Buchanan, J.,

delivered the opinion of the court.

This suit was instituted by W. O. Lucy and J. C. Lucy, complainants, against A. H. Zehmer and Ida S. Zehmer, his wife, defendants, to have specific performance of a contract by which it was alleged the Zehmers had sold to W. O. Lucy a tract of land owned by A. H. Zehmer in Dinwiddie county containing 471.6 acres, more or less, known as the Ferguson farm, for $50,000. J. C. Lucy, the other complainant, is a brother of W. O. Lucy, to whom W. O. Lucy transferred a half interest in his alleged purchase.

The instrument sought to be enforced was written by A. H. Zehmer on December 20, 1952, in these words: “We hereby agree to sell to W. O. Lucy the Ferguson Farm complete for $50,000.00, title satisfactory to buyer,” and signed by the defendants, A. H. Zehmer and Ida S. Zehmer.

The answer of A. H. Zehmer admitted that at the time mentioned W. O. Lucy offered him $50,000 cash for the farm, but that he, Zehmer, considered that the offer was made in jest; that so thinking, and both he and Lucy having had several drinks, he wrote out “the memorandum” quoted above and induced his wife to sign it; that he did not de *495 liver the memorandum to Lucy, but that Lucy picked it up, read it, put it in his pocket, attempted to offer Zehmer $5 to bind the bargain, which Zehmer refused to accept, and realizing for the first time that Lucy was serious, Zehmer assured him that he had no intention of selling the farm and that the whole matter was a joke. Lucy left the premises insisting that he had purchased the farm.

Depositions were taken and the decree appealed from was entered holding that the complainants had failed to establish their right to specific performance, and dismissing their bill. The assignment of error is to this action of the court.

W. O. Lucy, a lumberman and farmer, thus testified in substance: He had known Zehmer for fifteen or twenty years and had been familiar with the Ferguson farm for ten years. Seven or eight years ago he had offered Zehmer $20,000 for the farm which Zehmer had accepted, but the agreement was verbal and Zehmer backed out. On the night of December 20, 1952, around eight o’clock, he took an employee to McKenney, where Zehmer lived and operated a restaurant, filling station and motor court. While there he decided to see Zehmer and again try to buy the Ferguson farm. He entered the restaurant and talked to Mrs. Zehmer until Zehmer came in. He asked Zehmer if he had sold the Ferguson farm. Zehmer replied that he had not. Lucy said, “I bet you wouldn’t take $50,000.00 for that place.” Zehmer replied, “Yes, I would too; you wouldn’t give fifty.” Lucy said he would and told Zehmer to write up an agreement to that effect. Zehmer took a restaurant check and wrote on the back of it, “I do hereby agree to sell to W. O. Lucy the Ferguson Farm for $50,000 complete.” Lucy told him he had better change it to “We” because Mrs. Zehmer would have to sign it too. Zehmer then tore up what he had written, wrote the agreement quoted above and asked Mrs. Zehmer, who was at the other end of the counter ten or twelve feet away, to sign it. Mrs. Zehmer said she would for $50,000 and signed it. Zehmer brought it back and gave it to Lucy, who offered him $5 which Zehmer refused, *496 saying, “You don’t need to give me any money, you got the agreement there signed by both of us.”

The discussion leading to the signing of the agreement, said Lucy, lasted thirty or forty minutes, during which Zehmer seemed to doubt that Lucy could raise $50,000. Lucy suggested the provision for having the title examined and Zehmer made the suggestion that he would sell it “complete, everything there,” and stated that all he had on the farm was three heifers.

Lucy took a partly filled bottle of whiskey into the restaurant with him for the purpose of giving Zehmer a drink if he wanted it. Zehmer did, and he and Lucy had one or two drinks together. Lucy said that while he felt the drinks he took he was not intoxicated, and from the way Zehmer handled the transaction he did not think he was either.

December 20 was on Saturday. Next day Lucy telephoned to J. C. Lucy and arranged with the latter to take a half interest in the purchase and pay half of the consideration. On Monday he engaged an attorney to examine the title. The attorney reported favorably on December 31 and on January 2 Lucy wrote Zehmer stating that the title was satisfactory, that he was ready to pay the purchase price in cash and asking when Zehmer would be ready to close the deal. Zehmer replied by letter, mailed on January 13, asserting that he had never agreed or intended to sell.

Mr. and Mrs. Zehmer were called by the complainants as adverse witnesses. Zehmer testified in substance as follows:

He bought this farm more than ten years ago for $11,000. He had had twenty-five offers, more or less, to buy it, including several from Lucy, who had never offered any specific sum of money. He had given them all the same answer, that he was not interested in selling it. On this Saturday night before Christmas it looked like everybody and his brother came by there to have a drink. He took a good many drinks during the afternoon and had a pint of his own. When he entered the restaurant around eight- *497 thirty Lucy was there and he could see that he was “pretty high.” He said to Lucy, “Boy, you got some good liquor, drinking, ain’t you?” Lucy then offered him a drink. “I was already high as a Georgia pine, and didn’t have any more better sense than to pour another great big slug out and gulp it down, and he took one too.”

After they had talked a while Lucy asked whether he still had the Ferguson farm. He replied that he had not sold it and Lucy said, “I bet you wouldn’t take $5.0,000.00 for it.” Zehmer asked him if he would give $50,000 and Lucy said yes. Zehmer replied, “You haven’t got $50,000 in cash.” Lucy said he did and Zehmer replied that he did not believe it. They argued “pro and con for a long time,” mainly about “whether he had $50,000 in cash that he could put up right then and buy that farm.”

Finally, said Zehmer, Lucy told him if he didn’t believe he had $50,00,0, “you sign that piece of paper here and say you will take $50,000.00 for the farm.” He, Zehmer, “just grabbed the back off of a guest check there” and wrote on the back of it. At that point in his testimony Zehmer asked to see what he had written to “see if I recognize my own handwriting.” He examined the paper and exclaimed, “Great balls of fire, I got ‘Firgerson’ for Ferguson. I have got satisfactory spelled wrong. I don’t recognize that writing if I would see it, wouldn’t know it was mine.”

After Zehmer had, as he described it, “scribbled this thing off,” Lucy said, “Get your wife to sign it.” Zehmer walked over to where she was and she at first refused to sign but did so after he told her that he “was just needling him [Lucy], and didn’t mean a thing in the world, that I was not selling the farm.” Zehmer then “took it back over there * * and I was still looking at the dern thing. I had the drink right there by my hand, and I reached over to get a drink, and he said, ‘Let me see it.’ He reached and picked it up, and when I looked back again he had it in his pocket and he dropped a five dollar bill over there, and he said, ‘Here is five dollars payment on it.’ * * I said, ‘Hell no, *498 that is beer and liquor talking. I am not going to sell you the farm. I have told you that too many times before.’ ”

Mrs. Zehmer testified that when Lucy came into the restaurant he looked as if he had had a drink. When Zehmer came in he took a drink out of a bottle that Lucy handed him. She went back to help the waitress who was getting things ready for next day. Lucy and Zehmer were talking but she did not pay too much attention to what they were saying. She heard Lucy ask Zehmer if he had sold the Ferguson farm, and Zehmer replied that he had not and did not want to sell it. Lucy said, “I bet you wouldn’t take $50,000 cash for that farm,” and Zehmer replied, “You haven’t got $50,000 cash.” Lucy said, “I can get it.” Zehmer said he might form a company and get it, “but you haven’t got $50,000.00 cash to pay me tonight.” Lucy asked him if he would put it in writing that he would sell him this farm. Zehmer then wrote on the back of a pad, “I agree to sell the Ferguson Place to W. O. Lucy for $50,000.00 cash.” Lucy said, “All right, get your wife to sign it.” Zehmer came back to where she was standing and said, “You want to put your name to this?” She said “No,” but he said in an undertone, “It is nothing but a joke,” and she signed it.

She said that only one paper was written and it said: “I hereby agree to sell,” but the “I” had been changed to “We”. However, she said she re'ad what she signed and was then asked, “When you read We hereby agree to sell to W. O. Lucy,’ what did you interpret that to mean, that particular phrase?” She said she thought that was a cash sale that night; but she also said that when she read that part about “title satisfactory to buyer” she understood that if the title was good Lucy would pay $50,000 but if the title was bad he would have a right to reject it, and that that was her understanding at the time she signed her name.

On examination by her own counsel she said that her husband laid this piece of paper down after it was signed; that Lucy said to let him see it, took it, folded it and put it *499 in his wallet, then said to Zehmer, “Let me give you $5.00,” but Zehmer said, “No, this is liquor talking. I don’t want to sell the farm, I have told you that I want my son to have it. This is all a joke.” Lucy then said at least twice, “Zehmer, you have sold your farm,” wheeled around and started for the door. He paused at the door and said, “I will bring you $50,000.00 tomorrow. * * No, tomorrow is Sunday. I will bring it to you Monday.” She said you could tell definitely that he was drinking and she said to her husband, “You should have taken him home,” but he said, “Well, I am just about as bad off as he is.”

The waitress referred to by Mrs. Zehmer testified that when Lucy first came in “he was mouthy.” When Zehmer came in they were laughing and joking and she thought they took a drink or two. She was sweeping and cleaning up for next day. She said she heard Lucy tell Zehmer, “I will give you so much for the farm,” and Zehmer said, “You haven’t got that much.” Lucy answered, “Oh, yes, I will give you that much.” Then “they jotted down something on paper * * and Mr. Lucy reached over and took it, said let me see it.” He looked at it, put it in his pocket and in about a minute he left. She was asked whether she saw Lucy offer Zehmer any money and replied, “He had five dollars laying up there, they didn’t take it.” She said Zehmer told Lucy he didn’t want his money “because he didn’t have enough money to pay for his property, and wasn’t going to sell his farm.” Both of them appeared to be drinking right much, she said.

She repeated on cross-examination that she was busy and paying no attention to what was going on. She was some distance away and did not see either of them sign the paper. She was asked whether she saw Zehmer put the agreement down on the table in front of Lucy, and her answer was this: “Time he got through writing whatever it was on the paper, Mr. Lucy reached over and said, ‘Let’s see it.’ He took it and put it in his pocket,” before showing it to Mrs. *500 Zehmer. Her version was that Lucy kept raising his offer until it got to $50,000.

The defendants insist that the evidence was ample to support their contention that the writing sought to be enforced was prepared as a bluff or dare to force Lucy to admit that he did not have $50,0,00; that the whole matter was a joke; that the writing was not delivered to Lucy and no binding contract was ever made between the parties.

It is an unusual, if not bizarre, defense'. When made to the writing admittedly prepared by one of the defendants and signed by both, clear evidence is required to sustain it.

In his testimony Zehmer claimed that he “was high as a Georgia pine,” and that the transaction “was just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most.” That claim is inconsistent with his attempt to testify in great detail as to what was said and what was done. It is contradicted by other evidence as to the condition of both parties, and rendered of no weight by the testimony of his wife that when Lucy left the restaurant she suggested that Zehmer drive him home. The record is convincing that Zehmer was not intoxicated to the extent of being unable to comprehend the nature and consequences of the instrument he executed, and hence that instrument is not to be invalidated on that ground. 17 C. J. S., Contracts, § 133 b., p. 483; Taliaferro v. Emery, 124 Va. 674, 98 S. E. 627. It was in fact conceded by defendants’ counsel in oral argument that under the evidence Zehmer was not too drunk to make a valid contract.

The evidence is convincing also that Zehmer wrote two agreements, the first one beginning “I hereby agree to sell.” Zehmer first said he could not remember about that, then that “I don’t think I wrote but one out.” Mrs. Zehmer said that what he wrote was “I hereby agree,” but that the “I” was changed to “We” after that night. The agreement that was written and signed is in the record and indicates no such change. Neither are the mistakes in spelling that Zehmer sought to point out readily apparent.

*501 The appearance of the contract, the fact that it was under discussion for forty minutes or more before it was signed; Lucy’s objection to the first draft because it was written in the singular, and he wanted Mrs. Zehmer to sign it also; the rewriting to meet that objection and the signing by Mrs. Zehmer; the discussion of what was to be included in the sale, the provision for the examination of the title, the completeness of the instrument that was executed, the taking possession of it by Lucy with no request or suggestion by either of the defendants that he give it back, are facts which furnish persuasive evidence that the execution of the contract was a serious business transaction rather than a casual, jesting matter as defendants now contend.

On Sunday, the day after the instrument was signed on Saturday night, there was a social gathering in a home in the town of McKenney at which there were general comments that the sale had been made. Mrs. Zehmer testified that on that occasion as she passed by a group of people, including Lucy, who were talking about the transaction, $50,000 was mentioned, whereupon she stepped up and said, “Well, with the high-price whiskey you were drinking last night you should have paid more. That was cheap.” Lucy testified that at that time Zehmer told him that he did not want to “stick” him or hold him to the agreement because he, Lucy, was too tight and didn’t know what he was doing, to which Lucy replied that he was not too tight; that he had been stuck before and was going through with it. Zehmer’s version was that he said to Lucy: “I am not trying to claim it wasn’t a deal on account of the fact the price was too low. If I had wanted to sell $50,000.00 would be a good price, in fact I think you would get stuck at $50,00.0.00.” A disinterested witness testified that what Zehmer said to Lucy was that “he was going to let him up off the deal, because he thought he was too tight, didn’t know what he was doing. Lucy said something to the effect that £I have been stuck before and I will go through with it.’ ”

If it be assumed, contrary to what we think the evi *502 dence shows, that Zehmer was jesting about selling his farm to Lucy and that the transaction was intended by him to be a joke, nevertheless the evidence shows that Lucy did not so understand it but considered it to be a serious business transaction and the contract to be binding on the Zehmers as well as on himself. The very next day he arranged with his brother to put up half the money and take a half interest in the land. The day after that he employed an attorney to examine the title. The next night, Tuesday, he was back at Zehmer’s place and there Zehmer told him for the first time, Lucy said, that he wasn’t going to sell and he told Zehmer, “You know you sold that place fair and square.” After receiving the report from his attorney that the title was good he wrote to Zehmer that he was ready to close the deal.

Not only did Lucy actually believe, but the evidence shows he was warranted in believing, that the contract represented a serious business transaction and a good faith sale and purchase of the farm.

In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. ‘The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.’ ” First Nat. Bank v. Roanoke Oil Co., 169 Va. 99, 114, 192 S. E. 764, 770.

At no time prior to the execution of the contract had Zehmer indicated to Lucy by word or act that he was not in earnest about selling the farm. They had argued about it and discussed its terms, as Zehmer admitted, for a long time. Lucy testified that if there was any jesting it was about paying $50,000 that night. The contract and the evidence show that he was not expected to pay the money that night. Zehmer said that after the writing was signed he laid it down on the counter in front of Lucy. Lucy said Zehmer handed it to him. In any event there had been what appeared to be a good faith offer and a good faith ac *503 ceptance, followed by the execution and apparent delivery of a written contract. Both said that Lucy put the writing in his pocket and then offered Zehmer $5 to seal the bargain. Not until then, even under the defendants’ evidence, was anything said or done to indicate that the matter was a joke. Both of the Zehmers testified that when Zehmer asked his wife to sign he whispered that it was a joke so Lucy wouldn’t hear and that it was not intended that he should hear.

The mental assent of the parties is not requisite for the formation of a contract. If the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party. Restatement of the Law of Contracts, Vol. I, § 71, p. 74.

"* * * The law therefore, judges of an agreement between two persons exclusively from those expressions of their intentions which are communicated between them. * * * Clark on Contracts, 4 ed., § 3, p. 4.

An agreement or mutual assent is of course essential to a valid contract but the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. If his words and acts, judged by a reasonable standard, manifest an intention to agree, it is immaterial what may be the. real but unexpressed state of his mind. 17 C. J. S., Contracts, § 32, p. 361; 12 Am. Jur., Contracts, § 19, p. 515.

So a person cannot set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement, 17 C. J. S., Contracts, § 47, p. 390; Clark on Contracts, 4 ed., § 27, at p. 54.

Whether the writing signed by the defendants and now sought to be enforced by the complainants was the result of a serious offer by Lucy and a serious acceptance by the defendants, or was a serious offer by Lucy and an acceptance in secret jest by the defendants, in either event it constituted a binding contract of sale between the parties.

*504 Defendants contend further, however, that even though a contract was made, equity should decline to enforce it under the circumstances. These circumstances have been set forth in detail above. They disclose some drinking by the two parties but not to an extent that they were unable to understand fully what they were doing. There was no fraud, no misrepresentation, no sharp practice and no dealing between unequal parties. The farm had been bought for $11,000 and was assessed for taxation at $6,300. The purchase price was $50,000. Zehmer admitted that it was a good price. There is in fact present in this case none of the grounds usually urged against specific performance.

Specific performance, it is true, is not a matter of absolute or arbitrary right, but is addressed to the reasonable and sound discretion of the court. First Nat. Bank v. Roanoke Oil Co., supra, 169 Va. at p. 116, 192 S. E. at p. 771. But it is likewise true that the discretion which may be exercised is not an arbitrary or capricious one, but one which is controlled by the established doctrines and settled principles of equity; and, generally, where a contract is in its nature and circumstances unobjectionable, it is as much a matter of course for courts of equity to decree a specific performance of it as it is for a court of law to give damages for a breach of it. Bond v. Crawford, 193 Va. 437, 444, 69 S. E. (2d) 470, 475.

The complainants are entitled to have specific performance of the contracts sued on. The decree appealed from is therefore reversed and the cause is remanded for the entry of a proper decree requiring the defendants to perform the contract in accordance with the prayer of the bill.

Reversed and remanded.

SIMONETT, Justice.

This case asks whether a newspaper’s breach of its reporter’s promise of anonymity to a news source is legally enforceable. We conclude the promise is not enforceable, neither as a breach of contract claim nor, in this case, under promissory estoppel. We affirm the court of appeals’ dismissal of plaintiffs claim based on fraudulent misrepresentation, and reverse the court of appeals’ allowance of the breach of contract claim.

Claiming a reporter’s promise to keep his name out of a news story was broken, plaintiff Dan Cohen sued defendants Northwest Publications, Inc., publisher of the St. Paul Pioneer Press Dispatch (Pioneer Press), and Cowles Media Company, publisher of the Minneapolis Star and Tribune (Star Tribune). The trial court ruled that the First Amendment did not bar Cohen’s contract and misrepresentation claims. The jury then found liability on both claims and awarded plaintiff $200,000 compensatory damages jointly and severally against the defendants. In addition, the jury awarded punitive damages of $250,000 against each defendant.

The court of appeals (2-1 decision) agreed that plaintiff’s claims did not involve state action and therefore did not implicate the First Amendment; further, that even if First Amendment rights were implicated, those rights were outweighed by compelling state interests and, in any event, such rights were waived by the newspapers. The appeals panel ruled, however, that misrepresentation had not been proven as a matter of law and, therefore, set aside the punitive damages award. The panel upheld the jury's finding of a breach of contract and affirmed the award of $200,000 compensatory damages. Cohen v. Cowles Media Co., 445 N.W.2d 248 (Minn.App.1989). We granted petitions for further review from all parties.

On October 27, 1982, in the closing days of the state gubernatorial election campaign, Dan Cohen separately approached Lori Sturdevant, the Star Tribune reporter, and Bill Salisbury, the Pioneer Press reporter, and to each stated in so many words:

I have some documents which may or may not relate to a candidate in the upcoming election, and if you will give me a promise of confidentiality, that is that I will be treated as an anonymous source, that my name will not appear in any material in connection with this, and you will also agree that you’re not going to pursue with me a question of who my source is, then I’ll furnish you with the documents.

Sturdevant and Salisbury were experienced reporters covering the gubernatorial election and knew Cohen as an active Republican associated with the Wheelock Whitney campaign. Cohen told Sturdevant that he would also be offering the documents to other news organizations. Neither reporter informed Cohen that their promises of confidentiality were subject to approval or revocation by their editors. Both reporters promised to keep Cohen’s identity anonymous, and both intended to keep that promise. At trial Cohen testified he insisted on anonymity because he feared retaliation from the news media and politicians. Cohen turned over to each reporter copies of two public court records concerning Marlene Johnson, the DFL candidate for lieutenant governor. The first was a record of a 1969 case against Johnson for three counts of unlawful assembly, subsequently dismissed; the second document was a 1970 record of conviction for petit theft, which was vacated about a year la*201ter.1

Both newspapers, on the same day, then interviewed Marlene Johnson for her explanation and reaction. The Star Tribune also assigned a reporter to find the original court records in the dead-storage vaults. The reporter discovered that Gary Flakne, known to be a Wheelock Whitney supporter, had checked out the records a day earlier; no one, before Flakne, had looked at the records for years. The reporter called Flakne and asked why he had checked out the records. Flakne replied, “I did it for Dan Cohen.” The Star Tribune editors thereafter conferred and decided to publish the story the next day including Dan Cohen’s identity.- Acting independently, the Pioneer Press Dispatch editors also decided to break their reporter’s promise and to publish the story with Cohen named as the source.2

The decision to identify Cohen in the stories was the subject of vigorous debate within the editorial staffs of the two newspapers. Some staff members argued that the reporter’s promise of confidentiality should be honored at all costs. Some contended that the Johnson incidents were not newsworthy and did not warrant publishing, and, in any case, if the story was published, it would be enough to identify the source as a source close to the Whitney campaign. Other editors argued that not only was the Johnson story newsworthy but so was identification of Cohen as the source; that to attribute the story to a veiled source would be misleading and cast suspicion on others; and that the Johnson story was already spreading throughout the news media community and was discoverable from other sources not bound by confidentiality. Then, too, the Star Tribune had editorially endorsed the Perpich-Johnson ticket; some of its editors feared if the newspaper did not print the Johnson story, other news media would, leaving the Star Tribune vulnerable to a charge it was protecting the ticket it favored. Salisbury and Sturdevant both objected strongly to the editorial decisions to identify Cohen as the source of the court records. Indeed, Sturdevant refused to attach her name to the story.

Promising to keep a news source anonymous is a common, well-established journalistic practice. So is the keeping of those promises. None of the editors or reporters who testified could recall any other instance when a reporter’s promise of confidentiality to a source had been overruled by the editor. Cohen, who had many years’ experience in politics and public relations,3 said this was the first time in his experience that an editor or a reporter did not honor a promise to a source.

The next day, October 28, 1982, both newspapers published stories about Johnson’s arrests and conviction. Both articles published Cohen’s name, along with denials by the regular Whitney campaign officials of any connection with the published stories. Under the headline, Marlene John*202son arrests disclosed by Whitney ally, the Star Tribune also gave Johnson’s explanation of the arrests and identified Cohen as a “political associate of IR gubernatorial candidate Wheelock Whitney” and named the advertising firm where Cohen was employed. The Pioneer Press Dispatch quoted Johnson as saying the release of the information was “a last-minute smear campaign.”

The same day as the two newspaper articles were published, Cohen was fired by his employer. The next day, October 29, a columnist for the Star Tribune attacked Cohen and his “sleazy” tactics, with, ironically, no reference to the newspaper’s own ethics in dishonoring its promise. A day later the Star Tribune published a cartoon on its editorial page depicting Dan Cohen with a garbage can labeled “last minute campaign smears.”

Cohen could not sue for defamation because the information disclosed was true. He couched his complaint, therefore, in terms of fraudulent misrepresentation and breach of contract. We now consider whether these two claims apply here.

I.

First of all, we agree with the court of appeals that the trial court erred in not granting defendants’ post-trial motions for judgment notwithstanding the verdict on the misrepresentation claim.

For fraud there must be a misrepresentation of a past or present fact. A representation as to future acts does not support an action for fraud merely because the represented act did not happen, unless the promisor did not intend to perform at the time the promise was made. Vande-putte v. Soderholm, 298 Minn. 505, 508, 216 N.W.2d 144, 147 (1974). Cohen admits that the reporters intended to keep their promises, as, indeed, they testified and as their conduct confirmed. Moreover, the record shows that the editors had no intention to reveal Cohen’s identity until later when more information was received and the matter was discussed with other editors. These facts do not support a fraud claim. For this reason and for the other reasons cited by the court of appeals, we affirm the court of appeals’ ruling. Because the punitive damages award hinges on the tort claim of misrepresentation, it, too, must be set aside as the court of appeals ruled.

II.

A contract, it is said, consists of an offer, an : acceptance, and consideration. Here, we seemingly have all three, plus a breach. We think, however, the matter is not this simple.

Unquestionably, the promises given in this case were intended by the promisors to be kept. The record is replete with the unanimous testimony of reporters, editors, and journalism experts that protecting a confidential source of a news story is a sacred trust, a matter of “honor,” of “morality,” and required by professional ethics. Only in dire circumstances might a promise of confidentiality possibly be ethically broken,4 and instances were cited where a reporter has gone to jail rather than reveal a source. The keeping of promises is professionally important for at least two reasons. First, to break a promise of confidentiality which has induced a source to give information is dishonorable. Second*203ly, if it is known that promises will not be kept, sources may dry up. The media depend on confidential sources for much of their news; significantly, at least up to now, it appears that journalistic ethics have adequately protected confidential sources.

The question before us, however, is not whether keeping a confidential promise is ethically required but whether it is legally enforceable; whether, in other words, the law should superimpose a legal obligation on a moral and ethical obligation. The two obligations are not always coextensive.

The newspapers argue that the reporter’s promise should not be contractually binding because these promises are usually given clandestinely and orally, hence they are often vague, subject to misunderstanding, and a fertile breeding ground for lawsuits. See Ruzicka v. Conde Nast Publications, Inc., 733 F.Supp. 1289, 1300-01 (D.Minn.1990) (a promise not to make a source identifiable found too vague to be enforceable). Perhaps so, and this may be a factor to weigh in the balance; but this objection goes only to problems of proof, rather than to the merits of having such a cause of action at all. Moreover, in this case at least, we have a clear-cut promise.

The law, however, does not create a contract where the parties intended none. Linne v. Ronkainen, 228 Minn. 316, 320, 37 N.W.2d 237, 239 (1949). Nor does the law consider binding every exchange of promises. See, e.g., Minn.Stat. ch. 553 (1988) (abolishing breaches of contract to marry); see also Restatement (Second) of Contracts §§ 189-91 (1981) (promises impairing family relations are unenforceable). We are not persuaded that in the special milieu of media newsgathering a source and a reporter ordinarily believe they are engaged in making a legally binding contract. They are not thinking in terms of offers and acceptances in any commercial or business sense. The parties understand that the reporter’s promise of anonymity is given as a moral commitment, but a moral obligation alone will not support a contract. See Cruickshank v. Ellis, 178 Minn. 103, 107, 226 N.W. 192, 194 (1929). Indeed, a payment of money which taints the integrity of the newsgathering function, such as money paid a reporter for the publishing of a news story, is forbidden by the ethics of journalism.

What we have here, it seems to us, is an “I’ll-scratch-your-back-if-you’ll-scratch-mine” accommodation. The source, for whatever reasons, wants certain information published. The reporter can only evaluate the information after receiving it, which is after the promise is given; and the editor can only make a reasonable, informed judgment after the information received is put in the larger context of the news. The durability and duration of the confidence is usually left unsaid, dependent on unfolding developments; and none of the parties can safely predict the consequences of publication. See supra note 4. Each party, we think, assumes the risks of what might happen, protected only by the good faith of the other party.

In other words, contract law seems here an ill fit for a promise of news source confidentiality. To impose a contract theory on this arrangement puts an unwarranted legal rigidity on a special ethical relationship, precluding necessary consideration of factors underlying that ethical relationship. We conclude that a contract cause of action is inappropriate for these particular circumstances.

III.

But if a confidentiality promise is not a legally binding contract, might the promise otherwise be enforceable? In Christensen v. Minneapolis Mun. Employees Retirement Bd., 331 N.W.2d 740, 747 (Minn.1983), we declined to apply a “conventional contract approach, with its strict rules of offer and acceptance” in the context of public pension entitlements, pointing out this approach “tends to deprive the analysis of the relationship between the state and its employees of a needed flexibility.” We opted instead for a promissory estoppel analysis. The doctrine of promissory estoppel implies a contract in law where none exists in fact. According to the doctrine, well-established in this state, a promise expected or reasonably *204expected to induce definite action by the promisee that does induce action is binding if injustice can be avoided only by enforcing the promise.5

In our case we have, without dispute, the reporters’ unambiguous promise to treat Cohen as an anonymous source. The reporters expected that promise to induce Cohen to give them the documents, which he did to his detriment. The promise applied only to Cohen’s identity, not to anything about the court records themselves.

We are troubled, however, by the third requirement for promissory estoppel, namely, the requirement that injustice can only be avoided by enforcing the promise. Here Cohen lost his job; but whether this is an injustice which should be remedied requires the court to examine a transaction fraught with moral ambiguity. Both sides proclaim their own purity of intentions while condemning the other side for “dirty tricks.” Anonymity gives the source denia-bility, but deniability, depending on the circumstances, may or may not deserve legal protection. If the court applies promissory estoppel, its inquiry is not limited to whether a promise was given and broken, but rather the inquiry is into all the reasons why it was broken.

Lurking in the background of this case has been the newspapers’ contention that any state-imposed sanction in this case violates their constitutional rights of a free press and free speech.6 Under the contract analysis earlier discussed, the focus was more on whether a binding promise was intended and breached, not so much on the contents of that promise or the nature of the information exchanged for the promise. See Restatement (Second) of Contracts, ch. 8, introductory note (1981) (“In general, parties may contract as they wish, and courts will enforce their agreements without passing on their substance.”). Thus the court of appeals, using a contract approach, concluded that applying “neutral principles” of contract law either did not trigger First Amendment scrutiny or, if it did, the state’s interest in freedom of contract outweighed any constitutional free press rights. 445 N.W.2d at 254-57.7 Be*205cause we decide that contract law does not apply, we have not up to now had to consider First Amendment implications. But now we must. Under a promissory estoppel analysis there can be no neutrality towards the First Amendment. In deciding whether it would be unjust not to enforce the promise, the court must necessarily weigh the same considerations that are weighed for whether the First Amendment has been violated. The court must balance the constitutional rights of a free press against the common law interest in protecting a promise of anonymity.

For example, was Cohen’s name “newsworthy”? Was publishing it necessary for a fair and balanced story? Would identifying the source simply as being close to the Whitney campaign have been enough? The witnesses at trial were sharply divided on these questions. Under promissory es-toppel, the court cannot avoid answering these questions, even though to do so would mean second-guessing the newspaper editors. See, e.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 2839, 41 L.Ed.2d 730 (1974) (“The choice of material to go into a newspaper * * * constitute^] the exercise of editorial control and judgment,” a process critical to the First Amendment guarantees of a free press.). Of critical significance in this case, we think, is the fact that the promise of anonymity arises in the classic First Amendment context of the quintessential public debate in our democratic society, namely, a political source involved in a political campaign. The potentiality for civil damages for promises made in this context chills public debate, a debate which Cohen willingly entered albeit hoping to do so on his own terms. In this context, and considering the nature of the political story involved, it seems to us that the law best leaves the parties here to their trust in each other.

We conclude that in this case enforcement of the promise of confidentiality under a promissory estoppel theory would violate defendants’ First Amendment rights. In cases of this kind, the United States Supreme Court has said it will proceed cautiously, deciding only in a “discrete factual context.” The Florida Star v. B.J.F., — U.S. -, -, 109 S.Ct. 2603, 2607, 105 L.Ed.2d 443 (1989). We, too, are not inclined to decide more than we have to decide. There may be instances where a confidential source would be entitled to a remedy such as promissory estoppel, when the state’s interest in enforcing the promise to the source outweighs First Amendment considerations, but this is not such a case. Plaintiff’s claim cannot be maintained on a contract theory. Neither is it sustainable under promissory estoppel. The judgment for plaintiff is reversed.

Affirmed in part and reversed in part.

YETKA, Justice

(dissenting).

I would affirm the court of appeals and allow Cohen to recover on either a contract or promissory estoppel theory. The simple truth of the matter is that the appellants made a promise of confidentiality to Cohen in consideration for information they considered newsworthy. That promise was broken and, as a direct consequence, Cohen lost his job. Under established rules of contract law, the appellants should be responsible for the consequences of that broken promise. The first amendment is being misused to avoid liability under the doctrine of promissory estoppel. The result of this is to carve out yet another special privilege in favor of the press that is denied other citizens.

I dissent because I believe that the news media should be compelled to keep their promises like anyone else. If they did not intend to keep the promise they made to Cohen, they should not have made it or should have refused to use the proffered information. Alternatively, after accepting the information subject to the confidentiali*206ty agreement, the press could have printed the story without revealing the source or could have simply attributed the source to “someone close to the Whitney campaign” without revealing Cohen’s name.

I find the consequences of this decision deplorable. First, potential news sources will now be reluctant to give information to reporters. As a result, the public could very well be denied far more important information about candidates for public office relevant to evaluating their qualifications than the rather trivial infractions disclosed here. Second, it offends the fundamental principle of equality under the law.

This decision sends out a clear message that if you are wealthy and powerful enough, the law simply does not apply to you; contract law, it now seems, applies only to millions of ordinary people. It is unconscionable to allow the press, on the one hand, to hide behind the shield of confidentiality when it does not want to reveal the source of its information; yet, on the other hand, to violate confidentiality agreements with impunity when it decides that disclosing the source will help make its story more sensational and profitable. During the Watergate crisis, the press published many pious editorials urging that the laws be enforced equally against everyone, even the President of the United States. Nevertheless, the press now argues that the law should not apply to them because they alone are entitled to make “editorial decisions” as to what the public should read, see, or hear and whether the source of that information should be disclosed.

The decision in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), has not resulted in a more responsible press. In the 19th century, the phrases “scandal sheet” and “yellow journalism” became common adjectives for disreputable publications. It would be tragic if these colorful descriptions regained popular usage because of the practices of a few of the more sensational “journalistic” enterprises which appear to be growing in number and popularity, replacing the great newspapers of the past.

Perhaps it is time in these United States to return to treating the press the same as any other citizen. Let them print anything they choose to print, but make them legally responsible if they break their promises or act negligently in connection with what they print — free of any special protection carved out by New York Times v. Sullivan or any of its progeny. The decision of this court makes this a sad day in the history of a responsible press in America. Because I firmly believe that no one should be above the law, including the President of the United States or the news media, I would affirm the court of appeals.

KELLEY, Justice

(dissenting).

A majority of this court recently held that a commercial media defendant, who the jury found had done a “hatchet job” with constitutional malice on a public official through distortion and/or omission of established facts and through unwarranted inference, was immune from tort liability, unlike the rest of the citizens of this state, corporate or private, who would undoubtedly be liable in tort for that type of conduct. I joined the dissent of Justice Yetka in that case. Diesen v. Hessburg, 455 N.W.2d 446 (Minn.1990) (Petition to withdraw pending). In my opinion, the majority today, applying a somewhat different analysis, affords to that same commercial media immunity from liability from an unmistakable breach of contract, although any other corporate or private citizen of this state under similar circumstances would most certainly have been liable in damages for breach of contract.

While I agree with the majority that the trial court erred in not granting the defendants’ post-trial motions for judgment notwithstanding the verdict on the misrepresentation claim, I remain unpersuaded by the majority’s analysis that, notwithstanding that all of the elements of a legal contract and its breach are here present, the contract is unenforceable because “the parties intended none.” It reaches this conclusion even as it concedes that the promises given by the agents and employees of these defendants was intended by them to be kept. Majority Op. at-. *207Rather than affording Cohen a remedy for the considerable damage he sustained, see Art. I, § 8, Constitution of Minnesota, the majority, it seems to me, engaged in or came very close to engaging in some inappropriate appellate fact finding, to-wit, that each of the parties did not intend a contract and assumed the risk “of what might happen.” I conclude that the analysis employed by Judge Short in the majority opinion of the court of appeals, Cohen v. Cowles Media Co., 445 N.W.2d 248 (Minn.App.1989), correctly sets forth the applicable contract law governing the transaction between Cohen and employees and agents of these media defendants. Therefore, I adopt it as my dissent here. I likewise join the dissent of Justice Yetka which highlights the perfidy of these defendants, the liability for which they now seek to escape by trying to crawl under the aegis of the First Amendment, which, in my opinion, has nothing to do with the case.1 Today’s decision serves to inhibit rather than to promote the objectives of the First Amendment by “drying up” potential sources of information on public matters. I dissent.

Holmes, J.

This is an action for the price of eelskins sent by the plaintiff to the defendant, and kept by the defendant some months, until they were destroyed. It must be taken that the plaintiff received no notice that the defendants declined to accept the skins. The case comes before us on exceptions to an instruction to the jury, that, whether there was any prior contract or not, if skins are sent to the defendant, and it sees fit, whether it has agreed to take them or not, to lie back, and to say nothing, having reason to suppose that the man who has.sent them believes that it is taking them, since it says nothing about it, then, if it fails to notify, the jury would be warranted in finding for the plaintiff.

*197Standing alone, and unexplained, this proposition might seem to imply that one stranger may impose a duty upon another, and make him a purchaser, in spite of himself, by sending goods to him, unless he will take the trouble, and be at the expense, of notifying the sender that he will not buy. The case was argued for the defendant on that interpretation. But, in view of the evidence, we do not understand that to have been the meaning of the judge, and we do not think that the jury can have understood that to have been his meaning. The plaintiff was not a stranger to the defendant, even if there was no contract between them. He had sent eelskins in the same way four or five times before, and they had been accepted and paid for. On the defendant’s testimony, it is fair to assume that, if it had admitted the eelskins to be over twenty-two inches in length, and fit for its business, as the plaintiff testified, and the jury found that they were, it would have accepted them; that this was understood by the plaintiff; and, indeed, that there was a standing offer to him for such skins. In such a condition of things, the plaintiff was warranted in sending the defendant skins conforming to the requirements, and even if the offer was not such that the contract was made as soon as skins corresponding to its terms were sent, sending them did impose on the defendant a duty to act about them; and silence on its part, coupled with a retention of the skins for an unreasonable time, might be found by the jury to warrant the plaintiff in assuming that they were accepted, and thus to amount to an acceptance. See Bushel v. Wheeler, 15 Q. B. 442; Benjamin on Sales, §§ 162-164; Taylor v. Dexter Engine Co. 146 Mass. 613, 615. The proposition stands on the general principle that conduct which imports acceptance or assent is acceptance or assent in the view of the law, whatever may have been the actual state of mind of the party, — a principle sometimes lost sight of in the cases. O'Donnell v. Clinton, 145 Mass. 461, 463. McCarthy v. Boston Lowell Railroad, 148 Mass. 550, 552.

Exceptions overruled.

Barnes, J.

This case is reported to the Law Court, and such judgment is to be rendered as the law and the admissible evidence require.

Plaintiff charges that defendant agreed in writing to sell him the Bradley block and lot, situated in Bucksport, for a stated price in cash: that he later refused to perfect the sale and that plaintiff, always willing and ready to pay the price, has suffered loss on account of defendant’s unjust refusal to sell, and claims damages.

*43From the record it appears that defendant, a resident of Newark, N. J., was, in the fall of 1929, the owner of the Bradley block and lot.

With the purpose of purchasing, on October 23, 1929, plaintiff wrote the following letter:

“Dear Mr. Tunison

Will you sell me your store property which is located on Main St. in Bucksport, Me., running from Montgomery’s Drug Store on one corner to a Grocery Store on the other, for the sum of $6,000.00?”

Nothing more of this letter need be quoted.

On December 5, following, plaintiff received defendant’s reply; apparently written in Cannes, France, on November 12, and it reads:

“In reply to your letter of Oct. 23rd which has been forwarded to me in which you inquire about the Bradley Block, Bucksport, Me.

Because of improvements which have been added and an expenditure of several thousand dollars ft would not be possible for me to sell it unless I was to receive $16,000.00 cash.

The upper floors have been converted into apartments with baths and the b’l’dg put into first class condition.

Very truly yours,

(signed) It. G. Tunison”

Whereupon, and at once, plaintiff sent to defendant and the latter received, in France, the following message:

“accept YOUR OEEER EOR BRADLEY BLOCK BUCKSPORT TERMS SIXTEEN THOUSAND CASH SEND DEED TO EASTERN TRUST AND BANKING CO BANGOR MAINE PLEASE ACKNOWLEDGE.”

Four days later he was notified that defendant did not wish to sell the property, and on the 14th day of January following brought suit for his damages.

Granted that damages may be due a willing buyer if the owner refuses to tender a deed of real estate, after the latter has made an *44offer in writing to sell to the former and such offer has been so accepted, it remains for us to point out that defendant here is not shown to have written to plaintiff an offer to sell.

There can have been no contract for the sale of the property desired, no meeting of the minds of the owner and prospective purchaser, unless there was an offer or proposal of sale. It can not be successfully argued that defendant made any offer or proposal of sale.

In a recent case the words, “Would not consider less than half” is held “not to be taken as an outright offer to sell for one-half.” Sellers v. Warren, 116 Me., 350.

When an owner of millet seed wrote “I want $2.25 per cwt. for this seed f.o.b. Lowell,” in an action for damages for alleged beach of contract to sell at the figure quoted above, the Court held, “He (defendant) does not say, ‘I offer to sell to you.’ The language used is general, and such as may be used in an advertisement or circular addressed generally to those engaged in the seed business, and is not an offer by which he may be bound, if accepted, by any or all of the persons addressed.” Nebraska Seed Co. v. Harsh, 98 Neb., 89, 152 N. W., 210, and cases cited in note L. R. A., 1915, F. 824.

Defendant’s letter of December 5 in response to an offer of $6,000.00 for his property may have been written with the intent to open negotiations that might lead to a sale. It was not a proposal to sell.

Judgment for defendant.

JUDGE HOBSON

delivebed the opinion oe the coubt.

On April 20,1895, appellee wrote appellant the following letter:

“St. Louis, Mo., April 20, 1895. Gentlemen: Please advise us the lowest price you can make us on our order for ten car loads of Mason green jars, complete, with caps, packed one dozen in case, either delivered here, or f. o. b. cars your place, as you prefer. State terms and cash discount. Very truly, Crunden-Martin W. W. Co.”

To this letter appellant answered as follows:

*663“Fairmount, Ind., April 23, 1895. Crunden-Martin Wooden Ware Co., St. Louis, Mo. — Gentlemen: Replying to your favor of April 20th, we quote you Mason fruit jars, complete, in one-dozen boxes, delivered in East St. Louis, 111.: Pints, $4.50; quarts, $5.00; half gallons, $6.50 per gross, for immediate acceptance, and shipment not later than Slay 15, 1895; sixty days’ acceptance, or 2 off, cash in ten days. Yours truly, Fairmount Glass Works.

“Please note that we make all quotations and contracts subject to the contingencies of agencies or transportation, delays or accidents beyond our control.”

For reply thereto, appellee sent the following telegram on April 24, 1895:

“Fairmount Glass Works, Fairmount, Ind.: Your letter twenty-third received. Enter order ten car loads as per your quotation. Specifications mailed. Crunden-Martin W. W. Co.”

In response to this telegram, appellant sent the following:

“Fairmount, Ind., April 24, 1895. Crunden-Martin W. W. Co., St. Louis, Mo.: Impossible to book your order. Output all sold. See letter. Fairmount Glass Works.”

Appellee insists that, by its telegram sent in answer to the letter of April 23d, the contract was closed for the purchase of ten car loads of Mason fruit jars. Appellant insists that the contract was not closed by this telegram, and that it had the right to decline to fill the order at the time it sent its telegram of April 24th. This is the chief question in the case. The court below gave judgment, in favor of appellee, and appellant hias appealed, earnestly insisting that the judgment is erroneous.

We are referred to a number of authorities holding that a quotation of prices is not an offer to sell, in the sense *664that a completed contract will arise out of the giving of an order for merchandise in accordance with the proposed terms. There are a number of cases holding that the transaction is not completed until the order so made is accepted. 7 Am. & Eng. Enc. Law (2d Ed.), p. 138; Smith v. Gowdy, 8 Allen, 566; Beaupre v. P. & N. A. Telegraph Co., 21 Minn., 155.

But each case must turn largely upon the language there used. In this case we think there was more than a quotation of prices, although appellant’s letter uses the word “quote” in stating the prices given. The true meaning of the correspondence must be determined by reading it as a whole. Appellee’s letter of April 20th, which began the transaction, did not ask for a quotation of prices. It reads: “Please advise us the lowest price you can make us on our order for ten car loads o.f Mason green jars. . . . State terms and cash discount.” From this appellant could not fail to understand that appellee wanted to know at what price it would sell it ten car loads of these jars; so when, in answer, it wrote: “We quote you Mason fruit jars . . . pints $4.50, quarts $5.00, half gallons $6.50 per gross, for immediate acceptance; ... 2 off, cash in ten days,”- — it must be deemed as intending to give appellee the information it had asked for. We can hardly understand what was meant by the words “for immediate acceptance,” unless the latter was intended as a proposition to sell at these prices if accepted immediately. In construing every contract, the aim of the court is to arrive at. the intention of the parties. In none of the cases to which we have been referred on behalf of appellant was there on the face of the correspondence any such expression of intention to make an offer to sell on the terms indicated.

*665In Fitzhugh v. Jones, 6 Munf., 83, the use of the expression that the buyer should reply as soon as possible, in-case he was disposed to accede to the terms offered, was held sufficient to -show that there was a definite proposition, which was closed by the buyer’s acceptance. The expression in appellant’s letter, “for immediate acceptance,” taken in connection with appellee’s letter, in effect, at what price it would sell it the goods, is, it seems to us, much stronger evidence of a present offer, which, when accepted immediately closed the contract. Appellee’s letter was plainly an inquiry for the price and terms on which appellant would sell it the goods, and appellant’s answer to it was not a quotation of prices, but a definite offer to sell on the terms indicated, and could not be withdrawn after the terms had been accepted.

It will be observed that the telegram of acceptance refers to the specifications mailed. These specifications were contained in the following letter: “St. Louis, Mo., April 24, 1895. Fairmount Glass Works Co., Fairmount, Ind.— Gentlemen: We received your'letter of 23d this morning, and telegraphed you in reply as follows: ‘Your letter 23d received. Enter order ten car loads as per your quotation. Specifications mailed,’ — which we now confirm. We have accordingly entered this contract on our books .for the ten cars Mason green jars, complete, with caps-and rubbers, one dozen in case, delivered to us in East St. Louis, at $4.50 per gross for pint, $5.00 for quart, $6.50 for one-half gallon. Terms, sixty days’ acceptance, or 2 per cent, for cash in ten days, to be shipped not later than May 15, 1895. The jars and caps to be strictly first quality goods. You may ship the first car to us here assorted: Five gross pint, fifty-five gross quart, forty gross one-half gallon. Specifications for the remaining nine cars we will send later. CrundenMartin W. W. Co.”

*666It is insisted for appellant that this was not an acceptance of the offer as made; that the stipulation, “The jars and caps to be strictly first-quality goods,” was not in their offer; and that, it not having been accepted as made, appellant is not bound. But it will be observed that appellant declined to furnish the goods before it got this letter, and in the correspondence with appellee it nowhere complained of these words as an addition to the contract. Quite a number of other letters passed, in which the refusal to deliver these goods was placed on other grounds, none of which have been sustained by the evidence. Appellee offers proof tending to show that these words, in the trade in which parties were engaged, conveyed the same meaning as the words used in appellant’s letter, and were only a different form of expressing. the same idea. Appellant’s conduct would seem to confirm this evidence.

Appellant also insists that the contract was indefinite, because the quantity of each size of the jars was not fixed, that ten car loads is too indefinite a specification of the quantity sold, and that appellee had no right to accept the goods to be delivered on different days.

The proof shows that “ten car loads” is an expression used in the trade as equivalent to 1,000 gross, 100 gross being regarded a car load. The offer to sell the different sizes at different prices gave the purchaser the right to name the quantity of each size, and, the offer being to ship not later than May 15th, the buyer had the right to fix the time of delivery at any time before that. Sousely v. Burns’ Adm’r, 10 Bush, 87; Williamson’s Heirs v. Johnston’s Heirs, 4 T. B. Mon., 253; Wheeler v. N. B. Railroad Co., 115 U. S., 34 [5 Sup. Ct., 1061, 1160],

The petition, if defective, was cured by the judgment, which is fully sustained by the evidence. Judgment affirmed.

Murphy, Justice.

This is an appeal from an order of the Municipal Court of Minneapolis denying the motion of the defendant for amended findings of fact, or, in the alternative, for a new trial. The order for judgment awarded the plaintiff the sum of $138.50 as damages for breach of contract.

This case grows out of the alleged refusal of the defendant to sell to the plaintiff a certain fur piece which it had offered for sale in a newspaper advertisement. It appears from the record that on April 6, 1956, the defendant published the following advertisement in a Minneapolis newspaper:

“Saturday 9 a. m. sharp 3 Brand New Fur Coats Worth to $100.00 First Come First Served $1 Each”

On April 13, the defendant again published an advertisement in the same newspaper as follows:

“Saturday 9 a. m.

2 Brand New Pastel Mink 3-Skin Scarfs Selling for $89.50

Out they go Saturday. Each..........$1.00

1 Black Lapin Stole Beautiful, worth $139.50 ..........$1.00

First Come

First Served”

*190 The record supports the findings of the court that on each of the Saturdays following the publication of the above-described ads the plaintiff was the first to present himself at the appropriate counter in the defendant’s store and on each occasion demanded the coat and the stole so advertised and indicated his readiness to pay the sale price of $1. On both occasions, the defendant refused to sell the merchandise to the plaintiff, stating on the first occasion that by a “house rule” the offer was intended for women only and sales would not be made to men, and on the second visit that plaintiff knew defendant’s house rules.

The trial court properly disallowed plaintiff’s claim for the value of the fur coats since the value of these articles was speculative and uncertain. The only evidence of value was the advertisement itself to the effect that the coats were “Worth to $100.00,” how much less being speculative especially in view of the price for which they were offered for sale. With reference to the offer of the defendant on April 13, 1956, to sell the “1 Black Lapin Stole * * * worth $139.50 * * *” the trial court held that the value of this article was established and granted judgment in favor of the plaintiff for that amount less the $1 quoted purchase price.

The defendant contends that a newspaper advertisement offering items of merchandise for sale at a named price is a “unilateral offer” which may be withdrawn without notice. He relies upon authorities which hold that, where an advertiser publishes in a newspaper that he has a certain quantity or quality of goods which he wants to dispose of at certain prices and on certain terms, such advertisements are not offers which become contracts as soon as any person to whose notice they may come signifies his acceptance by notifying the other that he will take a certain quantity of them. Such advertisements have been construed as an invitation for an offer of sale on the terms stated, which offer, when received, may be accepted or rejected and which therefore does not become a contract of sale until accepted by the seller; and until a contract has been so made, the seller may modify or revoke such prices or terms. Montgomery Ward & Co. v. Johnson, 209 Mass. 89, 95 N. E. 290; Nickel v. Theresa Farmers Co-op. Assn. 247 Wis. 412, 20 N. W. (2d) 117; Lovett v. Frederick Loeser & Co. Inc. 124 Misc. 81, 207 N. Y. S. 753; Schenectady Stove Co. v. Hol *191 brook, 101 N. Y. 45, 4 N. E. 4; Georgian Co. v. Bloom, 27 Ga. App. 468, 108 S. E. 813; Craft v. Elder & Johnston Co. 34 Ohio L. A. 603, 38 N. E. (2d) 416; Annotation, 157 A. L. R. 746.

The defendant relies principally on Craft v. Elder & Johnston Co. supra. In that case, the court discussed the legal effect of an advertisement offering for sale, as a one-day special, an electric sewing machine at a named price. The view was expressed that the advertisement was (34 Ohio L. A. 605, 38 N. E. [2d] 417) “not an offer made to any specific person but was made to the public generally. Thereby it would be properly designated as a unilateral offer and not being supported by any consideration could be withdrawn at will and without notice.” It is true that such an offer may be withdrawn before acceptance. Since all offers are by their nature unilateral because they are necessarily made by one party or on one side in the negotation of a contract, the distinction made in that decision between a unilateral offer and a unilateral contract is not clear. On the facts before us we are concerned with whether the advertisement constituted an offer, and, if so, whether the plaintiffs conduct constituted an acceptance.

There are numerous authorities which hold that a particular advertisement in a newspaper or circular letter relating to a sale of articles may be construed by the court as constituting an offer, acceptance of which would complete a contract. J. E. Pinkham Lbr. Co. v. C. W. Griffin & Co. 212 Ala. 341, 102 So. 689; Seymour v. Armstrong & Kassebaum, 62 Kan. 720, 64 P. 612; Payne v. Lautz Bros. & Co. 166 N. Y. S. 844, affirmed, 168 N. Y. S. 369, affirmed, 185 App. Div. 904, 171 N. Y. S. 1094; Arnold v. Phillips, 1 Ohio Dec. (Reprint) 195, 3 Western L. J. 448; Oliver v. Henley (Tex. Civ. App.) 21 S. W. (2d) 576; Annotation, 157 A. L. R. 744, 746.

The test of whether a binding obligation may originate in advertisements addressed to the general public is “whether the facts show that some performance was promised in positive terms in return for something requested.” 1 Williston, Contracts (Rev. ed.) § 27.

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

Whether in any individual instance a newspaper advertisement is an offer rather than an invitation to make an offer depends bn the legal intention of the parties and the surrounding circumstances. Annotation, 157 A. L. R. 744, 751; 77 C. J. S., Sales, § 25b; 17 C. J. S., Contracts, § 389. We are of the view on the facts before us that the offer by the defendant of the sale of the Lapin fur was clear, definite, and explicit, and left nothing open for negotiation. The plaintiff having successfully managed to be the first one to appear at the seller’s place of business to be served, as requested by the advertisement, and having offered the stated purchase price of the article, he was entitled to performance on the part of the defendant. We think the trial court was correct in holding that there was in the conduct of the parties a sufficient mutuality of obligation to constitute a contract of sale.

The defendant contends that the offer was modified by a “house rule” to the effect that only women were qualified to receive the bargains advertised. The advertisement contained no such restriction. This objection may be disposed of briefly by stating that, while an advertiser has the right at any time before acceptance to modify his offer, he does not have the right, after acceptance, to impose new or arbitrary conditions not contained in the published offer. Payne v. Lautz Bros. & Co. 166 N. Y. S. 844, 848; Mooney v. Daily News Co. 116 Minn. 212, 133 N. W. 573, 37 L. R. A. (N. S.) 183.

Affirmed.

SAND, Justice.

Donald Wucherpfennig appealed from a district court judgment dismissing his claim for specific performance of an alleged contract for the sale of land. We affirm.

Donald Wucherpfennig, Elizabeth Dooley, and Louise Grettum are the children of Fred and Harriet Wucherpfennig. Fred died in 1964 and Harriet died in 1977. The family farm, consisting of four quarters of land, passed to Donald, Elizabeth, and Louise by their parents’ wills. The quarter which includes the farmstead, known as the “home quarter,” was devised as follows: two-thirds undivided interest to Donald, one-sixth undivided interest each to Elizabeth and Louise. Each of the three children received a one-third undivided interest in the remaining three quarters.

During the probate of Harriet’s estate, Elizabeth expressed an interest in selling her share of the property to Donald. On 4 January 1979, Elizabeth sent to Robert Case, the attorney handling the probate of the estate, a letter which stated:

“Now if Don wants to buy my share of the real estate, I will sell it to him for $200 an acre, provided it is a cash deal & handled promptly.”

Case responded by letter dated 13 January 1979, stating that Donald was “interested” in purchasing Elizabeth’s interest in the *444 property. Case subsequently followed up with another letter, dated 17 February 1979, the entire text of which states:

“Donald has made arrangements with the Federal Land Bank to secure funds to purchase your interest in the estate farmland and we are therefore ready to proceed with this transaction. Please let me know the exact dollar amount that you expect to receive for your interest in the land.

“I must know also if you are willing to sign the agreement relating to Special Use Valuation.

“Please let me hear from you regarding these matters.”

Elizabeth did not respond to this letter, but revoked her offer to sell the land to Donald for $200 per acre by a letter dated 9 March 1979.

Donald brought an action seeking to enforce the contract which he alleges was formed by Elizabeth’s offer of 4 January and his acceptance as communicated in Case’s letter of 17 February. Donald also sought, in the alternative, partition of the property. By consent of the parties the specific performance action was tried first.

The district court found that there was no acceptance of Elizabeth’s offer, and that even if there had been an acceptance the resulting contract could not have been specifically enforced. Judgment dismissing Donald’s claim for specific performance was entered, and Donald appealed.

The court listed four separate bases for dismissal of the action, and any one of these, standing alone, would be sufficient to support a denial of specific performance. Therefore, in order to warrant reversal on appeal the appellant must establish that all four of these conclusions are erroneous. Because we agree with the district court that there was no acceptance, it is unnecessary for us to reach the remaining issues.

The acceptance of an offer must be absolute, unequivocal, and unconditional, and it may not introduce additional terms or conditions. Section 9-03-21, N.D. C.C.; Cooke v. Blood Systems, Inc., 320 N.W.2d 124, 128 (N.D.1982); Grossman v. McLeish Ranch, 291 N.W.2d 427, 430 (N.D.1980); Greenberg v. Stewart, 236 N.W.2d 862, 868 (N.D.1975). In order to form a contract, the offer and acceptance must express assent to the same thing. Grossman, supra, 291 N.W.2d at 430; Greenberg, supra, 236 N.W.2d at 868. A valid acceptance must be unequivocally expressive of an intent to create thereby, without more, a contract. Markmann v. H.A. Bruntjen Co., 249 Minn. 281, 286, 81 N.W.2d 858, 862 (1957); Minar v. Skoog, 235 Minn. 262, 266, 50 N.W.2d 300, 302 (1951).

There is no dispute that Elizabeth offered to sell the property for $200 per acre. Donald claims that Case’s letter of 17 February unequivocally accepted that offer. However, Case’s letter merely states that Donald “has made arrangements ... to secure funds” and that they were “ready to proceed with this transaction.” In the next sentence of the letter, Case asks Elizabeth to let him know the exact dollar amount that she expected to receive for the land.

The language of the 17 February letter does not embody an absolute, unequivocal, and unconditional acceptance of Elizabeth’s offer, and is not expressive of an intent to create, without more, a contract. The terms of the letter appear to be more in the nature of negotiations with a view toward reaching an agreement in the future. Case states that Donald is “ready to proceed” and asks what amount Elizabeth expects to receive for her interest in the property. These are hardly the words of an unequivocal, unconditional acceptance of Elizabeth’s offer.

In addition, the testimony of Donald at trial lends further support to the conclusion that the parties never assented to the same terms. In response to a question by Elizabeth’s counsel asking why an exact dollar amount was not included in the 17 February letter, Donald stated:

“A. The exact dollar amount would have been $37,200.00. And that would have been somewhat less than she would *445 have thought she was entitled to. And had we sent a contract at that time with the $37,200.00 in it, I’m sure she wouldn’t have signed it.”

The parties can hardly be said to have mutually assented to the terms of a contract when Donald admits that he believed Elizabeth was expecting more than $37,-200, the amount he intended to pay, and that she would not have agreed to that amount.

We conclude that Donald did not accept Elizabeth’s offer prior to her revocation of the offer on 9 March 1979, and thus there is no contract between the parties. The judgment of the district court dismissing Donald’s claim for specific performance is affirmed.

State of the Case.

NICKELS, J.

Plaintiff in error, .an Illinois corporation, is a manufacturer of machinery, apparatus, etc., for the purification of water in connection with the manufacture of ice, etc., having its principal office in the city of Chicago. Defendant in error is a Texas corporation engaged in the manufacture of ice, etc., having its plant, office, etc., at Conroe, Montgomery county, Tex.

On February 10, 1920, through its traveling solicitor, Waterman, plaintiff in error, at Conroe, submitted to defendant in error, acting through Henry Thompson, its manager, a written- instrument, addressed to defendant in error, which (with. immaterial portions omitted) reads as follows:

“Gentlemen: We propose to furnish, f. o. b. Chicago, one No. two Junior (steel tank) International water softener and filter to purify water of the character shown by sample to be submitted. * * * Price: Twelve hundred thirty ($1,230.00) dollars. * * * This proposal is made in duplicate and becomes a contract when accepted by the purchaser and approved by .an executive officer of the International Filter Company, at its office in Chicago. Any modification can only be made by duly approved supplementary agreement signed by both parties.

“This proposal is submitted for prompt acceptance, and unless so accepted is subject to change without notice.

‘(Respectfully submitted,

. “International Filter Co.

“W. W. Waterman.”

On. the same day the “proposal” was accepted by defendant in error through notation made on the paper by Thompson reading as follows:

“Accepted Feb. 10, 1920.

“Conroe Gin, Ice & Light Co.,

“By Henry Thompson, Mgr.”

The paper as thus submitted and “accepted” contained the notation, “Make shipment by Mar. 10.” The paper, in that form, reached the Chicago office of plaintiff in error, and on February 13, 1920, P. N. Engel, its president and vice president, indorsed there*632on: “O. K. Feb. 13, 1920, P. N. Engel.” February 14, 1920, plaintiff in error wrote and mailed, and in due course defendant in error received, tbe following letter:

“Feb. 14, 1920.

“Attention of Mr. Henry Thompson, Manager.

“Oonroe Gin, Ice & Light Co., Conroe, Texas — Gentlemen: This will acknowledge and

thank you for your order given Mr. Waterman for a No. 2 Jr. steel tank International softener and filter, for 110 volt, 60 cycle, single phase current — for shipment March. 10th.

“Please make shipment of the sample of water promptly so that we may make the analysis an¡l know the character of the water before shipment of the apparatus. Shipping tag is inclosed, and please note the instructions to pack to guard against freezing.

“Yours very truly,

“International Filter Co.,

“M. B. Johnson.”

By letter of February 28, 1920, defendant in error undertook to countermand tbe “order,” wbicb countermand was repeated and emphasized by letter of March 4, 1920. By letter of March 2, 1920 (replying to the letter of February 28th), plaintiff in error denied the right of countermand, etc., and insisted upon performance of the “contract.” The parties adhered to the respective positions thus indicated, and this suit resulted.

Plaintiff in error sued for breach of the contract alleged to have been made in the manner stated above. The defense is that no contract was made because: (1) Neither En-gel’s indorsement of “O. K.,” nor the letter of February 14, 1920, amounted to approval “by an executive officer of the International Filter Company, at its office in Chicago.” (2) Notification of such approval, or accep-tánee, by/ plaintiff in error was required to be communicated -to defendant in error; it being insisted that this requirement inhered in the terms of the proposal and in the nature of the transaction and, also, that Thompson, when he indorsed “acceptance” on the paper stated to Waterman, as agent of plaintiff in error, that such notification must be promptly given; it being insisted further that the letter of February 14, 1920, did not constitute such acceptance or' notification of approval, and therefore defendant in error, on February 28, 1920, etc., had the right to withdraw, or countermand, the unaccepted offer. Thompson testified in a manner to support' the allegation of his statement to Waterman. There are other matters involved in the suit which must be ultimately determined, but the foregoing presents the issues now here for consideration.

The case was tried without a jury, and the judge found the facts in favor of defendant in error on all the issues indicated above, and upon other material issues. The judgment was affirmed by the Court of Civil Appeals, 269 S. W. 210.

Opinion.

We agree with the honorable Court of Civil Appeals upon the proposition that Mr. Engel’s indorsement of “O. K.” amounted to an approval “by an executive officer of the International Filter Company, at its office 'in Chicago,” within the meaning of the so-called ' “proposal” of February 10th. The paper then became a “contract,” according to its definitely expressed terms, and it became then, and thereafter it remained, an enforceable contract, in legal contemplátion, unless the fact of approval by the filter company was-required to be communicated to the other party and unless, in that event, the communication was not made.

We are not prepared- to assent to the ruling that such communication was essential. There is no disposition to question the justice of the general rules stated in support of that holding, yet the existence of contractual capacity imports the right of the offerer to dispense with notification; and he does dispense with it “if the form of the offer,” etc., “shows that this was not to be required.” 9 Cyc. 270, 271; Carlill v. Carbolic Smoke Ball Co., 1 Q. B. 256 (and other references in note 6, 9 Cyc. 271). The case just cited, it seems to us, correctly states the rule :

“As notification of acceptance is required for the benefit of the person who makes the offer, the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so, and I suppose there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification.”

See, also, Fort v. Barnett, 23 Tex. 460, 464. Tbe Conroe Gin, Ice & Light Company executed the paper for the purpose of having it transmitted, as its offer, to the filter company at Ohicago. It was so transmitted and acted upon. Its terms embrace the offer, and nothing else, and by its terms the question of notification must be judged, since those terms are not ambiguous.

The paper contains two provisions which relate to acceptance by the filter company. One is the declaration that the offer shall “become a contract * * * when approved by an executive officer of the International Filter Company, at its Chicago office.” The other is thus stated: “This proposal is submitted for prompt acceptance, and unless so accepted is subject to change without notice.” The first provision states “a particular mode of acceptance as suffi-*633dent to make the bargain binding,” and tbe filter company (as stated above) followed “tbe indicated method of acceptance.” When this was done, so tbe paper declares, tbe proposal “became a contract.” Tbe other provision does not in any way relate to a different method of acceptance by tbe filter company. Its sole reference is to tbe time within which tbe act of approval must be done; that is to say, there was to be a “prompt acceptance,” else tbe offer might be changed “without notice.” The second declaration merely required the approval there-inbefore stipulated for to be done promptly; if the act was so done, there is nothing in the second provision to militate against, or to conflict with, the prior declaration that, thereupon, the paper should become “a contract.”

A holding that notification of that approval is to be deduced from the terms of the last-quoted clause is not essential in order to give it meaning or to dissolve ambiguity. On the contrary, such a construction of the two provisions would introduce a conflict, or ambiguity, where none exists in the-language itself, and defeat the plainly expressed term wherein it is said that the proposal “becomes a contract * * * when approved by an executive officer'.” There is not anything in the language used to justify a ruling that this declaration must be wrenched from its obvious meaning and given one which would change both the locus and time prescribed for the meeting of the minds. The offerer said that the contract should be complete if approval be promptly given by the executive officer at Chicago; the court cannot properly restate the offer so as to make the offerer declare that a contract shall be made only when the approval shall have been promptly. given at Chicago and that fact shall have been communicated to the offerer at Conroe. In our; opinion, therefore, notice of the approval was not required.

The letter of February 14th, however, sufficiently communicated notice, if it was required.1 The following authorities have been cited to the contrary: Krohn-Fechheimer v. Palmer, 282 Mo. 82, 221 S. W. 353, 10 A. L. R. 683; Courtney Shoe Co. v. Curd & Son, 142 Ky. 219, 134 S. W. 146, 38 L. R. A. (N. S.) 903; Manier v. Appling, 112 Ala. 663, 20 So. 978; Stockton v. Ins. Co., 33 La. Ann. 577, 39 Am. Rep. 277; Harvey v. Duffey, 99 Cal. 401, 33 P. 897; Cheboygan Paper Co. v. Swigart Paper Co., 140 Ill. App. 314; 23 R. C. L. p. 1289. In support of the sufficiency of the letter the following cases have been cited: Bauman v. McManus, 75 Kan. 106, 89 P. 15, 10 L. R. A. (N. S.) 1138; Jordan v. Patterson, 67 Conn. 473, 35 A. 521; Pitcher v. Lowe, 95 Ga. 423, 22 S. E. 678; Stuart v. Home Telephone Co., 161 Mich. 123, 125 N. W. 720; Parlin & O. Co. v. Boatman, 84 Mo. App. 67; Crane v. Barron, 115 App. Div. 196, 100 N. Y. S. 937; Littlejohn & Bull v. Deutsch, 182 App. Div. 759, 169 N. Y. S. 720. However, none of these authorities are exactly in point here. They involved the question of what was sufficient to evidence, an acceptance of an o'ffer, and not the question of the form of notice of acceptance. Here the fact of acceptance in the particular method prescribed by the offerer is established ali-unde the letter — 'Engel’s “O. K.” indorsed on the paper at Chicago did that. ’ The form of notice, where notice is required, may be quite a different thing from the acceptance itself; the latter constitutes the meeting of the minds, the former merely relates to that pre-existent fact. The rules requiring such notice, it will he marked, do not make necessary any particular form or manner, unless thei parties themselves have so prescribed. Whatever would convey, by word or fair implication, notice of the fact would be sufficient. And this letter, we think, would clearly indicate to a reasonably prudent person, situated as was the defendant in error, the fact of previous approval by the filter company. If the Gin, lee & Light Company had acted to change its position upon it as a notification of that fact, it must be plain that the filter company would have been es-topped to deny its sufficiency.

There are other questions in the case which must be determined on the appeal. Those questions were pretermitted by the honorable Court of Civil Appeals beeause of its holdings that communication of notice of the filter’s company’s approval was necessary, that such notice was not given — the letter of February. 14th being thought insufficient for that purpose — and that defendant in error, therefore, had the right to countermand the proposal as it did (rather, attempted to do) on February 28th.

We, recommend that the judgment of the Court of Civil Appeals be reversed, and that the cause' be remanded to that court for its disposition of all questions not passed upon by it heretofore and properly before it for determination.

CURETON, C. J.

Judgment of the Court of Civil Appeals reversed, and cause remanded to the Court of Civil Appeals for further consideration by that court, as recommended by ¿he Commission of Appeals.

Folgkeb, J.

We do not think that the jury found, or that the testimony shows, that there was any agreement between the parties, before the written communication of the defendants of September thirtieth was received by the plaintiff. This note did not make an agreement. It was a proposition, and must have been accepted by the plaintiff before either party was bound, in contract, to the other. The only overt action which is claimed by the plaintiff as indicating on his part an acceptance of the offer, was the purchase of the stuff necessary for the work, and commencing work, as we understand the testimony, upon that stuff.

We understand the rule to be, that where an offer is made by one party to another when they are not together, the acceptance of it by that other must be manifested by some appropriate act. It does not need that the acceptance shall come to the knowledge of the one making the offer before he shall be bound. But though the manifestation need not be brought to his knowledge before he becomes bound, he is not bound, if that manifestation is not put in a proper way to be in the usual course of events, in some reasonable time communicated to him. Thus a letter received by mail containing a proposal, may be answered by letter by mail, containing the acceptance. And in general, as soon as the answering letter is mailed, the contract is concluded. Though one party does not know of the acceptance, the manifestation thereof is put in the proper way of reaching him-

In the case in hand, the plaintiff determined to accept. But a mental determination not indicated by speech, or put in course of indication by act to the other party, is not an acceptance which will bind the other. Hor does an act, which, in itself, is no indication of an acceptance, become such, *470 because accompanied by an unevinced mental determination. Where the act uninterpreted by concurrent evidence of the mental purpose accompanying it, is as well referable to one state of facts as another, it is no indication to the other party of an acceptance, and does not operate to hold him to his offer.

Conceding that the testimony shows, that the plaintiff did resolve to accept this offer, he did no act which indicated an acceptance of it to the defendants. He, a carpenter and-builder, purchased stuff for the work. But it was stuff as fit for any other like Work. He began work upon the stuff, but as he would have done for any other like work. There was nothing in his thought formed but not uttered, or in his acts that indicated or set in motion an indication to the defendants of his acceptance of their offer, or which could necessarily result therein.

But the charge of the learned judge was fairly to be understood by the jury as laying down the rule to them, that the plaintiff need not indicate to the defendants his acceptance of their offer; and that the purchase of stuff and working on it after receiving the note, made a binding contract between the parties. In this we think the learned judge fell into error.

The judgment appealed from must be reversed,'and a new trial ordered, with costs to abide the event.of the action.

All concur, but Allen, J., not voting. ,

Judgment reversed, and new trial ordered;