ON PETITION POR REHEARING.
STEWART, J.A petition for rehearing has been filed in this case. The petitioner contends first that the court was in error in reciting as a fact that a letter was written by Good to respondent on March 3d, when in truth appellant Roberts wrote such letter. This was a clerical error and does not in any way affect the importance of such letter or the conclusion of the court. The respondent sought to recover from Good & Roberts for a breach of an alleged contract. The letter was treated merely as an incident or as evidence in determining whether a contract was in fact made, and it matters not whether such letter was written by Good or Roberts. The effect was the same. The original opinion has been corrected accordingly.
It is next contended that the court failed to give weight to the letter of Good, dated March 1, 1906, and the respondent’s answer thereto dated March 5, 1906, respondent claiming that the letter of Good was a proposition to sell and the respondent’s answer was an acceptance of the same. The letter of Good of March 1st, among other things, recites that a misunderstanding between the parties had arisen in regard to the sewer tax, but that, if the respondent desired the lot, the writer (Good) was willing to sell. A reference w.as also made to the sewer tax and to the commission, to the effect that the appellants could not allow the respondent any commission on the sale as the lot belonged to the appellant. The writer further recited:
“I leave here to-day for Los Angeles, California., I am leaving the deed made out in the hands of Mr. Roberts, and he will furnish you abstracts showing perfect title upon the payment of $1,500; or, if you rather, I will return you $500 together with interest from the date I received it.”
This letter was a restatement by Good of his offer to sell, as he understood it. The purchase price was to be $1,500 in addition to the $500, which had previously been paid as a *87part of the purchase price. This letter advises Mr. Phelps that the deeds are in the hands of Mr. Roberts, who will furnish the abstract and turn the deeds over to him upon respondent paying to him $1,500 additional. The letter of Mr. Phelps, which counsel for respondent says is an acceptance of this offer, is as follows:
“March 5, 1906.
“J. R. Good, Boise, Idaho.
“Yours of the first is just received. I note what you say about the lot and the misunderstanding, and I see there was a chance to get two different properties mixed. On my part, I did not know at that time that you owned that lot yourself. Of course, it makes some difference to me, but I see I am in for it and enclose herewith my cheek for $147.50, and the other check is at the bank to balance the amount called for. You can deposit the deed with the bank and tell them to hold it, as I will be there in a few days. ’ ’
It will be observed by this letter that the respondent incloses a check for $147.50, and notifies the appellants that the other check is at the bank, the balance of the amount called for. The letter of respondent dated February 28, 1906, to the bank inclosing the other check referred to in this letter of March 5, instructs the bank as follows:
“I send herewith a check payable to the order of Good, Roberts & Schooler on them delivering to you for me warranty deed of Lot 5 with abstract of same. This deed must convey sewer rights and water rights, such as are usually deeded with property in your city,” etc. Taking these two letters together, it will be observed that the instructions contained in the letter to the bank of February 28th, as to the conditions upon which the check would be delivered, are not withdrawn, modified, or in any way changed; thus leaving the conditions under which the appellants could secure such check, as stated in the letter to the bank. The letter of March 5th is not an unconditional acceptance of the proposal made by Mr. Good in his letter of March 1st. Under Good’s proposal, the deed was to be delivered at the office of Good & Roberts upon payment of $1,500 in cash. The letter of Mr. Phelps requires *88a deed to be delivered at the bank, and that the same convey certain sewer rights, water rights, etc., thus making and fixing new conditions upon the part of Phelps which were not contained in the proposal of Mr. Good. The law, as we understand it, is that where a proposal to sell is made, in order to constitute a contract, the offeree must accept the proposition in the identical terms in which it is made. The letter of Phelps dated March 5th, fails to withdraw the conditions contained in the letter to the bank. These conditions were never withdrawn by either a letter to the bank or a letter to the appellant. In other words, the letter of Mr. Phelps of March 5th, was not an acceptance of the offer of Good of March 1st. The letters, therefore, constituted no contract.
The authorities cited by counsel for respondent state the law correctly, but they are not applicable to the facts of this ease. Counsel is correct in contending that, where an offer to sell is made which may be revoked, yet, while it remained in force and unrevoked, it was a continuing offer during the time limited for acceptance, and during the whole of that time it was an offer every instant. But as soon as it was accepted it ceased to be an offer merely and then ripened into a contract. Also, where an offer is made by letter, it is accepted when the answering letter is postpaid, addressed and deposited in the postoffiee. Applying this law to the facts of this ease, had Mr. Phelps accepted the offer made by Good in his letter of March 1st, in the terms in which said offer was made, it would have constituted a contract and would have bound the parties thereto.
The mistake, however, under which counsel for respondent has labored in this ease, is in contending that the letter of March 5th of the respondent was an acceptance of the offer of Good of March 1st, and thereby constituted a contract. It is only necessary to examine these letters to learn therefrom that there was no acceptance by Phelps of the offer made by Good, and that new conditions and requirements were imposed which were not embraced in or contemplated in the letter of Good. Phelps, therefore, not having accepted the proposition of Good, and there being no contract, it was im*89material whether the letter written by Roberts withdrawing the offer, or the letter of Phelps of March 5th, was written and posted first. Where an offer by letter is made which is not accepted in the answering letter thereto, but new conditions are imposed, there is no contract to sell, and the offerer may withdraw such proposition at any time before accepted by the offeree. In this case the respondent not having accepted the offer of the appellant, and the same having been withdrawn before acceptance, there was no contract and the respondent could not recover.
The original opinion deals with all questions -raised by the respondent upon his petition for rehearing. The petition is denied.
Ailshie, C. J., and Sullivan, J., concur.