction is based not on the contracts’ legal effect but on the way the parties manifest their mutual assent.” Baer v. Chase, 392 F.3d 609, 616 (3d Cir.2004) *236(citing In re Penn. Cent. Transp. Co., 831 F.2d 1221, 1228 (3d Cir.1987)). “There cannot be an implied-in-fact contract if there is an express contract that covers the same subject matter.” Id. at 616-17; see DeJohn, 245 F.Supp.2d at 918 (finding that implied contract claims were precluded where an enforceable express contract, an online agreement, governed the parties’ relationship); see also Crescent Int’l, Inc. v. Avatar Cmties., 857 F.2d 943, 944 (3d Cir.1988) (“[PJleading alternate non-contractual theories is not alone enough to avoid a forum selection clause if the claims asserted arise out of the contractual relation and implicate the contract’s terms.”).

The type of contract at issue here is commonly referred to as a “clickwrap” agreement. A clickwrap agreement appears on an internet webpage and requires that a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction.1 Specht v. Netscape Comms. Corp., 306 F.3d 17, 22 (2d Cir.2002); Kevin W. Grierson, Enforceability of “Clickwrap” or “Shrinkwrap” Agreements Common in Computer Software, Hardware, and Internet Transactions, 106 A.L.R. 5th 309, § 1.a n. 3 (2004); 4-GL Computer Contracts C (2006). Even though they are electronic, clickwrap agreements are considered to be writings because they are printable and storable. See, e.g., In re RealNetworks, Inc., Privacy Litigation, No. 00-c-1366, 2000 U.S. Dist. LEXIS 6584, at *8-11, 2000 WL 631341, at *3-4 (N.D.Ill. May 11, 2000).

To determine whether a clickwrap agreement is enforceable, courts presented with the issue apply traditional principles of contract law and focus on whether the plaintiffs had reasonable notice of and manifested assent to the clickwrap agreement. See, e.g., Specht, 306 F.3d at 28-30; Forrest v. Verizon Communications, Inc., 805 A.2d 1007, 1010 (D.C.2002); Barnett v. Network Solutions, Inc., 38 S.W.3d 200 (Tex.App.2001); Caspi v. Microsoft Network, L.L.C., 323 N.J.Super. 118, 125-26, 732 A.2d 528 (App.Div.1999); John M. Norwood, A Summary of Statutory and Case Law Associated With Contracting in the Electronic Universe, 4 DePaul Bus. & Comm. L.J. 415, 439-49 (2006) (discussing clickwrap cases); 1-2 Computer Contracts § 2.07 (2006) (analyzing clickwrap cases). Absent a showing of fraud, failure to read an enforceable clickwrap agreement, as with any binding contract, will not excuse compliance with its terms. See, e.g., Specht, 306 F.3d at 30; Lazovick v. Sun Life Ins. Co. of Am., 586 F.Supp. 918, 922 (E.D.Pa.1984); Barnett, 38 S.W.3d at 204.

a. There was Reasonable Notice of and Mutual Assent to the Ad-Words Agreement.

Plaintiff claims he did not have notice or knowledge of the forum selection clause, and therefore that there was no “meeting of the minds” required for contract formation. In support of this argument, Plaintiff cites Specht v. Netscape Comms. Corp., in which the Second Circuit held that internet users did not have reasonable notice of the terms in an online agreement and therefore did not assent to the agreement under the facts of that case. 306 F.3d at 20, 31.

*237The facts in Specht, however, are easily distinguishable from this case. There, the internet users were urged to click on a button to download free software. Id. at 23, 32. There was no visible indication that clicking on the button meant that the user agreed to the terms and conditions of a proposed contract that contained an arbitration clause. Id. The only reference to terms was located in text visible if the users scrolled down to the next screen, which was “submerged.” Id. at 23, 31-32. Even if a user did scroll down, the terms were not immediately displayed. Id. at 23. Users would have had to click onto a hyperlink, which would take the user to a separate webpage entitled “License & Support Agreements.” Id. at 23-24. Only on that webpage was a user informed that the user must agree to the license terms before downloading a product. Id. at 24. The user would have to choose from a list of license agreements and again click on yet another hyperlink in order to see the terms and conditions for the downloading of that particular software. Id.

The Second Circuit concluded on those facts that there was not sufficient or reasonably conspicuous notice of the terms and that the plaintiffs could not have manifested assent to the terms under these conditions. Id. at 32, 35. The Second Circuit was careful to differentiate the method just described from cliekwrap agreements which do provide sufficient notice. Id. at 22 n. 4, 32-33. Notably, the issue of notice and assent was not at issue with respect to a second agreement addressed in Specht. Id. at 21-22, 36. In that cliekwrap agreement, when users proceeded to initiate installation of a program, “they were automatically shown a scrollable text of that program’s license agreement and were not permitted to complete the installation until they had clicked on a Yes’ button to indicate that they had accepted all the license terms. If a user attempted to install [the program] without clicking Yes,’ the installation would be aborted.” Id. at 21-22.

Through a similar process, the AdWords Agreement gave reasonable notice of its terms. In order to activate an AdWords account, the user had to visit a webpage which displayed the Agreement in a scrollable text box. Unlike the impermissible agreement in Specht, the user did not have to scroll down to a submerged screen or click on a series of hyperlinks to view the Agreement. Instead, text of the AdWords Agreement was immediately visible to the user, as was a prominent admonition in boldface to read the terms and conditions carefully, and with instruction to indicate assent if the user agreed to the terms.

That the user would have to scroll through the text box of the Agreement to read it in its entirety does not defeat notice because there was sufficient notice of the Agreement itself and clicking “Yes” constituted assent to all of the terms. The preamble, which was immediately visible, also made clear that assent to the terms was binding. The Agreement was presented in readable 12-point font. It was only seven paragraphs long- — not so long so as to render scrolling down to view all of the terms inconvenient or impossible. A printer-friendly, full-screen version was made readily available. The user had ample time to review the document.

Unlike the impermissible agreement in Specht, the user here had to take affirmative action and click the “Yes, I agree to the above terms and conditions” button in order to proceed to the next step. Clicking “Continue” without clicking the “Yes” button would have returned the user to the same webpage. If the user did not agree to all of the terms, he could not have activated his account, placed ads, or incurred charges.

*238The AdWords Agreement here is very similar to clickwrap agreements that courts have found to have provided reasonable notice. See, e.g., Forrest v. Verizon Communications, Inc., 805 A.2d 1007, 1010-11 (D.C.2002) (holding that adequate notice was provided of clickwrap agreement terms where users had to click “Accept” to agree to the terms in order to subscribe, an admonition in capital letters was presented at the top of the agreement to read the agreement carefully, the thirteen-page agreement appeared in a scroll box with only portions visible at a time, and the forum selection clause was located in the final section and presented in lower case font); In re RealNetworks, Inc., Privacy Litigation, No. 00-c-1366, 2000 U.S. Dist. LEXIS 6584, at *2, 15-17, 2000 WL 631341, at *1, 5-6 (N.D.Ill. May 11, 2000) (finding reasonable notice of clickwrap agreement terms existed where the user had to agree to the terms in order to install software, the agreement came in a small pop-up window, in the same font-size as words in the computer’s own display, and with the arbitration clause located at the end of the agreement); Caspi v. Microsoft Network, L.L.C., 323 N.J.Super. 118, 122, 125-27, 732 A.2d 528 (App.Div.1999) (finding that reasonable notice of the terms of a clickwrap agreement was provided where the user had to click “I agree” before proceeding with registration, the agreement was presented in a scrollable window, and the forum selection clause was presented in lower case letters in the last paragraph of the agreement); cf. Pollstar v. Gigmania Ltd., 170 F.Supp.2d 974, 981 (E.D.Cal.2000) (finding that reasonable notice of the terms of a browsew-rap agreement was not provided when a hyperlink to the terms appeared in small gray print on a gray background).

A reasonably prudent internet user would have known of the existence of terms in the AdWords Agreement. Plaintiff had to have had reasonable notice of the terms. By clicking on “Yes, I agree to the above terms and conditions” button, Plaintiff indicated assent to the terms. Therefore, the requirements of an express contract for reasonable notice of terms and mutual assent are satisfied. Plaintiffs failure to read the Agreement, if that were the case, does not excuse him from being bound by his express agreement.

b. The AdWords Agreement is Enforceable Despite Its Lack of a Definite Price Term.

Plaintiffs argument that the Ad-Words Agreement is unenforceable because of failure to supply a definite, essential term as to price is without merit. Under California and Pennsylvania law, the price term is an essential term of a contract and must be supplied with sufficient definiteness for a contract to be enforceable. See, e.g., Levin v. Knight, 780 F.2d 786, 786 (9th Cir.1986); Lackner v. Glosser, 2006 Pa.Super. 14, 22-24, 892 A.2d 21 (2006). If the parties, however, have agreed upon a practicable method of determining the price in the contract with reasonable certainty, such as through a market standard, the contract is enforceable. See, e.g., Portnoy v. Brown, 430 Pa. 401, 243 A.2d 444 (1968); 1 Witkin Sum. Cal. Law Contracts § 142 (2006) (“[T]he complete absence of any mention of the price is not necessarily fatal: The contract may be interpreted to mean the market price or a reasonable price.”).

The AdWords Agreement does not include a specific price term, but describes with sufficient definiteness a practicable process by which price is determined.2 *239(Def. Mot. to Dismiss, Ex. A, at ¶ 5.) The premise of the AdWords program is that advertisers must bid for keywords or Ad-words, and the highest bidder is placed at the top of the advertising hierarchy. Prices are determined by the market, with the keywords higher in demand garnering higher prices. Plaintiff had to have been aware of and understood the pricing process. Each time that he purchased keywords, he engaged in this process. At oral argument, Plaintiff explained the process by which price was determined and conceded that the process was outlined in the Agreement.3 (Hrg. Tr. at 17-18.) The court concludes that the Adwords Agreement is enforceable because it contained a practicable method of determining the market price with reasonable certainty.

Because there was an express contract covering the same conduct at issue (pay-per-click advertising under the Ad-Words program) and because the concepts of express and implied contracts are mutually exclusive and cannot co-exist, Plaintiffs argument of an implied contract is precluded as a matter of law. In addition, the AdWords Agreement provides that it constitutes the entire agreement between the parties, with the exception of any modifications in writing and executed by both parties. (Def. Mot. to Dismiss, Ex. A, at ¶ 7.)

2. The Clickwrap Agreement is not Unconscionable.

Plaintiff argues that the AdWords Agreement and in particular the forum selection clause are unconscionable. Un-conscionability is a general defense to the enforcement of a contract or its specific terms. Blake v. Ecker, 93 Cal.App.4th 728, 741, 113 Cal.Rptr.2d 422 (2001), overruled on other grounds by Le Francois v. Goel, 35 Cal.4th 1094, 1107, 29 Cal.Rptr.3d 249, 112 P.3d 636 (2005); cf. Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 608 A.2d 1061, 1067 (1992). Unconscionability has procedural and substantive components. Blake, 93 Cal.App.4th at 742, 113 Cal.Rptr.2d 422. “The procedural component is satisfied by the existence of unequal bargaining positions and hidden terms common in the context of adhesion contracts. The substantive component is satisfied by overly harsh or one-sided results that ‘shock the conscience.’ ” Comb v. PayPal, Inc., 218 F.Supp.2d 1165, 1172 (N.D.Cal.2002) (citations omitted). The party challenging the contractual provision has the burden to prove unconscionability. Crippen v. Cent. Valley RV Outlet, Inc., 124 Cal.App.4th 1159, 1165, 22 Cal.Rptr.3d 189 (2004).

*240a. The AdWords Agreement is not Procedurally Unconscionable.

Under California law, a contract or its terms may be procedurally unconscionable if it is an adhesion contract. Flores v. Transamerica HomeFirst, Inc., 93 Cal.App.4th 846, 853, 113 Cal.Rptr.2d 376 (2001); cf. Ostroff v. Alterm Healthcare Corp., 433 F.Supp.2d 538, 542 (E.D.Pa.2006) (defining procedural unconscionability under Pennsylvania law as the “absence of meaningful choice on the part of one of the parties”). A contract of adhesion is a form or standardized contract prepared by a party of superior bargaining power, to be signed by the party in the weaker position, who only has the opportunity to agree to the contract or reject it, without an opportunity to negotiate or bargain. Armendariz v. Found. Health Psychcare Serv., 24 Cal.4th 83, 113, 99 Cal.Rptr.2d 745, 6 P.3d 669 (2000); cf. McNulty v. H & B Block, Inc., 843 A.2d 1267, 1273 (Pa.Super.2004).

The opportunity to negotiate by itself does not end the inquiry into procedural unconscionability. Courts consider factors such as the buyer’s sophistication, the use of high-pressure tactics or external pressure to induce acceptance, and the availability of alternative sources of supply. See, e.g., Comb, 218 F.Supp.2d at 1172-73; Dean Witter Reynolds, Inc. v. Superior Court, 211 Cal.App.3d 758, 767-72, 259 Cal.Rptr. 789 (1989); DeJohn v. TV. Corp. Int'l, 245 F.Supp.2d 913, 919 (N.D.Ill.2003).

Plaintiff argues the AdWords Agreement was a contract of adhesion because it was not negotiated at arms length and was offered on a “take it or leave it” basis, without an opportunity to bargain. Internet users had to agree to the terms in order to activate an AdWords account and purchase AdWords. Defendant counters that Plaintiff is a sophisticated purchaser, an attorney, who had full notice of the terms, who was capable of understanding them, and who assented to them. Plaintiff has not alleged high-pressure tactics or external pressure to accept the Agreement.

Defendant also argues that other internet providers offer similar advertising services, including MSN Search, AOL Search, Ask.com, Yahoo!, Excite, InfoSpace, and HotBot, and thus Plaintiff could have chosen to take his business elsewhere.4 Plaintiff counters that the availability of other internet service providers does not undercut the existence of an adhesion contract. See Comb, 218 F.Supp.2d at 1173 (citing Armendariz, 24 Cal.4th at 113, 99 Cal.Rptr.2d 745, 6 P.3d 669, for the proposition that a contract may be adhesive even though alternative sources of employment not conditioned on acceptance of an arbitration clause exist). Plaintiff also asserts that only Yahoo offers comparable advertising and that Yahoo’s sign up system is similar to Google’s.

Plaintiff, however, has not offered any evidence in support of his assertion.5 As such, he has not met his affirmative burden on his summary judgment motion to make a sufficient showing that other online companies did not offer similar, competing advertising services, which lacked forum selection clauses. See Crippen, 124 Cal.App.4th at 1165, 22 Cal.Rptr.3d 189 (hold*241ing that the burden to prove unconsciona-bility rests with the party challenging the contractual provision). On this factor in the analysis, the agreement stands up as not being procedurally unconscionable.

Plaintiff also argues that the AdWords Agreement is procedurally unconscionable because the Agreement violates Fed. R.Civ.P. 23(e), which requires adequate notice of opt-out rights. See Amchem Prods. v. Windsor, 521 U.S. 591, 628, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Plaintiff contends that Google violated Rule 23(e) and Plaintiffs due process rights in that the settlement notice in the Arkansas class action did not state that any individual litigation would require bringing suit in Santa Clara, California. Plaintiffs argument is flawed for several reasons. First, Plaintiff received adequate notice of the forum selection clause requiring litigation in Santa Clara when he assented to the AdWords Agreement. Second, only the settlement notice, and not the AdWords Agreement and its terms, could violate Rule 23(e), and violation of Rule 23(e) is not part of the procedural unconscionability inquiry. Finally, the court-approved Arkansas class action settlement cannot be collaterally attacked even if Plaintiff continued as a member of the class. See In re Diet Drugs, 481 F.3d 141, 145 (3d Cir.2005) (holding that under federal law, an absent class member may only collaterally attack notice of a prior settlement if there is a lack of due process, and that, once the issue of notice is decided by a court, it may not be relitigated). As an opt-out, he has no standing in this action to challenge the adequacy of the class action notice approved by the Arkansas court.

A contract is not necessarily one of adhesion simply because it is a form contract. Courts have recognized the prevalence and importance of standardized contracts in people’s everyday lives. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1451 (7th Cir.1996) (quoting Restatement (2d) of Contracts § 211 cmt a (1981)) (“Standardization of agreements serves many of the same functions as standardization of goods and services; both are essential to a system of mass production and distribution. Scarce and costly time and skill can be devoted to a class of transactions rather than the details of individual transactions.”); Neal v. State Farm Ins. Cos., 188 Cal.App.2d 690, 694, 10 Cal.Rptr. 781 (1961). Because Plaintiff was a sophisticated purchaser, was not in any way pressured to agree to the AdWords Agreement, was capable of understanding the Agreement’s terms, consented to them, and could have rejected the Agreement with impunity, this court finds that the AdWords Agreement was not procedurally unconscionable.

b. The AdWords Agreement is not Substantively Unconscionable.

Even if the AdWords Agreement were procedurally unconscionable, it is not substantively unconscionable. Under California law, a contract found to be procedurally unconscionable may still be enforceable if its substantive terms are reasonable. Craig v. Brown & Root, Inc., 84 Cal.App.4th 416, 422, 100 Cal.Rptr.2d 818 (2000); cf. Ostroff v. Alterra Healthcare Corp., 433 F.Supp.2d 538, 542 (E.D.Pa.2006) (finding substantive unconscionability under Pennsylvania law where contract terms unreasonably favor the party with greater bargaining power). California courts focus on whether there was a lack of mutuality in contract formation and on the practical effects of the challenged provisions. Comb, 218 F.Supp.2d at 1173; Armendariz, 24 Cal.4th at 116-17, 99 Cal.Rptr.2d 745, 6 P.3d 669 (noting that substantive unconscionability is satisfied if the agreement lacks a “modicum on bilaterality”); Ellis v. McKinnon Broad. Co., *24218 Cal.App.4th 1796, 1803-04, 23 Cal.Rptr.2d 80 (1993).

Plaintiff argues that the forum selection clause and other provisions lacked consideration and assent from the Plaintiff, and therefore the Agreement was lacking a modicum of bilaterality. As the court has found that the AdWords Agreement provided reasonable notice of its terms, had mutual assent, and was in other respects a valid express contract, the court rejects this argument.

Plaintiff next argues that the AdWords Agreement contains several unilateral clauses, including the forum selection clause, which make it substantively unconscionable. He argues that the forum selection clause unreasonably favors Google because it requires billing disputes to be adjudicated in California.6 Plaintiff characterizes as unreasonable provisions disclaiming all warranties, limiting liabilities, and requiring that claims relating to charges be brought within sixty days of the charges.7 Plaintiff contends that the effect of these provisions, in combination with the forum selection clause, is to discourage meritorious litigation regarding billing disputes.

First, the court is not persuaded that the forum selection clause, or any other provision cited by Plaintiff, is unreasonable or shocks the conscience. As the United States Supreme Court has found, a forum selection clause in a standardized, nonnegotiable contract may be permissible for several reasons, reasons which apply here. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). Just as a cruise line has a special interest in limiting fora because it could be subject to suit where its passengers come from many locales, Defendant has the same interest where its internet users are located across the United States and the world. See id. at 593, 111 S.Ct. 1522. Another benefit of such a forum selection clause is that it dispels confusion over where suits are to be brought, conserving both litigant and judicial resources. Id. at 593-94, 111 S.Ct. 1522. Finally, just as for the passengers in Carnival Cruise Lines, the benefits of such a forum selection clause may be passed to internet users in the form of reduced rates for services, because of savings enjoyed by internet service providers *243by limiting the fora for suit. See id. at 594, 111 S.Ct. 1522. Plaintiffs argument that the terms discourage litigation of billing disputes thus is not persuasive, especially where Defendant’s principal place of business is in California. See Barnett v. Network Solutions, Inc., 38 S.W.3d 200, 204 (Tex.App.2001) (citing Carnival Cruise Lines, 499 U.S. at 594, 111 S.Ct. 1522).

Further, the provision requiring that claims relating to charges be brought within sixty days of the charges is not unconscionable. Contractual limitations periods are valid and can be shorter than limitations periods prescribed by statute so long as the period for bringing claims is reasonable. Han v. Mobil Oil Corp., 73 F.3d 872, 877 (9th Cir.1995); see Harris Methodist Fort Worth v. Sales Support Servs. Inc. Employee Health Care Plan, 426 F.3d 330, 337 (5th Cir.2005); Northlake Reg’l Med. Ctr. v. Waffle House Sys. Employee Benefit Plan, 160 F.3d 1301, 1302-03 (11th Cir.1998); Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 874 (7th Cir.1997). California courts have upheld contractual limitations periods similar to the one here. See, e.g., Levitsky v. Farmers Ins. Group of Cos., No. A096220, 2002 Cal.App. Unpub. LEXIS 2004, at *13-15, 2002 WL 1278071, at *4 (Cal.Ct.App. June 10, 2002) (finding that a 60-day limitations period in which to file billing claims is not unreasonable); Capehart v. Heady, 206 Cal.App.2d 386, 388-91, 23 Cal.Rptr. 851 (1962) (holding that a three-month limitations period in a lease was not unreasonable).

Cases cited by Plaintiff in support of his position are distinguishable because the AdWords Agreement effects only billing disputes and does not inhibit any judicially-created doctrines or prevent litigants from enforcing constitutionally-protected rights. See Alexander v. Anthony Int’l, L.P., 341 F.3d 256, 266 (3d Cir.2003) (finding unreasonable a 30-day limitations period for any claim arising out of an employment agreement); Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 894 (9th Cir.2002) (concluding that a one-year limitations period to state Fair Employment and Housing Act Claims was unreasonable because it would deprive plaintiffs of the judicially-created continuing violation doctrine in discrimination cases). In the present case, Plaintiff is an attorney and sophisticated purchaser capable of understanding the limitations provision. The 60-day limitations period affords sufficient time to identify, investigate, and report billing errors.

Finally, as to the other provisions, including those disclaiming all warranties and limiting liabilities, Plaintiff has not met his burden of persuasion as to uncon-scionability and does not present case law to support his position. No basis has been presented for the court to conclude that these commonplace terms are unreasonable.

In addition, even if any of the provisions of the contract were unenforceable, these provisions could be modified or severed under the AdWords Agreement’s sever-ability clause.8 (Def. Mot. to Dismiss, Ex. A, at ¶ 7.) The court finds that neither the AdWords Agreement nor its terms, including the forum selection clause, are unconscionable, and that the AdWords Agreement and its forum selection clause are enforceable.

C. Analysis under 28 U.S.C. § 1404(a)

1. Transfer of Venue

Defendant moves for this court to dismiss Plaintiffs complaint or in the alter*244native, transfer this case to the federal district court in Santa Clara County, pursuant to 28 U.S.C. § 1404(a). As discussed above, federal law controls when deciding whether to give effect to a forum selection clause and transfer a case. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 32, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir.1995). Although dismissal under Rule 12(b)(6) is a “permissible means of enforcing a forum selection clause that allows suit to be filed in another federal forum,” the Third Circuit cautions that “as a general matter, it makes better sense, when venue is proper but the parties have agreed upon a not-unreasonable forum selection clause that points to another federal venue, to transfer rather than dismiss.” Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298-99 (3d Cir.2001); see Stewart, 487 U.S. at 28-29, 32, 108 S.Ct. 2239 (holding that a federal court sitting in diversity jurisdiction should treat a request to enforce a forum selection clause in a contract as a motion to transfer venue under applicable federal law, 28 U.S.C. § 1404(a)); 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3803.1 [2d ed. 1986 & Supp.2006).

Transfer, however, is not available when a forum selection clause specifies a non-federal forum. Salovaara, 246 F.3d at 298. Plaintiff contends that the forum selection clause contemplated jurisdiction in state, not federal court. However, the forum selection clause, which states “[t]he Agreement must be ... adjudicated in Santa Clara County, California,” on its face does not limit jurisdiction to state court. The forum selection clause provides for proper venue in both federal and state courts, so long as those courts are located in Santa Clara County, California, because the provision’s plain language is construed to cover any court in that county. See Jumara, 55 F.3d at 881 (construing an arbitration provision requiring the action to transpire within a particular county to mean that the action would be permitted in any court, state or federal, in that county).

The federal courthouse for the San Jose Division of the Northern District of California is located in the city of San Jose. San Jose is the county seat of government for Santa Clara County. The federal courthouse therefore is located undisput-ably in Santa Clara County. Transfer is an available remedy because the forum selection clause includes a federal forum. See id. at 881-83 (applying the § 1404(a) analysis for transfer where a forum selection clause permitted any state or federal forum within a particular county).

If transfer is the appropriate remedy, the court must then consider whether 28 U.S.C. § 1404(a) or § 1406 applies. “Section 1404(a) provides for the transfer of a case where both the original venue and the requested venue are proper. Section 1406, on the other hand, applies where the original venue is improper and provides for either transfer or dismissal of the case.” Id. at 878. Whether venue is proper in this district is governed by the federal venue statute, 28 U.S.C. § 1391. Id.

Without considering the forum selection clause, venue is proper in the Eastern District of Pennsylvania. Neither party disputes that Defendant is subject to personal jurisdiction in this district because Defendant transacts business here. See 28 U.S.C. § 1391(c); Jumara, 55 F.3d at 878-79; Stewart, 487 U.S. at 29 n. 8, 108 S.Ct. 2239 (“The parties do not dispute that the District Court properly denied the motion to dismiss the case for improper venue under 28 U.S.C. § 1406(a) because respondent apparently does business [there].”). Defendant itself raised transfer under *2451404(a), conceding that venue is proper here.

Thus, the venue here is proper but the parties are subject to an enforceable forum selection clause, which, as discussed below, is not unreasonable and specifies a federal forum. See Salovaara, 246 F.3d at 298-99. This court therefore concludes that the appropriate analysis is whether the case should be transferred under § 1404(a). See id.

2. Section 1404(a) Factors

Section 1404(a) controls the inquiry of whether to give effect to a forum selection clause and to transfer a case. Stewart, 487 U.S. at 29, 32, 108 S.Ct. 2239. Section 1404(a) provides that “a district court may transfer any civil action to any other district or division where it might have been brought” for “the convenience of parties and witnesses” and “in the interest of justice.” 28 U.S.C. § 1404(a); see Stewart, 487 U.S. at 29, 108 S.Ct. 2239. Courts must adjudicate motions to transfer based on an “individualized, case-by-case consideration of convenience and fairness,” weighing a number of factors. Id. (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). A court’s review is not limited to the three enumerated factors in § 1404(a) — convenience of the parties, convenience of witnesses, or interests of justice — and courts may consider various private and public interests. Jumara, 55 F.3d at 879-80.

The parties’ agreement as to the proper forum, although not dispositive, receives “substantial consideration” in the weighing of relevant factors. Id. at 880; see Stewart, 487 U.S. at 29-30, 108 S.Ct. 2239 (“The presence of a forum selection clause ... will be a significant factor that figures centrally in the district court’s calculus.... The flexible and individualized analysis Congress prescribed in § 1404(a) thus encompasses consideration of the parties’ private expression of their venue preferences.”). The deference generally given to a plaintiffs choice of forum is “inappropriate where the plaintiff has already freely chosen an appropriate venue.” Jumara, 55 F.3d at 880. Although the moving party carries the burden to show the need for a transfer, if “the forum selection clause is valid, which requires that there have been no ‘fraud, influence, or overweening bargaining power,’ the plaintiffs bear the burden of demonstrating why they should not be bound by their contractual choice of forum.” Id. at 879-80 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)).

Having determined that § 1404(a) controls, the court now examines whether the language of the forum selection clause is permissive or mandatory in order to ascertain what weight to give it. Next, the court examines the validity or reasonableness of the forum selection clause through application of the test in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. at 12-13, 92 S.Ct. 1907, and determines whether Plaintiff has met his burden of demonstrating why he should not be bound by the forum selection clause. Finally, the court weighs the private and public factors under § 1404(a).

a. The Language of the Forum Selection Clause is Mandatory.

Plaintiff argues that even if the forum selection clause is valid, this court still retains jurisdiction because the forum selection clause contains language that is permissive, not mandatory. Where a forum selection clause is permissive, the parties are not exclusively limited to litigating their disputes in only one forum and courts accord the clause less weight. See Hunt Wesson Foods, Inc. v. Supreme Oil Com *246 pany, 817 F.2d 75, 77 (9th Cir.1987); E’Cal Corp. v. Office Max Inc., No. 01-3281, 2001 U.S. Dist. LEXIS 15868, at *6, 2001 WL 1167534, at *2 (E.D.Pa. Sept.10, 2001). The forum selection clause does not have to contain language such as “exclusive” or “sole” to be mandatory. Wall Street Aubrey Golf, LLC v. Aubrey, 189 Fed.Appx. 82, 85-86 (3d Cir.2006) (upholding a forum selection clause, which stated “[t]his Lease shall be construed in accordance with the laws of the Commonwealth of Pennsylvania, with venue laid in Butler County, Pennsylvania,” and finding it unambiguous “[d]espite the provision’s failure to use words like ‘exclusive’ or ‘sole’ with respect to venue”).

The forum selection clause states, “[t]he Agreement must be ... adjudicated in Santa Clara County, California.” By its plain language, the forum selection clause unambiguously provides that disputes must be brought in Santa Clara County. Cf. Person v. Google, Inc., 456 F.Supp.2d 488, 493-94 (S.D.N.Y.2006) (finding similar language to be mandatory where the forum selection clause provided that “[any] dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Santa Clara County, California”). “This mandatory language makes clear that venue, the place of suit, lies exclusively in the designated county. Thus, whether or not several states might otherwise have jurisdiction over actions stemming from the agreement, all actions must be filed and prosecuted in [the designated county].” Docksider, Ltd. v. Sea Tech., Ltd., 875 F.2d 762, 764 (9th Cir.1989) (construing a forum selection clause’s language that “venue of any action brought hereunder shall be deemed to be in Gloucester County, Virginia” to be mandatory). The court finds that the forum selection clause’s clear and explicit language in this case is mandatory and enforceable.

b. The Forum Selection Clause is Valid and Reasonable.

“Where the forum selection clause is valid, which requires that there have been no ‘fraud, influence, or overweening bargaining power,’ the plaintiffs bear the burden of demonstrating why they should not be bound by‘their contractual choice of forum.” Jumara, 55 F.3d at 880 (quoting Bremen, 407 U.S. at 12-13, 92 S.Ct. 1907). The objecting party must show that (1) the forum selection clause is the result of fraud or overreaching, (2) its enforcement would violate a strong public policy of the forum, or (3) its enforcement would result in litigation so seriously inconvenient and unreasonable that it would deprive a litigant of his or her day in court. Bremen, 407 U.S. at 15-17, 92 S.Ct. 1907; In re Diaz Contracting, Inc., 817 F.2d 1047, 1051-52 (3d Cir.1987).

i. No Fraud or Overreaching.

Plaintiff presents arguments that the AdWords Agreement was an adhesion contract and that the Agreement and its forum selection clause are unconscionable. The court has already rejected these arguments and does not find any evidence of fraud, coercion, or overreaching in this case with respect to the contract as a whole and the forum selection clause in particular. A non-negotiated forum selection clause in a form contract may be enforceable even if it is not the subject of bargaining. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991).

Although forum selection clauses are subject to judicial scrutiny for fundamental fairness, there is no evidence of bad faith by the Defendant. See id. at 595, 111 S.Ct. 1522. There is no indication that Defendant included the forum selection *247clause “as a means of discouraging [customers] from pursuing legitimate claims,” especially where Defendant has its principal place of business in Santa Clara and has a legitimate interest in protecting itself from suit in all fifty states. See id. Furthermore, Plaintiff had notice of the forum selection clause and retained the option of rejecting the contract with impunity. See id.

ii. No Violation of a Strong Public Policy of the Forum.

The forum selection clause at issue does not violate a strong public policy of this forum. Indeed, it would be consistent with the public policy of this forum to enforce the forum selection clause in order to give force to the parties’ agreement. See Jumara, 55 F.3d at 880 (holding that valid forum selection clauses are entitled to substantial consideration). In addition, a California forum would be more appropriate because California law applies to disputes under the Agreement.

iii. Enforcement Will Not Deprive Plaintiff of his Day in Court.

Plaintiff argues that litigating this dispute in California would be prohibitively difficult, so as to deprive him of his day in court, because his heart condition requires that he restrict his travel (PL Mot. for Summ. J., Ex. A) and because the cost of hiring a lawyer in California would be prohibitively expensive. “Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these things. If the agreed upon forum is available to plaintiff and said forum can do substantial justice to the cause of action then plaintiff should be bound by his agreement.” Cent. Contracting Co. v. Maryland Casualty Co., 367 F.2d 341, 344 (3d Cir.1966) (quoting Cent. Contracting Co. v. C.E. Youngdahl & Co., 418 Pa. 122, 133-34, 209 A.2d 810 (1965)).

Plaintiffs arguments regarding additional expense are not sufficient to show he would be deprived of his day in court. Furthermore, Plaintiff or any of the attorneys he employs in his law firm, such as those who have appeared on his behalf in this matter, may apply for admission pro hoc vice to represent Plaintiff in any litigation in California, thus relieving Plaintiff of hiring a lawyer in California. Although the court is sympathetic to Plaintiffs health concerns, the restriction on his travel does not have the effect of depriving him of his day in court. As Defendant has proposed, accommodations can be made, such as arranging for his continued representation by attorneys in his firm in California court, possible telephonic or video appearances, and, where possible, the scheduling of depositions to occur near Plaintiffs home.

California is not a “remote alien forum.” See Carnival Cruise Lines, 499 U.S. at 594, 111 S.Ct. 1522 (quoting Bremen, 407 U.S. at 17, 92 S.Ct. 1907). Nor is this dispute an inherently local one more suited to resolution in Pennsylvania than in California. See id. Although Plaintiff argues that its witnesses and key documents are located in this judicial district, the alleged wrongful acts, including the failure to prevent or investigate click-fraud and the overcharging for fraudulent clicks, occurred in substantial part in California, where Defendant is headquartered. Thus, relevant documents and witnesses are located in California. Finally, this dispute is better suited for resolution in a California court because California law governs this dispute and the amended complaint includes a count under California law.

Transfer to the appropriate venue ensures that Plaintiff will have his day in *248court. There is no evidence that litigation in California would prevent Plaintiff from bringing any of his claims. Enforcement of the forum selection clause therefore will not result in litigation so seriously inconvenient and unreasonable so as to deprive Plaintiff of his day in court. Because the forum selection clause is valid, Plaintiff must demonstrate why he should not be bound by it. See Jumara, 55 F.3d at 880.

c. Private Factors under § 1404(a)

The court accordingly turns to the private factors under § 1404(a). The private interests a court may consider in a § 1404(a) analysis include: “plaintiffs forum preference as manifested in the original choice; the defendant’s preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses— but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum).” Jumara, 55 F.3d at 879 (citations omitted).

Because the forum selection clause is valid and reasonable, the choice of forum of Santa Clara County in the AdWords Agreement is accorded substantial consideration and Plaintiffs choice of forum is not given deference. Again, although Plaintiff argues that his witnesses and key documents are located in this judicial district, any documents or witnesses needed to prove the heart of Plaintiffs claims — that Google had the capacity to determine which clicks are fraudulent, did nothing to prevent click fraud, charged Plaintiff for fraudulent clicks, and failed to investigate Plaintiffs complaints regarding click fraud — may be found in California, where Google is headquartered and where a significant part of the alleged wrongs occurred. For the reasons discussed previously, Plaintiffs health condition and expense concerns do not outweigh factors militating in favor of transfer. The private factors thus weigh in favor of transfer.

d. Public Factors under § 1404(a)

The public interests a court may consider in a § 1404(a) analysis include: “the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; the public policies of the fora; and the familiarity of the trial judge with the applicable state law in diversity cases.” Jumara, 55 F.3d at 879-80 (citations omitted).

The public factors under § 1404(a) also weigh in favor of transfer to Santa Clara County, California. As previously stated, this dispute is better suited for resolution in a California court because California law governs this dispute and the amended complaint includes a count under California law. Additionally, California courts have expertise in commercial litigation involving web-based technology. This dispute is not inherently local, and the public policy of this forum would support enforcement of the valid forum selection clause.

Plaintiff has not met his burden as to why he should not be bound by the valid forum selection clause. See id., 55 F.3d at 880. After according the parties’ original choice of forum, as expressed in the forum selection clause, substantial weight, and balancing the convenience of the parties, the convenience of the witnesses, and the interests of justice, the court finds that this matter should be transferred to the *249Northern District of California, San Jose Division.

D. Unjust Enrichment Claim

Defendant argues, in the alternative, that Plaintiffs unjust enrichment claim should be dismissed. As this matter was not brought in the proper forum and is being transferred, this court does not have jurisdiction to decide this issue.

V. Conclusion

For the foregoing reasons, Defendant’s motion to transfer is granted and Plaintiffs motion for summary judgment is denied. An appropriate Order follows.

Hammond, J.,

delivered the opinion of the Court.

In an action in the Circuit Court for Baltimore County by the owners of an unimproved lot against a construction company for a complete breach of a written • contract to build a house, the court, sitting without a jury, found for the defendant and the plaintiffs appealed.

Calvin T. Ray and Katherine S. J. Ray, his wife, own a lot on Dance Mill Road in Baltimore County. Late in 1950, they decided to build a home on it, and entered into negotiations with several builders, including William G. Eurice & Bros., Inc., the appellee, which had been recommended by friends. They submitted stock plans and asked for an estimate — not a bid — to see whether the contemplated house was within their financial resources. John M. Eurice, its President, acted for the Eurice Corporation. He indicated at the first meeting that the cost of the house would be about *117$16,000. Mr. Ray then employed an architect who redrew the plans and wrote a rough draft of specifications. Mr. Ray had copies of each mechanically reproduced, and in January, 1951, arranged a meeting with Mr. Eurice to go over them so that a final bid, as opposed to an estimate, could be arrived at. In the Ray living room, Mr. Ray and Mr. John Eurice went over the redrawn plans dated 9 January 1951, and the specifications prepared by the architect, consisting of seven pages and headed “Memorandum Specifications, Residence for Mr. and Mrs. C. T. Ray, Dance Mill Road, Baltimore County, Maryland, 9 January, 1951”, and discussed each item. Mr. Eurice vetoed some items and suggested change in others. For example, foundation walls were specified to be of concrete block. Mr. Eurice wanted to pour concrete walls, as was his custom. Framing lumber was to be fir. Mr. Eurice wanted this to be fir or pine. In some instances, Mr. Eurice, wanting more latitude, asked that the phrase “or equivalent” be added after a specified product or brand make. All the changes agreed on were noted by Mr. Ray in green ink on the January 9th specifications, and Mr. Eurice was given a set of plans and a set of the specifications so that he could make a formal bid in writing. On February 14, the Eurice Corporation submitted unsigned, its type-written three-page proposed contract to build a house for $16,300 “according to the following specifications”. Most of the three pages consisted of specifications which did not agree in many, although often relatively unimportant, respects with those in the January 9th seven-page specifications. Mr. Ray advised Mr. Eurice that he would have his own lawyer draw the contract. This was done. In the contract, as prepared and as finally signed, the builder agrees to construct a house for $16,300 “strictly in accordance with the Plans hereto attached and designated residence for Mr. and Mrs. C. T. Ray, Dance Mill Road, Baltimore County, Maryland, Sheets 1 through 7 dated 9 January 1951 * * * *118and to supply and use only those materials and building supplies shown on the Specifications hereto attached and designated Memorandum Specifications — Residence for Mr. C. T. Ray, Dance Mill Road, Baltimore County, Maryland, Sheets 1 through 5 dated 14 February 1951 it being understood and agreed that any deviation from the said Plans shall be made only with the prior assent of the Owner. Deviations from the Specifications shall be made only in the event any of the items shown thereon is unavailable at the time its use is required, and then only after reasonable effort and diligence on the part of the Builder to obtain the specific item has failed and the owner has given his prior approval to the use of a substitute item.”

The Memorandum Specifications referred to in the contract, consisting of five pages and dated 14 February 1951, had been prepared by Mr. and Mrs. Ray, the night of the day the Eurice Corporation delivered its three-page proposal, and after Mr. Ray had said that his own lawyer would draw the contract. On the 14th of February the 9 January seven pages, as they had emerged from the green ink deletions and additions made at the meeting in January, were retyped and from the stencil so cut at the Ray apartment, Mr. Ray had many copies mechanically reproduced at the Martin Plant where he is an aeronautical engineer. The rewritten specifications were identified as they are designated in the contract, namely as “* * * Sheets 1 through 5, dated 14 February 1951.”

On February 22, at the office of the Eurice Corporation, on the Old Philadelphia Road, the contract was signed. Present, at the time, were Mr. Ray — Mrs. Ray was absent and had signed the contract earlier because she could not get a baby-sitter — Mr. John Eurice and Mr. Henry Eurice, who is Secretary of the Eurice Corporation. Mr. Ray relates the details of the meeting, as follows:

“I had copies, plans and specifications before me, as well , as two copies of the contract. We *119sat down, Mr. John Eurice and I sat down and went over all of the items in the specifications. I volunteered to show him I had in fact changed the specifications to reflect their building idiosyncrasies, such as wanting to build the house with a poured cellar. We also went over the contract document item by item. Following that, we each signed the contract and Mr. Henry Eurice, being the other party there at the time, witnessed our signature. He was in the room during the entire discussion or review of the contract.”

After the contract had been signed, Mr. Ray says he asked that the Eurice brothers help him fill out the F.H.A. form of specifications (required to obtain the mortgage he needed) since he was not familiar with the intricacies of that form. This they did, with Mr. Henry Eurice giving most of the aid. They used the memorandum specifications of 14 February where they corresponded with the F.H.A. form and in other instances, as where the memorandum specifications were not adequate, Mr. Henry Eurice gave the necessary information. After the F.H.A. specifications were completed, the meeting broke up and a copy of the signed contract and copies of the Plans and Specifications were retained by the Eurice Corporation.

Mr. Ray then obtained a loan from the Loyola Savings & Loan Association. To do this it was necessary that he furnish it with his copy of the contract as well as copies of the Plans, the specifications of 14 February and the F.H.A. specifications. Neither the plans nor specifications which were left with the Building Association were signed by the Eurice Corporation, nor, through a misunderstanding, had they been signed by either Mr. or Mrs. Ray. When they applied for the loan, Mr. and Mrs. Ray did sign the reverse side of each page of the drawings and of the contract specifications. Thereafter, in response to a call from the Building Association, Mr. John Eurice went to its office and *120signed the reverse side of each page of the contract, each page of the specifications of the five-page specifications of February 14, referred to in the contract, and each page of the plans dated January 9, and referred to in the contract, although he says that he did not look at any of these prior to signing them.

Settlement of the mortgage loan was made on April 19 and thereafter, Mr. Ray phoned Mr. John Eurice repeatedly in order to set a starting date for the construction work. He finally came to the Ray home on April 22 and indicated that he would start construction sometime about the middle of May. Other details of the work were discussed and Mr. Ray was given the names of a plumber and a supply company so that he could pick out and buy direct various products which would be incorporated in the house. Mr. Eurice, at that time, brought up the question of a dry well which had not been noted in the specifications, and which was required by the Baltimore County Building Code, and Mr. Ray agreed that he would make allowance for this, as he felt it was an honest mistake.

On May 8, Mr. Ray received urgent messages from the Eurice Corporation that his presence was desired for a conference. As he walked into the office, Mr. Henry Eurice picked up the drawings, specifications and the contract, and threw them across the desk at him, and onto the floor, with the announcement that he had never seen them, and that if he had to build according to those specifications he did not propose to go ahead. Attempts were made at the meeting to iron out the differences which apparently caused Mr.. Henry Eurice to state that he would not live up to the contract. A second meeting was held at the Ray apartment several days later, and these efforts were continued by Mr. John Eurice, and that was the last contact that the Ray family had with any officer or agent of the Eurice Corporation. Realization that to build according to contract specifications would cost more than their usual “easy going, hatchet and saw manner” as Judge Gontrum described *121it, undoubtedly played a part in the refusal of the Eurice brothers to build the Ray house, although they testified that the excess cost would be only about $1,000. More decisive, in all probability, was Mr. Ray’s precision and his insistence on absolute accuracy in the smallest details which certainly made the Eurices unhappy, and to them was the shadow cast by harassing and expensive events to come. For example, at the meeting where the specifications were thrown across the desk, Mr. Ray agreed that certain millwork and trim which the Eurices had on hand was the equal of the specified Morgan mill-work. Mr. Henry Eurice testified as to this:

“He said that he thought ours were better. I said ‘if we put that in your house how will we determine it was right or not?’ He said he would bring a camera and take a picture of the moldings in our shed and when they were constructed in the house take another picture, and see if it would correspond. I said, ‘Man, we can’t build you a house under those conditions. It is not reasonable.’ It created a heated argument for a while.”

After written notice by Mr. Ray’s lawyer to the lawyer for Eurice Corporation, that Mr. and Mrs. Ray considered that the contract had been breached and unless recognized within the week they would hold the Eurice Corporation “for any additional amount necessary to construct the house over and above the price called for in the agreement which has been breached by your client” had been ignored, suit was filed.

Mr. John Eurice agrees, in his testimony, that the Memorandum Sheets 1 to 7, dated January 9, had been gone over by him with Mr. and Mrs. Ray, but only as he says, to pick up “pointers”. He also agrees that he had been told that the contract was to be drawn by Mr. Ray’s lawyer, but says that he agreed only “so long as it is drawn up to our three page contract”. He says that no specifications were attached to the contract which was signed, at the time it was signed, and Mr. *122and Mrs. Ray cannot say definitely that the specifications were physically attached, although both say that they were unquestionably in existence and Mr. Ray is unequivocal and positive in his statement that they were present, stapled together, and discussed at the time of signing the contract. Mr. John Eurice says that the first time he saw the specifications was when his brother Henry “chucked them out”, and in response to a question as to where they came from, said: “They were laying on the desk on the opened mail”. This, he says, was some two weeks after the signing of the contract. No effort has been made by the appellee to show how the specifications arrived in the office at this time, with the opened mail. No envelope, with what could be a significant postmark, was introduced. No stenographer or clerk was brought into court to say that the specifications had been received in the mail, or to say that they had been delivered by messenger, or by Mr. Ray. Mr. John Eurice does not deny that he signed the plans and specifications, as well as the back of the contract at the office of the Loyola Building and Loan Association, but dismisses this as a practice necessary in all cases where financing is to be obtained, which has no relation to or significance in connection with the actual agreement between builder and owner.

Mr. Henry Eurice says that, although he was present at the time the contract was signed, and signed as a witness, that no specifications were attached to either copy of the signed contract, and that he did not see Specifications 1 to 5 until “right smart later, maybe a month.” When he did first see them “they were laying on the desk on the opened mail”.

Mr. John Eurice says in his testimony that the contract which was signed February 22 was not the proposal the Eurice Corporation had made. He sets forth that he read the contract of February 22 before, he signed it, and' he admits that he read paragraph B, whereby the builder agreed to construct the building strictly in accordance with the plans and specifications identified *123by description and date. He says he thought that the specifications, although they referred to pages 1 through 5, were those in his proposal which covered only three pages. Mr. Henry Eurice says that he read the contract of February 22, and that he read the paragraph with respect to the plans and specifications, but that he, too, thought it referred to the three-page proposal. Both agree that the plans were present at the time of the signing of the contract.

On the basis of the testimony which has been cited at some length, Judge Gontrum found the following:

“The plaintiff, Mr. Ray, is an aeronautical engineer, a highly technical, precise gentleman, who has a truly remarkable memory for figures and dates and a meticulous regard for detail. Apparently, his profession and his training have schooled him to approach all problems in an exceedingly technical and probably very efficient manner. He testified with an exceptional fluency and plausibility. His mastery of language and recollection of dates and figures are phenomenal.

“The defendants in the case are what might be termed old fashioned country or community builders. Their work is technical but it doesn’t call for the specialized ability that Mr. Ray’s work demands. They conduct their business in a more easy going, hatchet and saw manner, and have apparently been successful in a small way in their field of home construction.

“The contract in question was entered into, in my judgment, in a hasty and rather careless fashion.”

Judge Gontrum then cites the testimony of the Eurice Brothers that they had not seen Specifications 1 through 5 when they signed, and then says:

“* * * There is real doubt in my mind about the matter. Why the defendants signed the agrément without checking up on the specifica*124tions, I do not know, but they clearly were under the impression that the specifications referred to in the agreement were the specifications they had submitted some time prior and which they had permitted to be redrafted by the attorney for Mr. Ray. They both stated with absolute emphasis, and I do not question their veracity, that they were under the impression that the specifications in the agreement were the same which they had prepared.”

He concludes by saying that he feels that Mr. and Mrs. Ray were under one impression, and that the Messrs. Eurice were under another impression, saying:

“* * * In my opinion there was an honest mistake; that there was no real meeting of the minds and that the plaintiffs and defendants had different sets of specifications in mind when this agreement was signed. The minds of the parties, so different in their approach, to use a mechanical phrase, did. not mesh.”

It is unnecessary to decide, as we see it, whether there was or was not a mistake on the part of the Eurice Corporation. It does strain credulity to hear that the Messrs. Eurice, builders all their adult lives and, on their own, successful builders for fifteen years of some twenty houses a year, would sign a simple contract to build a house, after they had read it, without knowing exactly what obligations they were assuming as to specifications requirements. The contract clearly referred to the specifications by designation, by number of pages and by date. It permits, in terms, no deviations from the specified makes or brands to be incorporated in the house, without the express permission of the owner. This would have been unimportant if the Eurice three-page specifications had been intended, since generality and not particularity was the emphasis there. Again, the contract could scarcely have intended to incorporate by reference the specifications in the three-page proposal because they were not set forth in a separate *125writing, but were an integral part of a proposed contract, which itself was undated, and which was of three pages, while the specifications designated in the contract were dated and were stated to be in the contract, five pages. Further, it is undisputed that the five pages of February 14th were the seven pages of January 9th, corrected to reflect the deletions and changes made and agreed to by Mr. Ray and Mr. John Eurice. The crowning challenge to credulity in finding mistake is the fact that admittedly the contract, the plans and the specifications were all signed at one sitting by the President of the Eurice Corporation at the Loyola Building Association, after they had been signed by Mr. and Mrs. Ray.

If we assume the view as to mistake held by Judge' Gontrum, in effect the mistake in the written agreement which prevented its execution by the Eurice Corporation from making it a contract was an unilateral one. It consisted, in the opinion of the Court, in the Eurice Corporation thinking it was assenting to its own specifications, while in form it was assenting to the Ray specifications. If there was such a mistake, the legal result the Court found to follow, we think does not follow. The law is clear, absent fraud, duress or mutual mistake, that one having the capacity to understand a written document who reads and signs it, or, without reading it or having it read to him, signs it, is bound by his signature in law, at least. An integrated agreement may not be varied by parol where there is no mutual mistake, nor may the parties place their own interpretation on its meaning or intended meaning.

Neither fraud nor duress are in the case. If there was mistake it was unilateral. The Rays intended their specifications to be a part of the contract, and the contract so stated, so the misconception, if it existed, was in the minds of the Messrs. Eurice.

Williston-Contracts (Rev. Ed.), Sec. 1577—says as to unilateral mistake:

“But if a man acts negligently, and in such a way as to justify others in supposing that the *126terms of the writing are assented to by him and the writing is accepted on that supposition, he will be bound both at law and in equity. Accordingly, even if an illiterate executes a deed under a mistake as to its contents, he is bound if he did not require it to be read to him or its object explained.”

In Maryland there may be exceptions in proceedings for specific performance, but otherwise the rule is in accord. Kappelman v. Bowie, 201 Md. 86, 93 A. 2d 266. Gross v. Stone, 173 Md. 653, 664, 197 A. 137. Spitze v. B. & O. R. R. Co., 75 Md. 162, 23 A. 307, and McGrath v. Petersen, 127 Md. 412, 96 A. 551. See also the Restatement — Contracts, Section 70, where it is said:

“One who makes a written offer which is accepted, or who manifests acceptance of the terms of a writing which he should reasonably understand to be an offer or proposed contract, is bound by the contract, though ignorant of the terms of the writing or of its proper interpretation.”

It does not lie in the mouth of the appellee, then, to say that it intended to be bound to build only according to its specifications. First, its claimed intent is immaterial, where it has agreed in writing to a clearly expressed and unambiguous intent to the contrary. Next, it may not vary that clearly expressed written intent by parol. And, finally, it may not put its own interpretation on the meaning of the written agreement it has executed. The Restatement-Contracts, Section 20, states the first proposition:

“A manifestation of mutual assent by the parties to an informal contract is essential to its formation and the acts by which such assent is manifested, must be done with the intent to do those acts, but * * * neither mental assent to the promises in the contract nor real or apparent intent that the promises shall be legally binding, is essential.”

*127 Williston (work cited), Sec. 21, states the rule as follows: “The only intent of the parties to a contract which is essential, is an intent to say the words and do the acts which constitute their manifestation of assent.” Judge Learned Hand expressed it in this wise: “A contract has, strictly speaking, nothing to do with the personal or individual intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mistake, or something else of the sort.” Hotchkiss v. National City Bank, 200 Fed. 287, 293.

Next, if a contract has been integrated, it may not be varied by parol in the absence of mutual mistake, nor will it be rescinded or redrafted by the Court if one of the parties finds that he has made a bad deal or has become dissatisfied with its provisions. Vincent v. Palmer, 179 Md. 365, 19 A. 2d 183; McKeever v. Realty Corp., 183 Md. 216, 37 A. 2d 305, and Markoff v. Kreiner, 180 Md. 150, 23 A. 2d 19.

Finally, where there has been an integration of an agreement, those who executed it will not be allowed to place their own interpretation on what it means or was intended to mean. The test in such case is objective and not subjective. Restatement-Contracts, Sec. 230. McKeever v. Realty Corp., supra, at page 220 of 183 Md. at page 308 of 37 A. 2d. Williston (work cited), Sec. 94, page 294, says: “It follows that the test of a true interpretation of an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant”. See also Weil v. Free State Oil Co. of Maryland, 200 Md. 62, 70, 87 A. 2d 826 at 829.

*128The lower court seemingly attached significance to the fact that the plans and specifications were not physically fastened to the contract document which was executed, although it specifically and explicitly referred to both. In this situation physical attachment has not the significance so attributed to it. It is settled that where a writing refers to another document that other document, or so much of it as is referred to, is to be interpreted as part of the writing. Williston (work cited), Sec. 628, page 1801. The Restatement-Contracts, Sec. 235 (c) and 208. Gaybis v. Palm, 201 Md. 78, 93 A. 2d 269. Duplex Envelope Co. v. Balto. Post Co., 163 Md. 596. Noel Construction Co. v. Atlas Cement Co., 103 Md. 209, 63 A. 384. Ahern v. White, 39 Md. 409. Connor v. Manchester Assurance Co., 9 Cir., 130 Fed. 743, 70 L. R. A. 106. In New England Iron Co. v. Culbert, 91 N. Y. 153, the contract required that the work to be done should conform “in all particulars to the plans and specifications approved by (E. H. T.) and (H. A. S.) a copy of which specifications is declared to be annexed to and to form a part of the contract.” In answer to the argument that the specifications had not been attached and so had no force, the Court said: “The annexation of the copy (of the) specifications was not a condition on which the validity of the agreement depended. If annexed the identification might have been more satisfactory, but without that, the contents of the plans and specifications, so far as referred to in the agreement executed, became constructively a part of it, and in that respect made one instrument”. Aetna Indemnity Co. v. Waters, 110 Md. 673, 73 A. 712. See also Valley Construction v. City of Calistoga, 72 Calif. 2d 839, 165 Pac. 2d 521 and North Bergen Board of Education v. Jaeger, 67 N. J. L. 39, 50 A. 583, and 17 C. J. S., Contracts sec. 327, page 772.

We conclude that the appellee wrongfully breached its contract to build the plaintiffs a house for $16,300.00. The measure of damage in such a case presents no difficulty. Keystone Engineering Corp. v. Sutter, 196 Md. *129620, 628, 78 A. 2d 191, 195. Here Judge Marbury said for the Court: “When a contractor on a building contract fails to perform, one of the remedies of the owner is to complete the contract, and charge the cost against the wrong-doer. Williston on Contracts (Rev. Ed.) Vol. 5, Sec. 1363, p. 3823. The Restatement of Contracts, Ch. 12, Par. 346, subsec. (1) (a) (i) p. 573 and Comment 1, p. 576.” See also, Carrig v. Gilbert-Varker Corp., 314 Mass. 351, 50 N. E. 2d 59, 62, 147 A. L. R. 927. There the court said: “The owner was entitled to be put in the same position that he would have been in if the contractor had performed its contract. * * * We think the proper measure of damages was the cost in excess of the contract price that would be incurred by the owner in having the houses built * * *”. That figure is ascertainable with sufficient definiteness in the instant case. At the time he originally contemplated building, Mr. Ray had obtained bids from firms other than the appellee. One was $14,000.00 — a tentative and, it was believed an untrustworthy bid. One was from J. Allen Thompson for $22,500.00, another from J. Raymond Gerwig Co. for $23,900.00, and another from the Eastern Contracting Co. for $24,800.00. At the trial, the appellant produced Mr. Nelson Turner of the Eastern Contracting Co., who testified that on the market at that time, his bid of $24,800.00 would be a fair and reasonable price for the erection of the house called for in the plans and specifications in the Eurice contract. Mr. Lewis L. Tignor, a builder, testified that he then would build the same house for $25,000.00. Mr. J. Raymond Gerwig did not appear at the trial but Mr. Ray testified that he had submitted a current bid of $23,925.00. The appellant also produced Mr. John W. Sands (whose qualifications were admitted by the appellee) to testify as an expert in the construction of houses and the cost of building them. He testified that his calculations showed that the house in question could be built for $23,851.00 and that if he were invited to bid, he would submit a bid of that amount.

*130He testified further that the current market value of performance of the contract here involved would be within seven and one half per cent of $23,851.00, either way. The appellee argued strongly below — although it filed no brief and made no argument here — that damages had not been proved with sufficient definiteness. We think the proof on this point convincing. The appellee also argued below that the low bid of J. Raymond Gerwig should not be accepted because he had not been produced for cross examination. We are not impressed with this contention. Nevertheless, since Mr. Sands, the expert who testified for the appellants and whose qualifications were admitted by the appellee, placed the low figure for current market value of performance of the contract at $23,851.00 less seven and one-half per cent or $22,062.25, we will accept that amount for use in measuring damages, and award the appellants the difference between it and $16,300 or $5,762.25. They are entitled in addition to the expenses incurred by them in seeking the construction loan from the Loyola Federal Savings and Loan Association in the amount of $231.15. '

Judgment reversed with costs and judgment entered for appellants against appellee in the sum of $5,993.40.-

BARNARD, P. J.

This is an action for specific performance or for damages in the event specific performance was impossible.

The complaint alleged that on April 15, 1952, the parties entered into a contract whereby the defendant agreed to sell, and plaintiff agreed to buy a 40-acre tract of land for $2,500; that this was a fair, just and reasonable value of the property; that on April'28, 1952, the defendant repudiated the contract and refused to deliver a deed; that on April 28, 1952, the property was worth $6,081; and that plaintiff has been damaged in the amount of $3,581. The answer denied that any contract had been entered into, or that anything was due to the plaintiff.

By stipulation, the issue of whether or not a contract was entered into between the parties was first tried, reserving the other issues for a further trial if that became necessary. The issue as to the existence of a contract was submitted upon an agreed statement, including certain letters between the parties, without the introduction of other evidence.

The stipulated facts are as follows: During March, 1952, the defendant placed an ad in a Los Angeles paper reading, so far as material here, “Joshua Tree vie. 40 acres, . . . need cash, will sacrifice.” In response to an inquiry resulting from this ad the defendant, who lived in New York, wrote a letter to the plaintiff dated March 26, briefly describing the property, giving directions as to how to get there, stating that his rock-bottom price was $2,500 cash, and further stating that “This is a form letter.” On April 7, the plaintiff wrote a letter to the defendant saying that he was not sure he had found the property, asking for its legal description, asking whether the land was all level or whether it included *181certain jutting rock hills, and suggesting a certain hank as escrow agent “should I desire to purchase the land.” On April 8, the defendant wrote to the plaintiff saying “From your description you have found the property”; that this bank “is O.K. for escrow agent”; that the land was fairly level; giving the legal description; and then saying, “If you are really interested, you will have to decide fast, as I expect to have a buyer in the next week or so.” On April 12, the defendant sold the property to a third party for $2,500. The plaintiff received defendant’s letter of April 8 on April 14. On April 15 he wrote to the defendant thanking him for his letter “confirming that I was on the right land,” stating that he would immediately proceed to have the escrow opened and would deposit $2,500 therein “in conformity with your offer,” and asking the defendant to forward a deed with his instructions to the escrow agent. On April 17, 1952, the plaintiff started an escrow and placed in the hands of the escrow agent $100, agreeing to furnish an additional $2,400 at an unspecified time, with the provision that if the escrow was not closed by May 15, 1952, it should be completed as soon thereafter as possible unless a written demand for a return of the money or instruments was made by either party after that date. It was further stipulated that the plaintiff was ready and willing at all times to deposit the $2,400.

The matter was submitted on June 11, 1953. On July 10, 1953, the judge filed a memorandum opinion stating that it was his opinion that the letter of April 8, 1952, when considered with the previous correspondence, constituted an offer of sale which offer was, however, qualified and conditioned upon prompt acceptance by the plaintiff; that in spite of the condition thus imposed, the plaintiff delayed more than a week before notifying the defendant of his acceptance; and that since the plaintiff was aware of the necessity of promptly communicating his acceptance to the defendant his delay was not the prompt action required by the terms of the offer. Findings of fact were filed on October 2, 1953, .finding that each and all of the statements in the agreed statement are true, and that all allegations to the contrary in the complaint are untrue. As conclusions of law, it was found that the plaintiff and defendant did not enter into a contract as alleged in the complaint or otherwise, and that the defendant is entitled to judgment against the plaintiff. Judgment was entered accordingly, from which the plaintiff has appealed.

*182The appellant contends that the judgment is contrary to the evidence and to the law since the facts, as found, do not support the conclusions of law upon which the judgment is based. It is argued that there is no conflict in the evidence, and this court is not bound by the trial court’s construction of .the written instruments involved; that the evidence conclusively shows that an offer was made to the plaintiff by the defendant, which offer was accepted by the mailing of plaintiff’s letter of April 15; that upon receipt of defendant’s letter of April 8 the plaintiff had a reasonable time within which to accept the offer that had been made; that by his letter of April 15 and his starting of an escrow the plaintiff accepted said offer; and that the agreed statement of facts establishes that a valid contract was entered into between the parties. In his briefs the appellant assumes that an offer was made by the defendant, and confined his argument to contending that the evidence shows that he accepted that offer within a reasonable time.

There can be no contract unless the minds of the parties have met and mutually agreed upon some specific thing. This is usually evidenced by one party making an offer which is accepted by the other party. Section 25 of the Restatement of the Law on Contracts reads:.

“If from a promise, or manifestation of intention, or from the circumstances existing at the time, the person to whom the promise or manifestation is addressed knows or has reason to know that the person making it does not intend it as an expression of his fixed purpose until he has given a further expression of assent, he has not made an offer.”

The language used in Niles v. Hancock, 140 Cal. 157 [73 P. 840], “ It is also clear from the correspondence that it was the intention of the defendant that the negotiations between him and the plaintiff were purely preliminary,” is applicable here. The correspondence here indicates an intention on the part of the defendant to find out whether the plaintiff was interested, rather than an intention to make a definite offer to the plaintiff. The language used by the defendant in his letters of March 26 and April 8 rather clearly discloses that they were not intended as an expression of fixed purpose to make a definite offer, and was sufficient to advise the plaintiff that some further expression of assent on the part of the defendant was necessary.

The advertisement in the paper was a mere request for an offer. The letter of March 26 contains no definite offer, and *183clearly states that it is a form letter. It merely gives further particulars, in clarification of the advertisement, and tells the plaintiff how to locate the property if he was interested in looking into the matter. The letter of April 8 added nothing in the way of a definite offer. It merely answered some questions asked by the plaintiff, and stated that if the plaintiff was really interested he would have to act fast. The statement that he expected to have a buyer in the next week or so indicated that the defendant intended to sell to the first-comer, and was reserving the right to do so. From this statement, alone, the plaintiff knew or should have known that he was not being given time in which to accept an offer that was being made, but that some further assent on the part of the defendant was required. Under the language used the plaintiff was not being given a right to act within a reasonable time after receiving the letter; he was plainly told that the defendant intended to sell to another, if possible, and warned that he would have to act fast if he was interested in buying the land.

Regardless of any opinion previously expressed, the court found that no contract had been entered into between these parties, and we are in accord with the court’s conclusion on that controlling issue. The court’s construction of the letters involved was a reasonable one, and we think the most reasonable one, even if it be assumed that another construction was possible.

The judgment is affirmed.

Griffin, J., and Mussell, J., concurred.

A petition for a rehearing was denied December 13, 1954, and appellant’s petition for a hearing by the Supreme Court was denied January 19, 1955.

SCHWARTZ, Chief Judge.

This is an appeal from the dismissal with prejudice of a three count complaint for damages arising out of the following advertisement placed by the appellee in the February 21, 1988 edition of the Miami Herald:

*1137

*1138The complaint, the allegations of which must at this stage be regarded as true, alleged that the plaintiff Izadi attempted to purchase a 1988 Ford Ranger Pick-Up— the vehicle referred to at the foot of the ad — by tendering Gus Machado Ford $3,595 in cash1 and an unspecified trade-in.2 The proposal was made on the basis of his belief that the ad offered $3,000 as a “minimum trade-in allowance” for any vehicle, regardless of its actual value. As is elaborated below, the putative grounds for this understanding .were that the $3,000 trade-in figure was prominently referred to at the top of the ad apparently as a portion of the consideration needed to “buy a3 new Ford” and that it was also designated as the projected deduction from the $7,095 gross cost for the Ranger Pick-Up. Ma-chado, however, in fact refused to recognize this interpretation of its advertisement and turned Izadi down. In doing so, it apparently relied instead on the infinitesimally small print under the $3,000 figure which indicated it applied only toward the purchase of “any New ’88 Eddie Bauer Aerostar or Turbo T-Bird in stock” — neither of which was mentioned in the remainder of the ad — and the statements in the individual vehicle portions that the offer was based on a trade-in that was “worth $3,000.”4 [e.s.] Izadi then brought the present action based on claims of breach of contract, fraud and statutory violations involving misleading advertising. We hold that the trial judge erroneously held the contract and misleading advertising counts insufficient, but correctly dismissed the claim for fraud.

1. Breach of Contract. We first hold, on two somewhat distinct but closely related grounds, that the complaint states a cause of action for breach of an alleged contract which arose when Izadi accepted an offer contained in the advertisement, which was essentially to allow $3,000 toward the purchase of the Ranger for any vehicle the reader-offeree would produce, or, to put the same proposed deal in different words, to sell the Ranger for $3,595, plus any vehicle.

(a) It is of course well settled that a completed contract or, as here, an allegedly binding offer must be viewed as a whole, with due emphasis placed upon each of what may be inconsistent or conflicting provisions. NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir.1941) (“Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used....”); Durham Tropical Land Corp. v. Sun Garden Sales Co., 106 Fla. 429, 138 So. 21 (1931), aff’d, 106 Fla. 429, 151 So. 327 (1932); Ross v. Savage, 66 Fla. 106, 63 So. 148 (1913); Transport Rental Systems, Inc. v. Hertz Corp., 129 So.2d 454, 456 (Fla.3d DCA 1961) (“The real intention, as disclosed by a fair consideration of all parts of a contract, should control the meaning given to mere words or particular provisions when they have reference to the main purpose.”); 11 Fla.Jur. 2d Contracts § 121 (1979). In this case, that process might well involve disregarding both the superfine print and apparent qualification as to the value of the trade-in, as contradictory to the far more prominent thrust of the advertisement to the effect that $3,000 will be allowed for any trade-in on any Ford. Transport Rental Systems, Inc. v. Hertz Corp., 129 So.2d at 456 (“If a contract contains clauses which are apparently repugnant to each other, they must be given such an interpretation as will reconcile them.”); 11 Fla.Jur.2d Contracts *1139§ 118; see supra notes 1-3, and accompanying text. We therefore believe that the complaint appropriately alleges5 that, objectively considered, the advertisement indeed contained just the unqualified $3,000 offer which was accepted by the plaintiff.6 On the face of the pleadings, the case thus is like many previous ones in which it has been held, contrary to what is perhaps the usual rule, see 1 Williston on Contracts § 27 (W. Jaeger 3d ed. 1957); 1 Corbin on Contracts § 25 (1963), that an enforceable contract arises from an offer contained in an advertisement. R.E. Crummer & Co. v. Nuveen, 147 F.2d 3 (7th Cir.1945); Lefkowitz v. Great Minneapolis Surplus Store, 251 Minn. 188, 86 N.W.2d 689 (1957); Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603 (1945); Payne v. Lautz Bros. & Co., 166 N.Y.S. 844 (City Ct.1916), aff’d, 168 N.Y.S. 369 (Sup.Ct. 1918), aff'd, 185 A.D. 904, 171 N.Y.S. 1094 (1918); Oliver v. Henley, 21 S.W.2d 576 (Tex.Civ.App.1929); see Steinberg v. Chicago Medical School, 69 Ill.2d 320, 13 Ill. Dec. 699, 371 N.E.2d 634 (1977); 1 Williston on Contracts § 27, at 65 (1957). See generally Annot., Advertisement Addressed to Public Relating to Sale or Purchase of Goods at the Specified Price As an Offer the Acceptance of Which Will Consummate a Contract, 43 A.L.R.3d 1102 (1972).

Of course, if an offer were indeed conveyed by an objective reading of the ad, it does not matter that the car dealer may subjectively have not intended for its chosen language to constitute a binding offer. As Williston states:

[T]he test of the true interpretation of an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.

1 Williston on Contracts § 94, at 339-340; see also Crummer, 147 F.2d at 3; Lefkowitz, 251 Minn, at 191, 86 N.W.2d at 691; Turner, 353 Mo. at 1191-1192, 186 S.W.2d at 608; Payne, 166 N.Y.S. at 844; Henley, 21 S.W.2d at 576.7 That rule seems directly to apply to this situation.

(b) As a somewhat different, and perhaps more significant basis for upholding the breach of contract claim, we point to the surely permissible conclusion from the carefully chosen language and arrangement of the advertisement itself that Ma-chado — although it did not intend to adhere to the $3,000 trade-in representation — affirmatively, but wrongly sought to make the public believe that it would be honored; that, in other words, the offer was to be used as the “bait” to be followed by a “switch” to another deal when the acceptance of that offer was refused.8 Indeed, it *1140is difficult to offer any other explanation for the blanket representation of a $3,000 trade-in for any vehicle — which is then hedged in sub-microscopic print to apply only to two models which were not otherwise referred to in the ad — or the obvious non-coincidence that the only example of the trade-in for the three vehicles which was set out in the ad was the very same $3,000. This situation invokes the applicability of a line of persuasive authority that a binding offer may be implied from the very fact that deliberately misleading advertising intentionally leads the reader to the conclusion that one exists. See Corbin on Contracts § 64, at 139 (Supp.1989) (where “bait and switch” advertising suspected, public policy “ought to justify a court in holding deceptive advertising to be an offer despite the seller’s ... intent not to make any such offer”). See generally Annot., Advertisement Addressed to Public Relating to Sale or Purchase of Goods at the Specified Price as an Offer the Acceptance of Which Will Consummate a Contract, 43 A.L.R.3d 1102 § 2[b], at 1107. In short, the dealer can hardly deny that it did not mean what it purposely misled its customer into believing. This doctrine is expressed in the Restatement (Second) of Contracts which states:

§ 20. Effect of Misunderstanding ⅜ ⅜ ⅝ * * #

(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if

(a) that party does not know of any different meaning attached by the first party[.]

Restatement (Second) of Contracts § 20(2)(a) (1981); Restatement (Second) of Contracts § 20(2)(a) comment d (“[I]f one party knows the other’s meaning and manifests assent intending to insist on a different meaning, he may be guilty of misrepresentation. Whether or not there is such misrepresentation as would give' the other party the power of avoidance, there is a contract under Subsection (2)(a), and the mere negligence of the other party is immaterial.” [e.s.]). In Johnson v. Capital City Ford Co., 85 So.2d 75 (La.App.1955), the court dealt with a case very like this one, in which the issue was whether a newspaper advertisement stating that any purchaser who bought a 1954 automobile before a certain date could exchange it for a newer model without an extra charge constituted a binding offer. The dealership argued that, despite the plain wording of the advertisement, it had no intention of making an offer, but merely sought to lure customers to the sales lot; it claimed also that, because of the small print at the bottom of the contract, any promises by the purchaser to exchange the vehicle for a later model were not binding. The court rejected these contentions on the holding that a contract had been formed even though the dealership “had an erroneous belief as to what the advertisement, as written, meant, or what it would legally convey.” Johnson, 85 So.2d at 80. As the court said:

There is entirely too much disregard of law and truth in the business, social, and political world of to-day. * * * It is time to hold men to their primary engagements to tell the truth and observe the law of common honesty and fair dealing.

Johnson, 85 So.2d at 82. We entirely agree. See also Harris v. Time, Inc., 237 Cal.Rptr. 584, 191 Cal.App.3d 449 (1987); Steinberg v. Chicago Medical School, 69 Ill.2d at 320, 13 Ill.Dec. at 699, 371 N.E.2d at 634; Riordan v. Auto. Club of New York, Inc., 100 Misc.2d 638, 422 N.Y.S.2d 811 (Sup.Ct.1979).

2. Fraud. Because no cognizable damages arising out of any alleged tortious misrepresentation were alleged in the complaint, we agree that no cause of action for fraud was stated. See National Aircraft Servs., Inc. v. Aeroserv Int’l, Inc., 544 So.2d 1063 (Fla. 3d DCA 1989); Empire Fire & Marine Ins. Co. v. Black, 546 So.2d 732 (Fla. 3d DCA 1989). Thus, that count was properly dismissed.

3. Statutory Violation. It follows from what we have said concerning the allegedly misleading nature of the advertisement in making an offer which the ad*1141vertiser did not intend to keep, that the complaint properly alleged claims for violations of the Florida Deceptive and Unfair Trade Practices Act, sections 501.201-501.-213, Florida Statutes (1987),9 and the statutory prohibition against misleading advertising, section 817.41, Florida Statutes (1987).10 See Day v. Le-Jo Enters., 521 So.2d 175 (Fla. 3d DCA 1988) (evidence sufficient for jury question on unfair and deceptive trade practices); Rollins, Inc. v. Heller, 454 So.2d 580 (Fla. 3d DCA 1984) (substantial competent evidence to support court’s finding of violation of Florida Deceptive and Unfair Trade Practices Act), pet. for review denied, 461 So.2d 114 (Fla.1985); Bill Branch Chevrolet, Inc. v. Burkert, 521 So.2d 153 (Fla. 2d DCA 1988) (jury verdict for plaintiff under breach of contract, violations of § 817.41 Fla.Stat. (1985), and fraud for misleading sales promotion offering vacation certificates to customers who purchased new vehicles), review denied, 531 So.2d 167 (Fla.1988); Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367 (Fla. 4th DCA 1981) (elements of common-law fraud sufficient when pled to state cause of action for misleading advertising under § 817.41, Fla.Stat.); Committee on Children’s Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 197 Cal.Rptr. 783, 673 P.2d 660 (1983) (complaint alleging a scheme to mislead customers by a series of. misrepresentations in advertisement sufficient to state a cause of action for deceptive business practices and misleading advertising); Barnes v. Treece, 15 Wash.App. 437, 549 P.2d 1152 (1976) (objective manifestation of advertiser’s intent to form a contract to be evaluated by the trier of fact); cf. Himes v. Brown & Co. Secs. Corp., 518 So.2d 937, 938 n. 1 (Fla. 3d DCA 1987) (actual damages must be alleged to state cause of action for misleading advertising and deceptive and unfair trade practices even where advertisement false as a matter of law).

Affirmed in part, reversed in part and remanded.

*117OPINION & ORDER

KIMBA M. WOOD, District Judge.

Plaintiff brought this action seeking, among other things, specific performance *118of an alleged offer of a Harrier Jet, featured in a television advertisement for defendant’s “Pepsi Stuff’ promotion. Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, defendant’s motion is granted.

I. Background

This case arises out of a promotional campaign conducted by defendant, the producer and distributor of the soft drinks Pepsi and Diet Pepsi. (See PepsiCo Inc.’s Rule 56.1 Statement (“Def. Stat.”) ¶ 2.)1 The promotion, entitled “Pepsi Stuff,” encouraged consumers to collect “Pepsi Points” from specially marked packages of Pepsi or Diet Pepsi and redeem these points for merchandise featuring the Pepsi logo. (See id. ¶¶ 4, 8.) Before introducing the promotion nationally, defendant conducted a test of the promotion in the Pacific Northwest from October 1995 to March 1996. (See id. ¶¶ 5-6.) A Pepsi Stuff catalog was distributed to consumers in the test market, including Washington State. (See id. ¶ 7.) Plaintiff is a resident of Seattle, Washington. (See id. ¶ 3.) While living in Seattle, plaintiff saw the Pepsi Stuff commercial (see id. ¶ 22) that he contends constituted an offer of a Harrier Jet.

A. The Alleged Offer

Because whether the television commercial constituted an offer is the central question in this case, the Court will describe the commercial in detail. The commercial opens upon an idyllic, suburban morning, where the chirping of birds in sun-dappled trees welcomes a paperboy on his morning route. As the newspaper hits the stoop of a conventional two-story house, the tattoo of a military drum introduces the subtitle, “MONDAY 7:58 AM.” The stirring strains of a martial air mark the appearance of a well-coiffed teenager preparing to leave for school, dressed in a shirt emblazoned with the Pepsi logo, a red-white-and-blue ball. While the teenager confidently preens, the military drumroll again sounds as the subtitle “T-SHIRT 75 PEPSI POINTS” scrolls across the screen. Bursting from his room, the teenager strides down the hallway wearing a leather jacket. The drumroll sounds again, as the subtitle “LEATHER JACKET 1450 PEPSI POINTS” appears. The teenager opens the door of his house and, unfazed by the glare of the early morning sunshine, puts on a pair of sunglasses. The drumroll then accompanies the subtitle “SHADES 175 PEPSI POINTS.” A voiceover then intones, “Introducing the new Pepsi Stuff catalog,” as the camera focuses on the cover of the catalog. (See Defendant’s Local Rule 56.1 Stat., Exh. A (the “Catalog”).)2

The scene then shifts to three young boys sitting in front of a high school building. The boy in the middle is intent on his Pepsi Stuff Catalog, while the boys on either side are each drinking Pepsi. The three boys gaze in awe at an object rushing overhead, as the military march builds to a crescendo. The Harrier Jet is not yet visible, but the observer senses the presence of a mighty plane as the extreme winds generated by its flight create a paper maelstrom in a classroom devoted to an otherwise dull physics lesson. Finally, *119the Harrier Jet swings into view and lands by the side of the school building, next to a bicycle rack. Several students run for cover, and the velocity of the wind strips one hapless faculty member down to his underwear. While the faculty member is being deprived of his dignity, the voiceover announces: “Now the more Pepsi you drink, the more great stuff you’re gonna get.”

The teenager opens the cockpit of the fighter and can be seen, helmetless, holding a Pepsi. “[L]ooking very pleased with himself,” (PI. Mem. at 3,) the teenager exclaims, “Sure beats the bus,” and chortles. The military drumroll sounds a final time, as the following words appear: “HARRIER FIGHTER 7,000,000 PEPSI POINTS.” A few seconds later, the following appears in more stylized script: “Drink Pepsi — Get Stuff.” With that message, the music and the commercial end with a triumphant flourish.

Inspired by this commercial, plaintiff set out to obtain a Harrier Jet. Plaintiff explains that he is “typical of the ‘Pepsi Generation’ ... he is young, has an adventurous spirit, and the notion of obtaining a Harrier Jet appealed to him enormously.” (PI. Mem. at 3.) Plaintiff consulted the Pepsi Stuff Catalog. The Catalog features youths dressed in Pepsi Stuff regalia or enjoying Pepsi Stuff accessories, such as “Blue Shades” (“As if you need another reason to look forward to sunny days.”), “Pepsi Tees” (“Live in ‘em. Laugh in ‘em. Get in ‘em.”), “Bag of Balls” (“Three balls. One bag. No rules.”), and “Pepsi Phone Card” (“Call your mom!”). The Catalog specifies the number of Pepsi Points required to obtain promotional merchandise. (See Catalog, at rear foldout pages.) The Catalog includes an Order Form which lists, on one side, fifty-three items of Pepsi Stuff merchandise redeemable for Pepsi Points (see id. (the “Order Form”)). Conspicuously absent from the Order Form is any entry or description of a Harrier Jet. (See id.) The amount of Pepsi Points required to obtain the listed merchandise ranges from 15 (for a “Jacket Tattoo” (“Sew ‘em on your jacket, not your arm.”)) to 3300 (for a “Fila Mountain Bike” (“Rugged. All-terrain. Exclusively for Pepsi.”)). It should be noted that plaintiff objects to the implication that because an item was not shown in the Catalog, it was unavailable. (See PI. Stat. ¶¶ 23-26, 29.)

The rear foldout pages of the Catalog contain directions for redeeming Pepsi Points for merchandise. (See Catalog, at rear foldout pages.) These directions note that merchandise may be ordered “only” with the original Order Form. (See id.) The Catalog notes that in the event that a consumer lacks enough Pepsi Points to obtain a desired item, additional Pepsi Points may be purchased for ten cents each; however, at least fifteen original Pepsi Points must accompany each order. (See id.)

Although plaintiff initially set out to collect 7,000,000 Pepsi Points by consuming Pepsi products, it soon became clear to him that he “would not be able to buy (let alone drink) enough Pepsi to collect the necessary Pepsi Points fast enough.” (Affidavit of John D.R. Leonard, Mar. 30, 1999 (“Leonard Aff.”), ¶ 5.) Reevaluating his strategy, plaintiff “focused for the first time on the packaging materials in the Pepsi Stuff promotion,” (id.,)- and realized that buying Pepsi Points would be a more promising option. (See id.) Through acquaintances, plaintiff ultimately raised about $700,000. (See id. ¶ 6.)

B. Plaintiffs Efforts to Redeem the Alleged Offer

On or about March 27, 1996, plaintiff submitted an Order Form, fifteen original Pepsi Points, and a check for $700,008.50. (See Def. Stat. ¶ 36.) Plaintiff appears to have been represented by counsel at the time he mailed his check; the check is drawn on an account of plaintiffs first set of attorneys. (See Defendant’s Notice of Motion, Exh. B (first).) At the bottom of the Order Form, plaintiff wrote in “1 Harrier Jet” in the “Item” column and “7,000,-000” in the “Total Points” column. (See id.) In a letter accompanying his submis*120sion, plaintiff stated that the cheek was to purchase additional Pepsi Points “expressly for obtaining a new Harrier jet as advertised in your Pepsi Stuff commercial.” (See Declaration of David Wynn, Mar. 18, 1999 (“Wynn Dec”), Exh. A.)

On or about May 7, 1996, defendant’s fulfillment house rejected plaintiffs submission and returned the check, explaining that:

The item that you have requested is not part of the Pepsi Stuff collection. It is not included in the catalogue or on the order form, and only catalogue merchandise can be redeemed under this program.

The Harrier jet in the Pepsi commercial is fanciful and is simply included to create a humorous and entertaining ad. We apologize for any misunderstanding or confusion that you may have experienced and are enclosing some free product coupons for your use.

(Wynn Aff. Exh. B (second).) Plaintiffs previous counsel responded on or about May 14,1996, as follows:

Your letter of May 7, 1996 is totally unacceptable. We have reviewed the video tape of the Pepsi Stuff commercial ... and it clearly offers the new Harrier jet for 7,000,000 Pepsi Points. Our client followed your rules explicitly....

This is a formal demand that you hon- or your commitment and make immediate arrangements to transfer the new Harrier jet to our client. If we do not receive transfer instructions within ten (10) business days of the date of this letter you will leave us no choice but to file an appropriate action against Pepsi....

(Wynn Aff., Exh. C.) This letter was apparently sent onward to the advertising company responsible for the actual commercial, BBDO New York (“BBDO”). In a letter dated May 30, 1996, BBDO Vice President Raymond E. McGovern, Jr., explained to plaintiff that:

I find it hard to believe that you are of the opinion that the Pepsi Stuff commercial (“Commercial”) really offers a new Harrier Jet. The use of the Jet was clearly a joke that was meant to make the Commercial more humorous and entertaining. In my opinion, no reasonable person would agree with your analysis of the Commercial.

(Wynn Aff. Exh. A.) On or about June 17, 1996, plaintiff mailed a similar demand letter to defendant. (See Wynn Aff., Exh.' D.)

Litigation of this case initially involved two lawsuits, the first a declaratory judgment action brought by PepsiCo in this district (the “declaratory judgment action”), and the second an action brought by Leonard in Florida state court (the “Florida action”).3 PepsiCo brought suit in this Court on July 18, 1996, seeking a declaratory judgment stating that it had no obligation to furnish plaintiff with a Harrier Jet. That case was filed under docket number 96 Civ. 5320. In response to PepsiCo’s suit in New York, Leonard brought suit in Florida state court on August 6, 1996, although this case had nothing to do with Florida.4 That suit was removed to the Southern District of Florida in September 1996. In an Order dated November 6, 1996, United States District Judge James Lawrence King found that, “Obviously this case has been filed in a form that has no meaningful relationship to the controversy and warrants a transfer pursuant to 28 U.S.C. § 1404(a).” Leonard v. PepsiCo, *12196-2555 Civ.-King, at 1 (S.D.Fla. Nov. 6, 1996). The Florida suit was transferred to this Court on December 2, 1996, and assigned the docket number 96 Civ. 9069.

Once the Florida action had been transferred, Leonard moved to dismiss the declaratory judgment action for lack of personal jurisdiction. In an Order dated November 24, 1997, the Court granted the motion to dismiss for lack of personal jurisdiction in case 96 Civ. 5320, from which PepsiCo appealed. Leonard also moved to voluntarily dismiss the Florida action. While the Court indicated that the motion was proper, it noted that Pep-siCo was entitled to some compensation for the costs of litigating this case in Florida, a forum that had no meaningful relationship to the case. (See Transcript of Proceedings Before Hon. Kimba M. Wood, Dec. 9, 1997, at 3.) In an Order dated December 15, 1997, the Court granted Leonard’s motion to voluntarily dismiss this case without prejudice, but did so on condition that Leonard pay certain attorneys’ fees.

In an Order dated October 1, 1998, the Court ordered Leonard to pay $88,162 in attorneys’ fees within thirty days. Leonard failed to do so, yet sought nonetheless to appeal from his voluntary dismissal and the imposition of fees. In an Order dated January 5, 1999, the Court noted that Leonard’s strategy was “ ‘clearly an end-run around the final judgment rule.’ ” (Order at 2 (quoting Palmieri v. Defaria, 88 F.3d 136 (2d Cir.1996)).) Accordingly, the Court ordered Leonard either to pay the amount due or withdraw his voluntary dismissal, as well as his appeals therefrom, and continue litigation before this Court. (See Order at 3.) Rather than pay the attorneys’ fees, Leonard elected to proceed with litigation, and shortly thereafter retained present counsel.

On February 22, 1999, the Second Circuit endorsed the parties’ stipulations to the dismissal of any appeals taken thus far in this case. Those stipulations noted that Leonard had consented to the jurisdiction of this Court and that PepsiCo agreed not to seek enforcement of the attorneys’ fees award. With these issues having been waived, PepsiCo moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. The present motion thus follows three years of jurisdictional and procedural wrangling.

II. Discussion

A. The Legal Framework

1. Standard for Summary Judgment

On a motion for summary judgment, a court “cannot try issues of fact; it can only determine whether there are issues to be tried.” Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir.1987) (citations and internal quotation marks omitted). To prevail on a motion for summary judgment, the moving party therefore must show that there are no such genuine issues of material fact to be tried, and that he or she is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Citizens Bank v. Hunt, 927 F.2d 707, 710 (2d Cir.1991). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” which includes identifying the materials in the record that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.

Once a motion for summary judgment is made and supported, the non-moving party must set forth specific facts that show that there is a genuine issue to be tried. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although a court considering a motion for summary judgment must view all evidence in the light most favorable to the non-moving party, and must draw all reasonable inferences in that party’s favor, see Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir.1993), the nonmoving party “must do more *122than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If, based on the submissions to the court, no rational fact-finder could find in the non-movant’s favor, there is no genuine issue of material fact, and summary judgment is appropriate. See Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

The question of whether or not a contract was formed is appropriate for resolution on summary judgment. As the Second Circuit has recently noted, “Summary judgment is proper when the ‘words and actions that allegedly formed a contract [are] so clear themselves that reasonable people could not differ over their meaning.’ ” Krumme v. Westpoint Stevens, Inc., 143 F.3d 71, 83 (2d Cir.1998) (quoting Bourque v. FDIC, 42 F.3d 704, 708 (1st Cir.1994)) (further citations omitted); see also Wards Co. v. Stamford Ridgeway Assocs., 761 F.2d 117, 120 (2d Cir.1985) (summary judgment is appropriate in contract case where interpretation urged by non-moving party is not “fairly reasonable”). Summary judgment is appropriate in such cases because there is “sometimes no genuine issue as to whether the parties’ conduct implied a ‘contractual understanding.’.... In such cases, ‘the judge must decide the issue himself, just as he decides any factual issue in respect to which reasonable people cannot differ.’ ” Bourque, 42 F.3d at 708 (quoting Boston Five Cents Sav. Bank v. Secretary of Dep’t of Housing & Urban Dev., 768 F.2d 5, 8 (1st Cir.1985)).

2. Choice of Law

The parties disagree concerning whether the Court should apply the law of the state of New York or of some other state in evaluating whether defendant’s promotional campaign constituted an offer. Because this action was transferred from Florida, the choice of law rules of Florida, the transferor state, apply. See Ferens v. John Deere Co., 494 U.S. 516, 523-33, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990). Under Florida law, the choice of law in a contract case is determined by the place “where the last act necessary to complete the contract is done.” Jemco, Inc. v. United Parcel Serv., Inc., 400 So.2d 499, 500-01 (Fla.Dist.Ct.App.1981); see also Shapiro v. Associated Int’l Ins. Co., 899 F.2d 1116, 1119 (11th Cir.1990).

The parties disagree as to whether the contract could have been completed by plaintiffs filling out the Order Form to request a Harrier Jet, or by defendant’s acceptance of the Order Form. If the commercial constituted an offer, then the last act necessary to complete the contract would be plaintiffs acceptance, in the state of Washington. If the commercial constituted a solicitation to receive offers, then the last act necessary to complete the contract would be defendant’s acceptance of plaintiffs Order Form, in the state of New York. The choice of law question cannot, therefore, be resolved until after the Court determines whether the commercial was an offer or not. The Court agrees with both parties that resolution of this issue requires consideration of principles of contract law that are not limited to the law of any one state. Most of the cases cited by the parties are not from New York courts. As plaintiff suggests, the questions presented by this case implicate questions of contract law “deeply ingrained in the common law of England and the States of the Union.” (PI. Mem. at 8.)

B. Defendant’s Advertisement Was Not An Offer

1. Advertisements as Offers

The general rule is that an advertisement does not constitute an offer. The Restatement (Second) of Contracts explains that:

Advertisements of goods by display, sign, handbill, newspaper, radio or television are not ordinarily intended or understood as offers to sell. The same is true of catalogues, price lists and circulars, even though the terms of suggested bargains may be stated in some detail. *123It is of course possible to make an offer by an advertisement directed to the general public (see § 29), but there must ordinarily be some language of commitment or some invitation to take action without further communication.

Restatement (Second) of Contracts § 26 cmt. b (1979). Similarly, a leading treatise notes that:

It is quite possible to make a definite and operative offer to buy or sell goods by advertisement, in a newspaper, by a handbill, a catalog or circular or on a placard in a store window. It is not customary to do this, however; and the presumption is the other way. Such advertisements are understood to be mere requests to consider and examine and negotiate; and no one can reasonably regard them as otherwise unless the circumstances are exceptional and the words used are very plain and clear.

1 Arthur Linton Corbin & Joseph M. Perillo, Corbin on Contracts § 2.4, at 116-17 (rev. ed.1993) (emphasis added); see also 1 E. Allan Farnsworth, Farnsworth on Contracts § 3.10, at 239 (2d ed.1998); 1 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 4:7, at 286-87 (4th ed.1990). New York courts adhere to this general principle. See Lovett v. Fredenck Loeser & Co., 124 Misc. 81, 207 N.Y.S. 753, 755 (N.Y.Mun.Ct.1924) (noting that an “advertisement is nothing but an invitation to enter into negotiations, and is not an offer which may be turned into a contract by a person who signifies his intention to purchase some of the articles mentioned in the advertisement”); see also Geismar v. Abraham & Strauss, 109 Misc.2d 495, 439 N.Y.S.2d 1005, 1006 (N.Y.Dist.Ct.1981) (reiterating Lovett rule); People v. Gimbel Bros., 202 Misc. 229, 115 N.Y.S.2d 857, 858 (N.Y.Sp.Sess.1952) (because an “[a]dvertisement does not constitute an offer of sale but is solely an invitation to customers to make an offer to purchase,” defendant not guilty of selling property on Sunday).

An advertisement is not transformed into an enforceable offer merely by a potential offeree’s expression of willingness to accept the offer through, among other means, completion of an order form. In Mesaros v. United States, 845 F.2d 1576 (Fed.Cir.1988), for example, the plaintiffs sued the United States Mint for failure to deliver a number of Statue of Liberty commemorative coins that they had ordered. When demand for the coins proved unexpectedly robust, a number of individuals who had sent in their orders in a timely fashion were left empty-handed. See id. at 1578-80. The court began by noting the “well-established” rule that advertisements and order forms are “mere notices and solicitations for offers which create no power of acceptance in the recipient.” Id. at 1580; see also Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 538-39 (9th Cir.1983) (“The weight of authority is that purchase orders such as those at issue here are not enforceable contracts until they are accepted by the seller.”);5 Restatement (Second) of Contracts § 26 (“A manifestation of willingness to enter a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.”). The spurned coin collectors could not maintain a breach of contract action because no contract would be formed until the advertiser accepted the order form and processed payment. See id. at 1581; see also Alligood v. Procter & Gamble, 72 Ohio App.3d 309, 594 N.E.2d 668 (1991) (finding that no offer was made in promotional campaign for baby diapers, in which consumers were to redeem teddy bear proof-of-purchase symbols for catalog merchandise); Chang v. First Colonial Savings Bank, 242 Va. 388, *124410 S.E.2d 928 (1991) (newspaper advertisement for bank settled the terms of the offer once bank accepted plaintiffs’ deposit, notwithstanding bank’s subsequent effort to amend the terms of the offer). Under these principles, plaintiffs letter of March 27, 1996, with the Order Form and the appropriate number of Pepsi Points, constituted the offer. There would be no enforceable contract until defendant accepted the Order Form and cashed the check.

The exception to the rule that advertisements do not create any power of acceptance in potential offerees is where the advertisement is “clear, definite, and explicit, and leaves nothing open for negotiation,” in that circumstance, “it constitutes an offer, acceptance of which will complete the contract.” Lefkowitz v. Great Minneapolis Surplus Store, 251 Minn. 188, 86 N.W.2d 689, 691 (1957). In Leflcowitz, defendant had published a newspaper announcement stating: “Saturday 9 AM Sharp, 3 Brand New Fur Coats, Worth to $100.00, First Come First Served $1 Each.” Id. at 690. Mr.. Morris Lefkowitz arrived at the store, dollar in hand, but was informed that under defendant’s “house rules,” the offer was open to ladies, but not gentlemen. See id. The court ruled that because plaintiff had fulfilled all of the terms of the advertisement and the advertisement was specific and left nothing open for negotiation, a contract had been formed. See id.; see also Johnson v. Capital City Ford Co., 85 So.2d 75, 79 (La.Ct.App.1955) (finding that newspaper advertisement was sufficiently certain and definite to constitute an offer).

The present case is distinguishable from Leflcowitz. First, the commercial cannot be regarded in itself as sufficiently definite, because it specifically reserved the details of the offer to a separate writing, the Catalog.6 The commercial itself made no mention of the steps a potential offeree would be required to take to accept the alleged offer of a Harrier Jet. The advertisement in Leflcowitz, in contrast, “identified the person who could accept.” Corbin, supra, § 2.4, at 119. See generally United States v. Braunstein, 75 F.Supp. 137, 139 (S.D.N.Y.1947) (“Greater precision of expression may be required, and less help from the court given, when the parties are merely at the threshold of a contract.”); Farnsworth, supra, at 239 (“The fact that a proposal is very detailed suggests that it is an offer, while omission of many terms suggests that it is not.”).7 Second, even if the Catalog had included a Harrier Jet among the items that could be obtained by redemption of Pepsi Points, the advertisement of a Harrier Jet by both television commercial and catalog would still not constitute an offer. As the Mesa-ros court explained, the absence of any words of limitation such as “first come, first served,” renders the alleged offer sufficiently indefinite that no contract could be formed. See Mesaros, 845 F.2d at 1581. “A customer would not usually have reason to believe that the shopkeeper intended exposure to the risk of a multitude of acceptances resulting in a number of contracts exceeding the shopkeeper’s inventory.” Farnsworth, supra, at 242. There was no such danger in Lefkowitz, owing to the limitation “first come, first served.”

The Court finds, in sum, that the Harrier Jet commercial was merely an advertisement. The Court now turns to the line of cases upon which plaintiff rests much of his argument.

*1252. Rewards as Offers

In opposing the present motion, plaintiff largely relies on a different species of unilateral offer, involving public offers of a reward for performance of a specified act. Because these cases generally involve public declarations regarding the efficacy or trustworthiness of specific products, one court has aptly characterized these authorities as “prove me wrong” cases. See Rosenthal v. Al Packer Ford, 36 Md.App. 349, 374 A.2d 377, 380 (1977). The most venerable of these precedents is the case of Carlill v. Carbolic Smoke Ball Co., 1 Q.B. 256 (Court of Appeal, 1892), a quote from which heads plaintiffs memorandum of law: “[I]f a person chooses to make 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.” Carbolic Smoke Ball, 1 Q.B. at 268 (Bowen, L.J.).

Long a staple of law school curricula, Carbolic Smoke Ball owes its fame not merely to “the comic and slightly mysterious object involved,” A.W. Brian Simpson. Quackery and Contmct Law: Carlill v. Carbolic Smoke Ball Company (1893), in Leading Cases in the Common Law 259, 281 (1995), but also to its role in developing the law of unilateral offers. The case arose during the London influenza epidemic of the 1890s. Among other advertisements of the time, for Clarke’s World Famous Blood Mixture, Towle’s Pennyroyal and Steel Pills for Females, Sequah’s Prairie Flower, and Epp’s Glycerine Jube-Jubes, see Simpson, supra, at 267, appeared solicitations for the Carbolic Smoke Ball. The specific advertisement that Mrs. Carlill saw, and relied upon, read as follows:

100 £ reward will be paid by the Carbolic Smoke Ball Company 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. 1000 £ is deposited with the Alliance Bank, Regent Street, shewing 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.

Carbolic Smoke Ball, 1 Q.B. at 256-57. “On the faith of this advertisement,” id. at 257, Mrs. Carlill purchased the smoke ball and used it as directed, but contracted influenza nevertheless.8 The lower court held that she was entitled to recover the promised reward.

Affirming the lower court’s decision, Lord Justice Lindley began by noting that the advertisement was an express promise to pay £ 100 in the event that a consumer of the Carbolic Smoke Ball was stricken with influenza. See id. at 261. The advertisement was construed as offering a reward because it sought to induce performance, unlike an invitation to negotiate, which seeks a reciprocal promise. As Lord Justice Lindley explained, “advertisements offering rewards ... are offers to anybody who performs the conditions named in the advertisement, and anybody who does perform the condition accepts the offer.” Id. at 262; see also id. at 268 (Bowen, L.J.).9 Because Mrs. Carlill had complied with the terms of the offer, yet *126contracted influenza, she was entitled to £ 100.

Like Carbolic Smoke Ball, the decisions relied upon by plaintiff involve offers of reward. In Barnes v. Treece, 15 Wash. App. 437, 549 P.2d 1152 (1976), for example, the vice-president of a punchboard distributor, in the course of hearings before the Washington State Gambling Commission, asserted that, “ Til put a hundred thousand dollars to anyone to find a crooked board. If they find it, I’ll pay it.’ ” Id. at 1154. Plaintiff, a former bartender, heard of the offer and located two crooked punchboards. Defendant, after reiterating that the offer was serious, providing plaintiff with a receipt for the punchboard on company stationery, and assuring plaintiff that the reward was being held in escrow, nevertheless repudiated the offer. See id. at 1154. The court ruled that the offer was valid and that plaintiff was entitled to his reward. See id. at 1155. The plaintiff in this case also cites cases involving prizes for skill (or luck) in the game of golf. See Las Vegas Hacienda v. Gibson, 77 Nev. 25, 359 P.2d 85 (1961) (awarding $5,000 to plaintiff, who successfully shot a hole-in-one); see also Grove v. Charbonneau Buick-Pontiac, Inc., 240 N.W.2d 853 (N.D.1976) (awarding automobile to plaintiff, who successfully shot a hole-in-one).

Other “reward” cases underscore the distinction between typical advertisements, in which the alleged offer is merely an invitation to negotiate for purchase of commercial goods, and promises of reward, in which the alleged offer is intended to induce a potential offeree to perform a specific action, often for noncommercial reasons. In Newman v. Schiff, 778 F.2d 460 (8th Cir.1985), for example, the Fifth Circuit held that a tax protestor’s assertion that, “If anybody calls this show ... and cites any section of the code that says an individual is required to file a tax return, I’ll pay them $100,000,” would have been an enforceable offer had the plaintiff called the television show to claim the reward while the tax protestor was appearing. See id. at 466-67. The court noted that, like Carbolic Smoke Ball, the case “concerns a special type of offer: an offer for a reward.” Id. at 465. James v. Turilli, 473 S.W.2d 757 (Mo.Ct.App.1971), arose from a boast by defendant that the “notorious Missouri desperado” Jesse James had not been killed in 1882, as portrayed in song and legend, but had lived under the alias “J. Frank Dalton” at the “Jesse James Museum” operated by none other than defendant. Defendant offered $10,-000 “to anyone who could prove me wrong.” See id. at 758-59. The widow of the outlaw’s son demonstrated, at trial, that the outlaw had in fact been killed in 1882. On appeal, the court held that defendant should be liable to pay the amount offered. See id. at 762; see also Mears v. Nationwide Mutual Ins. Co., 91 F.3d 1118, 1122-23 (8th Cir.1996) (plaintiff entitled to cost of two Mercedes as reward for coining slogan for insurance company).

In the present case, the Harrier Jet commercial did not direct that anyone who appeared at Pepsi headquarters with 7,000,000 Pepsi Points on the Fourth of July would receive a Harrier Jet. Instead, the commercial urged consumers to accumulate Pepsi Points and to refer to the Catalog to determine how they could redeem their Pepsi Points. The commercial sought a reciprocal promise, expressed through acceptance of, and compliance with, the terms of the Order Form. As noted previously, the Catalog contains no mention of the Harrier Jet. Plaintiff states that he “noted that the Harrier Jet was not among the items described in the catalog, but this did not affect [his] understanding of the offer.” (PI. Mem. at 4.) It should have.10

*127 Carbolic Smoke Ball itself draws a distinction between the offer of reward in that case, and typical advertisements, which are merely offers to negotiate. As Lord Justice Bowen explains:

It is an offer to become liable to any one who, before it is retracted, performs the condition.... It is not like cases in which you offer to negotiate, or you issue advertisements 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, I think, some learned judge in one of the cases has said.

Carbolic Smoke Ball, 1 Q.B. at 268; see also Lovett, 207 N.Y.S. at 756 (distinguishing advertisements, as invitation to offer, from offers of reward made in advertisements, such as Carbolic Smoke Ball). Because the alleged offer in this case was, at most, an advertisement to receive offers rather than an offer of reward, plaintiff cannot show that there was an offer made in the circumstances of this case.

C. An Objective, Reasonable Person Would Not Have Considered the Commercial an Offer

Plaintiffs understanding of the commercial as an offer must also be rejected because the Court finds that no objective person could reasonably have concluded that the commercial actually offered consumers a Harrier Jet.

1. Objective Reasonable Person Standard

In evaluating the commercial, the Court must not consider defendant’s subjective intent in making the commercial, or plaintiffs subjective view of what the commercial offered, but what an objective, reasonable person would have understood the commercial to convey. See Kay-R Elec. Corp. v. Stone & Webster Constr. Co., 23 F.3d 55, 57 (2d Cir.1994) (“[W]e are not concerned with what was going through the heads of the parties at the time [of the alleged contract]. Rather, we are talking about the objective principles of contract law.”); Mesaros, 845 F.2d at 1581 (“A basic rule of contracts holds that whether an offer has been made depends on the objective reasonableness of the alleged of-feree’s belief that the advertisement or solicitation was intended as an offer.”); Farnsworth, supra, § 3.10, at 237; Willi-ston, supra, § 4:7 at 296-97.

If it is clear that an offer was not serious, then no offer has been made:

What kind of act creates a power of acceptance and is therefore an offer? It must be an expression of will or intention. It must be an act that leads the offeree reasonably to conclude that a power to create a contract is conferred. This applies to the content of the power as well as to the fact of its existence. It is on this ground that we must exclude invitations to deal or acts of mere preliminary negotiation, and acts evidently done in jest or without intent to create legal relations.

Corbin on Contracts, § 1.11 at 30 (emphasis added). An obvious joke, of course, would not give rise to a contract. See, e.g., Graves v. Northern N.Y. Pub. Co., 260 A.D. 900, 22 N.Y.S.2d 537 (1940) (dismissing claim to offer of $1000, which appeared in the “joke column” of the newspaper, to any person who could provide a commonly available phone number). On the other hand, if there is no indication that the offer is “evidently in jest,” and that an objective, reasonable person would find that the offer was serious, then there may be a valid offer. See Barnes, 549 P.2d at 1155 (“[I]f the jest is not apparent and a reasonable hearer would believe that an offer was being made, then the speaker risks the formation of a contract which was not intended.”); see also Lucy v. Zehmer, 196 Va. 493, 84 S.E.2d 516, 518, 520 (1954) *128(ordering specific performance of a contract to purchase a farm despite defendant’s protestation that the transaction was done in jest as “ ‘just a bunch of two doggoned drunks bluffing’ ”).

2. Necessity of a Jury Determination

Plaintiff also contends that summary judgment is improper because the question of whether the commercial conveyed a sincere offer can be answered only by a jury. Relying on dictum from Gallagher v. Delaney, 189 F.3d 338 (2d Cir.1998), plaintiff argues that a federal judge comes from a “narrow segment of the enormously broad American socio-economic spectrum,” id. at 342, and, thus, that the question whether the commercial constituted a serious offer must be decided by a jury composed of, inter alia, members of the “Pepsi Generation,” who are, as plaintiff puts it, “young, open to adventure, willing to do the unconventional.” (See Leonard Aff. ¶ 2.) Plaintiff essentially argues that a federal judge would view his claim differently than fellow members of the “Pepsi Generation.”

Plaintiffs argument that his claim must be put to a jury is without merit. Gallagher involved a claim of sexual harassment in which the defendant allegedly invited plaintiff to sit on his lap, gave her inappropriate Valentine’s Day gifts, told her that “she brought out feelings that he had not had since he was sixteen,” and “invited her to help him feed the ducks in the pond, since he was ‘a bachelor for the evening.’ ” Gallagher, 139 F.3d at 344. The court concluded that a jury determination was particularly appropriate because a federal judge lacked “the current real-life experience required in interpreting subtle sexual dynamics of the workplace based on nuances, subtle perceptions, and implicit communications.” Id. at 342. This case, in contrast, presents a question of whether there was an offer to enter into a contract, requiring the Court to determine how a reasonable, objective person would have understood defendant’s commercial. Such an inquiry is commonly performed by courts on a motion for summary judgment. See Krumme, 143 F.3d at 83; Bourque, 42 F.3d at 708; Wards Co., 761 F.2d at 120.

3. Whether the Commercial Was “Evidently Done In Jest”

Plaintiffs insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny. Explaining why a joke is funny is a daunting task; as the essayist E.B. White has remarked, “Humor can be dissected, as a frog can, but the thing dies in the process....” 11 The commercial is the embodiment of what defendant appropriately characterizes as “zany humor.” (Def. Mem. at 18.)

First, the commercial suggests, as commercials often do, that use of the advertised product will transform what, for most youth, can be a fairly routine and ordinary experience. The military tattoo and stirring martial music, as well as the use of subtitles in a.Courier font that scroll terse messages across the screen, such as “MONDAY 7:58 AM,” evoke military and espionage thrillers. The implication of the commercial is that Pepsi Stuff merchandise will inject drama and moment into hitherto unexceptional lives. The commercial in this case thus makes the exaggerated claims similar to those of many television advertisements: that by consuming the featured clothing, car, beer, or potato chips, one will become attractive, stylish, desirable, and admired by all. A reasonable viewer would understand such advertisements as mere puffery, not as statements of fact, see, e.g., Hubbard v. General Motors Corp., 95 Civ. 4362(AGS), 1996 WL 274018, at *6 (S.D.N.Y. May 22, 1996) (advertisement describing automobile as “Like a Rock,” was mere puffery, not a warranty of quality); Lovett, 207 N.Y.S. at 756; and refrain from interpreting the promises of the commercial as being literally true.

Second, the callow youth featured in the commercial is a highly improbable pilot, one who could barely be trusted with the *129keys to his parents’ car, much less the prize aircraft of the United States Marine Corps. Rather than checking the fuel gauges on his aircraft, the teenager spends his precious preflight minutes preening. The youth’s concern for his coiffure appears to extend to his flying without a helmet. Finally, the teenager’s comment that flying a Harrier Jet to school “sure beats the bus” evinces an improbably insouciant attitude toward the relative difficulty and danger of piloting a fighter plane in a residential area, as opposed to taking public transportation.12

Third, the notion of traveling to school in a Harrier Jet is an exaggerated adolescent fantasy. In this commercial, the fantasy is underscored by how the teenager’s schoolmates gape in admiration, ignoring their physics lesson. The force of the wind generated by the Harrier Jet blows off one teacher’s clothes, literally defrocking an authority figure. As if to emphasize the fantastic quality of having a Harrier Jet arrive at school, the Jet lands next to a plebeian bike rack. This fantasy is, of course, extremely unrealistic. No school would provide landing space for a student’s fighter jet, or condone the disruption the jet’s use would cause.

Fourth, the primary mission of a Harrier Jet, according to the United States Marine Corps, is to “attack and destroy surface targets under day and night visual conditions.” United States Marine Corps, Factfile: AV-8B Harrier II (last modified Dec. 5, 1995) . Manufactured by McDonnell Douglas, the Harrier Jet played a significant role in the air offensive of Operation Desert Storm in 1991. See id. The jet is designed to carry a considerable armament load, including Sidewinder and Maverick missiles. See id. As one news report has noted, “Fully loaded, the Harrier can float like a butterfly and sting like a bee — albeit a roaring 14-ton butterfly and a bee with 9,200 pounds of bombs and missiles.” Jerry Allegood, Marines Rely on Harrier Jet, Despite Critics, News & Observer (Raleigh), Nov. 4, 1990, at Cl. In light of the Harrier Jet’s well-documented function in attacking and destroying surface and air targets, armed reconnaissance and air interdiction, and offensive and de-' fensive anti-aircraft warfare, depiction of such a jet as a way to get to school in the morning is clearly not serious even if, as plaintiff contends, the jet is capable of being acquired “in a form that eliminates [its] potential for military use.” (See Leonard Aff. ¶ 20.)

Fifth, the number of Pepsi Points the commercial mentions as required to “purchase” the jet is 7,000,000. To amass that number of points, one would have to drink 7,000,000 Pepsis (or roughly 190 Pepsis a day for the next hundred yeare — an unlikely possibility), or one would have to purchase approximately $700,000 worth of Pepsi Points. The cost of a Harrier Jet is roughly $28 million dollars, a fact of which plaintiff was aware when he set out to gather the amount he believed necessary to accept the alleged offer. (See Affidavit of Michael E. McCabe, 96 Civ. 5820, Aug. 14, 1997, Exh. 6 (Leonard Business Plan).) Even if an objective, reasonable person were not aware of this fact, he would conclude that purchasing a fighter plane for $700,000 is a deal too good to be true.13

*130Plaintiff argues that a reasonable, objective person would have understood the commercial to make a serious offer of a Harrier Jet because there was “absolutely no distinction in the manner” (Pl. Mem. at 13,) in which the items in the commercial were presented. Plaintiff also relies upon a press release highlighting the promotional campaign, issued by defendant, in which “[n]o mention is made by [defendant] of humor, or anything of the sort.” (Id. at 5.) These arguments suggest merely that the humor of the promotional campaign was tongue in cheek. Humor is not limited to what Justice Cardozo called “[t]he rough and boisterous joke ... [that] evokes its own guffaws.” Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483, 166 N.E. 173, 174 (1929). In light of the obvious absurdity of the commercial, the Court rejects plaintiffs argument that the commercial was not clearly in jest.

4. Plaintiff’s Demands for Additional Discovery

In his Memorandum of Law, and in letters to the Court, plaintiff argues that additional discovery is necessary on the issues of whether and how defendant reacted to plaintiffs “acceptance” of their “offer”; how defendant and its employees understood the commercial would be viewed, based on test-marketing the commercial or on their own opinions; and how other individuals actually responded to the commercial when it was aired. (See Pl. Mem. at 1-2; Letter of David E. Nachman to the Hon. Kimba M. Wood, Apr. 5,1999.)

Plaintiff argues that additional discovery is necessary as to how defendant reacted to his “acceptance,” suggesting that it is significant that defendant twice changed the commercial, the first time to increase the number of Pepsi Points required to purchase a Harrier Jet to 700,000,000, and then again to amend the commercial to state the 700,000,000 amount and add “(Just Kidding).” (See Pl. Stat. Exh C (700 Million), and Exh. D (700 Million— Just Kidding).) Plaintiff concludes that, “Obviously, if PepsiCo truly believed that no one could take seriously the offer contained in the original ad that I saw, this change would have been totally unnecessary and superfluous.” (Leonard Aff. ¶ 14.) The record does not suggest that the change in the amount of points is probative of the seriousness of the offer. The increase in the number of points needed to acquire a Harrier Jet may have been prompted less by the fear that reasonable people would demand Harrier Jets and more by the concern that unreasonable people would threaten frivolous litigation. Further discovery is unnecessary on the question of when and how the commercials changed because the question before the Court is whether the commercial that plaintiff saw and relied upon was an offer, not that any other commercial constituted an offer.

Plaintiffs demands for discovery relating to how defendant itself understood the offer are also unavailing. Such discovery would serve only to cast light on defendant’s subjective intent in making the alleged offer, which is irrelevant to the question of whether an objective, reasonable person would have understood the commercial to be an offer. See Kay-R Elec. Corp., 23 F.3d at 57 (“[W]e are not concerned with what was going through the heads of the parties at the time [of the alleged contract].”); Mesaros, 845 F.2d at 1581; Corbin on Contracts, § 1.11 at 30. Indeed, plaintiff repeatedly argues that defendant’s subjective intent is irrelevant. (See Pl. Mem. at 5, 8,13.)

Finally, plaintiffs assertion that he should be afforded an opportunity to determine whether other individuals also tried to accumulate enough Pepsi Points to “purchase” a Harrier Jet is unavailing. The possibility that there were other people who interpreted the commercial as an “offer” of a Harrier Jet does not render that belief any more or less reasonable. The alleged offer must be evaluated on its own terms. Having made the evaluation, *131the Court concludes that summary judgment is appropriate on the ground that no reasonable, objective person would have understood the commercial to be an offer.14

D. The Alleged Contract Does Not Satisfy the Statute of Frauds

The absence of any writing setting forth the alleged contract in this case provides an entirely separate reason for granting summary judgment. Under the New York15 Statute of Frauds,

a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.

N.Y.U.C.C. § 2-201(1); see also, e.g., AFP Imaging Corp. v. Philips Medizin Systeme, 92 Civ. 6211(LMM), 1994 WL 652510, at *4 (S.D.N.Y. Nov. 17, 1994). Without such a writing, plaintiffs claim must fail as a matter of law. See Hilord Chem. Corp. v. Ricoh Elecs., Inc., 875 F.2d 32, 36-37 (2d Cir.1989) (“The adequacy of a writing for Statute of Frauds purposes ‘must be determined from the documents themselves, as a matter of law.’ ”) (quoting Bazak Int’l. Corp. v. Mast Indus., Inc., 73 N.Y.2d 113, 118, 538 N.Y.S.2d 503, 535 N.E.2d 633 (1989)).

There is simply no writing between the parties that evidences any transaction. Plaintiff argues that the commercial, plaintiffs completed Order Form, and perhaps other agreements signed by defendant which plaintiff has not yet seen, should suffice for Statute of Frauds purposes, either singly or taken together. (See PI. Mem. at 18-19.) For the latter claim, plaintiff relies on Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 110 N.E.2d 551 (1953). Crabtree held that a combination of signed and unsigned writings would satisfy the Statute of Frauds, “provided that they clearly refer to the same subject matter or transaction.” Id. at 55, 110 N.E.2d 551. Yet the Second Circuit emphasized in Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8 (2d Cir.1989), that this rule “contains two strict threshold requirements.” Id. at 11. First, the signed writing relied upon must by itself establish “‘a contractual relationship between the parties.’” Id. (quoting Crabtree, 305 N.Y. at 56, 110 N.E.2d 551); see also O’Keeffe v. Bry, 456 F.Supp. 822, 829 (S.D.N.Y.1978) (“To the extent that Crab-tree permits the use of a ‘confluence of memoranda,’ the minimum condition for such use is the existence of one [signed] document establishing the basic, underlying contractual commitment.”). The second threshold requirement is that the unsigned writing must “ ‘on its face refer to the same transaction as that set forth in the one that was signed.’ ” Horn & Hardart, 888 F.2d at 11 (quoting Crabtree, 305 N.Y. at 56, 110 N.E.2d 551); see also Bruce Realty Co. of Florida v. Berger, 327 F.Supp. 507, 510 (S.D.N.Y.1971).

None of the material relied upon by plaintiff meets either threshold requirement. The commercial is not a writing; plaintiffs completed order form does not bear the signature of defendant, or an agent thereof; and to the extent that plaintiff seeks discovery of any contracts between defendant and its advertisers, such discovery would be unavailing: plain*132tiff is not a party to, or a beneficiary of, any such contracts. Because the alleged contract does not meet the requirements of the Statute of Frauds, plaintiff has no claim for breach of contract or specific performance.

E. Plaintiffs Fraud Claim

In addition to moving for summary judgment on plaintiffs claim for breach of contract, defendant has also moved for summary judgment on plaintiffs fraud claim. The elements of a cause of action for fraud are “ ‘representation of a material existing fact, falsity, scienter, deception and injury.’ ” New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 639 N.Y.S.2d 283, 662 N.E.2d 763 (1995) (quoting Channel Master Corp. v. Aluminium Ltd. Sales, Inc., 4 N.Y.2d 403, 407, 176 N.Y.S.2d 259, 262, 151 N.E.2d 833 (1958)).

To properly state a claim for fraud, “plaintiff must allege a misrepresentation or material omission by defendant, on which it relied, that induced plaintiff’ to perform an act. See NYU, 639 N.Y.S.2d at 289, 662 N.E.2d 763. “General allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support the claim.” See id. (citing Rocanova v. Equitable Life Assur. Soc’y, 83 N.Y.2d 603, 612 N.Y.S.2d 339, 634 N.E.2d 940 (1994)); see also Grappo v. Alitalia Linee Aeree Italiane, S.p.A., 56 F.3d 427, 434 (2d Cir.1995) (“A cause of action does not generally lie where the plaintiff alleges only that the defendant entered into a contract with no intention of performing it”). Instead, the plaintiff must show the misrepresentation was collateral, or served as an inducement, to a separate agreement between the parties. See Bridgestone/Firestone v. Recovery Credit, 98 F.3d 13, 20 (2d Cir.1996) (allowing a fraud claim where plaintiff “ ‘demonstrate^] a fraudulent misrepresentation collateral or extraneous to the contract’ ”) (quoting Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 510 N.Y.S.2d 88, 89, 502 N.E.2d 1003 (1986)).

For example, in Stewart v. Jackson & Nash, 976 F.2d 86 (2d Cir.1992), the Second Circuit ruled that plaintiff had properly stated a claim for fraud. In the course of plaintiffs negotiations for employment with defendant, a law firm, defendant represented to plaintiff not only that plaintiff would be hired (which she was), but also that the firm had secured a large environmental law client, that it was in the process of establishing an environmental law department, and that plaintiff would head the environmental law department. See id. at 89-90. The Second Circuit concluded that these misrepresentations gave rise to a fraud claim, because they consisted of misrepresentations of present fact, rather than future promises.

Plaintiff in this case does not allege that he was induced to enter into a contract by some collateral misrepresentation, but rather that defendant never had any intention of making good on its “offer” of a Harrier Jet. (See PI. 'Mem. at 23.) Because this claim “alleges only that the defendant entered into a contract with no intention of performing it,” Grappo, 56 F.3d at 434, judgment on this claim should enter for defendant.

III. Conclusion

In sum, there are three reasons why plaintiffs demand cannot prevail as a matter of law. First, the commercial was merely an advertisement, not a unilateral offer. Second, the tongue-in-cheek attitude of the commercial would not cause a reasonable person to conclude that a soft drink company would be giving away fighter planes as part of a promotion. Third, there is no writing between the parties sufficient to satisfy the Statute of Frauds.

For the reasons stated above, the Court grants defendant’s motion for summary judgment. The Clerk of Court is instructed to close these cases. Any pending motions are moot.

FRYE, Justice.

Defendant Hazel Miller owned real estate located in Charlotte, North Carolina. On 4 August 1980, the property was listed for sale with a local realtor, Gladys Hawkins. On that same day, Richard Byer, a real estate broker with the realty firm Gallery of Homes, showed the property to the prospective purchasers, Plaintiffs Normile and Kurniawan. Afterwards, Byer helped plaintiffs prepare a written offer to purchase the property. A Gallery of Homes form, entitled “Deposit Receipt AND CONTRACT for Purchase and Sale of Real Estate,” containing blanks for the insertion of terms pertinent to the purchasers’ offer, was completed in quadruplicate and signed by Normile and Kurniawan. One specific standard provision in Paragraph 9 included a blank that was filled in with the time and date to read as follows: “OFFER & Closing DATE: Time is of the essence, therefore this offer must be accepted on or before 5:00 p.m. Aug. 5th 1980. A signed copy shall be promptly returned to the purchaser.”

Byer took the offer to purchase form to Gladys Hawkins, who presented it to defendant. Later that evening, Gladys Hawkins returned the executed form to Byer. It had been signed under seal by defendant, with several changes in the terms having been made thereon and initialed by defendant. The primary changes made by defendant were an increase in the earnest money deposit ($100 to $500); an increase in the down payment due at closing ($875 to $1,000); a decrease in the unpaid principal of the existing mortgage amount ($18,525 to $18,000); a decrease in the term of the loan from seller (25 years to 20 years); and a purchaser qualification contingency added in the outer margin of the form.

That same evening, Byer presented defendant’s counteroffer to Plaintiff Normile. Byer testified in his deposition that Normile did not have $500 for the earnest money deposit, one of the requirements of defendant’s counteroffer. Also, Byer stated that Normile did not “want to go 25 [sic] years because he wanted lower payments.” Byer was under the impression at this point *100that Normile thought he had first option on the property and that “nobody else could put an offer in on it and buy it while he had this counteroffer, so he was going to wait awhile before he decided what to do with it.” Normile, however, neither accepted nor rejected the counteroffer at this point, according to Byer. When this meeting closed, Byer left the pink copy of the offer to purchase form containing defendant’s counteroffer with Normile. Byer stated that he thought that Normile had rejected the counteroffer at this point.

At approximately 12:30 a.m. on 5 August, Byer went to the home of Plaintiff Segal, who signed an offer to purchase with terms very similar to those contained in defendant’s counteroffer to Plaintiffs Normile and Kurniawan. This offer was accepted, without change, by defendant. Later that same day, at approximately 2:00 p.m., Byer informed Plaintiff Normile that defendant had revoked her counteroffer by commenting to Normile, “[Y]ou snooze, you lose; the property has been sold.” Prior to 5:00 p.m. on that same day, Normile and Kurniawan initialed the offer to purchase form containing defendant’s counteroffer and delivered the form to the Gallery of Homes’ office, along with the earnest money deposit of $500.

Separate actions were filed by plaintiff-appellants and -appellee seeking specific performance. Plaintiff Segal’s motion for consolidation of the trials was granted. Defendant, in her answer, recognized the validity of the contract between her and Plaintiff Segal. However, because of the action for specific performance commenced by Plaintiffs Normile and Kurniawan, defendant contended that she was unable to legally convey title to Plaintiff Segal. Both plaintiffs filed a motion for summary judgment. Plaintiff Segal’s motion for summary judgment was granted by the trial court, and defendant was ordered to specifically perform the contract to convey the property to Segal. Plaintiffs Normile and Kurniawan appealed to the Court of Appeals from the trial court’s denial of their motion for summary judgment. That court unanimously affirmed the trial court’s actions. Discretionary review was allowed by this Court on petition of Plaintiffs Normile and Kurniawan.

*101I.

[1] The first issue on this appeal is whether a time limit within which an offer must be accepted that is contained in a prospective purchaser’s written offer to purchase real property becomes a term of the seller’s subsequent counteroffer, transforming the counteroffer into an option contract or irrevocable offer for the time stated if signed under seal. We conclude that it does not.

Plaintiff-appellants argue that the counteroffer made by Defendant Miller to plaintiff-appellants became a binding and irrevocable option to purchase within the time for acceptance contained in their original offer to purchase. Essentially, plaintiff-appellants argue that the Court of Appeals was incorrect in holding that defendant’s counteroffer was not an irrevocable option because the “promise to hold the offer open until 5:00 p.m., 5 August 1980, was not supported by consideration, . . .” Normile, 63 N.C. App. at 694, 306 S.E. 2d at 150.

As a preliminary matter, it is obvious that the thrust of both the Court of Appeals’ and plaintiff-appellants’ arguments center around their analysis of whether or not the counteroffer from Defendant Miller to plaintiff-appellants constituted a binding and enforceable option contract for the period of time for acceptance stated and contained in plaintiff-appellants’ original offer to purchase form. This basic proposition seems to be premised upon the inaccurate notion that Defendant Miller’s “counteroffer provided that the offer would remain open until 5:00 p.m. on 5 August 1980 . . . .” Normile, 63 N.C. App. at 693, 306 S.E. 2d at 149. This same misconception is reflected in plaintiff-appellants’ brief where they state, without citing any legal authority:

It is basic that when one party makes another a written offer which the offeree changes in some respects, signs and returns, the offer becomes a counteroffer by the original offeree to the original offeror, which consists of the altered provisions and all of the unaltered provisions of the original offer. Thus, since the time limitation for acceptance was not altered, one of the provisions of the counteroffer was that the time for its acceptance would terminate at 5:00 p.m. August 5, 1980.

The counteroffer, being under seal, constituted a binding option to sell, irrevocable during the stated time limitation *102for its acceptance, and enforceable by specific performance upon its acceptance. (Emphasis added.)

We do not agree that defendant’s counteroffer to plaintiff-appellants subsumed all the provisions of the original offer from the prospective purchasers. To effectively explain this conclusion, we begin with a brief description of how a typical sale of real estate is consummated. The broker, whose primary duty is to secure a ready, willing, and able buyer for the seller’s property, generally initiates a potential sale by procuring the prospective purchaser’s signature on an offer to purchase instrument. J. Webster, North Carolina Real Estate for Brokers and Salesmen, § 8.03 (1974). “An ‘offer to purchase’ is simply an offer by a purchaser to buy property, . . .” J. Webster, supra, § 8.03. This instrument contains the prospective purchaser’s “offer” of the terms he wishes to propose to the seller. Id.

Usually, this offer to purchase is a printed form with blanks that are filled in and completed by the broker. Among the various clauses contained in such an instrument, it is not uncommon for the form to contain “a clause stipulating that the seller must accept the offer and approve the sale within a certain specified period of time, . . . The inclusion of a date within which the seller must accept simply indicates that the offer will automatically expire at the termination of the named period if the seller does not accept before then.” Id. § 8.10. Such a clause is contained in Paragraph 9 of the offer to purchase form in the case sub judice.

In the instant case, the offerors, plaintiff-appellants, submitted their offer to purchase defendant’s property. This offer contained a Paragraph 9, requiring that “this offer must be accepted on or before 5:00 p.m. Aug. 5th 1980.” Thus the offeree’s, defendant-seller’s, power of acceptance was controlled by the duration of time for acceptance of the offer. Restatement (Second) of Contracts § 35 (1981). “The offeror is the creator of the power, and before it leaves his hands, he may fashion it to his will ... if he names a specific period for its existence, the offeree can accept only during this period.” Corbin, Offer and Acceptance, and Some of the Resulting Legal Relations, 26 Yale L. J. 169, at 183 (1917); see Restatement, supra, § 41; S. Williston, A Treatise on the Law of Contracts § 53 (1957).

*103This offer to purchase remains only an offer until the seller accepts it on the terms contained in the original offer by the prospective purchaser. J. Webster, supra, § 8.10. If the seller does accept the terms in the purchaser’s offer, he denotes this by signing the offer to purchase at the bottom, thus forming a valid, binding, and irrevocable purchase contract between the seller and purchaser. However, if the seller purports to accept but changes or modifies the terms of the offer, he makes what is generally referred to as a qualified or conditional acceptance. Richardson v. Greensboro Warehouse & Storage Co., 223 N.C. 344, 26 S.E. 2d 897 (1943); Wilson v. W. M. Storey Lumber Co., 180 N.C. 271, 104 S.E. 531 (1920); 17 Am. Jur. 2d Contracts § 62 (1964). “The effect of such an acceptance so conditioned is to make a new counter-proposal upon which the parties have not yet agreed, but which is open for acceptance or rejection.” (Citations omitted.) Richardson, 223 N.C. at 347, 26 S.E. 2d at 899. Such a reply from the seller is actually a counteroffer and a rejection of the buyer’s offer. J. Webster, supra, § 8.10.

These basic principles of contract law are recognized not only in real estate transactions but in bargaining situations generally. It is axiomatic that a valid contract between two parties can only exist when the parties “assent to the same thing in the same sense, and their minds meet as to all terms.” Goeckel v. Stokely, 236 N.C. 604, 607, 73 S.E. 2d 618, 620 (1952). This assent, or meeting of the minds, requires an offer and acceptance in the exact terms and that the acceptance must be communicated to the offeror. Dodds v. St. Louis Union Trust Co., 205 N.C. 153, 170 S.E. 652 (1933). Goeckel, 236 N.C. 604, 73 S.E. 2d 618. “If the terms of the offer are changed or any new ones added by the acceptance, there is no meeting of the minds and, consequently, no contract.” G. Thompson, supra, § 4452. This counteroffer amounts to a rejection of the original offer. S. Williston, supra, § 51. “The reason is that the counteroffer is interpreted as being in effect the statement by the offeree not only that he will enter into the transaction on the terms stated in his counteroffer, but also by implication that he will not assent to the terms of the original offer.” Id. § 36.

The question then becomes, did defendant-seller accept plaintiff-appellants’ offer prior to the expiration of the time limit contained within the offer? We conclude that she did not. The of*104feree, defendant-seller, changed the original offer in several material respects, most notably in the terms regarding payment of the purchase price. S. Williston, supra, § 77 (any alteration in the method of payment creates a conditional acceptance). This qualified acceptance was in reality a rejection of the plaintiff-appellants original offer because it was coupled with certain modifications or changes that were not contained in the original offer. G. Thompson, supra, § 4452. Additionally, defendant-seller’s conditional acceptance amounted to a counteroffer to plaintiff-appellants. “A counter-offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer.” Restatement, supra, § 39. Between plaintiff-appellants and defendant-seller there was no meeting of the minds, since the parties failed to assent to the same thing in the same sense.

In substance, defendant’s conditional acceptance modifying the original offer did not manifest any intent to accept the terms of the original offer, including the time-for-acceptance provision, unless and until the original offeror accepted the terms included in defendant’s counteroffer. The offeree, by failing to unconditionally assent to the terms of the original offer and instead qualifying his acceptance with terms of his own, in effect says to the original offeror, “I will accept your offer; provided you [agree to my proposed terms].” Rucker v. Sanders, 182 N.C. 607, 609, 109 S.E. 857, 858 (1921). Thus, the time-for-acceptance provision contained in plaintiff-appellants’ original offer did not become part of the terms of the counteroffer. And, of course, if they had accepted the counteroffer from defendant, a binding purchase contract, which would have included the terms of the original offer and counteroffer, would have resulted. J. Webster, supra, § 8.03.

Plaintiff-appellants further argue that the Court of Appeals should not have looked behind the seal to determine that there was no actual consideration given by plaintiff-appellants, thus rendering the offer revocable prior to 5:00 p.m., August 5. Having previously determined that the terms of defendant’s counteroffer did not include the time-for-acceptance provision contained in the original offer, it is unnecessary to address plaintiff-appellants’ primary argument that defendant’s signature under seal is sufficient consideration to support an option contract and render it ir*105revocable for the stated period of time. Without addressing this precise issue, we do wish to make certain observations collateral to this argument about the nature of an option contract to further demonstrate why defendant’s counteroffer was not an irrevocable option.

It is generally recognized that “[a]n ‘option’ is a contract by which the owner agrees to give another the exclusive right to buy property at a fixed price within a specified time.” 8A G. Thompson, Commentaries on the Modern Law of Real Property, § 4443 (1963); Sandlin v. Weaver, 240 N.C. 703, 83 S.E. 2d 806 (1954). In effect, an owner of property agrees to hold his offer open for a specified period of time. G. Thompson, supra, § 4443. This option contract must also be supported by valuable consideration. Id. Disregarding the issue of consideration, it is more significant that defendant’s counteroffer did not contain any promise or agreement that her counteroffer would remain open for a specified period of time.

Several of the cases cited by plaintiff-appellants are useful in illustrating how a seller expressly agrees to hold his offer open. For instance, in Ward v. Albertson, 165 N.C. 218, 81 S.E. 168 (1914), this Court stated, “An option, in the proper sense, is a contract by which the owner of property agrees with another that he shall have the right to purchase the same at a fixed price within a certain time.” Id. at 222-23, 81 S.E. at 169. In that case, defendant-seller had agreed in writing as follows: “. . . I agree that if [prospective purchaser] pays me nine hundred and ninety-five dollars prior to January 1, 1913, to convey to him all the timber and trees . . . .” Id. at 219, 81 S.E. at 168. Similarly, in Thomason v. Bescher, 176 N.C. 622, 97 S.E. 654 (1918), defendant-seller agreed in writing: “. . . we, J. C. and W. M. Bescher, do hereby contract and agree with said [prospective purchaser] to sell and convey ... all that certain tract ... at his or their request on or before the 18th day of August, 1917 . . .” Id. at 624, 97 S.E. at 654. And finally, in Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976), defendant-sellers agreed in writing: “. . . we C. F. Early and Bessie D. Early, hereby irrevocably agree to convey to [prospective purchasers] upon demand by him within 30 days from the date hereof, ... a certain tract or parcel of land . . . .” Id. at 346, 222 S.E. 2d at 396.

*106In each of these three cases, this Court recognized that the sellers had given the prospective purchasers a contractual option to purchase the seller’s property. In the present case we find no comparable language within defendant-seller’s counteroffer manifesting any similar agreement. There is no language indicating that defendant-seller in any way agreed to sell or convey her real property to plaintiff-appellants at their request within a specified period of time. There is, however, language contained within the prospective purchasers’ offer to purchase that does state, “DESCRIPTION: I/we Michael M. Normile and Wawie Kurniawan hereby agree to purchase from the sellers, . . .” and “this offer must be accepted on or before 5:00 p.m. Aug. 5th 1980.” (Emphasis added.) Nowhere is there companion language to the effect that Defendant Miller “hereby agrees to sell or convey to the purchasers” if they accept by a certain date.

Therefore, regardless of whether or not the seal imported the necessary consideration, we conclude that defendant-seller made no promise or agreement to hold her offer open. Thus, a necessary ingredient to the creation of an option contract, ie., a promise to hold an offer open for a specified time, is not present. Accordingly, we hold that defendant’s counteroffer was not transformed into an irrevocable offer for the time limit contained in the original offer because the defendant’s conditional acceptance did not include the time-for-acceptance provision as part of its terms and because defendant did not make any promise to hold her counteroffer open for any stated time.

II.

[2] The foregoing preliminary analysis of both the Court of Appeals’ opinion and plaintiff-appellants’ argument in their brief prefaces what we consider to be decisive of the ultimate issue to be resolved. Basic contract principles effectively and logically answer the primary issue in this appeal. That is, if a seller rejects a prospective purchaser’s offer to purchase but makes a counteroffer that is not accepted by the prospective purchaser, does the prospective purchaser have the power to accept after he receives notice that the counteroffer had been revoked? The answer is no. The net effect of defendant-seller’s counteroffer and rejection is twofold. First, plaintiff-appellants’ original offer was rejected and ceased to exist. S. Williston, supra, § 51. Secondly, the counterof*107fer by the offeree requires the original offeror, plaintiff-appellants, to either accept or reject. Benya v. Stevens & Thompson Paper Co., Inc., 143 Vt. 521, 468 A. 2d 929 (1983).

Accordingly, the next question is did plaintiff-appellants, the original offerors, accept or reject defendant-seller’s counteroffer? Plaintiff-appellants in their brief seem to answer this question when they state, “At the time Byer presented the counteroffer to Normile, Normile neither accepted nor rejected it . . . .” Therefore, plaintiff-appellants did not manifest any intent to agree to or accept the terms contained in defendant’s counteroffer. Normile instead advised Byer that he, though mistakenly, had an option on the property and that it was off the market for the duration of the time limitation contained in his original offer. As was stated by Justice Bobbitt in Howell v. Smith, 258 N.C. 150, 128 S.E. 2d 144 (1962): “ ‘The question whether a contract has been made must be determined from a consideration of the expressed intention of the parties — that is from a consideration of their words and acts.’ ” Id. at 153, 128 S.E. 2d at 146. Although Normile’s mistaken belief that he had an option is unfortunate, he still failed to express to Byer his agreement to or rejection of the counteroffer made by defendant-seller.

A recent decision by the Supreme Court of Vermont based on similar facts is instructive to this Court in reaching its decision in the present case. In Benya v. Stevens & Thompson Paper Co., Inc., 143 Vt. 521, 468 A. 2d 929 (1983), a real estate broker, at plaintiff-buyer’s request, prepared an offer to purchase property of defendant-seller. Defendant, when presented with plaintiff’s offer, made several modifications, which included changes in the terms regarding the deposit, cash at closing, interest rate, and payment terms. These changes were initialed by defendant, and the offer to purchase was mailed back for plaintiffs consideration. Plaintiff did not agree with some of the modifications and advised his attorney to execute a new offer to purchase, a third proposal. Defendant did not execute or respond to the terms contained in the second offer from plaintiff, since he had sold the property to a second purchaser in the interim. The trial court concluded that the first offer to purchase, having been signed by both the parties, constituted a valid contract. However, the Vermont Supreme Court disagreed.

*108The court, after citing the law relevant to offer and acceptance, determined that defendant’s alteration of the terms contained in plaintiffs original offer to purchase did not constitute an acceptance but a counteroffer. After concluding that the counteroffer required that the original offeror either accept or reject it, the court stated, “The offeror’s acceptance of the offeree’s counteroffer may be accomplished either expressly or by conduct.” (Citations omitted.) Id. at 523, 468 A. 2d at 931. After examining the record, the court concluded “that plaintiff never accepted, either expressly or otherwise, defendant’s counteroffer.” Id. The court was of the opinion that plaintiffs decision to draft a third proposal after receiving defendant’s counteroffer was not evidence of plaintiffs acceptance of such counteroffer. Furthermore, defendant did not express his assent to this third proposal. Therefore, there was no contract based upon that document either.

[3] Plaintiff-appellants in the instant case, as plaintiff in Benya, did not accept, either expressly or by conduct, defendant’s counteroffer. In addition to disagreeing with the change in payment terms, Normile stated to Byer that “he was going to wait awhile before he decided what to do with [the counteroffer].” Neither did plaintiffs explicitly reject defendant’s counteroffer. Instead, plaintiff-appellants in this case chose to operate under the impression, though mistaken, that they had an option to purchase and that the property was “off the market.” Absent either an acceptance or rejection, there was no meeting of the minds or mutual assent between the parties, a fortiori, there was no contract. Horton v. Humble Oil & Refining Co., 255 N.C. 675, 122 S.E. 2d 716 (1961); Goeckel, 236 N.C. 604, 73 S.E. 2d 618 (1952).

It is evident from the record that after plaintiff-appellants failed to accept defendant’s counteroffer, there was a second purchaser, Plaintiff-appellee Segal, who submitted an offer to defendant that was accepted. This offer and acceptance between the latter parties, together with consideration in the form of an earnest money deposit from plaintiff-appellee, ripened into a valid and binding purchase contract.

By entering into the contract with Plaintiff-appellee Segal, defendant manifested her intention to revoke her previous counteroffer to plaintiff-appellants. “It is a fundamental tenet of the *109common law that an offer is generally freely revocable and can be countermanded by the offeror at any time before it has been accepted by the offeree.” E. Farnsworth, Contracts, § 3.17 (1982); Restatement, supra, § 42. The revocation of an offer terminates it, and the offeree has no power to revive the offer by any subsequent attempts to accept. G. Thompson, supra, § 4452.

Generally, notice of the offeror’s revocation must be communicated to the offeree to effectively terminate the offeree’s power to accept the offer. It is enough that the offeree receives reliable information, even indirectly, “that the offeror had taken definite action inconsistent with an intention to make the contract.” E. Farnsworth, supra, § 3.17 (the author cites Dickinson v. Dodds, 2 Ch. Div. 463 (1876), a notorious English case, to support this proposition); Restatement, supra, § 43.

In this case, plaintiff-appellants received notice of the offeror’s revocation of the counteroffer in the afternoon of August 5, when Byer saw Normile and told him, “[Y]ou snooze, you lose; the property has been sold.” Later that afternoon, plaintiff-appellants initialed the counteroffer and delivered it to the Gallery of Homes, along with their earnest money deposit of $500. These subsequent attempts by plaintiff-appellants to accept defendant’s revoked counteroffer were fruitless, however, since their power of acceptance had been effectively terminated by the offeror’s revocation. Restatement, supra, § 36. Since defendant’s counteroffer could not be revived, the practical effect of plaintiff-appellants’ initialing defendant’s counteroffer and leaving it at the broker’s office before 5:00 p.m. on August 5 was to resubmit a new offer. This offer was not accepted by defendant since she had already contracted to sell her property by entering into a valid, binding, and irrevocable purchase contract with Plaintiff-appellee Segal.

For the reasons stated herein, the decision of the Court of Appeals is

Modified and affirmed.

Justice VAUGHN did not participate in the consideration or decision of this case.

Kellogg, J.

The evidence given upon the trial sanctions the following statement of facts: John Petterson, of whose last will and testament the plaintiff is the executrix, was the owner of a parcel of real estate in Brooklyn, known as 5301 Sixth avenue. The defendant was the owner of a bond executed by Petterson, which was secured by a third mortgage upon the parcel. On April 4th, 1924, there remained unpaid upon the principal the sum of $5,450. This amount was payable in installments of $250 on April 25th, 1924, and upon a like monthly date every three months thereafter Thus the bond and mortgage had more than five years to run before the entire sum became due. Under date of the 4th of April, 1924, the defendant wrote Petterson as follows: “ I hereby agree to accept cash for the mortgage which I hold against premises 5301 6th Ave., Brooklyn, N. Y. It is understood and agreed as a consideration I will allow you $780 providing said mortgage is paid on or before May 31, 1924, and che regular quarterly payment due April 25, 1924, is paid when due.” On April 25, 1924, Petterson paid the defendant the installment of principal due on that date. Subsequently, on a day in the latter part of May, 1924, Petterson presented himself at the defendant’s home, and knocked at the door. The defendant *88demanded the name of his caller. Petterson replied: “ It is Mr. Petterson. I have come to pay off the mortgage.” The defendant answered that he had sold the mortgage. Petterson stated that he would like to talk with the defendant, so the defendant partly opened the door. Thereupon Petterson exhibited the cash and said he was ready to pay off the mortgage according to the agreement. The defendant refused to take the money. Prior to this conversation Petterson had made a contract to sell the land to a third person free and clear of the mortgage to the defendant. Meanwhile, also, the defendant had sold the bond and mortgage to a third party. It, therefore, became necessary for Petterson to pay to such person the full amount of the bond and mortgage. It is claimed that he thereby sustained a loss of $780, the sum which the defendant agreed to allow upon the bond and mortgage if payment in full of principal, less that sum, was made on or before May 31st, 1924. The plaintiff has had a recovery for the sum thus claimed, with interest.

Clearly the defendant’s letter proposed to Petterson the making of a unilateral contract, the gift of a promise in exchange for the performance of an act. The thing conditionally promised by the defendant was the reduction of the mortgage debt. The act requested to be done, in consideration of the offered promise, was payment in full of the reduced principal of the debt prior to the due date thereof. “ If an act is requested, that very act and no other must be given.” (Williston on Contracts, sec. 73.) “ In case of offers for a consideration, the performance of the consideration is always deemed a condition.” (Langdell’s Summary of the Law of Contracts, sec. 4.) It is elementary that any offer to enter into a unilateral contract may be withdrawn before the act requested to be done has been performed. (Williston on Contracts, sec. 60; Langdell’s Summary, sec. 4; Offord v. Davies, 12 C. B. [N. S.] 748.) A bidder at a sheriff’s sale may revoke his bid at any time before the property *89is struck down to him. (Fisher v. Seltzer, 23 Penn. St. 308.) The offer of a reward in consideration of an act to be performed is revocable before the very act requested has been done. (Shuey v. United States, 92 U. S. 73; Biggers v. Owen, 79 Ga. 658; Fitch v. Snedaker, 38 N. Y. 248.) So, also, an offer to pay a broker commissions, upon a sale of land for the offeror, is revocable at any time before the land is sold, although prior to revocation the broker performs services in an effort to effectuate a sale. (Stensgaard v. Smith, 43 Minn. 11; Smith v. Cauthen, 98 Miss. 746.) An interesting question arises when, as here, the offeree approaches the offeror with the intention of proffering performance and, before actual tender is made, the offer is withdrawn. Of such a case Williston says: “ The offeror may see the approach of the offeree and know that an acceptance is contemplated. If the offeror can say ‘ I revoke ’ before the offeree accepts, however brief the interval of time between the two acts, there is no escape from the conclusion that the offer is terminated.” (Williston on Contracts, sec. 60-b.) In this instance Petterson, standing at the door of the defendant’s house, stated to the defendant that he had come to pay off the mortgage. Before a tender of the necessary moneys had been made the defendant informed Petterson that he bad sold the mortgage. That was a definite notice to Petterson that the defendant could not perform his offered promise and that a tender to the defendant, who was no longer the creditor, would be ineffective to satisfy the debt. “An offer to sell property may be withdrawn before acceptance without any formal notice to the person to whom the offer is made. It is sufficient if that person has actual knowledge that the person who made the offer has done some act inconsistent with the continuance of the offer, such as selling the property to a third person.” (Dickinson v. Dodds, 2 Ch. Div. 463, headnote.) To the same effect is Coleman v. Applegarth (68 Md. 21). Thus, it clearly appears that the defendant’s offer was *90withdrawn before its acceptance had been tendered. It is unnecessary to determine, therefore, what the legal situation might have been had tender been -made before withdrawal. It is the individual view of the writer that the same result would follow. This would be so, for the act requested to be performed was the completed act of payment, a thing incapable of performance unless assented to by the person to be paid. (Williston on Contracts, sec. 60-b.) Clearly an offering party has the right to name the precise act performance of which would convert his offer into a binding promise. Whatever the act may be until it is performed the offer must be revocable. However, the supposed case is not before us for decision. We think that in this particular instance the offer of the defendant was withdrawn before it became a binding promise, and, therefore, that no contract was ever made for the breach of which the plaintiff may claim damages.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Lehman, J.

(dissenting). The defendant’s letter to Petterson constituted a promise on his part to accept payment at a discount of the mortgage he held, provided the mortgage is paid on or before May 31st, 1924. Doubtless by the terms of the promise itself, the defendant made payment of the mortgage by the plaintiff, before the stipulated time, a condition precedent to performance by the defendant of his promise to accept payment at a discount. If the condition precedent has not been performed, it is because the defendant made performance impossible by refusing to accept payment, when the plaintiff came with an offer of immediate performance. “ It is a principle of fundamental justice that if a promisor is himself the cause of the failure of performance either of an obligation due him or of a condition upon which his own liability depends, he cannot take advantage of the failure.” (Williston on Contracts, *91section 677.) The question in this case is not whether payment of the mortgage is a condition precedent to the performance of a promise made by the defendant, but, rather, whether at the time the defendant refused the offer of payment, he had assumed any binding obligation, even though subject to condition.

•The promise made by the defendant lacked consideration at the time it was made. Nevertheless the promise was not made as a gift or mere gratuity to the plaintiff. It was made for the purpose of obtaining from the defendant something which the plaintiff desired. It constituted an offer which was to become binding whenever the plaintiff should give, in return for the defendant’s promise, exactly the consideration which the defendant requested.

Here the defendant requested no counter promise from the plaintiff. The consideration requested by the defendant for his promise to accept payment was, I agree, some act to be performed by the plaintiff. Until the act requested was performed, the defendant might undoubtedly revoke his offer. Our problem is to determine from the words of the letter read in the light of surrounding circumstances what act the defendant requested as consideration for his promise.

The defendant undoubtedly made his offer as an inducement to the plaintiff to “ pay ” the mortgage before it was due. Therefore, it is said, that “ the act requested to be performed was the completed act of payment, a thing incapable of performance unless assented to by the person to be paid.” In unmistakable terms the defendant agreed to accept payment, yet we are told that the defendant intended, and the plaintiff should have understood, that the act requested by the defendant, as consideration for his promise to accept payment, included performance by the defendant himself of the very promise for which the act was to be consideration. The defendant’s promise was to become binding only when fully performed; and part of the consideration to be furnished *92by the plaintiff for the defendant’s promise was to be the performance of that promise by the defendant. So construed, the defendant’s promise or offer, though intended to induce action by the plaintiff, is but a snare and delusion. The plaintiff could not reasonably suppose that the defendant was asking him to procure the performance by the defendant of the very act which the defendant promised to do, yet we are told that even after the plaintiff had done all else which the defendant requested, the defendant’s promise was still not binding because the defendant chose not to perform.

I cannot believe that a result so extraordinary could have been intended when the defendant wrote the letter. “ The thought behind the phrase proclaims itself misread when the outcome of the reading is injustice or absurdity.” (See opinion of Cardozo, Ch. J., in Surace v. Danna, 248 N. Y. 18.) If the defendant intended to induce payment by the plaintiff and yet reserve the right to refuse payment when offered he should have used a phrase better calculated to express his meaning than the words: “I agree to accept.” A promise to accept payment, by its very terms, must necessarily become binding, if at all, not later than when a present offer to pay is made.

I recognize that in this case only an offer of payment, and not a formal tender of payment, was made before the defendant withdrew his offer to accept payment. Even the plaintiff’s part in the act of payment was then not technically complete. Even so, under a fair construction of the words of the letter I think the plaintiff had done the act which the defendant requested as consideration for his promise. The plaintiff offered to pay with present intention and ability to make that payment. A formal tender is seldom made in business transactions, except to lay the foundation for subsequent assertion in a court of justice of rights which spring from refusal of the tender. If the defendant acted in good faith in making his offer to accept payment, he could not well *93have intended to draw a distinction in the act requested of the plaintiff in return, between an offer which unless refused would ripen into completed payment, and a formal tender. Certainly the defendant could not have expected or intended that the plaintiff would make a formal tender of payment without first stating- that he had come to make payment. We should not read into the language of the defendant’s offer a meaning which would prevent enforcement of the defendant’s promise after it had been accepted by the plaintiff in the very way which the' defendant must have intended it should be accepted, if he acted in good faith.

The judgment should be affirmed.

Cardozo, Ch. J., Pound, Crane and O’Brien, JJ., concur with Kellogg, J.; Lehman, J., dissents in opinion, in which Andrews, J., concurs. '

Judgments reversed, etc.

CRANE, Presiding Judge.

Defendant real estate brokerage firm appeals from a judgment entered on a jury verdict awarding defendant’s former salesperson $24,748.89 as damages for breach of a *656bonus agreement. Defendant claims that the salesperson failed to make a submissible case in that she did not accept the bonus offer before it was revoked. Defendant also asserts trial court errors relating to instructions, evidence, and closing argument. We affirm.

Plaintiff, Mary Ellen Cook, a licensed real estate agent, worked as a real estate salesperson or agent pursuant to a verbal agreement for defendant Coldwell Banker/Frank Laiben Realty Co. and its predecessors. Plaintiff listed and sold real estate for defendant as an independent contractor. Frank Laiben was a co-owner of defendant.

At a sales meeting in March, 1991, defendant, through Laiben, orally announced a bonus program in order to remain competitive with other local brokerage firms and to retain its agents. The bonus program provided that an agent earning $15,000.00 in commissions would receive a $500.00 bonus payable immediately, an agent earning $15,-000.00 to $25,000.00 in commissions would receive a twenty-two percent bonus, and an agent earning above $25,000.00 in commissions would receive a thirty percent bonus. Bonuses over the first $500.00 were to be paid at the end of the year. The first year of the program would be January 1, 1991 to December 31, 1991 and it would continue on an annual basis after that. Laiben kept track of the agents’ earnings in a separate bonus account.

At the end of April, 1991, plaintiff surpassed $15,000.00 in earnings, entitling her to a $500.00 bonus which defendant paid to her in September, 1991. By September, 1991 plaintiff surpassed $32,400.00 in commissions.

At another sales meeting in September, 1991, Laiben indicated that bonuses would be paid at a banquet to be held in March of the following year instead of at the end of the year. Plaintiff asked if that meant that an agent had to be “here” in March in order to collect the bonus. Laiben indicated that was what it meant. Plaintiff testified that, at the time of the change in the bonus agreement, she had no intention of leaving defendant, but stayed with defendant until the end of 1991 in rebanee on the promise of a bonus.

During 1991 plaintiff was contacted about joining Remax, another real estate brokerage firm. Although she was not initially interested, in January, 1992 she accepted a position with Remax and advised Laiben of her departure. Laiben informed her that she would not be receiving her bonus. At the end of 1991, plaintiff had total earnings of $75,638.47, which made her eligible for a combined bonus of $17,391.54. After placing her license with Remax, plaintiff finished closing four or five contracts that she had been working on prior to leaving defendant. In March, 1992 plaintiff sent a demand letter to defendant, seeking payment for the bonus she bebeved she had earned. Defendant did not pay plaintiff.

On December 17, 1992 plaintiff filed an action against defendant for breach of a bonus contract, seeking damages in the amount of $18,404.31. She amended this petition to include prejudgment interest. At trial Lai-ben denied that at the March meeting he had stated the bonuses would be paid at the end of the year and testified that at that meeting he had told the agents the bonuses would not be paid until the following March. The jury returned a verdict in favor of plaintiff and awarded her damages in the amount of $24,-748.89. The court entered judgment in this amount.

In its first point defendant contends that the trial court erred in overruling its motions for directed verdict because plaintiff failed to make a submissible case of breach of the bonus agreement. In particular, defendant argues that plaintiff did not adduce sufficient evidence to estabbsh a reasonable inference that 1) she tendered consideration to support defendant’s offer of a bonus, or that 2) she accepted defendant’s offer to give a bonus.

A directed verdict is a drastic action and should only be granted where reasonable and honest persons could not differ on a correct disposition of the case. Seidel v. Gordon A Gundaker Real Estate Co., 904 S.W.2d 357, 361 (Mo.App.1995). In determining whether a plaintiff has made a sub-missible ease in a contract action, we view the evidence in a light most favorable to plaintiff, presume plaintiffs evidence is true, and give plaintiff the benefit of ab reasonable *657and favorable inferences to be drawn from the evidence. Gateway Exteriors Inc. v. Suntide Homes Inc., 882 S.W.2d 275, 279 (Mo.App.1994).

Plaintiff adduced evidence of a unilateral contract offered in March, 1991 to pay a bonus under certain conditions at the end of the year. She also adduced evidence that in September, 1991 defendant attempted to revoke that offer and make the bonus contingent upon the agent’s remaining until March of the following year.

A unilateral contract is a contract in which performance is based on the wish, will, or pleasure of one of the parties. Klamen v. Genuine Parts Co., 848 S.W.2d 88, 40 (Mo.App.1993). A promisor does not receive a promise as consideration for his or her promise in a unilateral contract. Id. A unilateral contract lacks consideration for want of mutuality, but when the promisee performs, consideration is supplied, and the contract is enforceable to the extent performed. Leeson v. Etchison, 650 S.W.2d 681, 684 (Mo.App.1983). An offer to make a unilateral contract is accepted when the requested performance is rendered. Nilsson v. Cherokee Candy & Tobacco Co., 639 S.W.2d 226, 228 (Mo.App.1982). A promise to pay a bonus in return for an at-will employee’s continued employment is an offer for a unilateral contract which becomes enforceable when accepted by the employee’s performance. Id. at 228.

In the absence of any contract to the contrary, plaintiff could terminate her relationship with defendant at any time and was not obligated to earn a certain level of commissions. There was sufficient evidence that the bonus offer induced plaintiff to remain with defendant through the end of 1991 and to earn a high level of commissions for the court to submit the issue of acceptance by performance to the jury.

Defendant next argues that it was free to revoke the first offer with the second offer because, as of the time the second offer was made, plaintiff had not yet accepted the first offer. Defendant maintains that, because plaintiff did not stay until March, 1992, she did not accept the second offer and thus, did not earn the bonus.

Generally, an offeror may withdraw an offer at any time prior to acceptance unless the offer is supported by consideration. Coffman Industries, Inc. v. Gorman-Taber Co., 521 S.W.2d 763, 772 (Mo.App.1975). However, an offeror may not revoke an offer where the offeree has made substantial performance. Id. (citing IWilliston on Contracts, Third Edition Section 60A (1957)). Coffman set out the general rule of law as follows:

Where one party makes a promissory offer in such form that it can be accepted by the rendition of the performance that is requested in exchange, without any express return promise or notice of acceptance in words, the offeror is bound by a contract just as soon as the offeree has rendered a substantial part of that requested performance.

1 Corbin on Contracts Section 49 (1952), quoted in Coffman, 521 S.W.2d at 772. The court stated the rationale for the rule as follows:

The main offer includes a subsidiary promise, necessarily implied, that if part of the requested performance is given, the offer- or will not revoke his offer, and that if tender is made it will be accepted. Part performance or tender may thus furnish consideration for the subsidiary promises. Moreover, merely acting in justifiable reliance on an offer may in some cases serve as sufficient reason for making a promise binding. (Emphasis supplied.)

Restatement [First] of Contracts Section 45 cmt. b (1932), quoted in Coffman, 521 S.W.2d at 772. Thus, in the context of an offer for unilateral contract, the offer may not be revoked where the offeree has accepted the offer by substantial performance. Id. at 771-72.

In this case there was evidence that, before the offer was modified in September, 1991, plaintiff had remained with defendant and had earned over $32,400.00 in commissions, making her eligible for the offered bonus. This constitutes sufficient evidence of substantial performance.

*658Plaintiff adduced evidence that defendant offered to pay a bonus at the end of 1991 if she would continue to work for it, that she stayed through 1991 with an intent to accept the offer, that she sold and listed enough property to qualify for all three bonus levels, that defendant knew of plaintiffs performance, that defendant paid $500.00 of the bonus but did not pay the remainder, and that she was damaged. This evidence was sufficient to make a submissible case for breach of a unilateral contract. Point one is denied.

In its second point defendant asserts that the trial court erred in submitting Instruction No. 6, the verdict director, because 1) it failed to require the jury to find that there was sufficient consideration to support the agreement, 2) it used the word “he” in paragraph four and thus, the jury would have been thinking and directing its verdict towards Frank Laiben as opposed to the true defendant corporation, and 3) the term “performance” was not defined.

Only the first claim of error is preserved for review. The second ground was not raised at trial and therefore, review is precluded by Rule 70.03. Seidel, 904 S.W.2d at 364. Where the alleged error relating to an instruction differs from the objection made at trial, the error may not be reviewed on appeal. Id. The third ground was not addressed in the argument section of defendant’s brief and thus, is not preserved for review. Unlimited Equip. Lines v. Graphic Arts Centre Inc., 889 S.W.2d 926, 942 (Mo.App.1994).

Defendant claims that Instruction No. 6 improperly failed to submit whether there was sufficient consideration or any consideration to support the alleged agreement. Instruction No. 6 was based on M.A.I 26.01, “Verdict Directing-Breach of Unilateral Contract.” It properly submitted that the jury must find performance with intent to accept the offer as an element for breach of a unilateral contract. A separate finding of consideration was not necessary. Point two is denied.

In its third point defendant contends that the trial court erred in instructing defendant’s counsel not to argue lack of consideration in its closing argument. Defendant’s point does not state wherein or why this is error. Rule 84.04 requires that the points relied on state “wherein and why” the action of the court is claimed to be erroneous. Jefferson v. Bick, 872 S.W.2d 115,118 (Mo.App. 1994). Failure to state wherein and why the court’s action was erroneous leaves defendant’s point unpreserved for review. Id.

Further there is no plain error. Defendant contends that it was entitled to argue that plaintiff did not give consideration to support a unilateral contract before the second sales meeting. In this case the jury was instructed to find that “[p]laintiff performed the acts called for in such offer with intent to accept such offer[.]” The court advised defendant’s counsel:

You can argue that she didn’t do what was asked for and therefore she isn’t entitled to recover. Certainly you can do that under the facts that have been presented. I’d just as soon you didn’t use the word consideration. You can argue this without getting into consideration here because if the jury believes each and every one of the elements in the plaintiffs verdict director, the law presumes consideration, if those elements are present.

This ruling did not prevent defendant’s counsel from arguing the facts and law relating to the elements contained in the verdict directing instruction. The trial court did not plainly err in not allowing counsel to argue lack of consideration, a legal concept not used or defined in the submitted jury instructions. Point three is denied.

For its fourth point defendant contends that the trial court erred in overruling its objection to plaintiffs closing argument and in improperly commenting on its argument. Again this point relied on fails to state wherein and why these actions were error and preserves nothing for review. Jefferson, 872 S.W.2d at 118. We have reviewed for plain error and find none.

Defendant complains about the following exchange during plaintiffs closing argument:

Plaintiffs Counsel: Is it surprising that when she went in and told him that she *659was quitting, she thought she was gonna [sic] have to fight to get her bonus? She had to fight for the first five hundred dollars, from April to September.

Defendant’s Counsel: Objection, Judge. Outside the scope of the pleadings, no evidence to support that allegation.

The Court: There’s a reasonable inference may be drawn by the jury.

The trial court did not err in overruling the objection. The evidence adduced at trial showed that 1) plaintiff had earned her $500.00 bonus in April, 1991, 2) according to defendant’s bonus program, the $500.00 bonus was payable immediately upon earning $15,000.00 in commissions, and 3) she did not receive it until September, 1991. Counsel could suggest from these facts that plaintiff had to fight for her $500.00 bonus.

With respect to the court’s own comment, defense counsel did not object or request a mistrial and therefore, did not preserve any error for review. Point four is denied.

In its fifth point defendant asserts that the trial court erred in excluding evidence of its earnings during the time in question because that evidence was admissible under the doctrine of curative admissibility. This error is not preserved for review because defendant did not urge that the evidence was admissible on the grounds of curative admissibility at trial or in its motion for new trial. On appeal a party may not advance an objection different from that stated at trial. McHaffie v. Bunch, 891 S.W.2d 822, 830 (Mo. banc 1995).

We have reviewed for plain error and find none. Defendant argues that the jury was misled at trial by Laiben’s testimony, given in response to plaintiffs counsel’s question, that defendant was making forty-three percent on all of its agents’ sales. Defendant maintains that it should have been able to offer proof of its losses in order to cure the misperception that it was making a lot of money. Defendant was not entitled to the admission of this evidence under the doctrine of curative admissibility. The doctrine of curative admissibility permits a party to reply to inadmissible evidence introduced by an opposing party with similar evidence where its introduction would cure any unfair prejudice created by the admission of the inadmissible evidence. IMR Corp. v. Hemphill, 926 S.W.2d 542, 545 (Mo.App.1996). The testimony relating to defendant’s commission structure was relevant and not inadmissible. Point five is denied.

In its final point defendant contends that the trial court erred in sustaining plaintiffs objection to evidence regarding the nature and history of the bonus plan defendant selected. Defendant argues that this evidence was admissible under two theories: 1) custom and usage and 2) the doctrine of curative admissibility.

At trial defendant attempted to introduce evidence from its employee Carole Balmer, who was involved in formulating defendant’s bonus plan, that she based defendant’s bonus plan on those used by other brokerage firms and those plans provided that bonuses would be paid in March. The testimony was as follows:

Defendant’s Counsel: And what did you do [in formulating this bonus plan]?

Carole Balmer: I had had the experience with living with bonus plans before. So I used the outline of the plans that I was familiar with to begin the formulation of our plan.

Defendant’s Counsel: These plans that you used, when did they provide bonuses would be paid?

Carole Balmer: In March.

Plaintiffs Counsel: Judge, I’m going to object again on relevancy and ask that the answer be stricken.

The Court: Sustained and the answer will be stricken from the record.

Defendant’s counsel argued that the testimony was relevant “as to the formulation of this plan and where they took it from. I think it’s also relevant because it was to keep them competitive, that they adopt the same standard plan that was in St. Louis.” The court explained, outside the hearing of the jury:

What their motivation was or what pattern they based it on is irrelevant. What is relevant here is what their plan as developed actually was and what portions of *660that and in what manner was communicated to the plaintiff in this case. The reason they have selected that because it makes them competitive is really irrelevant. They could’ve selected another plan and made them even more competitive, it doesn’t matter. It’s irrelevant.

Defendant argues that custom and usage evidence is admissible to show the intent of the parties. However, defendant’s intent to adopt a bonus plan comparable to those used in other brokerage firms was irrelevant because there was no contention that the contract was ambiguous. Rather, the contested issue was whether, at the March, 1991 meeting, defendant had said the bonus would be payable at the end of the year or the following March.

Defendant’s claim of curative admissibility likewise has no merit. First, it was not raised in the trial court or in defendant’s motion for new trial as a ground for admission and is thus not preserved for review. McHaffie, 891 S.W.2d at 830. Second, defendant does not point to any inadmissible evidence which would give rise to the use of the doctrine.

The trial court did not abuse its discretion in excluding the evidence of when other companies paid their bonuses. Point six is denied.

RHODES RUSSELL and JAMES R. DOWD, JJ., concur.

OPINION BY ORIE MELVIN, J.:

¶ 1 Appellant, Pennsy Supply, Inc. (“Pennsy”), appeals from the grant of preliminary objections in the nature of a demurrer in favor of Appellee, American Ash Recycling Corp. of Pennsylvania (“American Ash”). We reverse and remand for further proceedings.

¶ 2 The trial court summarized the allegations of the complaint as follows:

The instant case arises out of a construction project for Northern York High School (Project) owned by Northern York County School District (District) in York County, Pennsylvania. The District entered into a construction contract for the Project with a general contractor, Lobar, Inc. (Lobar). Lobar, in turn, subcontracted the paving of driveways and a parking lot to [Pennsy]. The contract between Lobar and the District included Project Specifications for paving work which required Lobar, through its subcontractor Pennsy, to use certain base aggregates. The Project Specifications permitted substitution of the aggregates with an alternate material known as Treated Ash Aggregate (TAA) or AggRite.

The Project Specifications included a ‘notice to bidders’ of the availability of AggRite at no cost from [American Ash], a supplier of AggRite. The Project Specifications also included a letter to the Project architect from American Ash confirming the availability of a certain amount of free AggRite on a first come, first served basis.

Pennsy contacted American Ash and informed American Ash that it would require approximately 11,000 tons of AggRite for the Project. Pennsy subsequently picked up the AggRite from American Ash and used it for the paving work, in accordance with the Project Specifications.

Pennsy completed the paving work in December 2001. The pavement ultimately developed extensive cracking in February 2002. The District notified ... Lobar[ ] as to the defects and Lobar in turn directed Pennsy to remedy the defective work. Pennsy performed the remedial work during summer 2003 at no cost to the District.

The scope and cost of the remedial work included the removal and appropriate disposal of the AggRite, which is classified as a hazardous waste material by the Pennsylvania Department of Environmental. Protection. Pennsy requested American Ash to arrange for the removal and disposal of the AggRite; *599however, American Ash did not do so. Pennsy provided notice to American Ash of its intention to recover costs.

Trial Court Opinion, 5/27/05, at 1-3 (footnote omitted). Pennsy also alleged that the remedial work cost it $251,940.20 to perform and that it expended an additional $133,777.48 to dispose of the AggRite it removed. Compl. ¶¶ 26, 29.

¶ 3 On November 18, 2004, Pennsy filed a five-count complaint against American Ash alleging breach of contract (Count I); breach of implied warranty of merchantability (Count II); breach of express warranty of merchantability (Count III); breach of warranty of fitness for a particular purpose (Count IV); and promissory estoppel (Count V).1 American Ash filed demurrers to all five counts. Pennsy responded and also sought leave to amend should any demurrer be sustained. The trial court sustained the demurrers by order and opinion dated May 25, 2005 and dismissed the complaint. This appeal followed.2

¶ 4 Pennsy raises three questions for our review:

(1)Whether the trial court erred in not accepting as true ... [the] Complaint allegations that (a) [American Ash] promotes the use of its AggRite material, which is classified as hazardous waste, in order to avoid the high cost of disposing [of] the material itself; and (b) [American Ash] incurred a benefit from Penn-sy’s use of the material in the form of avoidance of the costs of said disposal sufficient to ground contract and warranty claims.

(2) Whether Penns/s relief of [American Ash’s] legal obligation to dispose of a material classified as hazardous waste, such that [American Ash] avoided the costs of disposal thereof at a hazardous waste site, is sufficient consideration to ground contract and warranty claims.

(3) Whether the trial court misconstrued the well-pled facts of the Complaint in dismissing Pennsy’s promissory estoppel claim because Pennsy, according to the court, did not receive [American Ash’s] product specifications until after the paving was completed, which was not pled and is not factual.

Appellant’s Brief at 3.

¶ 5 “Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint.” Hospodar v. Schick, 885 A.2d 986, 988 (Pa.Super.2005).

When reviewing the dismissal of a complaint based upon preliminary objections in the nature of a demurrer, we treat as true all well-pleaded material, factual averments and all inferences fairly deducible therefrom. Where the preliminary objections will result in the dismissal of the action, the objections may be sustained only in cases that are clear and free from doubt. To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the objections. Moreover, we review the trial court’s decision for an abuse of discretion or an error of law.

*600 Id. In applying this standard to the instant appeal, we deem it easiest to order our discussion by count.

¶ 6 Count I raises a breach of contract claim. “A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Corestates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.1999). While not every term of a contract must be stated in complete detail, every element must be specifically pleaded. Id. at 1058. Clarity is particularly important where an oral contract is alleged. Snaith v. Snaith, 282 Pa.Super. 450, 422 A.2d 1379, 1382 (1980).

¶ 7 Instantly, the trial court determined that “any alleged agreement between the parties is unenforceable for lack of consideration.” Trial Court Opinion, 5/27/05, at 5. The trial court also stated “the facts as pleaded do not support an inference that disposal costs were part of any bargaining process or that American Ash offered the AggRite with an intent to avoid disposal costs.” Id. at 7 (emphasis added). Thus, we understand the trial court to have dismissed Count I for two reasons related to the necessary element of consideration: one, the allegations of the Complaint established that Pennsy had received a conditional gift from American Ash, see id. 6, 8, and, two, there were no allegations in the Complaint to show that American Ash’s avoidance of disposal costs was part of any bargaining process between the parties. See id. at 7. 3

¶ 8 It is axiomatic that consideration is “an essential element of an enforceable contract.” Stelmaek v. Glen Alden Coal Co., 339 Pa. 410, 414-415, 14 A.2d 127, 128 (1940). See also Weavertown Transport Leasing, Inc. v. Moran, 834 A.2d 1169, 1172 (Pa.Super.2003) (stating, “[a] contract is formed when the parties to it (1) reach a mutual understanding, (2) exchange consideration, and (3) delineate the terms of their bargain with sufficient clarity.”). “Consideration consists of a benefit to the promisor or a detriment to the promisee.” Weavertown, 834 A.2d at 1172 (citing Stelmaek). “Consideration must actually be bargained for as the exchange for the promise.” Stelmaek, 339 Pa. at 414, 14 A.2d at 129.

It is not enough, however, that the promisee has suffered a legal detriment at the request of the promisor. The detriment incurred must be the ‘quid pro quo’, or the ‘price’ of the promise, and the inducement for which it was made.... If the promisor merely intends to make a gift to the promisee upon the performance of a condition, the promise is gratuitous and the satisfaction of the condition is not consideration for a contract. The distinction between such a conditional gift and a contract is well illustrated in Williston on Contracts, Rev.Ed., Vol. 1, Section 112, where it is said: ‘If a benevolent man says to a tramp,-‘If you go around the corner to the clothing shop there, you may purchase an overcoat on my credit,’ no reasonable person would understand that the short walk was requested as the consideration for the promise, but that *601in the event of the tramp going to the shop the promisor would make him a gift.’

Weavertown, 834 A.2d at 1172 (quoting Stelmack, 339 Pa. at 414, 14 A.2d at 128-29). Whether a contract is supported by consideration presents a question of law. Davis & Warde, Inc. v. Tripodi, 420 Pa.Super. 450, 616 A.2d 1384 (1992).

¶ 9 The classic formula for the difficult concept of consideration was stated by Justice Oliver Wendell Holmes, Jr. as “the promise must induce the detriment and the detriment must induce the promise.” John Edward Murray, Jr., MuRRAY on CONTRACTS § 60 (3d. ed.1990), at 227 (citing Wisconsin & Michigan Ry. v. Powers, 191 U.S. 379, 24 S.Ct. 107, 48 L.Ed. 229 (1903)). As explained by Professor Murray:

If the promisor made the promise for the purpose of inducing the detriment, the detriment induced the promise. If, however, the promisor made the promise with no particular interest in the detriment that the promisee had to suffer to take advantage of the promised gift or other benefit, the detriment was incidental or conditional to the promis-ee’s receipt of the benefit. Even though the promisee suffered a detriment induced by the promise, the purpose of the promisor was not to have the prom-isee suffer the detriment because she did not seek that detriment in exchange for her promise.

Id. § 60.C, at 230 (emphasis added). This concept is also well summarized in American Jurisprudence:

As to the distinction between consideration and a condition, it is often difficult to determine whether words of condition in a promise indicate a request for consideration or state a mere condition in a gratuitous promise. An aid, though not a conclusive test, in determining which construction of the promise is more reasonable is an inquiry into whether the occurrence of the condition would benefit the promisor. If so, it is a fair inference that the occurrence was requested as consideration. On the other hand, if the occurrence of the condition is no benefit to the promisor but is merely to enable the promisee to receive a gift, the occurrence of the event on which the promise is conditional, though brought about by the promisee in reliance on the promise, is not properly construed as consideration.

17A Am. JuR.2d § 104 (2004 & 2005 Supp.) (emphasis added). See also Restatement (Second) of Contracts § 71 comment c (noting “the distinction between bargain and gift may be a fine one, depending on the motives manifested by the parties”); Carlisle v. T & R Excavating, Inc., 123 Ohio App.3d 277, 704 N.E.2d 39 (1997) (discussing the difference between consideration and a conditional gift and finding no consideration where promisor who promised to do excavating work for preschool being built by ex-wife would receive no benefit from wife’s reimbursement of his material costs).

¶ 10 Upon review, we disagree with the trial court that the allegations of the Complaint show only that American Ash made a conditional gift of the AggRite to Pennsy. In paragraphs 8 and 9 of the Complaint, Pennsy alleged:

American Ash actively promotes the use of AggRite as a building material to be used in base course of paved structures, and provides the material free of charge, in an effort to have others dispose of the material and thereby avoid incurring the disposal costs itself ... American Ash provided the AggRite to Pennsy for use on the Project, which saved American Ash thousands of dollars in disposal costs it otherwise would have incurred.

*602Compl. ¶¶ 8, 9. Accepting these allegations as trae and using the Holmesian formula for consideration, it is a fair interpretation of the Complaint that American Ash’s promise to supply AggRite free of charge induced Pennsy to assume the detriment of collecting and taking title to the material, and critically, that it was this very detriment, whether assumed by Pennsy or some other successful bidder to the paving subcontract, which induced American Ash to make the promise to provide free Ag-gRite for the project. Paragraphs 8-9 of the Complaint simply belie the notion that American Ash offered AggRite as a conditional gift to the successful bidder on the paving subcontract for which American Ash desired and expected nothing in return.4

¶ 11 We turn now to whether consideration is lacking because Pennsy did not allege that American Ash’s avoidance of disposal costs was part of any bargaining process between the parties. The Complaint does not allege that the parties discussed or even that Pennsy understood at the time it requested or accepted the AggRite that Pennsy’s use of the AggRite would allow American Ash to avoid disposal costs.5 However, we do not believe such is necessary.

The bargain theory of consideration does not actually require that the parties bargain over the terms of the agreement. ... According to Holmes, an influential advocate of the bargain theory, what is required [for consideration to exist] is that the promise and the consideration be in ‘the relation of reciprocal conventional inducement, each for the other.’

E. Allen Farnsworth, FaRnswoRth on Contracts § 2.6 (1990) (citing 0. Holmes, The Common Law 293-94 (1881)); see also Restatement (Second) of Contracts § 71 (defining “bargained for” in terms of the Holmesian formula). Here, as explained above, the Complaint alleges facts which, if proven, would show the promise induced the detriment and the detriment induced the promise. This would be consideration. Accordingly, we reverse the dismissal of Count I.

¶ 12 Counts II, III and IV alleged breach of warranty claims under Article 2 of the Uniform Commercial Code (“UCC”). The trial court dismissed these counts as a group upon concluding the facts alleged failed to show a contract for the “sale of goods” as required to trigger application of UCC Article 2. Trial Court Opinion, 5/27/05, at 8 (concluding, “the transaction as pleaded, by which American Ash gave Pennsy free AggRite, amounted to a conditional gift, not a contract of sale”). Again, we disagree that the allegations reveal a transaction that can only be characterized as a conditional gift. We turn now to whether the allegations otherwise trigger application of Article 2.

*603¶ 13 Article 2 applies to “transactions in goods.” 13 Pa.C.S.A. § 2102. AggRite is obviously a good. See 13 Pa. C.S.A. § 2105 (defining “goods” as “all things (including specially manufactured goods) which are moveable at the time of identification to the contract”). Before the protections of the Article 2 warranties apply, “there must be a sale of goods.” Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 840 (Pa.Super.1999). See also Whitmer v. Bell Tele. Co. of Pennsylvania, 361 Pa.Super. 282, 522 A.2d 584, 588 (1987) (stating, “[a] prerequisite to an action for breach of warranty [under Article 2] is that there must be a sale.”) (quoting Williams v. West Penn Power Co., 313 Pa.Super. 461, 460 A.2d 278, 281 (1983), modified, 502 Pa. 557, 467 A.2d 811 (1983)).

¶ 14 “A sale [under Article 2] consists in the passing of title from the seller to the buyer for a price.” 13 Pa.C.S.A. § 2106 (parenthetical reference omitted).6 Section 2-304, entitled “Price payable in money, goods, realty or otherwise,” provides in subsection (a) that as a general rule “[t]he price can be made payable in money or otherwise.” 13 Pa.C.S.A. § 2304. Pennsy argues that its acquisition of the AggRite whereby American Ash was relieved of disposal costs can constitute a price within the meaning of the “or otherwise” language in 13 Pa.C.S.A. § 2304. We agree. The few courts to have interpreted the “or otherwise” language of a UCC provision like ours have concluded that it includes any consideration sufficient to ground a contract. See Mortimer B. Burnside & Co. v. Havener Securities Corp., 25 A.D.2d 373, 269 N.Y.S.2d 724 (1966) (citing UCC § 2-304 generally); Wheeler v. Sunbelt Tool Co., Inc., 181 Ill.App.3d 1088, 130 Ill.Dec. 863, 537 N.E.2d 1332 (applying Illinois version of UCC), appeal denied, 127 Ill.2d 644, 136 Ill.Dec. 610, 545 N.E.2d 134 (1989); see also William D. Hawkland, 2 Uniform CommeRcial Code Series § 2-304:3 (1998) (stating, “the entire thrust of section 2-304 seems to be toward making the scope of Article 2 as broad as possible, limited only by due concern for the laws governing the disposition of real property.”) (footnote omitted); see also Hoffman v. Misericordia Hosp., 439 Pa. 501, 507-08, 267 A.2d 867, 870-71 (1970) (noting our Supreme Court has implied warranty protections in non-sales transactions, such as leases and bailments, and reversing lower court decision to dismiss warranty counts on demurrer in action involving blood transfusion). While we recognize Article 2 does not always apply simply because a transfer of goods is not a gift, see Pa.C.S.A. § 2304, comment 2,7 we believe the present situation falls within the scope of the warranty provisions as intended by the drafters. See Hoffman, 439 Pa. at 508, 267 A.2d at 870-71 (faulting lower court for failing to consider whether the warranty policies would be furthered by their implication). This is not a situation where garbage is left on the curb for anyone to retrieve. Contra Grigsby v. Crown Cork & Seal Co., 574 F.Supp. 128 (D.Del.1983) (predicting Delaware Supreme Court would find a sale *604of goods under Delaware’s version of UCC 2-304 but not extend Article 2 warranties in situation where defendant abandoned waste oil to plaintiff because defendant “did not warrant the merchantability or fitness of its waste ... any more than an ordinary citizen warrants the merchantability or fitness of his or her garbage at the time of a garbage collection”). Here, as Pennsy alleged:

American Ash actively promotes the use of AggRite as a building material to be used in base course of paved structures ....

American Ash’s technical data sheets [attached as Ex. H to the Complaint], describing AggRite, indicate that it can be used as a roadbed material meeting the requirements of PennDOT specifications.

American Ash’s literature [attached as Ex. H to the Complaint] also indicates that AggRite can be used as a replacement for type 2A aggregate base course material.

Compl. ¶¶ 8, 47-48. On these facts, we cannot say the law would clearly preclude recovery on Counts II, III and IV, and, accordingly, we reverse the grant of the demurrer to the extent dismissal of these counts was based on Pennsy’s failure to allege a sale of goods.

¶ 15 Count V presented a claim for promissory estoppel, which the trial court dismissed upon concluding that the Complaint failed to allege either a promise or detrimental reliance on a promise. Trial Court Opinion, 5/27/05, at 9. To the extent Pennsy alleged reliance upon promises made in the promotional material for Ag-gRite, the trial court, noting Pennsy had received such promotional material only after the cracking situation arose, deemed disingenuous Pennsy’s attempt to cite the promotional materials as the basis for a promise or for reliance thereon. Id. at 9. Additionally, the trial court determined that the facts alleged “do not substantiate the existence of a promise by which American Ash directly represented to Pennsy (and upon which Pennsy relied) that Ag-gRite would be suitable for the Project. The facts as pleaded instead establish that Pennsy relied on the Project Specifications which provided for AggRite use.” Id. at 9-10 (emphasis added). While the trial court recognized that, unless American Ash had made such representations to either the project architect or the general contractor, it was unlikely the Project Specifications would have authorized use of AggRite, it nonetheless deemed unsupported by the law Pennsy’s “reliance on reliance” theory. Id. at 10.8

¶ 16 “In order to maintain an action in promissory estoppel, the aggrieved party must show that 1) the promisor made a promise that he should have reasonably expected to induce action or forbearance on the part of the promisee; 2) the promisee actually took action or refrained from taking action in reliance on the promise; and 3) injustice can be avoided only by enforcing the promise.” Crouse v. Cyclops Industries, 560 Pa. 394, 403, 745 A.2d 606, 610 (2000). While we recognize that promissory estoppel is used to enforce a promise not otherwise supported by consideration, see id. at 402, 745 A.2d at 610, we nonetheless address the propriety of the trial court’s dismissal of Count V should the contract claim otherwise fail.

¶ 17 Pennsy first contends the trial court erred in overlooking paragraph 49 of the *605Complaint, which alleges that .American Ash directly represented AggRite’s suitability for the project to Pennsy. See Complaint at ¶ 49 (stating “[a] representative of American Ash attended a Project meeting during which he made express assurances, as documented in a memorandum summarizing the Project meeting, that AggRite was suitable to be used as a base course on the Project.”). See also id. at ¶ 54 (averring “American Ash communicated to Pennsy during Project meetings that the AggRite material was suitable for its intended use on the Project as roadbed material”). Paragraph 49 referenced a copy of meeting minutes attached to the Complaint. The minutes, dated 8/15/01, purported to summarize a site meeting held 8/2/01, “concerning my [John Page’s] questions on the AggRite material being used for the parking sub-base.”9 The meeting thus occurred before Pennsy and American Ash reached agreement, see Compl. at ¶ 10 (referring to “on or about August 21, 2001”) but after Pennsy entered into the subcontract with Lobar which it bid assuming use of the free AggRite.

¶ 18 That Pennsy relied in the first instance on the Project Specifications does not negate its allegation that American Ash made a direct representation to Penn-sy about the suitability of AggRite for the project and that Pennsy relied on that direct representation. Even though Pennsy had already secured the subcontract, had the direct representation about the suitability of AggRite not been made it is at least conceivable that the underlying course of events may have been different. Whether American Ash should have reasonably expected to induce action or forbearance on the part of the promise through this direct representation and whether Pennsy took action or refrained from taking action in reliance on that direct representation is a matter for further discovery.

¶ 19 Furthermore, we find the trial court’s reliance upon Pennsy’s acknowl-edgement that it did not actually receive the promotional materials for AggRite until after the cracking situation occurred to support its conclusion that American Ash did not make a direct promise to Pennsy through those materials is misplaced. The argument Pennsy presents is that because it alleged that the project architect received the promotional materials and/or other explicit promises from American Ash regarding AggRite’s suitability for the project and relied on those promises in issuing the Project Specifications under which Pennsy successfully bid the subcontract, its promissory estoppel claim is viable. We agree.

¶ 20 In Artkraft Strauss Sign Corp. v. Dimeling, 429 Pa.Super. 65, 681 A.2d 1058 (1993), this Court permitted Artkraft, who relied upon representations made by one Levin to Classic (an investment partnership) regarding the authority of another entity (Kelly Operating Co.) to enter a sublease in a situation where Classic in turn contacted with Artkraft to design, construct and paint a sign, to recover in promissory estoppel from Levin. We explained that Levin’s failure to inquire into Kelly’s authority to make the sublease coupled with his subsequent active representations to the other parties that Kelly did possess such authority, “constitutes sufficient grounds to invoke equitable relief and supports invoking both equitable and promissory estoppel.” Id. at 1062. We further explained that it was Levin’s actions, more than any other party, which *606resulted in the losses borne by Artkraft. Id.

¶21 Further, “[t]he doctrine [of promissory estoppel] embodied in [§ ] 90 of the Restatement (Second) of Contracts ... is the law of Pennsylvania,” Central Storage & Transfer Co. v. Kaplan, 487 Pa. 485, 489, 410 A.2d 292, 294 (1979), and that section provides in relevant part:

(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

(emphasis added). Application of this section, while clearest in the case of an intended third party beneficiary, is not limited to such. See MuRRAY on ContRacts § 66.B.2, at 281 (“The Restatement 2d version of § 90, however, would also permit a recovery by a third party who justifiably relies [on the promise made to the promis-ee] even though such party is not an intended beneficiary”). Where clear justifiable reliance by the third party is shown, courts have been willing to endorse the broad reach of Section 90. See Masonry v. Miller Construction, 558 So.2d 433 (Fla.App.1990) (holding subcontractor’s insurer was estopped from denying coverage under policy erroneously issued to subcontractor where general contractor relied on the policy as proof of subcontractor’s worker’s compensation coverage in permitting subcontractor on the job-site and where general contractor’s insurance sought reimbursement from subcontractor’s insurer for payment made to injured employee of subcontractor). Thus, the law does not clearly prohibit recovery in promissory estoppel on the facts alleged. Accordingly, we reverse the dismissal of Count Y.

¶ 22 For all of the foregoing reasons, we reverse the trial court’s order granting the demurrers and dismissing the Complaint and remand for further proceedings. Jurisdiction relinquished.

McGILL, Justice.

This is an appeal from a judgment of the 57th judicial District Court of Bexar County. Appellant was plaintiff and ap-pellee was defendant in the trial court. The parties will be so designated.

Plaintiff sued defendant to recover $2,-000 with interest at the rate of 8⅞ per annum from April 2, 1942, alleged to be due on the following instrument, being a translation from the original, which is written in the Greek language:

“Peiraeus April 2, 1942

“Mr. George Batsakis Konstantinou Diadohou #7 Peiraeus

“Mr. Batsakis:

“I state by my present (letter) that I received today from you the amount of two thousand dollars ($2,000.00) of United States of America money, which I borrowed from you for the support of my family during these difficult days and because it is impossible for me to transfer dollars of my own from America.

“The above amount I accept with the expressed promise that I will return to you again in American dollars either at the end of the present war or even before in the event that you might be able to find a way to collect them (dollars) from my representative in America to whom I shall write and give him an order relative to this. You understand until the final execution *674(payment) to the above amount an eight per cent interest will be added and paid together with the principal.

“I thank you and I remain yours with respects.

“The recipient,

(Signed) Eugenia The. Demotsis.”

Trial to the court without the intervention of a jury resulted in a judgment in favor of plaintiff for $750.00 principal, and interest at the rate of 8% per annum from April 2, 1942 to the date of judgment, totaling $1163.83, with interest thereon at the rate of 8% per annum until paid. Plaintiff has perfected his appeal.

The court sustained certain special exceptions of plaintiff to defendant’s first amended original answer on which the case was tried, and struck therefrom paragraphs II, III and V. Defendant excepted to such action of the court, but has not cross-assigned error here. The answer, stripped of such paragraphs, consisted of a general denial contained in paragraph I thereof, and of paragraph IV, which is as follows :

“IV. That under the circumstances alleged in Paragraph II of this answer, the consideration upon which said written instrument sued upon by plaintiff herein is founded, is wanting and has failed to the extent of $1975.00, and defendant pleads specially under the verification hereinafter made the want and failure of consideration stated, and now tenders, as defendant has heretofore tendered to plaintiff, $25.00 as the value of the loan of money received by defendant from plaintiff, together with interest thereon.

“Further, in connection with this plea of want and failure of consideration defendant alleges that she at no time received from plaintiff himself or from anyone for plaintiff any money or thing of value other than, as hereinbefore alleged, the original loan of 500,000 drachmae. That at the time of the loan by plaintiff to defendant of said 500,000 drachmae the value of 500,000 drachmae in the Kingdom of Greece in dollars of money of the United States of America, was $25.00, and also at said time the value of 500,000 drachmae of Greek money in the United States of America in dollars was $25.00 of money of the United States of America. The plea of want and failure of consideration is verified by defendant as follows.”

The allegations in paragraph II which were stricken, referred to in paragraph IV, were that the instrument sued on was signed and delivered in the Kingdom of Greece on or about April 2, 1942, at which time both plaintiff and defendant were residents of and residing in the Kingdom of Greece, and

“Plaintiff (emphasis ours) avers that on or about April 2, 1942 she owned money and property and had credit in the United States of America, but was then and there in the Kingdom of Greece in straitened financial circumstances due to the conditions produced by World War II ánd could not make use of her money and property and credit existing in the United States of America. That in the circumstances the plaintiff agreed to and did lend to defendant the sum of 500,000 drachmae, which at that time, on or about April 2, 1942, had the value of $25.00 in money of the United States of America. That the said plaintiff, knowing defendant’s financial distress and desire to return to the United States of America, exacted of her the written instrument plaintiff sues upon, which was a promise by her to pay to him the sum of $2,000.00 of United States of America money.”

Plaintiff specially excepted to paragraph IV because the allegations thereof were insufficient to allege either want of consideration or failure of consideration, in that it affirmatively appears therefrom that defendant received what was agreed to be delivered to her, and that plaintiff breached no agreement. The court overruled this exception, and such action is assigned as error. Error is also assigned because of the court’s failure to enter judgment for the whole unpaid balance of the principal of the instrument with interest as therein provided.

Defendant testified that she did receive 500,000 drachmas from plaintiff. It is not clear whether she received all the 500,000 drachmas or only a portion of *675them before she signed the instrument in question. Her testimony clearly shows that the understanding of the parties was that plaintiff would give her the 500,000 drachmas if she would sign the instrument. She testified:

“Q.who suggested the figure of $2,000.00?

A. That was how he asked me from the beginning. He said he will give me five hundred thousand drachmas provided I signed that I would pay him $2,000.00 American money.”

The transaction amounted to a sale by plaintiff of the 500,000 drachmas in consideration of the execution of the instrument sued on, by defendant. It is not contended that the drachmas had no value. Indeed, the judgment indicates that the trial court placed a value of $750.00 on them or on the other consideration which plaintiff gave defendant for the instrument if he believed plaintiff’s testimony. Therefore the plea of want of consideration was unavailing. A plea of want of consideration amounts to a contention that the instrument never became a valid obligation in the first place. National Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W. 2d 691.

Mere inadequacy of consideration will not void a contract. 10 Tex.Jur., Contracts, Sec. 89, p. 150; Chastain v. Texas Christian Missionary Society, Tex. Civ. App., 78 S.W.2d 728, loe. cit. 731(3), Wr. Ref.

Nor was the plea of failure of consideration availing. Defendant got exactly what she contracted for according to her own testimony. The court should have rendered judgment in favor of plaintiff against defendant for the principal sum of $2,000.-00 evidenced by the instrument sued on, with interest as therein provided. We construe the provision relating to interest as providing for interest at the rate of 8% per annum. The judgment is reformed so as to award appellant a recovery against appellee of $2,000.00 with interest thereon at the rate of 8% per annum from April 2, 1942. Such judgment will bear interest at the rate of 8% per annum until paid on $2,000.00 thereof and on the balance interest at the rate of 6% per annum. As so reformed, the judgment is affirmed.

Reformed and affirmed.

LINDLEY, District Judge.

Thirteen persons and the administrators of five deceased persons brought this suit, alleging that defendant, in 1930, made separate contracts to pay each of the individual plaintiffs and each of the deceased persons whose administrators sued, monthly sums equal to one-half of the wages formerly earned by such parties as employees of the defendant for life. Each of the claimants had been employed for some years at a fixed rate of wages, usually upon an hourly basis but payable monthly or semimonthly.

The theory of plaintiffs is that on July 28, 1930, (with two exceptions), the vice-president and general manager of the refinery plant called the employees, who had rendered long years of service separately into his office and made with each a contract, to pay him, for the rest of his natural life, a sum equal to one-half of the wages he was then being paid. The consideration for the contracts, it is said, arose out of the relationship then existing, the desire to provide for the future welfare of these comparatively aged employees and the provision in the alleged contracts that the employees would call at the office for their several checks each pay-day.

Most of the employees were participants in group insurance, the premiums for which had been paid approximately one-half by the employee and one-half by the company, and, according to plaintiffs, their parts of the premiums were to be deducted from their payments as formerly. This procedure was followed.

The employees were retained on the pay roll, but, according to their testimony, they were not to render any further services, their only obligation'being to call at the office for their remittances. Most of them testified that it was agreed that the payments were to continue throughout the remainder of .their lives. But two testified that nothing was said as to .the time during which the payments were to continue. As to still others_ the record is silent as to direct testimony in this respect.

The payments were made regularly until June 1, 1931, when they were cut off and each of the employees previously receiving the same was advised by defendant’s personnel officer that the arrangement was terminated.

Defendant does not controvert many of these facts, but insists that the whole arrangement was included in a letter sent to* each of the employees as follows:

“Confirming our conversation of today,, it is necessary with conditions as they are throughout the petroleum industry, to effect substantial economies throughout the plant operation. This necessitates the reducing of the working force to a minimum necessary to maintain operation. In view of your many years of faithful service, the management is desirous of shielding you as far as possible from the effect of reduced plant operation and has, therefore, placed you upon a retirement list which has just been established for this purpose.

“Effective August 1, 1930, you will be carried on our payroll at a rate of $- per month. You will be relieved of all duties except that of reporting to Mr. T. E. Sullivan at the main office for the purpose of picking up your semi-monthly checks. Your group insurance will be maintained on the same basis as at present, unless you desire to have it cancelled.” (Signed by the vice-president.)

It contends and offered evidence that nothing was said to any employee about continuing the payments for his natural life; that the payments were gratuitous, continuing at the pleasure apd will of defendant ; that the original arrangement was not authorized, approved, or ratified by the board of directors, the executive committee thereof, or any officer endowed with corporate authority to bind the company; that there was no consideration for the promise to make the payments; and that it was beyond the power of ány of the persons alleged to have contracted to create by agreement or by estoppel any liability of the company to pay wages to employees during the remainders of their lives, if they did not render. actual services. Defendant admits the payments as charged and the termination of the arrangement on June 1, 1931.

*3The employees assert that there was ample authority in the vice-president, and general manager to make a binding contract of the kind alleged to have existed; that, irrespective of the existence or nonexistence of such authority, the conduct of the company in making payment was ratification of the original agreement and that defendant is now estopped to deny validity of the same.

Plaintiff Kogan, an employee aged 72, testified that for some years prior to July 28, 1930, he had been employed as a drill pressman and in general repair work in the machine shops; that on July 28, 1930, he talked to Mr. Anglin, the vice-president and general manager, in the latter’s private office; that Anglin said then that the oil industry was in a deplorable condition; that the management found it necessary to cut down expenses, and therefore, to lay off certain employees; that the witness was to be relieved of his duties, but that he would receive one-half of his salary and would be retained upon the pay roll; that this was being done because of the witness’ many years of services; that the company did not desire to discharge him without further compensation; that 'he would be excused from all labor and required only to report to the main office to get his checks; that the company would carry his insurance in accord with previous practice; and that he would have all the privileges of hospitalization and in other respects of regular employees. The witness said he expressed his preference to work, but was told that that was impossible. He says that he was told that the arrangement was permanent, that is, for as long as he lived; that he would receive a letter confirming this conversation, which he should keep; that his labor would end on July 31, 1930; that he received the letter within a day or two; that thereafter he reported regularly at the office and obtained the checks until May 29, 1931, when he was told by the personnel department that the check- then received would be the last one. This action, he said he was then told, was taken because of the necessity for further retrenchment. He testified that he sought no other employment; that nothing was said to him about working or not working for other parties, and that when he received the letter he kept it without comment or objection..

Other claimants testified substantially the same. Beanblossom said that he was told that the layoff was by the direction of the president; that he was still on the pay roll but that he would have no work to do ; that the arrangement would last all his life; and that if conditions improved he would probably get his job back. Gibson testified that nothing was said about the time during which the payments would continue but that he inferred that they were for life. Teufel testified that nothing was said about how long the payments would continue. Stout, Robb, Plowman, McClure, Smith, and Courter testified substantially as did Kogan. Reeves testified that he was told he was given a pension for life; Kendall that he was in the hospital when he heard about the arrangement with other men and sent his nurse to ask for his payments and that thereafter he received checks until June 1, 1931. Mrs. Burrell testified that her husband was deceased; that he received the letter previously mentioned and the payments, until June 1, 1931. Mrs. Hoth and Mrs. Baker testified similarly concerning their husbands. Plaintiffs offered no testimony as to any conversations between any of the deceased men and the manager. Mr. and Mrs. Hooks, son-in-law and daughter of Davenport, one of the deceased employees, testified that Wells, the plant superintendent, came to their house and said that he preferred to talk to them rather thar to Davenport because the latter was not then well; that the company was desirous of making a “settlement” with him for half salary for the remainder of his life. They directed him to talk to Davenport.

In behalf of defendant, the assistant secretary testified that there were no minutes showing any corporate action with regard to the arrangement and that there was nothing in the records of the corporation, in bylaws, resolution or minutes authorizing, directing, or ratifying the payments or giving anybody authority to make the same. Anglin, vice-president and general manager in charge of manufacturing at the Lawrenceville Refinery where these men were employed, testified that he said to Kogan that, due to depressed conditions the company found it necessary to reduce expenses and lay off certain men; that it had no pension plan; that in an effort to be perfectly fair the company would keep him on the pay roll but relieve him of all duties except to pick up his check; that he said that the arrangement was voluntary with the company, and terminable at its pleasure, and that he hoped it would last during Kogan’s lifetime, but that there might be a change in the policy of the company. His testimony as to the other employees was the same. He *4denied promising any of them that the payments would persist so long as they lived. He sent the letters as he promised confirming the arrangement. He testified that the letters were in compliance with what he had said; that no' complaint or demand for any additional provisions was thereafter made; that he himself was employed orally; that he had no written contract; that he had no authority from the directors to make the arrangement; that he hired and fired.men in Lawrenceville upon recommendation of the foreman; that a change in the management occurred when the Indian Refining Company was purchased by the Texas Company between October, 1930, and January, 1931; and that after the latter date he was not general manager at Lawrenceville.

Wells testified that he was plant superintendent; that he had no authority to make any contracts such as are alleged in the bill of complaint; that he sent some of the complainants in to see the manager; that he talked to the daughter and son-in-law of Davenport because the latter was ill, but later, on their suggestion, talked to Davenport. He testified that he said nothing about a settlement but did say that one-half of Mr. Davenport’s salary would be paid to him. He said that he recalled no conversation with Courter and that he never told any of the claimants that the arrangement was permanent.

The present vice-president and general manager testified that he came into office January, 1931; and that no complaint was received by him by any plaintiff until suit was started.

Thus it is undisputed that a separate arrangement was made by the local office with each of the claimants, most of them on July 28, 1930, to continue them upon the pay roll, deliver to them semimonthly a check, upon their calling for same, for one-half of the former wages; that this was done until June 1, 1931. It is also" undisputed that the letters sent out said nothing about how long the payments should continue but were wholly silent in that respect. It is also undisputed that insurance payments were deducted from the checks that were delivered; that the employees were retained on the pay roll; that they did no active work after August 1, 1931; that they received their checks as mentioned; that the payments terminated on June 1, 1931; that most of them called at the office for their checks and received same; and that in at least -two instances the checks were mailed. The controverted question of fact arises upon the testimony of most of the •plaintiffs that each of them was told that the payments would continue until their death. This is denied.

Let us assume, without so deciding, for the purpose of disposition of this case, that each of the employees was told that the payments would continue for his lifetime. Then the questions remaining are legal in character. The arrangement was made by no corporate officer having authority to make such a contract. Under the bylaws, corporation transactions as recorded in the minutes, there was no authorization or ratification of any such contract. It is urged, however, that by continuing to pay the checks the corporation ratified the previously unauthorized action. The facts render such conclusion dubious. I am unable to see how knowledge of the mere fact that men’s names were on the pay roll and checks paid to them could create any estoppel to deny authority, in the absence of proof of knowledge upon the part of the duly authorized officers of the company that the men were not working but were receiving in effect pensions or that they had been promised payments for life. Consequently, there was no ratification express or implied and no estoppel.

Presented also is the further question of whether, admitting the facts as alleged by plaintiffs, there was any consideration for a contract to pay a pension for life. However strongly a man may be bound -in conscience to fulfill his engagements, the law does not recognize their sanctity or supply any means to compel their performance, except when founded upon a sufficient consideration. Volume 6, American & English Encyclopedia of Law, p. 673 (2d Ed.)

The long and faithful services of the employees are relied upon as consideration; but past or executed consideration is a self-contradictory term. Consideration is something given in exchange for a promise or in a reliance upon the promise. Something which has been delivered before the promise is executed, and, therefore, made without reference to it, cannot properly be legal consideration. Williston on Contracts, vol. 1, § 142; 13 Corpus Juris, 359; Shields v. Clifton Hill Land Co., 94 Tenn. 123, 28 S. W. 668, 26 L.R.A. 523, 45 Am.St.Rep. 700; Restatement of the Law of Contracts, vol. 1, p. 88,

*5It is further contended that there was a moral consideration for the alleged contracts. The doctrine of validity of moral consideration has received approval in some courts, but quite generally it is condemned because it is contrary in character to actual consideration. Early Illinois cases, (Spear v. Griffith, 86 Ill. 552; Lawrence v. Oglesby, 178 Ill. 122, 52 N.E. 945) recognize its validity. But their doctrine has been modified and no longer prevails in Illinois. See Hart v. Strong, 183 Ill. 349, 55 N.E. 629; Hobbs v. Greifenhagen, 91 Ill.App. 400; Schwerdt v. Schwerdt, 235 Ill. 386, 85 N.E. 613; Finch v. Green, 225 Ill. 304, 80 N.E. 318; Strayer v. Dickerson, 205 Ill. 257, 68 N.E. 767; Cutwright v. Preachers Aid Society, 271 Ill.App. 168; Kirkpatrick v. Taylor, 43 Ill. 207; Williams v. Forbes, 114 Ill. 167, 28 N.E. 463. Thus in Hart v. Strong, 183 Ill. 349, 55 N.E. 629, 631, the court said: “The agreement to-receive less than the amount due on the note was made upon the purely moral consideration that John W. Hart, believing himself about to die, thought he ought not to have exacted so large a consideration for the reconveyance. But such an obligation does not form a valid consideration unless the moral duty were once a legal one. ‘But the morality of the promise, however certain or however urgent the duty, does not, of itself, suffice for a consideration.’ 1 Pars. Cont. 434.” .

Upon the same ground, appreciation of past services or pleasure afforded the employer thereby is not a sufficient consideration. Schwerdt v. Schwerdt, 141 Ill. App. 386; Kirkpatrick v. Taylor, 43 Ill. 207; Williston on Contracts, vol. 1, pp. 230, 231; Vehon v. Vehon, 70 Ill.App. 40; Heaps v. Dunham, 95 Ill. 583; Williams v. Forbes, 114 Ill. 167, 28 N.E. 463. So Williston says (Contracts, vol. 1, p. 230) : “ * * * if there be no legal consideration, no motive, such as love- and respect, or affection for another or a desire to do justice, or fear of trouble, or a desire to equalize the shares in an estate, or to provide for a child, or regret for having advised an unfortunate investment, will support a promise.”

Plaintiffs have proved that they were ready, willing, and able to travel to and report semimonthly to the main office. But this does not furnish a legal consideration. The act was simply a condition imposed upon them in obtaining gratuitous pensions and not a consideration. The employees went to the office to obtain their checks. Such acts were benefits to them and not detriments. They were detriments to defendant and not benefits. This is not consideration. Williston on Contracts, vol. 1, pp. 231-235, and cases cited; Restatement of Contracts, par. 75, illus. 2.

In the absence of valid agreement to make payments for the rest of their natural lives, clearly the arrangement was one revocable at the pleasure of defendant. If defendant agreed to make the payments for life, then, fatal to plaintiffs’ cases is the lack of consideration. We have merely a gratuitous arrangement without consideration, and therefore, void as a contract.

In this enlightened day, I am sure, no one controverts the wisdom, justice, and desirability of a policy, whether promoted and fostered by industry voluntarily or by state or federal government, looking to the promotion and assurance of financial protection of deserving employees in their old age. We have come to realize that the industry wherein the diligent worker labors for many years should bear the cost of his living in some degree of comfort through his declining years until the end of his life. To impose this expense upon the industry, to the creation of whose product he has contributed, is not unfair or unreasonable, for, eventually, obviously, under wise budgeting and cost accounting systems, this element of cost is passed on to the consumer of the product. The public bears the burden — as, indeed, it does eventually of all governmental expenditures and corporate costs, either in taxes or price of products purchased. Surely no one would have the temerity to urge that such a policy is not more fair and reasonable, more humane and beneficent, than the poorhouse system of our eqrlier days. The recognition of the soundness of this proposition is justified by the resulting contribution to the advance of standards of living, hygienic and sanitary environment, and, in some degree at least, of culturp and civilization.

But, in the absence of statute creating it, such a policy does not enter into the relationship of employer or employee, except when so provided by contract of the parties. The court is endowed with no power of .legislation; nor may it read into contracts provisions upon which the parties’ minds have not met.

Viewing the testimony most favorably for the plaintiffs, despite the desirability of the practice of liberality between employer and employee, the court must decide a pure*6ly legal question — whether under plaintiffs’ theory there were valid contracts. The obvious answer is in the negative. Consequently, there will be a decree in favor of defendant dismissing plaintiffs’ bill for want of equity. The foregoing includes my findings of fact and conclusions of law.

BARNES, J.,

for the Court.

¶ 1. Bill Baker, former president of Marshall Durbin Food Corporation, brought suit against his former employer to enforce an agreement which would provide him with five years of monthly compensation equal to his monthly salary while employed. The Chancery Court of Wayne County, Mississippi, held the contract to be valid and ordered Marshall Durbin Food Corporation to pay Mr. Baker in accordance with the terms of the contract, beginning September 10, 2001. Marshall Durbin Food Corporation appealed. We affirm in part and reverse and render in part.

SUMMARY OF FACTS AND DISPOSITION BELOW

¶ 2. Mr. Baker began working as a management trainee for Marshall Durbin Food Corporation (“the Company”) in 1965 and ascended through the ranks until, in October of 1998, Mr. Baker was elected to the Company board of directors; he also held the position of vice president, live production.

¶ 3. The Company was in troubled times. Grain prices had gone through the ceiling, and poultry prices had dropped. The Company experienced a loss of approximately thirty million dollars. Disagreements between Marshall Durbin, Jr. (“Mr. Durbin”), who owned approximately 80% of the Company stock, and his two daughters, Elise and Melissa, who owned or controlled about 18% of the stock, caused a great deal of tension in the Company. The minutes of the October 1998 stockholders meeting reflect that Elise and Melissa Durbin were not re-elected to the board because of “disruptions due to the forcing of employees to take sides and matters halving] been discussed in meetings with employees that should have been resolved in private between family members.” Mr. Durbin announced that he would recommend that the new board not re-elect his daughters to their position as co-presidents of the company; in the directors meeting which followed, Elise and Melissa Durbin, were not elected as officers of the Company.

¶ 4. In the months which followed, several valuable employees, including Mr. Baker, expressed concern regarding the uncertainty of their future with the Company if *1271anything ever happened to Mr. Durbin. The Company’s sole witness, John Perri, described this period as “chaos” and testified that Mr. Baker “kind of was put in the breach to help save the company, because we were spiraling downward. [Baker] spoke to me one time and he said ... we’ve got to get everybody back working together and save this company ... I know there is a risk that, God forbid, that something happens ... the girls come back with the company, the people could lose their job; and I’m going to go to [Mr. Durbin] and see if these key people ... can get a year’s retirement so in the event they come in and you lose your job, at least you’ve got a year to look for another job....”

¶ 5. In response to this concern, Mr. Durbin offered an “agreement of termination and/or early retirement” to three high level Company employees, one of whom was Mr. Baker. On November 15, 1999, Mr. Baker and Mr. Durbin executed a contract which provided a number of circumstances that would trigger an “effective date.” Once triggered, Mr. Baker would receive a specified amount of compensation for five years. The agreement provides in part:

EMPLOYMENT: The corporation and Employee agree that the employment of Employee will be employee-at-will. This contract is not intended to create contractual employment between the Corporation and Employee.

EFFECTIVE DATE: The Employee shall be entitled to the following termination and/or early retirement compensation upon the effective date of any of the following:

A. the establishment of an Effective Date by the Board of Directors or President of the Corporation; or

B. upon any “change in control”, where more than 51% of the stock is not owned by the current stockholder owning more than 51% of the stock, and the current majority stockholder is not active in management of the Company; or

C. upon change in executive management of the Corporation, including Board of Directors, President or Chief Executive Officer, which creates a substantial change in duties of the Employee, requires the Employee to move from their present place of Employment, creates hostile working conditions, or

D. upon the death or incapacity of Marshall Durbin, Jr.

TERMINATION AND/OR EARLY RETIREMENT COMPENSATION: During the term of this Agreement, upon the occurrence of any of the events listed in Paragraph 3, the Employee shall have and receive, subject to withholding and other applicable employment taxes, a monthly salary, payable on the 10th day of each month, mailed to the Employee’s address on record. The salary shall be the base pay of the Employee on the Effective Date of the occurrence listed in paragraph 3. The compensation shall extend for a term of five years from the Effective Date, and shall commence upon the occurrence of any of the events in Paragraph 3.

¶ 6. The board of directors ratified the agreement on November 15, 1999, and the existence of the “[deferred compensation” agreement was disclosed in the notes to the consolidated financial statements of the Company and its subsidiaries issued November 16, 2000.

¶ 7. In 2001, Mr. Durbin was diagnosed with malignant lymphoma in the central nervous system and received radiation therapy treatments to the brain. On July

*12729, 2001, Mr. Baker assumed the responsibilities of Company president during Mr. Durbin’s absence for medical purposes. On August 14, 2001, on emergency petition of Elise Durbin, the Probate Court of Jefferson County, Alabama, declared Mr. Durbin incapacitated. The court appointed Mr. Durbin’s daughters as temporary co-guardians and Mr. Bainbridge, one of the Company’s attorneys, as temporary conservator of Mr. Durbin’s estate. The petition estimated the value of Mr. Dur-bin’s shares in the Company to be $40,000,000.

¶8. On August 30, 2001, Mr. Baker wrote Mr. Bainbridge notifying him that the agreement had been triggered by Mr. Durbin’s incapacity. The letter explained that Mr. Baker would perform his duties as a consultant and no longer as an employee. On September 17, 2001, Mr. Dur-bin died. Within a day or two, Company employees went to Mr. Baker’s residence and picked up his Company car, explaining to Mr. Baker that he had resigned. On September 20, 2001, Mr. Baker filed a complaint for specific performance of the contract in the Chancery Court of Wayne County, Mississippi.

¶ 9. By letter dated October 19, 2001, Mr. Baker was informed by the Company’s counsel that a new board of directors had been elected on October 1, 2001, and had “immediately” voted to terminate Mr. Baker’s employment with the Company in all capacities. The letter referred to Mr. Baker’s August 31st letter1 as a “letter of resignation” and stated that the termination/early retirement agreement referenced therein was “not valid and, accordingly, the Directors have voted, on behalf of the Company to repudiate such agreement.” No basis for the claim of invalidity was provided. In answer to the complaint, however, the Company asserted failure of consideration as an affirmative defense.

¶ 10. Trial was held on February 27, 2003; each side presented only one witness. Mr. Baker testified in support of his complaint, and John Perri, former vice president and controller, testified on behalf of the Company. Following conclusion of the testimony, the Honorable Frank McKenzie rendered a bench opinion upholding the validity of the contract and finding the Company in breach. From the testimony of Mr. Perri that the Company was “spiraling down,” the court concluded that “it was very important to Mr. Durbin that he retain his top management personnel in that time of uncertainty in the industry.” The court found it to be in the best interest of the Company to offer top management incentive to prevent their looking for or accepting other employment opportunities in the industry and found it to be a “good decision” to retain these long-term employees, particularly in view of the conduct of Mr. Durbin’s daughters. The court continued that “[i]n reliance upon that contract, Mr. Baker did not seek other employment opportunities, continued to work for [the Company] in his capacity of chief operating officer. Since the company is still in existence today, I assume that they turned things around during that period of time and got the company on a profitable ... footing.”

¶ 11. In response to questioning by the Company’s trial counsel as to the consideration for the contract, the court responded, “The contract itself was the consideration given by Marshall Durbin. Marshall Dur-bin received the benefit, and I’m saying the company received the benefit of retain*1273ing the services of Mr. Baker, who at the time was extremely concerned about his future with the company. And, as he testified, had been contacted by others seeking to hire him.”

¶ 12. The court determined that the effective date of the contract was triggered by the undisputed evidence that Mr. Dur-bin was incapacitated on August 14, 2001,2 and that while Mr. Baker offered his services to the Company thereafter on a consultancy basis, payment for which would have reduced his entitlement under the contract, the Company terminated Mr. Baker’s relationship in any capacity. The court ruled that the Company’s payment obligation to Mr. Baker commenced on September 10, 2001 and would continue for five years, thereby entitling Mr. Baker to recover a total of $964,517.95, barring early termination upon the death of Mr. Baker and his wife. The Company filed a timely notice of appeal.

STANDARD OF REVIEW

¶ 13. This Court employs a limited standard of review when reviewing a chancellor’s decision. Shirley v. Christian Episcopal Methodist Church, 748 So.2d 672, 674 (¶ 9) (Miss.1999). We will not interfere with or disturb a chancellor’s findings of fact unless those findings are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. G.B. “Boots” Smith Corp. v. Cobb, 860 So.2d 774, 776 (¶ 6) (Miss.2003). “Even if this Court disagreed with the lower court on the finding of fact and might have arrived at a different conclusion, we are still bound by the chancellor’s findings unless manifestly wrong.” Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978). Questions of law are reviewed de novo. Zeman v. Stanford, 789 So.2d 798, 802 (¶12) (Miss.2001).

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THE EXISTENCE OF BARGAINED FOR CONSIDERATION

¶ 14. We are presented with the issue of whether a valid contract was formed between the Company and Mr. Baker. The Company claims the contract is invalid for lack of consideration. Consideration is, of course, one of the six elements required for the existence of a valid contract. See Rotenberry v. Hooker, 864 So.2d 266, 270 (¶ 13) (Miss.2003). The Mississippi Supreme Court has defined “[c]onsideration for a promise [a]s ‘(a) an act other than a promise, or (b) a forbearance, or © the creation, modification or destruction of a legal relation, or (d) a return promise, bargained for and given in exchange for the promise.’ ” City of Starkville v. 4-County Electric Power Assoc., 819 So.2d 1216, 1220 (¶ 10) (Miss.2002) (quoting Lowndes Coop. Ass’n v. Lipsey, 240 Miss. 71, 126 So.2d 276, 277 (1961) (quoting Restatement of Contracts § 75 (1932))).

A. What is the effect of the contract’s recital of consideration?

¶ 15. Failure of consideration is an affirmative defense. Daniel v. Snowdoun Ass’n, 513 So.2d 946, 950 (Miss.1987); Miss. R. Civ. Pro. 8(c). “Where the instrument in controversy contains a statement or recital of consideration, it creates a *1274rebuttable presumption that consideration actually existed.” Daniel, 513 So.2d at 950; Estate of Smith v. Samuels, 822 So.2d 366, 370 (¶ 13) (Miss.Ct.App.2002). While the presumption does not preclude the defendant from putting on proof designed to show that the consideration was not actually paid, his “rebuttal must be made by a clear preponderance of the evidence.” The trier of fact resolves any conflicting evidence. Daniel, 513 So.2d at 950.

¶ 16. In the instant case, the contract in controversy expressly recites “consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of all of which is acknowledged....” At trial, neither party offered any evidence to confirm or rebut the presumption of consideration which arises from this recitation. Mr. Perri3 did testify on behalf of the Company that he was not “aware” of any value received by Marshall Durbin in return for the agreement. Perri did not testify, however, that had the recited consideration been paid, it would necessarily have come to his attention. In fact, he admitted that he was not even aware of the existence of the contract until he received the draft financial report between mid-December and mid-January. We find Perri’s testimony insufficient to rebut the presumption of consideration by a “clear preponderance of the evidence.” While the unrebutted presumption is sufficient to affirm the decision of the chancellor as to the existence of consideration,4 we will, nevertheless, address the arguments raised by the Company.

B. Were the promises made by Mr. Baker and the Company mutually illusory?

¶ 17. The Company argues that the contract was not supported by consideration because the promises by both Mr. Baker and the Company were illusory. First, the Company alleges that Baker’s promise to refrain from seeking other employment and forbearance from leaving the Company renders the promise illusory and thus cannot provide consideration. Second, the Company argues that its absolute right to terminate Baker’s employment with the Company at any time renders the promise illusory because it is conditioned upon something completely within the Company’s control. Also, the Company argues that the promises of both Mr. Baker and the Company were illusory because their relationship was unquestionably at-will. Although we find the Company correct in its contention that no valid promise was given by Mr. Baker in exchange for the Company’s promise of payment, we reject the contention that the Company’s promise was also illusory. Accordingly, Mr. Baker could, and did, supply consideration for the Company’s promise by “an act other than a promise.” See City of Starkville, 819 So.2d at 1220 (¶ 10); Lowndes Coop. Ass’n, 126 So.2d at 277.

*1275¶ 18. The Mississippi Supreme Court has relied on Professor Corbin’s analysis of illusory promises as consideration, which states:

By the phrase “illusory promise” is meant words in promissory form that promise nothing; they do not purport to put any limitation on the freedom of the alleged promisor, but leave his future action subject to his own future will, just as it would have been had he said no words at all.... A prediction of future willingness is not an expression of present willingness and is not a promise. To see a promise in it is to be under an illusion. We reach the same result if B’s reply to A is, “I promise to do as you ask if I please to do so when the time arrives.” In form this is a conditional promise, but the condition is the pleasure or future will of the promisor himself. The words used do not purport to effect any limitation upon the promisor’s future freedom of choice. They do not lead the promisee to have an expectation of performance because of a present expression of will. He may hope that a future willingness will exist; but he has no more reasonable basis for such a hope than if B had merely made a prediction or had said nothing at all. As a promise, B’s words are mere illusion. Such an illusory promise is neither enforceable against the one making it, nor is it operative as a consideration for a return promise.

Krebs ex rel. Krebs v. Strange, 419 So.2d 178, 182-83 (Miss.1982) (quoting 1 Corbin, Contracts, § 145 (1 vol. ed.1952)). Applying this analysis, we determine that no valid promise was given by Mr. Baker in exchange for the Company’s promise of payment, however, we reject the contention that the Company’s promise was illusory.

¶ 19. The contract expressly disavows any intent “to create contractual employment” between the Company and Mr. Baker; in fact, the parties agreed that Mr. Baker would be an “employee-at-will.” By executing the contract, Mr. Baker did not promise to remain in the Company’s employ; at trial, Mr. Baker admitted, “I could have quit at any time.” The trial court recognized this fact: “Well, as I review the contract, I don’t think he was obligated to continue to be an employee of Marshall Durbin.... Probably not. But, as long as he did continue to be an employee of Marshall Durbin, and any of those triggering events occurred while he was an employee of Marshall Durbin, then the contract went into effect.” Accordingly, the trial court based its finding of consideration not upon any promise by Mr. Baker to continue to work for the Company but upon Mr. Baker’s act of continuing to work for the Company and the Company’s corresponding receipt of benefit from Mr. Baker’s services. The United States Court of Appeals for the Fifth Circuit has recognized that “the presence of an illusory promise does not destroy the possibility of a contract. Instead, it may create a unilateral contract, and ‘the promisor who made the illusory promise can accept [it] by performance.’ ” Olander v. Compass Bank, 363 F.3d 560, 565 (5th Cir.2004) (quoting Light v. Centel Cellular Co., 883 S.W.2d 642, 645 n. 6 (Tex.1994)).

¶ 20. The Company did not promise to continue to employ Mr. Baker for any definite period of time; however, it did promise that if Mr. Baker continued his employment until the happening of a triggering event, the Company would compensate him as set forth in the contract. The Company’s promise was contingent; it was not illusory. Mr. Baker apparently trusted Mr. Durbin and was willing to continue his employment at the will of Mr. Durbin. Had Mr. Durbin terminated Mr. Baker’s *1276employment prior to the occurrence of one of the triggering events, Mr. Baker would have had no recourse. The contract was not designed to, and did not, provide for that occurrence. This case comes to us, however, after the contingency (Mr. Baker’s employment upon the happening of a triggering event) has been fulfilled; and the Company’s promise to pay under these circumstances is not illusory.

¶ 21. Mr. Baker’s consideration for the Company’s promise was not by a return promise, but by “an act other than a promise.” See Lowndes Coop. Ass’n, 126 So.2d at 277. As with the instant case, Lowndes Coop. Ass’n considered the question of the legal sufficiency of consideration to support a retirement agreement of an employee. The association decided that the employee, Lipsey, should be relieved of his duties and paid certain retirement benefits for thirty months “provided he cooperates with the board of directors and the new management.” Although reluctant to retire, Lipsey accepted the offer and retired voluntarily, refrained from raising any objections among his friends who were members of the association, and assisted the new manager for over two months. The association thereafter terminated the retirement payments, claiming the promises of payment to be mere gifts to the employee and not supported by consideration. The Mississippi Supreme Court found there to be “several legally sufficient considerations to support [the association’s] promise to pay the retirement benefits, and to make it a binding obligation: A promise to cooperate, the act of retiring without objection, and the acts of advising and assisting the new manager.” Lowndes Coop. Ass’n, 126 So.2d at 276-78. In the instant case, the Company focuses only on the alleged return promise of Mr. Baker and ignores the fact that other consideration, such as Mr. Baker’s actual performance, is equally sufficient consideration.

C. Was the contract based on past consideration?

¶ 22. The Company alleges that the parties both intended for Baker’s past service to the Company to serve as consideration for future payments and that past consideration generally cannot form the basis of a valid contract. The Company points to the language of the consent action of the Company board of directors approving the agreement that Mr. Baker “had been employed by the Corporation for a number of years,” that “the Company had experienced difficult financial times during the past five years,” and that Baker had “made great personal sacrifices to help the President change the operating results of the Corporation.” In most situations, past consideration may not serve as consideration. However, “a contract founded partly on a past consideration and partly on an executory consideration is enforceable, although in a sense no resort to the past consideration need be had as the new or executory consideration is conceptually adequate to support enforceability of the contract.” Jim Murphy & Assoc., Inc. v. LeBleu, 511 So.2d 886, 891 (Miss.1987). In this case, Mr. Baker’s past performance and service to the Company made him a valuable employee whose services the Company desired to retain during the time of “chaos.” Mr. Perri, the Company’s sole witness, described Mr. Baker as a “key person” who was “put in the breach to help save the company, because we were spiraling downward.” The contract did not, however, promise to pay Mr. Baker for this past performance but for his future performance and service to the company. Mr. Baker would only receive payment under the contract if he was an employee of the Company on some date in the future when a triggering event occurred. The Company’s claim of “past consideration” is without merit.

*1277D. Is the contract unenforceable if based on Baker’s forbearance from seeking other employment?

¶ 23. The Company contends that Baker’s forbearance from seeking other employment was not a legal detriment and cannot constitute consideration. Legal detriment, as opposed to detriment in fact, is present where the promisee gives up something he was privileged to retain prior to the contract. See 1 Williston, Contracts §§ 102A, 382 (3d ed.1957); Lowndes Coop. Ass’n, 126 So.2d at 278. The Company argues that Mr. Baker had no legal duty to refrain from looking for other employment, and, therefore, did not suffer legal, as opposed to factual, detriment. Further, the Company contends that forbearance from seeking other employment is not legal detriment in the context of at-will employment contracts. Mr. Baker argues that his detriment consisted of his refraining from seeking other employment and his commitment to the Company at a time when the Company was in a volatile environment. We need not decide this issue. The trial court found not only detriment to Mr. Baker in forbearing from seeking or accepting other employment, but also benefit to the Company in retaining Mr. Baker’s services.5

¶24. Again, Lowndes Coop. Ass’n is instructive: “A benefit to the promisor or detriment to the promisee is sufficient consideration for a contract. This may consist either in some interest, right, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” 126 So.2d at 278 (emphasis added); see also Iuka Guar. Bank v. Beard, 658 So.2d 1367, 1372 (Miss.1995) (“[consideration is sufficient if there is any benefit to the promisor or any loss, detriment, or inconvenience to the promisee”).

¶ 25. After reviewing the record, we find as the trial court did, that the Company benefitted by retaining the services of Mr. Baker. Marshall Durbin intended to maintain a secure work environment for his high level management team during a turbulent time. In his bench opinion, the chancellor found Mr. Durbin’s business decision to execute such a contract was wise given the fact that the Company was in trouble and Mr. Durbin’s daughters were circulating correspondence that was causing concern among top level employees with respect to job security. Mr. Perri testified that Mr. Baker was “put in the breach to help save the company, because we were spiraling downward.” Approximately two years later, Elise Durbin, in petitioning for conservatorship of her father, estimated his stock in the Company to be worth $40,000,000. We find that the trial court’s assumption “that they turned things around during that period of time and got the company on a profitable ... footing” to be supported by the record. The Company has never challenged, and in fact completely ignores, the finding that the Company enjoyed the benefits of retaining a valued employee. The trial court correctly determined there to be consideration for the contract, and we affirm.

II. WHETHER THE TRIAL COURT ERRED IN DETERMINING AUGUST 14, 2001 TO BE THE EFFECTIVE DATE OF THE AGREEMENT

A. Did the trial court err in admitting hearsay?

¶26. The Company alleges that the trial court erred in admitting and rely*1278ing on a certified copy of a portion of the court file from the Probate Court of Jefferson County, Alabama, in determining the effective date of the agreement. The document in question is on letterhead from the Birmingham Hematology and Oncology Associates, L.L.C., and was attached as an exhibit to Elise Durbin’s affidavit in support of her emergency petition for con-servatorship of her father. The letter recites the physicians’ opinion that “[a]t this time Mr. Durbin is clearly lacking sufficient understanding or capacity to make responsible decisions.” The affidavit of Miss Durbin states that the letter was delivered to her by the physicians who examined her father on August 13, 2001.

¶ 27. The Company argues that this letter was inadmissable hearsay and should not have been relied upon by the trial court in determining Mr. Durbin to be incapacitated on August 14, 2001. Further, the Company contends that its general objection to any hearsay evidence in the probate file was sufficient and should have been sustained. In the end, the Company argues that the trial court relied on hearsay to find the occurrence of the “effective date,” making the error worthy of reversal.

¶ 28. We disagree with the Company’s contentions. The trial court correctly admitted the letter where the Company failed to object to the admission of the evidence at trial. The Company’s trial counsel made only a general objection that some of the documents in the file from the Probate Court of Jefferson County, Alabama might contain hearsay; counsel failed to identify any particular document as containing hearsay. When the specific letter in question was brought to the court’s attention, and later, when the court read the letter in its entirety into the record, the Company’s trial counsel failed to raise any objection. Failure to raise a contemporaneous objection constitutes a waiver of the issue on appeal. See Gatlin v. State, 724 So.2d 359, 369 (¶ 43) (Miss.1998); Kroger Co. v. Scott, 809 So.2d 679, 686 (¶ 18) (Miss.Ct.App.2001). Further, when the court issued its bench opinion that “the evidence is without dispute” that Mr. Durbin was incapacitated on August 14, 2001, trial counsel did not voice any objection at the conclusion of the opinion or on motion to reconsider. The Company’s belated challenge to the evidence contained in the Alabama probate file is pro-eedurally barred.

B. Whether the Trial Court Erred Factually in Finding Two Effective Dates for the Agreement?

¶ 29. The Company contends that only the event earliest in time could trigger the payment obligation under the agreement. Thus, the effective date of the contract should have been July 9, 2001, the date Mr. Baker was named president of the Company, and the Company’s obligation to pay Baker should cease five years later, on July 10, 2006. The contract specifically states that “the Employee may continue to be employed subsequent to any' of the [triggering] events. Such employment will be credited against the termination and early retirement compensation of this contract....” Thus, the Company asserts that the trial court’s judgment, finding the Company’s monthly payment obligation to begin on September 10, 2001, erroneously extended the Company’s payment under the contract for two months.

¶ 30. Upon careful review of the record, we find that the Company did not raise this issue.with the lower court. Thus, it is procedurally barred from raising the issue here for the first time. Sumrall Church of the Lord Jesus Christ v. Johnson, 757 So.2d 311, 316 (¶ 12) (Miss.Ct.App.2000). Under Mississippi law, an *1279appellant cannot prevent the trial court from having an opportunity to address an alleged error by raising a new issue on appeal. Crowe v. Smith, 603 So.2d 301, 305 (Miss.1992). The purpose for requiring the objections at the trial level is to “avoid costly new trials and to allow the offering party an opportunity to obviate the objection.” Sumrall Church of the Lord Jesus Christ, 757 So.2d at 316. However, notwithstanding the procedural bar, we feel compelled, in light of the pleadings, evidence adduced at trial, and the findings of the trial court to notice the September 10, 2001 effective date as plain error. We agree with the Company’s assertion that the lower court’s disregard as to the date when Baker assumed the position of president of the Company, after identifying it as an additional triggering event, constitutes clear and substantial error. The language of contract specifically provides that after the occurrence of any of the triggering events, Baker’s continued employment would be credited against the compensation provided by the contract and would “not extend the compensation term of five years from the Effective Date.”

¶ 31. Accordingly, we reverse as to the effective date of the contract and render that the Company’s payment obligation commenced on July 10, 2001 and is to continue thereafter in accordance to the terms and provisions of the Agreement of Termination and/or Early Retirement.

III. IS THE COMPANY COLLATERALLY ESTOPPED FROM SEEKING JUDICIAL REVIEW?

¶ 32. Mr. Baker raises an additional issue on appeal. He claims that the Company is collaterally estopped from seeking judicial relief with this Court and references a judgment from a court in Alabama between Defendant Agri-Business Supply Co., a subsidiary of the Company, and Plaintiff Morgan Edwards, a former Agri-Business Supply Co. employee. The Company moves to strike this issue as being improperly raised for the first time on appeal. We agree with the Company that Mr. Baker did not raise the issue of collateral estoppel at the trial court level, and thus he cannot raise it before this Court. See Mississippi Pub. Serv. Comm’n v. Merck. Truck Line, Inc., 598 So.2d 778, 780 (Miss.1992); Bush Const. Co. v. Walters, 254 Miss. 266, 179 So.2d 188, 190 (1965). Upon review of the record, we find that Mr. Baker’s attempted offensive use of collateral estoppel is not properly before this Court. By separate order, we grant the Company’s motion to strike this issue.

CONCLUSION

¶ 33. We find that the chancery court properly held the agreement between Mr. Baker and the Company to be enforceable. We affirm the lower court’s decision as to the validity of the contract and reverse and render as to the effective date.

¶ 34. THE JUDGMENT OF THE CHANCERY COURT OF WAYNE COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., IRVING, MYERS, CHANDLER, GRIFFIS AND ISHEE, JJ., CONCUR. LEE, P.J., NOT PARTICIPATING.