Who in their common experience has not at one time or another had a merchant say "I'm sorry, but we're out of this item. At this price they sold faster than we expected," and been unable to purchase a product at a discounted sale price? That, in effect, is what happened to plaintiff when he tried to buy the New Jersey Garden State Parkway toll tokens at a discount. Under the facts, I find that plaintiff is without a remedy against defendant.
The New Jersey Highway Authority (hereafter, the "authority"), in April 1989, increased its tolls from 25 cents to 35 cents. In connection therewith and for a limited period, it authorized the sale of tokens at a discount. The authorization was voluntary
(i.e., not required by any higher authority) and was reflected in the authority's minutes, approved by the then Governor. The sale was advertised through several media, including signs on the parkway itself. The discounted price was $10 for a roll of 40 tokens, a savings of $4 a roll. Shortly after the discount sale commenced, complaints were made that the tokens were not available. The authority explained that the shortage probably resulted from an unanticipated demand for the tokens resulting from purchasers hoarding them. The authority then began limiting the sales to certain days of the week; but even with that limitation, the demand could not be satisfied.
Plaintiff commenced this action because, on five different occasions (i.e., within the authorized sale dates and times), the authority "failed to sell discount toll tokens" and on one occasion, when plaintiff did buy a roll of toll tokens, there was one "slug" in the roll. Of course, his use of the slug would have been illegal, and therefore, it had no value. This action, therefore, involves claims, essentially in two counts, totalling $20.35, the amount demanded in the complaint.
Plaintiff supported his complaint by stating the dates and times when, and location where, he offerred to buy the rolls at discount. He also claimed that the authority was "required" to sell them at a discount.
Plaintiff's first count is premised on the claim that:
The second count is premised on the claim that:
Discussion of the First Count.
Defendant's motion is premised on the concept that the first count is an action based on contract principles and that there was no contract between the parties which was breached. Rather, the authority contends, there was an advertisement of the availability of tokens for sale at discount, and that the advertisement was a solicitation for an offer. The position then continues that, since it is a solicitation for an offer (rather than an offer itself), when plaintiff made his offer, defendant-authority was able to, and did here, reject the offer.
Plaintiff's answering brief includes several quotes from the New Jersey Register relating to the toll increase from 25 cents to 35 cents, the benefits of using tokens, the availability for sale, and the position that the Governor having approved the sale of discounted tokens, the authority had to, in effect, meet any demand for the tokens at a discount until the Governor approved otherwise (which did not happen).
Finally, the brief concludes that:
Accordingly, the designated toll at the Essex Toll Plaza on the dates and times in question was 35 cents or an available token, with tokens available at the rate of 40 for $10.00. The plaintiff accepted the defendant's offer to use the Garden State Parkway by entering the toll road, was bound to the contractual obligation to pay the designated toll, and elected to avail himself of the provisions of the contract which enabled him to buy Discount Toll Tokens from a collector at the Essex Toll Plaza. As the Authority refused to sell the Discount Toll Tokens . . . and as there was no resolution or other action of the Authority, with the prior approval in writing of the Governor . . . the Authority breached the contract established when the plaintiff entered the Garden State Parkway. [Emphasis supplied]
The error in plaintiff's position is that the advertisements did not constitute offers. Rather, plaintiff made an offer in response
to the authority's advertisements, but plaintiff's offers were refused by the authority.
This issue was addressed in Mesaros v. United States, 845 F.2d 1576 (Fed.Cir.1988). In that case, prospective purchasers of a certain United States commemorative coin brought suit based on a breach of contract. The court held that advertisements by the governmental agency (the United States Mint) were not offers, but rather were solicitations for offers from potential customers that were subject to acceptance or refusal by the mint. The court said:
The great weight of authority is against the plaintiffs. It is well established that materials such as those mailed to prospective customers by the Mint are no more than advertisements or invitations to deal. They are mere notices and solicitations for offers which ...