2 Oo TI ick SE CORNELL UNIVERSITY LAW LIBRARY. THE GIFT OF Carnell Law School Lib— “iii | y8OZV'L08 4) | Aseiqry Ayssaaqun jausod CASES ON THE LAW OF CONTRACTS By ol GEORGE P. COSTIGAN, Jr. Professor of Law in Northwestern University ce Be CHICAGO CALLAGHAN AND COMPANY 1921 Gra ef 1G Copyright, 1921, BY GEORGE P. COSTIGAN, Jr. PREFACE Textbooks on contracts are many and voluminous and cover a wide field, while casebooks are relatively few and in scope must be kept well within old and rather narrow lines. In this casebook the general topics treated are shown by the chapter headings, which are of the simplest kind, and, as far as is possible, intentionally avoid controversial prob- lems of terminology and classification. In one section heading, how- ever, the traditional but inaccurate phrase ‘‘Impossibility of Perform- ance’’ is used as still preferable to ‘‘Frustration’’ or ‘‘Hardship”’ or some other new word or phrase. The topics treated are those which American teachers of the subject have been accustomed to consider essential to the course on contracts. It will be noted that in this casebook sealed contracts are dealt with first. That is historically the proper procedure and it is believed that it is so pedagogically. The material is relatively small and there seems to be no reason why the curiosity of students about sealed contracts should not be satisfied at the start. On the other hand, the statute of frauds cases are much better dealt with after the subject of conditions has been covered, and preferably after illegal contracts have been dis- cussed, so in this collection they appear just before the cases on the discharge of contracts. For convenience in teaching, the statute of frauds cases could just as well have been placed after those on the discharge of contracts, but as they could .also come just as well before the latter, the logical arrangement of the book prevailed. The material is believed, however, to be so arranged that teachers who prefer a dif- ferent order of topics may readily change the order in the assignment of lessons. An effort has been made to supply in each chapter an orderly develop- ment of topics. Except in Chapter VII, section headings have been omitted both because they aid the student undesirably and narrow too much his interest in a given case and because they tend to compel the placing of some cases at points inimical to the natural development of topics. At the end of the volume, however, an index is furnished to enable ready reference to particular contents. Emphasis is laid in this casebook on the historical side of the subject, even though more than two-thirds of the principal cases are American. As an aid in the development of the history of contracts, a few important quoted passages on historical points are furnished from the writings of leading legal scholars. The quotations do not appear in an appendix, PREFACE but are in the text at logically appropriate places. They are put there with no expectation that they will be assigned for class discussion and, occasionally, with no expectation that the student, when he first comes across them in their logically proper places, will be able to understand them, but in the hope that the student will get enough out of them on his first encounter to arouse his interest and curiosity to a point which will lead to his ultimate mastery of them and to his further acquaintance with the works of the writers quoted. Buried in an appendix, the passages quoted would be more likely to be slighted. Throughout the preparation of this casebook the fact that it is primarily an aid to the acquisition by students of a reasonable amount of knowledge about the law of contracts and of power in dealing with its problems has been kept in mind. It is a teaching medium, and not a textbook disguised as a casebook. The footnotes were planned, there- fore, to furnish supplementary souree material and problems for class discussion, as well as to give information to students as to the state of the authorities, and supply them with references to law magazine articles and monographic notes. It is assumed that Williston on Contracts and the new edition of Page on Contracts will be consulted for the detailed authorities on any point. A table of magazine articles referred to by the editor is supplied just following the table of cases. In conclusion the editor wishes to acknowledge the courtesy of the West Publishing Co. in placing at his service its Reporter System cases, and to thank all others who have facilitated the accomplishment of his plans for the book. Northwestern University, GrorGE P, Costican, JR. June 1, 1921, TABLE OF CONTENTS HISTORICAL INTRODUCTION PAGE The History of Contracts in English Law..................0005 1 CHAPTER I GALE (CONTACTS: co cies rotenatyeiei econ cccushirais Seu wietn an vy twa Wim ee eas ads oashas be 8 CHAPTER II The Offer and the Acceptance of a Simple Contract.............. 43 CHAPTER III The Doctrine of Consideration......... 0.0... cece cece een neee 261 CHAPTER IV Assignments of ContractS....... 0... ccc ec cece nee c een eees 501 CHAPTER V Beneficiaries of ContractS.......... cece cee cece eect ee eeecees 589 CHAPTER VI Joint and Joint and Several Contracts................. sees eee 649 : CHAPTER VII The Performance of ContractS.............02 2 cece cece eee nees 683 Section 1. The Classification and History of Conditions Relating to Performance.........--.0+20:eceeereeees joe. . 683 Section 2. General Principles Applicable to Conditions in AC aT ICUGL . seomprc cereus or nts wre wR ase rw euronews vase 722 Section 3. Impossibility of Performance......... oc 1009 Vv * vi TABLE OF CONTENTS CHAPTER VIII PAGE Illegal Contracts ........ 0. ccc cece meee cee e een e eee ee ner entes 1108 CHAPTER IX Contracts Within the Statute of Frauds..............-.-.0eeeees 1232 CHAPTER X The Discharge of Contracts............. cece ene eee eer enees 1388 DMO OX sedate anapeetgl ane GPOR Anis e.g oa Prd a Sele aus SMa ale S 1461 TABLE OF CASES [Cases reported in the text are printed in this table in italics. Cases quoted by the Editor in the footnotes and those stated there or in the text sufficiently to make their listing desirable are printed in this table in ordinary type. refer to pages.] Abbott v. Doane, 382. Ackerman v. Maddux, 115. Adams v. Adams, 25. Adams v. Battle, 1394. Adams v. Lindsell, 85. Adams v. Merced Stone Co., 542. Adinolfi v. Hazlett, 1173. Agel & Levin v. Patch Manufacturing Co., 421. Ahigren v. Walsh, 1018. Albert Lea College v. Brown, 341. Albert’s Execrs. v. Ziegler’s Exeers,, 1459. Albrecht v. Milwaukee Superior Ry. Co., 221. Aldrich v. Ames, 1249, Alexander v. Jameson, 14. All Star Feature Corp., In re, 465. Allen v. Berryhill, 473. Allen v. Bryson, 294, Allen v. Harris, 428. Allen v. Milner, 1446. Allen v, Sullivan R. R. Co., 11. Aller v. Aller, 39. Alpaugh v. Wood, 649. American Bridge Co. of New York et al. ‘y. City of Boston, 553. American Colortype Company v. Conti- nental Colortype Company, 524. American Cotton Oil Co. v. Kirk, 449. American Publishing Co. v. Walker, 126. American Theatre Co. v. Siegel & Co., 818. Ames v. Foster, 1255. Anderson v. Anderson, 221, 1341. Anderson v. May, 1035. Anderson v. Nichols, 654, Anderson v. Nystrom, 480. Anderson v., Willson, 832. The numbers Anderson v. Wisconsin Cent. Ry. Co., 71. Anglo-Egyptian Navigation Co. v. Ren- nie, 1019. Anin v. Andrews, 328. Anonymous, 504, 507, 687. Anonymous, 679, 680, 682. Anvil Min. Co. v. Humble, 866. Argoll v. Cheney, 677. Arkansas Valley Smelting Company v. Belden Mining Company, 569, Armitage v. Insole, 703. Armsby v. Grays Harbor Commercial Co., 885. Armstrong v. Levan, 309. Arnett v. Westcott, 1338. Arthur, In re, 1018. Ashford v. Mace, 1217. Asphaltic Limestone Concrete Oo. v. Glasgow, 558. Assignment of Rich Hardware Co., 499. Atchinson v. Baker, 1058. Atkins v. Hill, 290. Atlanta & West Point R. R. Co. v. Camp, 330. Atwell v. Jenkins, 472, 475. Auerbach v. Nelson, 1361. Augusta Factory v. Mente § Co., 906. Austin Real Estate and Abstract Com- pany v. Bahn, 427. Averill v. Hedge, 142. Ayer v. Western Union Telegraph Com- pany, 238. Bacon v. Cobb, 1379. Bacon v. Reich, 1441. Badalato v. Molinari, 1185. Bagge v..Slade, 372. Bailey v. Marshall, 1265. Baily v. De Crespigny, 1067. vii viii Baker v. Smith, 284. Baker v. White, 1153. Bal v. Van Staden, 103, 166. Baldey v. Parker, 1305. Baldwin v. Williams, 1301. Baldwin, Executrix v. Van Deusen, 473. Balfour v. Balfour, 50. Bangor Bank v. Treat, 673. Banart v. Bowers, 698. : Bank of China, ete. v. American Trading Co., 699. Bank of Ireland v. M’Manamy, 218. Bank of Yolo v. The Sperry Flour Co., 117. Bannon v. Bean, 1282. Barbour v. Barbour, 1162. Barlow Manufacturing Co. v. Stone, 941. Barnett v. Rosen, 948. Barrie v. Earle, 938. Batchelor v. Kirkbride, 757. Bates v. Boston & N. Y. C. R. Co., 23. Bawlf Grain Co. v. Ross, 476. Baxter v. Baxter, 26. Bay v. Williams, 631. Bayly v. Garford, 676. Beach y. The First Methodist Episcopal Church, 170. Bean v. Atwater, 701. Beatty ’s Estate v. Western College, 346. Beaver v. Fulp, 413. Beck & Pauli Lithographing Co. v. Colo- rado Milling & Elevator Co., 901. Becker v. London Assur. Corp., 44. Beckwith v. Cheever, 138. Beckwith v. Talbot, 1347. Beecher v. Conradt, 854. Behn v. Burness, 712. Beirne v. North Texas Gas Co., 1448. Bell v. Doyle, 1411. Bellamy v. Debenham, 194. Bender v. Been, 397. \ Benneson v. Aiken, 24. Bennett v. Cosgriff, 86. Bennett v. Morse, 1010. Benson v. Phipps, 425. Bent v. Cobb, 1332. Bentley v. Morse, 301, Benton v. Springfield Christian Ass’n, 66. Bettini v. Gye, 780. Bibb v. Freeman, 354. Bidder v. Bridges, 398. «Bidwell v. Catton, 476. Biggers v. Owen, 174. Biggs v. Steinway & Sons, 1081. Young Men’s TABLE OF Caszs Bird v. Bilby, 1290. Bird v. Blosse, 1355. Bisbee v. McAllen, 1205. Bishop v. Busse, 393. Bishop v. Eaton, 171. Blackburn Bobbin Co. v. T. W. Allen & Sons, 1098. Black, Starr & Frost v. Grabow, 174. Blake’s Case, 1399. Bliss, Williams g§ Co. v. Perryman, 308. Bloomfield v. Maloney, 183. Blount v. Dillaway, 491. Board of Education v. Angel, 1143. Board of Education v. Townsend, 1018. Board of Trade of the City of Chicago v. Christie Grain & Stock Company, 1130. Bogie v. Bogie, 25. Bohanan v. Pope, 642. Bolton v. Madden, 333. Bolton, Partners v. Lambert, 195. Bonelli v. Burton, 225, Boone v. Eyre, 698. Borden v. Boardman, 598. Borden v. Richmond and Danville R. Co., 240. Boston v. Maine Railroad v. Bartlett, 79. Boston Ice Company v. Potter, 574. Boulton v. Jones, 222. Bourne v. Mason, 591, Bowen v. Lazalere, 12. Bowery National Bank v. Wilson, 530. Boyers § Co. v. Duke, 59, Brackenbury v. Hodgkin, 176. Bradford v. Roulston, 286. Bradford v. Williams, 951. Bradley v. Nevada-California-Oregon Ry., 802. Brauer v. Shaw, 106. Breithaupt v. Thurmond, 202. Bret v. J. S., 277. Bretton v. Prettiman, 328. Brewer v. Horst & Lachmund Co., 1325. Brewer v. Mueller, 1439, Brice v. “Bannister, 548. | Brill v. Tuttle, 514. Brimmer v. Salisbury, 828. British Waggon Co. v. Lea & Co., 554, Broadnaz v. Ledbetter, 185. Brogden v. Metropolitan Railway Co., 138. Brokaw v. McElroy, 338. Brooks v. Ball, 328, Brooks v. Haigh, 324. TABLE Brown v. Finney, 50. Brown v. Hoag, 1278. Brown v. Owens, 395. Brown v. Ray, 323. Bruner v. Moore, 110. Brunhoelzl. v. Brandes, 1200. Bryne v. Deroy, 864. Buck v. Equitable Life Assn. Society, 226. Bunge v. Koop, 401. Bureh v. J. D. Bush & Co., 585. Burleson v. Mays, 478. Burley-Winter Pottery Co. v. Onken Bros. & West Co., 1326. Burr v. Beers, 629. Burt v. Dearson, 423. Burton v. Belvin, 1163. Burton v. U. S., 110. Bush v. Jones, 739. Buster v. Fletcher, 682. Bute, Marquis of v. Thompson, 1023. Butler v. Foley, 241. Butler v. Manny, 807. Butler and Baker’s Case, 25. Byrne § Co. v. Van Tienhoven g Co., 103. Cadwell v. Blake, 703. Cahen v. Platt, 915. Callisher v. Bischoffsheim, 488, 489. Cameron v. Wright, 153. Campbell v. Jones, 699. Campbell g Co. v. Holehan, 536. Candor and Henderson’s Appeal, 36. Cargill Commission Co. v. Mowery, 228. Carlill v. Carbolic Smoke Ball Co., 118. Carnahan Mfg. Co. v. Beebe-Bowles Co., 250. Carnig v. Carr, 214. Carothers v. James Stewart g& Co., 1439. Carow Towing Co. v. The ‘‘Ed. McWil- liams,’’ 117. Carr v. Davis, 1184. Carr v. Lynch, 1317. Carson v. Ray, 1360. Carter v. United Insurance Co. of N. Y., 509. Carter White Lead Co. v. Kinlin, 484. Cartwright v. Hoogstoel, 190. Caruana v, Prudential Spice Co., 493. Case v. Barber, 1400. Case v. Case, 622. Case v. Hall, 255. Case, Threshing Mach. Co. v. Road Im- provement Dist., 1433. or CASES ix Castle v. Swift & Co., 1309. Castleberry v. Tyler Commercial College, 917. Cavanagh v. Tyson, Weare and Marshall Co., 1016. Cecilie, Kronprinzessin, 1090. Central Trust Company of Illinois v. Chicago Auditorium Association, 991. Chalmers, Ex parte, 876. Chandler v. Webster, 1038. Chapman v. Beltz & Sons Co., 1019. Cherokee Tanning Extract Co. v. Western Union Telegraph Co., 56. Cherry v. Heming, 1342. Chess & Wymond Co. v. La Cross Box Co., 885. Chesterfield & Midland Silkstone Colliery Co. v. Hawkins, 42. Cheves v. First Nat. Bk., 1439, Chicago ¢ Great Bieter Heshuay Com- pany v. Dane, 209. Chicago, M. & St. P. Ry. Co. v. Hoyt, 1023. Chicago, Rock Island & Pacifie Ry. Co. v. Hamler, 221. Chism v. Schipper, 752. Choice v. Moseley, 803. ' Christie v. Borelly, 778. Church v. Proctor, 1223. Cincinnati Equipment Co. v. Big Muddy, ete., Co., 251. Cincinnati Traction Co. v. Cole, 1239. Citizens’ Loan Ass’n v. Boston & M. R. R., 527, City of Pocatello v. Fidelity g& Deposit : Co. of Maryland, 460. City of San Juan v. St. John’s Gas Co., 418. Claney v. Overman, 1021. Clarke: v. Watson, 736. Clarke Contracting Co. v. City of New York, 794. Clarksville Land Co. v. Harriman, 1073. Claveresk, The, 1097. Clayton v. Pierson,- 540. Cleaver v. Lenhart, 282. Clement v. Rowe, 1386. Cleveland, ete., Rwy. Co. v. Shea, 138. Clifford v. Watts, 1024. Clinton Bank of Columbus v. Hart, 675. ° Cobb v. Cowdery, 360, 369. Cold Blast Transp. Co. v. Kansas a Bolt & Nut Co., 441. Coldwell v. Davidson, 520. Cole v. Handasyde g§& Company, 559. x TABLE oF CASES Cole-McIntyre Norfleet Co. v. Holloway, 249, Coleman v. R. R., 55. Coleman y. St. Paul & Tacoma Lumber Co., 1316. Coles v. McKenna, 668. Collamer v. Day, 1120. Collyer § Co. v, Moulton, 1389, Colt v. Learned, 652. Comerford v. Cobb, 17. Commings v. Heard, 1444. Commins v. Scott, 1317. Commonwealth v. Crompton, 540. Connecticut Fire Ins. Co, v. Oldendorf,, 674. Constable v. Cloberie, 684. Cooch v. Goodman, 21. Cook v. Bradley, 294. Cook v. Lum, 538. Cook v. Wright, 481. Cooke v. Oaley, 77. Cooley v. Osborne, 1282. Coonan v. City of Cape Girardeau, 930. Cooper v. Stronge & Warner Co., 874. Cope v. Rowland, 1203. Corbett v. Cochran, 1432. Corbin, et al. v. Houlehan, 1222. Coreoran v. White, 154. Corn Products Refining Co. v. Fasola, 725. Cornwall v. Henson, 897. Corrigan v. Trenton Delaware Falls Co., 14, Cort v. Ambergate, etc., Railway Co., 956. Costner v. Fisher, 1437. Cowley v. Patch, 676. Cox v. Denton, 58. Craig v. Lane, 818. Cramp & Co. v. Central Realty Corp., 848. Crandall v. Willig, 83. Crane v. Crane, 449, 452. Crane v. French, 1187. Crane v. School Dist. No. 14, 1087. Cresswell Ranch g& Cattle Co. v. Martin- dale, 925, Crouch v. Gutmann, 742. Crowther v. Farrer, 428. Crumlish’s Adm’r v. Cent. Imp. Co., 1414, Crummey v. Raudenbush, 880. * Cummings. v. Arnold, 1376. Cummins v. Beavers, 427. Cundy v. Lindsay, 234. Curtis Land & Loan Co. v. Interior Land Co., 154. C. W. La Moure Co. v. Cuyuna-Mille Laes Iron Co., 497. Daily-Overland Co. v. Willys-Overland, 684. Danby v. Beebe, 37. Daniels v. Newton, 975. Daniels v. Trefusis, 1333. Darland v. Taylor, 548. Davidson v. Cooper, 1454. Davis v. Abell, 1236. Davis v. Brigham, 58. Davis v. Bronson, 995. Davis v. Burns, 361. Davis v. Mining Co., 449. Davis v. Parish, 820. Davis & Co. v. Bishop, 1035. Davis § Co. v. Morgan, 367. Davison, In re, 673. Dawkins v. Sappington, 184. Dawley v. Potter, 804. Day v. Caton, 46. Day v. McLea, 1405. Deborich v. Emeric, 866, De Cicco v. Schweitzer, 381. Deep River Natl. Bank’s Appeal, 1328. Deibeikis v. Link-Belt Co., 1180. Dement Bros. Co. v. Coon, 469. Demeules v. Jewel Tea Co., 418. Dennett v. Chick, 671. Derby v. Phelps, 1296. Dermott v. Jones, 1015. Deux v. Jefferies, 1422. Devecmon v. Shaw, 354, Dewes v. Fitch, 1119. Dewey v. Union School District of Al- pena, 1085. Dey v. Doz, 772. Dickinson v. Calahan’s Adm’rs, 585. Dicks v. Belscher, 818. Doherty v. Hill, 1357, Donlan v. City of Boston, 789. Dorrance v. Barber & Co., 783. Dougherty v. Catlett, 1279. Doyle v. Dixon, 1287. Drake v. Seaman, 1355, Drake v. White, 1018. Driver v. London & North-Western Rwy. Co., 55. Drummond v. Burrell, 761. Drummond v. Crane, 198. Dunham v. Elford, 291. Dunham v. Hartman, 1333. TABLE OF CASES xl Dunham v. Pettee, 764. Dunlop v. Higgins, 86. Dunlop, ete., Co. v. Selfridge & Co., 639. Dunton v. Dunton, 356. Durham Bros. v. Robertson, 550. Durnherr v. Rau, 623. Dutton v. Poole, 589. Dyer v. Lalor, 282. Eaglesham v. MeMaster, 741. Eames v. Preston, 21. Earle v. Angell, 154, 355. Earn Line 8S. 8. Co. v. Sutherland S. 8. Co., 1097. Eastern Advertising Co. v. McGaw, 573. Eastern Forge Co. of Mass. v. Corbin, 913. Eastwood v. Kenyon, 292. Ebel v. Piehl, 546. Eddy v. Davis, 835. Eddy v. Roberts, 641. Edge v. Boileau, 808. Edge Moor Bridge Works v. County of Bristol, 204. Edgerton v. Weaver, 465. Edmonds v. Hughes, 1059. Edmunds v. Merchants’ Despatch Tran- sportation Co., 232. Eiseman v. Schneider, 1289. Ellen v. Topp, 776. Ellsworth v. Fogg, 1457. Eliason v. Henshaw, 116. Ellis v. Clark, 320. Elton Cop Dyeing Co., Ltd. v. Robert Broadbent & Son, 430. Emerson v. Stevens Grocer Co., 249. Emmens v. Elderton, 872. Engebretson v. Seiberling, 413. England v. Davidson, 362. Equitable Gas, ete., Co. v. Baltimore, etc., Co., 1386. Erny v. Sauer, 393. Escanaba Traction Co. v. Burns, 537. Etscheid v. Thiefenthaler, 1284. Evans v. Heathcote, 288. Evans v. Hoare, 1328. E. W. A., In re, 679, 680, 682. Ewing v. Wightman, 861. Faber v. City of New York, 1017. Fairmount Glass Works v. Grunden- Martin Woodenware Co., 62. Falck v. Williams, 230. Falletti v. Carrano, 1319. Farley v. Cleaveland, 592. : Farmers’ Handy Wagon Co. v. Newcomb, 164, Farmers’ Produce Co. v. McAlester Stor- age & Com. Co., 111. Felthouse v. Bindley, 244. Ferguson v. Coleman, 1181. Ferguson vy. Harris, 299. Ferguson v. Sutphen, 1210. Ferrier v. Storer, 128. Filcocks v. Holt, 318. Fink v. Cox, 318. Fire Ins. Assoc. v. Wickham, 320. First National Bank v. Watkins, 125. Fisher v. Deering, 520. Fisher v. Hopkins, 660. Fisher v. Seltzer, 77. Fitch and Jones v. Snedaker, 186. Fleming v. Bank of New Zealand, 201. Florence Mining Co. v. Brown, 879. Flynn v. North American Life Ins. Co., 621. Foakes v. Beer, 400, 405. Ford v. Beech, 1419. Ford v. Stier, 221. Forth v. Stanton, 505. Franklin v. Miller, 783. Franklin State Bank v. Maryland Cas- ualty Co., 719. Frazer v. Andrews, 1344. Freeland v. Ritz, 1349. Freeman v. Bernard, 1444. Freeth v. Burr, 892. French v. Boston National Bank, 346. Frost v. Gage, 1231. Frost v. Knight, 962. Fry v. Ausman, 611. Frye v. Hubbell, 402. Fullerton v. Provincial Bank of England, 465. Galla v. Barton, 608. Galloway v. Galloway, 229. Ga Nun v. Palmer, 982. Gates v. Shutts, 484. Gateway Produce Co. v. Farrier Bros., 683. Gay v. Sundquist, 1311. Geer v. Frank, 1133. Geipel v. Smith, 1087. General Billposting Company v. Atkin- son, 792. George v. Tate, 40. Gerard v. Lewis, 507. German Fruit Co. v. W. U. Tel. Co., 242, xii ‘TABLE OF CASES Gewirtz v. Gewirtz, 365. Gibbons v. Proctor, 184. Gibbons v. Vouillon, 1451. Gibbs v. Consolidated Gas Co., 1202. Gibson v. Pelkie, 229. Gifford v. Corrigan, 627. Gilbert § Co. v. McGinnis, 923. Gillingham v. Brown, 308. Gilman v. Hannewell, 303. Girvan v. Griffin, 49. Glaholm v. Hays, 715. Glass v. Hulbert, 1272. Glasscock v. Hamilton, 656. Gleason v. Fitzgerald, 1430. Glens Falls Nat. Bank v. Van Nostrand, 1231. Globe Mutual Life Insurance Association of Chicago v. Wagner, 717. Gloucester Municipal Election Petition, In re, 208. Glynn v. Hyde-Murphy Co., 973. Goddard v. Denton, 33. Goddard v. O’Brien, 401. Goddard’s Case, 33. Goebel v. Linn, 392. Goldstein v. Nathan, 1285. Goodisson v. Nunn, 696. Goodwin v. Chaffee, 291. Gordon v. Moore, 1415. Gorrell v. Greensboro Water-Supply Co., 617. Gorringe v. Read, 1143. Goshen National Bank v. Bingham, 517. Gouled v. Holwitz, 1043. Grace v. Denison, 1352, 1354. Graeser v. Gordon, 1281. Grainger & Son v. Gough, 52. Grandin v. Grandin, 489. Grant v. Johnson, 850. Graves v. Johnson, 1218. Graves v. Legg, 713. Gray v. Barton, 422. Gray v. Gardner, 710. Gray v. Hinton, 941. Great Northern Railway Company v. Witham, 206. Green v. Edgar, 883. Green v. Green, 1272. Green v. Horne, 40. Greenwood v. Law, 1302. Griffin v. Cunningham, 1428. Griffith v. Wells, 1203. Griffith Cycle Corp. v. Humber & Co., 1337. 4 Grindell v. Bass, 1333. Grobe’s Estate, In re, 1157. Grossman v. Schenker, 471. Grover v. Grover, 542. Grover v. Zook, 1063. Guild & Co. v. Conrad, 1262. Gurvin v. Cromartie, 43. Guthrie v. Anderson, 1328. Gutlon v. Marcus, 423. Guyer v. Warren, 332. Hacker, Appeal of, 14. Hagar v. Buck, 510. Haigh v. Brooks, 324. Hall v. Cazenove, 34. Hall v. Crook, 1057. Hall v. People’s Mut. Fire Ins. Co., 1174, Hall Mfg. Co. v. Western Steel & Iron Works, 1114. Hamer v. Sidway, 355. Hamilton v. Liverpool & London §& Globe Ins. Co., 758. Hammond v. Schofield, 668. Hanan v. Ehrlich, 1290. Hanauer v. Doane, 1223. Hanford v. Conn. Fair Assoc., 1087. Hanna v. Florence Iron Co., 879. Hanson v. Donkersley, 1237. Hanson §& Parker v. Wittenberg, 913. Harburg India Rubber Comb Company v. Martin, 1258. Harding v. Harding, 545. Hargis v. Begley, 1071. Harrell v. Watson, 36. Harris v. Nickerson, 75. Harrison v. Cage, 471, 1268. Hart v. Georgia R. Co., 437. f Hartley v. Hyams, 901. \ ey Hartley v. Inhabitants of Granville, 362: Hartley v. Ponsonby, 396. : Hartley v. Sanford, 1250. Hartman v. Pistorius, 637. Hart-Parr Co. v. Finley, 979. Harvey v. Facey, 61. Harvey v. Merrill, 1126. Hatzfeldt-Wildenburg v. Alexander, 154. Haugen v. Sundseth, 568. Havens v. American Co., 156. Haverty Co. v. Jones, 737. Haworth v. Fisher, 658. Hayden v. Bradley, 706. Hayden v. Songer, 182, 363. Hayes v. Jackson, 1351. Hayes v. Wagner, 1456. TABLE OF CASES Heart v. East Tennessee Brewing Co., 1071. Hebert v. Dewey, 732. Hecht v. Marsh, 1380. Heiser v. Mears, 994. Hendee v. Pinkerton, 11, 14. Henkel v. Pape, 240. Henry v. Rowell, 983. . Henthorn v. Fraser, 106. Hepworth Mfg. Co. v. Ryott, 1120. Herbert v. Simson, 541. Herndon v. Meadows, 199. Herring v. Dorell, 480. Herrington v. Davitt, 307, 313. Herter v. Mullen, 1054. Hess & Skinner Engineering Co. v. Tur- ney, 533. Heyes v. Sullivan, 541. Hibernian Banking Ass’n v. Davis, 514. Hickman v. Haynes, 1379. Hientz v. Burkhard, 1297. Higgins v. Lessig, 48. Hill v. Hooper, 1288. Hinkle Iron Co. v. Cohn, 508. Hirachand Punamchand v. Temple, 401, 1407, 1419.: Hirth v. Graham, 1274. Hjorth v. Albert Lea Machinery Co., 885. Hoare v. Rennie, 888. Hobbs v. Columbia Falls Brick Co., 879. Hobbs v. Massasoit Whip Company, 246. Hochster v. De La Tour, 959. Hocking Valley Ry. Co. v. Barbour, 1149 1223. Hodges v. Phelps, 256. Hogan v. Stophlet, 360. Hoit v. Underhill, 309. Holbrooks v. Wright, 1287. Holcomb v. Weaver, 1191. Holmes v. Rice, 472. Holt v. Ward Clarencieua, 471. Hooker v. Eagle Bank of Rochester, 519. Hopkins v. Ensign, 1195. Horgan v. Russell, 154. Horne v. Niver, 113. Horner v. Speed, 307. Hoshor v. Kuntz, 355. Hoskins v. Black, 471. Hotchkiss v.. National City Bank of N. Y., 44. Household Fire and Carriage Accident Insurance Company v. Grant, 90. Housekeeper Pub. Co. v. Swift, 1394. xiii Houston Ice & Brewing Co. v. Keenan, 1073. Howard v. Brown, 291. Howard v. Daly, 99. Howe v. O'Malley, 498. Howell v. Coupland, 1032. Hubbard v. Greeley, 30. | Huckins v. Hunt, 1230. ‘Hucklesby v. Hook, 1334. Hudson v. Columbian Transfer Co., 43. Hudson, Re, 352. Hudson River, ete., Co. v. Cement Co., 573. Hugall v. McLean, 706. Humble v. Mitchell, 1301. Humes v. Decatur Land’ Improvement & Furnace Co., 372. Hunt v. Bate, 285. Hunt v. Brown, 435. Hunter v. Walters, 35. Hunter v. Wetsell, 1313. Hurst v. Hill, 765. Hursathal v. Boom Co., 522. Hussey v. Horne-Payne, 199. Hutchinson v. Bowker, 156. Hyde v. Wrench, 148. Ide v. Leiser, 84. Imperator Realty Co. v. Tull, 1372. Imperial Loan Co. v. Stone, 171. Inman Manufacturing Co. v. American Cereal Co., 725. International Text-Book Co. v. Jones, 996. International Text-Book Co. v. Martin, 996. International Text-Book Co. v. Schulte, 996. Inter-Southern Line Life Ins. Co. v. Humphrey, 580. Irwin v. Lombard University, 340. Jackson v. Pennsylvania, 1414. Jackson v. Security Mut. Life Ins. Co., 18, 21. ; Jacob g Youngs v. Kent, 743. Jacques v. Otto Nelson Co., 760. Jaffray v. Davis, 415. James v. Burchell, 832. James v. Smith, 1232. James Quirk Milling Company v. Minne- apolis ¢ St. L. R. Co., 1143. Jamieson v. Renwick, 358. Jefferson v. Paskell, 1059. Jell v. Douglas, 658. xiv Jenkins v. Chesapeake § O. Ry. Co., 600. Jersey City v. Harrison, 68. Jester v. Gray, 85. Jewett Publishing Co. v. Benjamin F. Butler, 1150.‘ Johnson v. Boyes, 76. Johnson v. Dodge, 1329. Johnson v. Higgins, 1139. Johnson v. Reed, 768. Johnson v. Vickers, 580. Johnson v. Wilkinson, 1275, Johnson’s Admr. v. Sellers’ Admr., 369. Johnston v. Bowersock, 1290. Johnston v. Metropolitan Life Ins. Co., 622. Johnston Bros. v. Rogers Bros., 62. Jones v. Logwood, 12. Jones v. Marsh, 762. Jones v. Victoria Graving Dock Co., 1337. Jones Bros. v. Joyner, 1328. Jordan v. Dobbins, 167. Jordan v. Patterson, 209. Jordan v. Stevens, 221. Juniata County v. MeDonald, 180. Jureidini v. National British, etc., Ins. Co., 793, 1173. Kadish v. Lyon, 588. Kadish v. Young, 1000. Kansas City Soap Co. v. Illinois Cudahy Packing Co., 558. Kauffman v. Raeder, 699. Keith v. Miles, 363. Keller v. Ashford, 612. Keller v. Ybarru, 209. Kelly v. Security Mutual Life Ins. Co., 990. Kelly, Matter of, 126. Kemp v. Baerselman, 565. Kempner v. Cohn, 127. Kendall v. Hamilton, 664. Kent v. Rand, 295. Kernochan v. Murray, 588. Kerr v. Finch, 1336. Keuka College v. Ray, 336. Key v. Bradshaw, 1153. Kilgore v. Baptist Educational Ass’n, 969. King v. Duluth, Missabe & Northern Rwy. Co., 395. King v. Gillett, 1388. King v. Hoare, 665. King v. King, 1154. King v. Lindsay, 517. TABLE oF CASES King Collie Co. v. Richards, 1316. Kingsbury v. Burnside, 27. Kingston v. Preston, 695. King, The v. Porter, 1181. Kintz v. Harriger, 1109. Kinzer Construction Co. v. State, 1075. Kirkpatrick v. Stingley, 676. Kirksey v. Kirksey, 353. Kissack v. Bourke, 844. Kline Bros. & Co. v. Royal Ins. Co., Ltd., 202. Knight v. Cooley, 61. Koerper v. Royal Inv. Co., 699. Krell v. Codman, 39, 276. Kromer v. Heim, 430. Kronprinzessin Cecilie, 1090. Kullman v. Greenebawm, 1228. Lacy v. Getman, 1051. Lamb v. Lathrop, 750. L’Amoreux v. Gould, 124. Lampleigh v. Brathwait, 286. Lang v. The Eagle Fire Company, 732. Langley v. Owens, 15. Lapp v. Smith, 1410. La Rue v. Groezinger, 577. Lattimore v. Harsen, 364. Lawall v. Rader, 1395. Lawrence v. Fox, 592. Lea v. Barber, 1302. Leach v. Kentucky Block Cannel Coal Co., 442. as Leary v. U. S., 1184. Leavitt v. Fletcher, 809. Leavitt v. Morrow, 1413, 1416. Lee v. Magrath, 541. Lee v. Muggeridge, 296. Lee v. Vaughan Seed Store, 1335. Lees v. Colgan, 361. Legal News Pub. Co. v. George C. Knis- pel Cigar Co., 223. Legh v. Legh, 510. Leopold v. Salkey, 789. Lerned v. Wannemacher, 1349. Lester v. The Bank, 1156. Leterman, Becher g Co., In re, 531. Levy & Co. v. Davis, 1217. Lewis v. Browning, 116. Lewis 1. Elliott Bay Logging Co., 1323: Lewis v. Scoville, 996. Lewis v. Tapman, 1297. Lewis v. Wood, 1317. Lezinsky Co. v. Hoffman, 1332. Libman v. Levenson, 866. Liness v. Hessing, 1189. InpDEX XV Lingenfelder v. Co., 392. Linz v. Schuck, 395. List & Sons Co. v. Chase, 883. Littlefield v. Shee, 297. Liverpool and London & Globe Ins. Co. v. Kearney, 684. Livingston v. Page, 1187. Lloyd v. Willan, 329. Lioyd’s v. Harper, 169. Lock v. Wright, 694, Loring v. City of Boston, 127. Los Angeles Traction Co. v. Wilshire, 178, Losh v. Williamson, 282. Loudenback Fertilizer Co. v. Tennessee Phosphate Co., 446. Louisville Asphalt Varnish Co. v. Lorick, 1345. Lowe v. Morris, 14. Loyd v. Lee, 478. Lucy v. Mouflet, 249. Ludlow v. Hardy, 304. Luing v. Peterson, 330. ¢ Lurton v. Gilliam, 1210. Wainwright Brewing . MacDonald v. O’Shea, 583. McAnnulty v. McAnnulty, 1344, McCaull-Webster Elevator Co. v. Steele, 228, McClain v. Provident, ete., Co., 719. McClung v. Terry, 49. McCollum v. Edmonds, 324. McCullough v. Finley, 1276. McCullough Realty Co. v. Laemmle Film Service, 1073. McDevitt v. Stokes, 388. MeDill’s Lessee v. MeDill, 23. MeDonald v. Chemical Nat. Bank, 102. McDonald v. Finseth, 615. McGuire v. Stevens, 1278. McIntyre Lumber & Export Co. v. Jack- son Lumber Co., 440. MeKeever & Co. v. Cannonsburg Iron Co., 453. MeKell v. Chesapeake & O. Ry. Co., 214. McKenzie v. Harrison, 420. MeManus v. Boston, 204. McManus v. Fortescue, 165. McMullen v. Dickinon Company, 457. MeNitt v. Clark, 805. Machinist v. Green, 1267. Mackin v. Dwyer, 1234. Maclay v. Harvey, 114. Mactier’s Administrators v. Frith, 130. Mahan v. Home Ins. Co., 869. Makin v. Watkinson, 704. Mance v. Hossington, 1409. Manley v. Vermont Mutual Fire Ins. Co., 433. Mansfield v. Watson, 476. Manson v. Flanagan, 330. Manter v. Churchill, 465. Manufacturers’ Accident Indemnity Co. v. Dorgan, 719. March v. Culpepper, 285. March v. Pigot, 500. March v. Ward, 651. Mark. v. Stuart-Howland Co., 801. Markillie v. Markillie, 187. Markland, Adm’r. v. Crump, 522. Marquis of Bute v. Thompson, 1023. Marqusee v. Hartford Fire Ins. Co., 25. Martin v. Adams, 1230. Martin v. Crump, 660. Martin v. Mathis, 1332. Martin v. Meles, 347. Martin v. Northwestern Co., 155. Martin, ete., Co. v. Siegel, ete., Co., 1032. Masury v. Southworth, 522. Mathewson’s Case, 677. Maule v. Weaver, 41. May v. Hanson, 659. May v. Williams, 1253. Maylard v. Kester, 277. Meacham v. Jamestown, F. & C. R. Co., 1173. Mead v. Phenix Ins. Co., 227. Meigs v. Dexter, 29. Melachrino v. Nickoll, 1009. Mellen v. Whipple, 597. Melles & Co. v. Holme, 707. Meng, Matter of, 1139. Meriden Britannia Co. v. Zingsen, 1236. Meriwether v. Lowndes County, 1020. Merrick v. Giddings, 382. é Merrill v. Peaslee, 1159. Mersey Steel and Iron Co. v. Naylor, Benzon g Co., 891. Metcalf v. Kent, 1402. Metropolitan Coal Co. v. Billings, 1099. Metropolitan Coal Company v. Boutell Transf. & Towing Co., 150. Meyer v. Haworth, 297. Meyer-Bridges Co. v. American Ware- house Co., 874. Meynell v. Surtees, 128. Michael v. Bacon, 1217. Miles v. Schmidt, 1173. Milhollin v. Milhollin, 1447. Xvi Miller y. Fletcher, 31. Miller v. Jones, 979. Miller v. Kimmel, 332. Miller v. MeManis, 214. Miller v. Miller, 357, 1164. Miller v. State Ins. Co. of Des Moines, 709. Miller v, Tharel, 514. Millett v. Van Heek & Co., 1009. Mills v. Bennett, 1185, Mills v. MeMillan, 1431. Mills v. Wyman, 298, Millward v. Littlewood, 1207. Mineral Park Land Co. v. Howard, 1028. Minneapolis, ete., Railway v. Columbus Rolling Mill, 149. Minnesota Linseed Oil Co. v. Collier White Lead Co., 128. Mississippi and Dominion Steamship Co. v. Swift, 198. Mitchell v. Bell, 282. Mitchell v. Clem, 1209. Mitchell v. Morgan, 1361. Mitchell v. Reynolds, 1111. Mitchell-Henry v. Norwich Union Life Insurance Society, 96. Mitchell’s Lessee v. Ryan, 26. Mittenthal v. Mascagni, 1175. Moayon v. Moayon, 1162. Moers v. Moers, 494. Moloney v. Nelson, 1184. Monroe v. Perkins, 366. Montgomery Ward & Co. v. Johnson, 53.. Moore v. Bausch, 595. Moore v. Elmer, 288. Moore v. Robinson, 1051. Morehouse v. Brooklyn Heights RB. Co., 1135. Morehouse v. Second National Bank of Oswego, 433. Morgan v. Forbes, 85. Morgan v. Pettit, 1121. Morgan v. Randolph & Clowes Co., 592. Morrell v. Studd, 130. Morris v. Baron § Co., 1366. Morris v. Baron & Co., 884. Morris v. Lutterel, 864. Morris v. Norton, 319. Morris v. Tuthill, 576. Morrison v. Herrick, 1277. Morrison v. Meister, 1284. Morrison Co. v. Slonzynski, 393. Morse v. Moore, 811. Morse vy. Tillotson & Wolcott Co., 154. Morton v. Dean, 1323, TABLE or CASES Morton v. Lamb, 766. Morton v. Murray, 1335. Moulor v. American Life Ins. Co., 718. Moulton v. Kershaw, 57. Mowbray Pearson Co. v. E. H. Stanton Co., 445. Mowry v. Kirk, 821. M. P. v. J. B., 504. Mt. Vernon Car Mfg. Co. v. Hirsch Rolling Mill Co., 424. Muir v. Kane, 299. , Mulligan v. Southern Rwy., 55. Munsey v. Tadella Pen Co., 936. Murphy Thompson & Co. v. Reed, 332. Murray v. White, 1213. Myer v. Wheeler, 887. Myers v. Smith, 156. Nashua River Paper Co. v. Hammermitl? — Paper Co., 1173. Nassoiy v. Tomlinson, 418. Natal Investment Co., In re, 679. Nat. Furnace Co. v. Keystone Mfg. Co., 449, . National Bank v. Grand Lodge, 603. National Contracting Co. v. Vulcanite Portland Cement Co., 918. National Knitting Co. v. Bouton § Ger- main Co., 940. National Machine and Tool Company v. Standard Shoe Machinery Company, 909. National Provincial Bank v. Jackson, 20. National Roofing Tile Co. v. McDonald, 646. Naylor, Benzon § Co. v. Krainische In- dustrie Gesellschaft, 1091. Neer v. Lang, 150. Nelson v. Petterson, 310. Nevanas & Co. v. Walker, 1115. Nevill’s Case, 679. Newberry Land Co. v. Newberry, 42. Newbury v. Luke, 1200. Newell v. Higgins, 1230. Newington v. Levy, 1453. N. O. St. Joseph’s Association v. A, Magnier, 616. New Zealand Shipping Co. v. Société Des Ateliers et Chautiers de France, 1304, Nichols v. Haywood, 677. Nichols v, Mudgett, 1188. Nichols v. Raynbred, 683. Noble v. Ward, 1364. Nolan v. Whitney, 741. Nonamaker v. Amos, 1282. TaBLE oF Cases Nordénfelt v. The Mazxim-Nordenfelt Guns and Ammunition Company, 1108. Norman v. Wells, 522. Norrington v. Wright, 897. North German Lloyd v. Guaranty Trust Co., 1090. Norton v. Smith, 1360. Nurse v. Frampton, 39. Nute v. Hamilton Mut. Ins. Co., 1174. Oakbank Oil Company v. Love ¢ Stewart, 216. Oakley v. Morton, 797. O’Donnell v. Inhabitants of Clinton, 44. Offord v. Davies, 168. Okin v. Selidor, 1294, Olcott v. Little, 672. Oldham v. Hunt, 22. Olive v. Booker, 716. Olmstead v. Brush, 256. Oppenheimer v. Szulerecki, 809. Oreutt v. Nelson, 223. O’RBeilly v. Kerns, 1172. Ormond v. Insurance Co., 512. Osborn v. Martha’s Vineyard Railroad Co., 680. Osby v. Reynolds, 23. Oscar Schlegel Mfg. Co. v. Peter Cooper’s Glue Factory, 456. Ostman v. Lee, 251. Oswell v. Shepherd, 18. Owens v. Henderson Brewing Co., 1108. Oxweld Acetylene Co. v. Davis, 996. Pacaud v. Waite, 1180. Paige v. Faure, 582. Palmer Savings Bank v. Insurance Co. of North America, 640. Parker v. Latner, 1200. Parker v. Russell, 979. Parkinson v. Murphy, 766. Parks v. Hazlerigg, 22. Parrot v. Mexican Central Railway, 382. Patterson v. Meyerhofer, 864. Payne v. Cave, 73. Payzu v. Saunders, 919. Pead v. Trull, 806. Pearce v. Brooks, 1212. Pearlberg v. Levisohn, 1326. Pease v. Lawson, 12. Pennell v. Lothrop, 259. Penn. Oil Co. v. Triangle Petroleum & Gasoline Co., 909. People v. Dummer, 46. People v. Harrison, 673. People v. Omen, 783. XVvii Peoria Marine & Fire Ins. Co. v. White- hill, 1180. Percival v. London County Counzil Asy- lums, ete., Com., 208. Perlee v. Jeffcott, 1041. Perry v. Gallagher, 1431. Perry v. Suffields, 192. Peters v. Westborough, 1288. Petroleum Co. v. Coal, Coke & Mfg. Co., 449, Pettigrew Machine Co. v. Harmon, 677. Phenix Ins, Co. v. Schultz, 111. Philadelphia v. Reeves & Cabot, 654. Philip & Co. v. Knoblauch, 65, Phillip v. Gallant, 223. Phillips v. Alhambra Palace Company, 1048. Phillips v. Moor, 130. Philpot v. Gruninger, 320. Philpot v. Walcot, 1268. Pickering v. Pickering, 254. Pickersgill v. Lahens, 660. Pierson § Co. v. Mitsui § Co., 1080. Pigot’s Case, 1454, Pike v. Thomas, 761. Pillans v. Van Mierop, 281. Pillow v. Roberts, 10, Pinnel’s Case, 404, Plant v. Bourne, 1363. Plate v. Durst, 50. Plevins v. Downing, 1379. Pocatello v. Fidelity g Deposit Co. of Maryland, 460. Poel v. Brunswick-Balke-Collender Co., 219. Pool v. City of Boston, 361. Pordage v. Cole, 689. Portuguese-American Bank of San Fran- cisco v. Welles, 577. Portuguese Consolidated Copper Mines, Ltd., In re, 201. Post v. Albert Frank § Co., 125. Post v. Thomas, 484. Posten v. Clem, 1253. Potter v. Douglass, 417. Potts v. Whitehead, 156. Potts Drug Co. v. Benedict, 1042. Poussard v. Spiers, 784. Powell v. Lee, 68. Powell v. Merrill, 808. Powell v. Myers, 1344. Presbyterian Church ‘Cooper, 334, Preseott v. Jones, 251. of Albany XVli Prescott & Co. v. J. B. Powles § Co., 798. President, etc., of the Bangor Bank v. Treat, 673. Prested Miners Gas Co. v. Garner, 1300. Preston v. Preston, 638. Prevost v. Great Eastern Rwy. Co., 55. Prewitt v. Wilson, 383. Price v. Edwards, 1207. Prosser v. Evans, 668. Punamehand, Hirachand v. Temple, 401, 1407, 1419. Purrington v. Grimm, 150. Putnam v. Grace, 154. Quenerduaine v. Cole, 110. Quirk Milling Company v. Minneapolis § St. L. R. Co., 1148. Raffles v. Wichelhaus, 226. Raggow v. Scougall ¢ Co., 423. Ramey Lumber Co. v. John Schroeder Lumber Co., 454. Ramsden & Carr v. Chessum & Sons, 46. Randall v. Tuell, 1202. Rankin v. Roller, 22. Rann v. Hughes, 280. Raudabaugh v. Hart, 819. Rawlings v. General Trading Co., 1198. Rawson vy. Johnson, 767. Raymond v. Minton, 1023. Read v. Price, 652. Rease v. Kittle, 223, 574. Rector v. Teed, 638. Redding v. Vogt, 1391. Rees vy. Logsdon, 1439. Reeve v. Jennings, 1292. Reid v. Hoskins, 970. Reid v. Wilson, 1237. Reif v. Page, 362. Remington v. Remington, 1271. Rex v. Porter, 1181. Rhymney R. Co. v. Brecon & Merthye Tydfil R. Co., 967. Rich v. Fulton, 1209. Richardson v. Brecker, 726. Richardson v. Draper, 662. Richardson v. Jones, 657. Richardson v. Kulp, 303. Rich Hardware Co., Assignment of, 499. Richland Queen, The, 1063. Ricketts v. Scothorn, 344. Ripley v. M’Clure, 952. Roark v. Turner, 317. Roberts v. Criss, 1147. Roberts v. Sinnott, 848. —_—ee TABLE OF CASES Robertson v. March, 651. Robeson v. Pells, 111. Robinson v. Harbour, 823. Robinson v. Hawkins, 1450. Robson v. Drummond, 556. Roddy v. Missouri Pac. R. Co., 603. Rodgers v. Byers, 308. Rodgers v. Rodgers, 1164. Rodrigues v. Speyer Bros., 1109. Roehm v. Horst, 986. Rogers v. Burr, 535. Rooke v. Dawson, 53. Rookwood’s Case, 637. Roscorla v. Thomas, 287. Rosenstein v. Gottfried, 1271. Rosenthal Paper Co. v. National Folding Boz §& Paper Co., 837. ‘Roth § Co. v, Taysen, Townsend § Co., 1006. Routledge v. Grant, 78. Row v. Dawson, 511. Rowe v. Town of Peabody, 1045. Rowell v. Barber, 1345. Royal Brewing Co. v. Uncle Sam Oil Co., 442, Roys v. Johnson, 1209. } Royster v. A. Waller & Co., 959. Rua v. Bowyer Smokeless Coal Co., 1289. Rubel Bronze Metal Co., Ltd., and Vos, 873. Rude v. Levy, 85. Runkle v. Johnson, 826. Russell v. Ives, 1359. Russell’s Application, Matter of, 360. Ruth-Hastings Glass Tube Co. v. Slat- _ tery, 904. Ryder v. Stockwell, 363. Ss v. T » 98. Safe Deposit & Trust Co. v. Diamond Coal & Coke Co., 1387. Said v. Butt, 577. St. Joseph’s Association v. Magnier, 616. St. Mark’s v. Teed, 638. St. Mark’s Evangelical Lutheran Church v. Miller, 310. Salmon Falls Manufacturing Company v. Goddard, 1313. . Samuels v. Oliver, 1126. Samuel Stores, The, v. Abrams, 1115. Sanders v. Pottlitzer Bros. Fruit Co., 197. San Juan v. St. John’s Gas Co., 418. Sargent v. Donahue, 1404. ‘* Satanita,’’ The, 68. TABLE oF CASES Satler Lumber Co. v. Esler, 653. Satterthwaite v. Emley, 1345. Saunders v. Saunders, 42, 648. Saunderson v. Jackson, 1347. Schlegel Mfg. Co. v. Cooper’s Glue Fac- tory, 456. Schmaling v. Thomlinson, 575. Schneider v. Anderson, 1340. Schnell v. Nell, 315. School District v. Dauchy, 1013, 1014. School District of Kansas City v. Livers, 644, School Trustees v. Bennett, 1014. Schwartzman v. Pines Rubber Co., 1395. Schweider v. Lang, 433. Schwerdt v. Schwerdt, 300. Scotson v. Pegg, 379. Scott v. T. W. Stevenson Co., 443. Seriven Brothers & Co. v. Hindley & Co., 227, Scudamore v. Vandenstene, 41. Sears v. Eastern Railroad Company, 53. Seaside v. Randles, 758. Seaton v. Henson, 677. Seaver v. Ransom, 606. Seed v. Johnson, 859. Sellers v. Greer, 214. Sellers v. Warren, 58. Semmes v. Hartford Insurance Company, 708. Settle v. Davidson, 1439. Seward v. Mitchell, 497. Seymour v. Armstrong, 154. Seymour v. Oelrichs, 1380. Shadwell v. Shadwell, 374. Shardlow v. Cotterell, 1362. Sharp v. Farmer, 1200. Shaw v. Clark, 1415. Shaw v. Woodbury Glass Works, 216. Shawmut National Bank v. Boston, 1032. Sheldon v. George, 186. Sheeren v. Moses, 859. Shepard § Co. v. Rhodes, 311. Sherrin v. Coffman, 1287. Sherwin v. Fletcher, 348. Sherwood v. Woodward, 371. Shinn v. Bodine, 933. Sholovitz v. Noorigian, 1361. Shuey v. United States, 178. Shulter’s Case, 35. Sickinger v. Board of Directors of Pub- lie Schools for Parish of Orleans, 1018. Sigler v. Sigler, 1412. Silver v. Graves, 493. Simpson v. Crippen, 891. xix Slade’s Case, 278. Sloan Co. v. Standard Chemical & Oil Co., 1446. Smith, Re, 18. Smith v. Algar, 330. Smith v. Butler, 848. Smith v. Carroll, 1233. Smith v. Colby, 1349. Smith v. Compton, 1063. Smith v. Farra, 484. Smith v. Knight, 500. Smith v. Monteith, 479. Smith v. State, 180, 188. Smith §& Nye v. Munsel, 1343. Smith Lumber Co. ve Portis Brothers, 1235. Solinger v. Earle, 1229. South Dakota v. North Carolina, 577. Southern Mutual Life Ins, Assoc. v. Durdin, 518. South Hetton Coal Co. v. Haswell, etc., Coal Co., 211. Spaulding v. Maillet, 1192. Spears & Sons v. Winkle, 320. Spencer v. Harding, 51. Spencer v. Spencer, 45. Speyer v. Desjardins, 1282. Spiers v. Hunt, 1208. Spiller v. Westlake, 861. Spinks v. Davis, 1194. Sprague v. Hosie, 1301. Stabler v. Cowman, 21. Staff v. Bemis Realty Co., 624. Stamm v. Wood, 48. Stamper v. Temple, 49. Standard Furniture Co. v. Van Alstine, 1217. Standard Mfg. Co. v. Slot, 221. Standifer v. Combs, 1285. Stanfield v. Arnwine, 930. Stanley v. Gannon, 154. State v. Liebes, 647. State Trust Co. v. Sheldon, 1187. Stead v. Dawber, 1370. Stebbins v. Crawford County, 302. Steeds v. Steeds, 1424. Steele v. Steele, 351. Steen v. Modern Woodmen of America, 1176. Stees v. Leonard, 1011. Stees v. Leonard, 1396. Sterling v. Sinnickson, 1153. Stevens v. Thacker, 329. Stevenson v. McLean, 150. Stewart v. Bedell, 365. XX TABLE OF CASES Stewart v. Casey, 288. Stewart v. Newbury, 760. Stewart v. Stone, 1035. Stewart v. Thayer, 1200. Stik v. Myrick, 373. Stirtan v. Blethen, 1190. Stockstill v. Byrd, 945. Stollery v. Maskelyne, 50. Stong v. Lane, 228. Storey v. Storey, 24. Strangborough v. Warner, 284. Strasburger v. Burk, 1189. Straus v. Cunningham, 312. Strobridge Lithographing Co. v. Ran- dall, 199. ° Strong v. Sheffield, 464. Sturlyn v. Albany, 276. Sturtevant Co. v. Le Mars Gas @o., 935. Summers v. Hibbard & Co., 219. Summers v. Mutual Life Ins. Co., 683. Sunderland Marine Ins. Co. v. Kearney, 40. Supreme Assembly of the Royal Society of Good Fellows v. Campbell, 499. Susong v. Vaiden, 662. Sweigart v. Berk, 656, 658. Symmes v. Frazier, 182. Synge v. Synge, 967. Taft v. Hyatt, 363. Talbott v. Stemmons, 355. Tanner v. Merrill, 416. Taul v. Bradford, 828. Tayloe v. Merchants Fire Ins. Co., 95, 253. Taylor v. Brewer, 726. Taylor v. Caldwell, 1028. Taylor v. Forbes, 41. Taylor v. Hotchkiss, 312. Taylor v. Sanford, 25. Taylor g Co.’s Estate, In re, 1128- Tebo v. Robinson, 727. - Tel. Co. v. Schotter, 240. Ten Broeck Tyre Co. v. Rubber Trad- ing Co., 915. Thacker v. Hardy, 1122. Thackeray v. Knight, 1397. Thiel v. John Week Lumber Co., 537. Thimbleby v. Barron, 1422. Thirkell v. Cambi, 1333. Thomas v. Thomas, 461. Thomas Haverty Co. v. Jones, 737. Thomason v. Bescher, 81. Thomassen v. DeGoey, 579. Thompson v. Gillespy, 685. Thomson. v. Poor, 1374. Thorn v. Dinsmoor, 1120. Thornborow v. Whitacre, 1009. Thoroughgood v. Cole, 34. - Thoroughgood’s Case, 34. Thorp v. Thorp, 690. Thos. D. Campbell & Co. v. Holehan, 536. Thruston v. Thornton, 50. Thurber v. Smith, 155. Thurber v. Sprague, 1403. Thurnell v. Balbirnie, 748. Tillock v. Webb, 1198. Tinn v. Hoffman g& Co., 157. Tipton v. Feitner, 931. Tisdale v. Harris, 1301. Tobias v. Lynch, 1317. Todd v. Meding, 538. Tolhurst v. Powers, 393. Tolhurst v. The Associated Portland Ce- ment Manufacturers, 562. Toothaker v. Boulder, 310. Townsend v. Hargraves, 1302. Traders’ National Bank v. Parker, 466 Trammell v. Vaughan, 1060. Trasher v. Everhart, 17. Traver v. , 284, 688. Traver v. Halsted, 973. Travis v. Schnebly, 792. ' Treat v. Price, 418. Trevor v. Wood, 99. Trist v. Child, 1191. Trounstine & Co. v. Sellers, 137. Trowbridge v. Jefferson Auto Co., 885. Troy Academy v. Nelson, 342. Trustees v. Cowls, 342. Trustees of St. Mark’s Evangelical Lutheran Church v. Miller, 310. Trustees of Troy Academy v. Nelson, 342. Tucker v. Woods, 836. Tullis v. Jaeson, 755. Tupper v. Foulkes, 24. Turner v. Goodwin, 688. Turner v. Henning, 802. Turner v. McCormick, 150. Turner v. Sawdon & Co., 869. Turner v. Webster, 234. Turean, In. re, 580. Turpin v. Victoria Palace, 873. Turton v. Benson, 516. Tweddle v. Atkinson, 590. Tweeddale v. Tweeddale, 631. Tweedie Trading Co. v. James P. Me- Donald Co., 1070. TABLE OF CASES Tyler v. Carlisle, 1211. Tyra v. Cheney, 242. Tyson v. Dorr, 1453. Uhlmann v. Kin Daw, 1207. Ullman v. Meyer, 1297. Union Nat. Bank v. Miller, 115. Union Strawboard Co. v. Bonfield, 1114. United States v. Addyston Pipe & Steel Co., 1120. United States v. Dietrich, 1227. United States v.. Huckabee, 477. United States v.. Peck, 864. United States v. Simons, 183. United States v. Spearin, 1016. United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., 1166. United Steel Co. v. Casey, 396. University Club v. Deakin, 627, 808. Upfill v. Wright, 1217. Upjohn v. Ewing, 1427. Van Demark v. California Home Exten- sion Ass’n, 722, Vanderbilt v. Schreyer, 366. Van Slyke v. Andrews, 1193. Van Viiet v. Jones, 1439. Velie Motor Car Co. v. Kopmeier Motor Car Co., 316. Vickery v. Ritchie, 237. Vigers v. Cook, 987. Viney v. Bignold, 759. Vitty v. Ely, 186. Vogt v. Hecker, 1019. Von Hatzfeldt-Wildenburg v. Alexander, 154, 197, 198. Vulean Trading Corporation v. Kokomo Steel & Wire Co., 913. Vyse v. Wakefield, 707. Wade v. Simeon, 478. Walker v. Arkansas Nat. Bk., 303. Walker v. Nussey, 1309. Walker v. Walker, 35. Walker v. Walker, 1162. Wall v. County of Monroe, 518. Wall v. Niagara Mining g Smelting Co. of Idaho, 256. Walter v. Bloede Co., 1379. Ward v. Goodrich, 396. Warlow v. Harrison, 74. Warren v. Lynch, 13. Watson v. Turner, 294. Watters v. Lincoln, 188. xxi Watts, Watts § Company v. Mitsui ¢ Company, 1089. Weatherford, ete., Ry. (Co. v. Granger, 259. Weeks v. Crie, 1306. Weisenberger v. Huebner, 1356. Welch v. Sackett, 29. Weld v. Weld, 1269. Wellington Piano Case Co. v. Garfield & Proctor Coal Co., 960. Wells v. Alexandre, 452. Wester v. Casein Co. of America, 970. Western Drug Supply g Specialty Co. of Kansas City v. Board of Adminis- tration, 1083. Western Md. R. Co. v. Overendorff, 21. Westerton, In re, 545. Wetnutske v. Wetnutske, 636. Wheat v. Cross, 252. Wheatley v. Low, 322. Wheaton Building § Lumber Co. v. Boston, 202. Wheeler v. Klaholt, 247. Whipple v. Lyons Beet Sugar Refining Co., 1037. Whistler v. Forster, 515. White v. Bluett, 355. White v. Corlies, 212. White v. Hoyt, 232. White v. Kuntz, 335. White Eagle Laundry Co. v. 1447, Whitehead v. Burgess, 647. White Oak Fuel Co. v. Carter, 772. Whitman v. Anglum, 1037. Whittaker & Fowle v. Lane, 32. Whittaker Chain Tread Co. v. Standard Auto Supply Co., 1407. Whitton v. Whitton, 706. Wickham §& Burton Coal Co. v. Farmers’ Lumber Co., 438. Wigent v. Marrs, 995. Wilcox v. American Telegraph & Tele- phone Co., 221. Wilcox, Ives & Co. v. Rogers, 1410. Wilhite v. Roberts, 1217. Williams v. Bayley, 1141. Williams v. Carwardine, 183. Williams v. Moss’ Empires, 1366. Williams v. O’Keefe, 397. Williams v. Sweet, 798. Williamson v. Clements, 283. Williamson, Halsell, Frazier Company v. Ackerman, 1140. Wilson v. Connolly, 1126. Slawek, Xxii Winchester v. Nutter, 1211. Winchester et al. v. Newton, 887. Wisconsin & Mich. Ry. Co. v. Powers, 320. Withers v. Reynolds, 883. Wojahn v. National Union Bank, 47. Wolff v. Koppel, 1237. Wolffe v. Eberlein, 305. Wolford v. Powers, 323. Wood v, Lady Duff-Gordon, 467. Wood v. Moriarty, 639. Woodley v. Bond, 582. Woods v. Dial, 702. Woodstock Iron Co. v. Richmond & Dan- ville Extension Co., 1193. Work v. Beach, 728. Worsley v. Wood, 728. TABLE OF CASES Wright v. Seattle Grocery Co., 1326. Wyllie China Co. v. Vinton, 906. ‘Xenos v. Wickham, 25. Yale v. Curtiss, 47. Yerrington v. Greene, 1050. Y. M. C. A. v. Estill, 352. Young v. Ingalsbe, 1306. Young v. Jones, 1403. Young v. Schwint, 45. Zavelo v. Reeves, 313. Zeigler v. Illinois Trust & Savings Bank, 1108, Ziehen v. Smith, 835. Zuck v. M’Clure & Co., 968. Zwolanek v. Baker Mfg. Co., 178. TABLE OF OTHER AUTHORITIES [This table consists simply of passages quoted by the editor in the text and of articles in legal periodicals referred to in the footnotes. Books and articles quoted in the text appear in bold type, while others are in ordinary type.] AMBROSE, W. J. LEOFRIC Page Contracts of Insane Persons, 27 Law Quar. Rev. 313..... oaisem ieee aa 171 AMES, JAMES BARR Disseisin of Chattels, 3 Harv. Law Rev. 23, Essays in Anglo-American Legal History, Vol. III, 584, Lectures on Legal History, 172-191...501, 502 History of Assumpsit, 2 Harv. Law Rev. 1, 53, Essays in Anglo-American Legal History, Vol. III, 259, Lectures on ‘Legal History, 129-171. ESRD ADENINE EN Se THE ME ee Ol eee eee 1, 3, 6, 266, 267 History of Parol Contracts Prior to Assumpsit, 8 Harv. Law Rev. 252, Essays in Anglo-American Legal History, Vol. III, 204, Lectures on Legal History, 122-128 sss csseceses ccasssaeerecaresinn ence 1, 267, 269, 271 Lectures on Legal History, 98-99........... cc cece cece eee ee eee eens 8 Lectures on Legal History, 129-130, 144-147.......... cece eee ee eee eee 261 Novation, 6 Harv. Law Rev. 184, Lectures on Legal History, 298-309. .1431 Two Theories of Consideration, 12 Harv. Law Rev. 29, Lectures on Legal History, 323-353 21... ccc cee eee e cece ener e rene ener eeeeee . .883, 384, 409 ANSON; SIR W. R. Assignment of Choses in Action, 16 Law Quar. Rev. 241............... 541 ASHLEY, CLARENCE D. Assignment of Contract, 19 Yale Law Jour. 180..........ccceceeeeeeee 517 Must the Rejection of an Offer be Communicated to the Offeror? 12 Yale Law Jour. 419....... Ce ee oe ee ee 152 Mutual Assent in Contract, 2 Columbia Law Rev. 71...........00c0ee: 234 Offers Calling for a Consideration Other Than a Counter Promise, 23 Bl arvic Lia yy GV: VOD sca c ceusvehatesas aniee eheaitaie naan a siine Sealine aes wea eer oraceveuans 176 BACKUS, R. C. The Origin and Use of Private Seals Under the Common Law, 51 Am. Law: Revs, 869s ssiccaas cop cca Gan cass wha Sema ta eea or sigs eae gignes 8 BALLANTINE, HENRY W. Acceptance of Offers for Unilateral Contracts by Partial Performance of Service Requested, 5 Minn. Law Rev. 94.........cce ccc neste eeeees 176 Forfeiture for Breach of Contract, 5 Minn. Law Rev. 329............ 746, 802 Is the Doctrine of Consideration Senseless and Illogical? 11 Mich. Law. Revi 482) scccccew niet ws mew ries nia os news sew ania Mase es ea sealers 388 Mutuality and Consideration, 28 Harv. Law Rev. 121....... pawbeRa ses 388 XXxili XXIV TABLE oF OTHER AUTHORITIES BARBOUR, W. T. Page The History of Contract in Early English Equity, pp. 59-65, 160-168..... 265 The History of Contract in Early English Equity, 67, 70..........- 504, 505 The ‘‘Right’’ to Break a Contract, 16 Mich. Law Rev. 106........ 365, 379 BEALE, JOSEPH H., JR. Damages Upon Repudiation of a Contract, 17 Yale Law Jour. 611. .923, 1009 Notes on Consideration, 17 Harv. Law Rev. Visiewinins aeveowieaden~s 384 BIGELOW, HARRY A. Conditional Deliveries of Deeds of Land, 26 Harv. Law Rev. 565....... 33 BOHLEN, FRANCIS H. Breach of One Installment of a Divisible Contract, 39 Am. Law Reg. CN. S.) 391, 468... . cece cece enc crenneces iis eM meR eal Sia eae Orers 934 BRODIE-INNES, J. W. Some Outstanding Differences Between English and Scots Law, 28 Juridi¢al Revs 62) sciscecsscisravvvesse views ewnea eens ee ne eege ee 36, 275 BURDICK, CHARLES K. Suretyship and the Statute of Frauds, 26 Columbia Law Rev. 153..... 1242 BURDICK, FRANCIS M. A Statute for Promoting Fraud, 16 Columbia Law Rev. 273.......... 1309 BURNHAM, ADDISON C. Arbitration as a Condition Precedent, 11 Harv. Law Rev. 234........ 1172 CONLEN, WILLIAM OC. Intervening Impossibility of Performance as Affecting the Obligations of Contracts, 66 U. of Pa. Law Rev. 28 ‘COOK, W. H. G. Mental Deficiency and the English Law of Contract, 21 Columbia Law TRG Vii Abe careisuto arisigior'scarshaia ante vase gape tar fistehar odes tates dass anumomedven ayaa ARaes 171 COOK, WALTER WHEELER : Powers of Courts of Equity, 15 Columbia Law Rev. 246-252............ 505 Some Effects of a Partial Assignment of a Chose in Action, 28 Yale Law Jour. 395..... Paseashensigsen testa Ate nen aRaesea tia aap eer eNee pees m Rae 509 The Alienability of Choses in Action, 29 Harv. Law Rev. 816, 30 Harv. Maa RUG WS, AED! cue cares unas coat ts Sie acess larurecdu: ano uy auth Rueninar eu cemvigyeliond) nvayne ene anelays 505 CORBIN, ARTHUR L. Conditions in the Law of Contracts, 28 Yale Law Jour. 739............ 683 Contracts for the Benefit of Third Persons, 27 Yale Law Jour. 1008.... 589 Discharge of Contracts, 22 Yale Law Jour. 513............. 0.0 ccc eee 1388 Does a Pre-existing Duty Defeat Consideration? 27 Yale Law Jour. BOR sexsi so miemiers aeee ise ty ating rete Ne aa Hare ae soa lE aaa aceiele auacalgessove-eus 371, 388 Effect on Contracts of War Orders or Other Acts of State, 28 Yale Draw SOURS $899) soa seach orn toausrana nartrirnacslocaie aneeel ouaneanmuna swamendatameae aa 1071 Jural Relations and Their Classification, 30 Yale Law Jour. 226........ 371 Liability of Water Companies, 19 Yale Law Jour. 425..............0005 621 TABLE OF OTHER AUTHORITIES XXV CORBIN, ARTHUR L. (Continued), Page Offer and Acceptance and Some of the Resulting Legal Relations, 26 Ea wJOUt, 169 acca atoning mealies apne anaceimeeeays 45, 141, 176, 232 Option Contracts, 23 Yale Law Jour. 641.............ccceeueucceeeees 85 Quasi-Contractual Obligations, 21 Yale Law Jour. 533................ 47 The Formation of a Unilateral Contract, 27 Yale Law Jour. 382.......... 178 COSTIGAN, GEORGE P., JR. Constructive Contracts, 19 Green Bag 512........... cece cece cee veenees 45 Gifts Inter Vivos of Choses in Action, 27 Law Quar. Rev. 826..505, 541, 546 Has There Been Judicial Legislation in the Interpretation and Applica- tion of the ‘‘Upon Consideration of Marriage’’ and Other Contract Clauses of the Statute of Frauds? 14 Ill. Law. Rev. 1.......... 1232, 1272 The Doctrine of Boston Ice Co. v. Potter, 7 Columbia Law Rev. 32.... 576 CRANE, FREDERICK E.. The Magic of the Private Seal, 15 Columbia Law Rev. 24.............. 8 DECKER, EDWARD H. The Case of the Sealed Instrument in Illinois, 1 Ill. Law Bulletin 65,138.. 8 DODD, E. MERRICK Impossibility of Performance of Contracts Due to War Time Regulations B82) Harv. Liaw Reve 189). coe sccuace harlevsc ewe tis deren guememaeeataain 1107 ELPHINSTONE, HOWARD W. What is a Chose in Action? 9 Law Quar. Rev. 311................0005 505 FALCONBRIDGE, JOHN DELAIRE Guarantees and the Statute of Frauds, 68 U. of Pa. Law Rev. 1, 137..1242 FOULKE, ROLAND R. Mistake in the Formation and Performance of a Contract, 11 Colum- bia) Law Revs. 197; 299 sas saaawcneiak ow akties hua Sh MEADOR REDE Oe 228 GRISMORE, GROVER C. Is the Assignee of a Contract Liable for the Non-Performance of Dele- gated Duties? 18 Mich. Law Rev. 284........... cece eeesceeeeneeeee 559 HAZELTINE, HAROLD D. The Formal Contract of Early English Law, 10 Columbia Law Rev. 608.. 8 HENING, CRAWFORD D. A New and Old Reading on the Fourth Section of the Statute of Frauds, 60 U.. Of Pa. Liaw Revi Gla iecciieicceie cds ee ch hhere ha Ta SORTASE CaaS 1241 History of Beneficiary’s Action in Assumpsit, Essays in : Anglo. -American Legal History, Vol. IIT, p. 339........0 0c ccc ccc cess ence cee ceeenees 589 The Original Drafts of the Statute of Frauds and Their Authors, 61 1, Of (PA. AW? REVS S283 ios iciatersnwiecnaisiaison dniel ya. oracenate ina avaias ten santero 1232 ‘HENRY, ROBERT L., JR. Consideration in Contracts 601 A. D. to 1520 A. D., 26 Yale Law JOUT: C64. sarge eiacumaiadersnG ecuiuaimae sietendasietiacnig wg ae ee pednelen 261 Forms of Anglo-Saxon Contracts and Their Sanction, 15 Mich. Law REWs 552s, CBD» saiiosiaiessxoiinsvi: see vaste cave aserastia sender alos teveuaceudoanstavercapbin anderen Paleo 8 .XXvi TABLE oF OTHER AUTHORITIES HOLDSWORTH, W. 8. Page Debt, Assumpsit and Consideration, 11 Mich. Law Rev. 347............ 284 The History of the Treatment of Choses in Action by the Common Law, 83 Harv. Law Rev. 997, 1018-1022.......... ccc cece nee e eee eenenes 501 The Origins and Early History of Negotiable Instruments, 31 Law Quar. ROV. 125, UB. BT sea sisere teense ay ay giaveresiesaeiin everestie evans e overs aibis see teie eae @ eeu 502 HOLMES, OLIVER WENDELL, JR. Early English Equity, 1 Law Quar. Rev. 171.......... sarees 261, 266, 269 The Common Law, P. 273....... 0c cece ccc c cence eee ee reece ee seetcene 275 The Path of the Law, 10 Harv. Law Rev. 466..........0ceeeeeeeeenee 696 HOPE, EDWARD W. Ignorance of Impossibility as Affecting Consideration, 32 Harv. Law ROY: 61D) so ss sotenansiastoveya wtacavavsosns avanainialgnyeiacseuancte i (avapilgudyadwes donetanneenbremecalmaazacete 1209 JEAFFRESON, JOHN CORDY A Book About Lawyers (1867 Ed.) Vol. I., pp. 21, 23, 24.............. 9 JENKS, EDWARD A Short History of English Law, 132-140......... 00... cee eee cece eneee 1 A Short History of English Law, 298............. ccc cee eee cee cee eens 276 Consideration and the Assignment of Choses in Action, 16 Law Quar. RG Vin, FOAMS: Baissea each tesa avtexCpayes saa ean asso uation aia vdcsavasieya SU olen yore te sees oniensua satan oe 541, 542 English Civil Law, 30 Harv. Law Rev. 1.......-..eseeeeeeees Geisatnees 1122 KEASBEY, EDWARD Q. Notice of Assignments in Equity, 19 Yale Law Jour. 258.............. 534 KIDD, A. M. Liability of Assignee of Contract to Creditor, 8 Calif. Law Rev. 119.... 559 KOCOUREK, ALBERT The Hohfeld System of Fundamental Legal Concepts, 15 Ill. Law Rev. 24.. 371 LANGDELL, C. C. 1 Mutual Promises as Consideration, 14 Harv. Law Rev. 496.............. 384 Summary of Contracts §§ 45-47... 0... ccc cece eee cee cnet e tenes 263 McGOVNEY, D. O. Irrevocable Offers, 27 Harv. Law Rev. 644.........ccccccevccccccccacs 176 McNAIR, A. D. War-Time Impossibility of Performance of Contract, 35 Law Quar. Fey: SBA ca Sry acgcate satin Staaten ve sere Rive essvoey eda ccTaudueiandan daed te alelenanalatonslgred 1107 MORGAN, EDMUND M. Benefit to the Promisor as Consideration for a Second Promise for the Same Act, 1 Minn. Law Rev. 383............ cc ccc cece eee ces eeeees 388 MORISON, C. B. Rescission of Executory Contracts for Partial Failure in Performance, 29 Liaw Quark Reve ‘Gil avscoceseeteccissneseaniaielersacesessmd na wile e aaneadicernseaeeeages 897 TABLE OF OTHER AUTHORITIES XXVii )LIPHANT, HERMAN . Page The Duration and Termination of an Offer, 18 Mich. Law Rev. 201,. BUDS WTA se BATE posse aoavte avetnats AGRW Tlie alaReN esate MeRvadeeees 2 151, 152, 170, 181 >AGE, WILLIAM H. The Development of the Doctrine of Impossibility of Performance, 18 Mich. Law Rev. 589 >ATTERSON, EDWIN W. The delivery of a Life Insurance Policy, 33 Harv. Law Rev. 198....25, 719 2OLLOCK, SIR FREDERICK Afterthoughts on Consideration, 17 Law Quar. Rev. 415................ 384 Assignment of a Chose in Action, 1 Law Mag. & Rev. (N. 8.) 553...... 505 20UND, ROSCOE Consideration in Equity, 13 Ill. Law Rev. 667-668..................... 274 RANDALL, A. E. Reeve v. Jennings, 27 Law Quar. Rev. 80......... ee aa Cee ne 1293 2UNDELL, OLIVER 8. Gifts of Choses in Action, 27 Yale Law Jour. 643.............c.000e5 542 SALMOND, JOHN W. The History of Contract, 3 Law Quar. Rev. 166, Essays in Anglo-American Legal History, Vol. ITT, p. 320............. cc eee ence eee eens 1, 261, 266 SWEET, CHARLES Choses in Action, 10 Law Quar. Rev. 303......... aes Bud praiainsovaaakeheie Stnatr vse 505 -TAYLOR, HENRY O. The Right of a Third Person to Sue on a Contract Aeyiet: in His Favor, BD, Amis Aaaw? ROW. 280) sassinniessebsise sna evessvoneidie! ocduens ocevasaitaed sacavell ck sedahaxe’a taurine Oye 589 WVAMBAUGH, EUGENE A Problem as to Ratification, 9 Harv. Law Rev. 60..............-0eeee 202 WIGMORE, JOHN H. A Treatise on the System of Evidence in Trials at Common Law, Vol. IV, S426; is SALE ai ai sacen 5 Wine haces siacsieun Moog ee TAREE POMS ENTS BR 9 Contracts to Alter or Waive the Rules of Evidence, 14 Ill. Law Rev. 87..1181 NILLISTON, SAMUEL Consideration in Bilateral Contracts, 27 Harv. Law Rev. 503........... 384 Contracts for the Benefit of a Third Person, 15 Harv. Law Rey. 767..... 589 Discharge of Contracts by Alteration, 18 Harv. Law Rev. 105, 165...... 1455 Is the Right of an Assignee of a Chose in Action Legal or Equitable? 30: Harv, Law Rév.. 9% 6 cage ssaweeangs oer seowinii ee aig em sa tween denen ou 505 Mutual Assent in the Formation of Contracts, 14 Ill. Law Rev. 85...... 45 Progress of the Law, 1919-1920: Sales, 34 Harv. Law Rev. 741.......... 528 Releases and Covenants Not to Sue Joint, or Joint and Several, Debtors, 25 Harv. Law Rev. 203...........-0005- iguunen copie Suutew soaneenioies 679 Successive Promises for the Same Performance, 8 Harv. Law Rev. 27... 384 The Word ‘‘Equitable’’ and Its Application to the Assignment of Choses in Action, 31 Harv. Law Rev. 822.......... ccc eee ee cece rene ee ence 505 XXVili TABLE OF OTHER AUTHORITIES WINFIELD, PERCY H. Page Ketoainontt of Choses in Action in Relation to Maintenance and Champ- erty, 35 Law Quar. Rev. 143.........0cc vec cece cen ceceeeeeteneenes 507 The History of Maintenance and Ciempesys 35 Law Quar. Rev. 50..... 1135 WOODWARD, FREDERIC C. Assignability of Contract, 18 Harv. Law Rev. 28.............eeeeees 572 Impossibility of Performance as an Excuse for Breach of Contract, 1 Columbia Law Rev. 529..........cccceceec eee ee et eeeteeetenseneee 1011 The Doctrine of Divisible Contracts, 39 Am, Law Reg. (N.8.) 1......... 906 WORMSER, I. MAURICE The True Conception of Unilateral Contracts, 26 Yale Law Jour. 136.... 176 CASES ON THE LAW OF CONTRACTS. HISTORICAL INTRODUCTION. THE HISTORY OF CONTRACTS IN ENGLISH LAW. Edward Jenks, A Short History of English Law, pp. 132-140.! It has previously been pointed out in this book, in more than one passage, that one of the most striking lessons to be learned from a study of legal history is, that ideas which to us now seem absolutely distinct, and even opposed, are found originally to have been blended in a common stock, from which they have subsequently split off by a process of specialization. No better example of this truth could be found than in the history of Contract and Tort. To us, these two institutions seem wholly distinct; separate books are written about them, and Acts of Parliament treat them as mutually exclu- sive. We regard an action of Contract as an action to prevent or compensate for a breach of a promise; an action of Tort as an action to punish or com- pensate for a wrong, such as assault or defamation, which has not any nec- essary connection with a promise. An ordinary defense to an action of Con- tract is, in effect: “I did not promise.” What should we think if a defend- ant in an action for libel defended himself on the ground that he had not promised not to libel the plaintiff? It is true that, occasionally, a case arises which causes some difficulty ;? and it would hardly be possible to throw a more effective apple of discord into a company of lawyers, than by starting a discussion on the question whether Detinue was an action of Contract or of Tort. But we are apt to regard these difficulties as insep- arable from any legal classification; whereas a little knowledge of history would enable us to trace them to their true source. As a matter of historical 1 Appreciation is expressed of the courtesy of the author of this passage and of Little, Brown & Co., in permitting so extended a quotation to be inserted here. The footnotes to the passage are those of the author quoted. On the history of contracts in the common law see Pollock on Contracts, 8 ed., pp. 140-153; Holdsworth’s History of English Law, Vol. III, pp. 329-349; Street’s Foundations of Legal Liability, Vol. II, pp. 1-57. See also James Barr Ames, History of Parol Contracts Prior to Assumpsit, 8 H. L. R. 252, Essays in Anglo-American Legal History, Vol. III, p. 204, Lectures on Legal History, pp. 122-128; James Barr Ames, History of Assump- sit, 2 H. L. R. 1, 53, Essays in Anglo-American Legal History, Vol. III, p. 259, Lectures on Legal History, pp. 129-171; John W. Salmond, History of Contract, Essays in Anglo-American Legal History, Vol. III, p. 320. 2E. g. Bryant v. Herbert (1878) 3 C. P. D. 389; Du Pasquier v. Cadbury, [1903] 1K. B. 104. «2 CasEs on THE Law or CoNnTRACTS fact, the simple contract and the ordinary tort spring from the same stock ; and the wonder would be if they did not, in some points, betray signs of their common origin. We have seen that, in the previous period, [1066-1272], the only remedy of a general nature for anything like what we understand by a contract, was the Action of Debt.3 This action was, at first, in truth, an action to recover a specific object; usually a movable, because actions to recover land were conducted by other and more elaborate machinery. By Bracton’s time, as we have seen, it had specialized into two forms, the Writ of Debt, strictly, in which a fixed sum of money was sought to be recovered, and the Writ of Detinue, in which a specific chattel was the object pursued. In the period we are now discussing, [1272-1660], the Writ of Debt speed- ily lost its original character as an action to recover money lent or bailed, and was applicable to any case in which the plaintiff sought to recover a fixed sum of money, due to him on grounds which the law considered to be ade- quate. Thus, for example, if a tenant failed to pay his rent (though he had not expressly covenanted to do so) ,* if a sheriff or the Warden of the Fleet,® allowed a debtor to escape, if a sum was found due from a debtor on account stated,’ all these were liable to an Action of Debt. In some cases, e. g. the case of rent, there had, no doubt, been something very ‘like a contract; where the action of Debt was brought on a bond, we should consider it strictly contractual. Still, the old rule of Glanville, that in an Action for Debt the King’s Courts would not enforce a mere “private agreement,” held good throughout the whole history of the Action of Debt; and so that action can only be held to have contributed in a very minor degree to the develop- ment of the law of Contract. Moreover, it rapidly became unpopular in this period, owing to the fact that unless the plaintiff could show excep- tionally good proof of his claim, e. g., a sealed charter, the defendant could get off by “waging his law.” It was, therefore, in spite of the provisions of the Statute of Westminster the Second,® very unsuitable for use against executors; and in fact, it could not be brought against them in cases in which their testator, had he lived, would have been entitled to “wage his law.” The Action of Detinue, as we have said,® lay where a specific chattel belonging to the plaintiff was in the hands of the defendant, who refused to give it up. But it behooved the plaintiff to be cautious in stating in what manner he alleged the chattel to have come into the defendant’s hands. He had to be careful to avoid “words of felony,” i. e., anything that might sound like a charge of theft or robbery; for, if he did not, he laid himself open to being met by the argument that his proper procedure was an “appeal of larceny,” upon which he was obliged to offer battle. So it ap- pears to have been the practice in the early Writs of Detinue for the plaintiff to allege (what was, no doubt, in many cases, the strict truth), that he had himself “bailed” or delivered the chattel to the defendant in the first 3 Ante, pp. 56-58. 48 Anne (1709) c. 14, s. 4. (This statute merely extended the liability to tenant for life. The tenant for years was liable at common law.) 5 Statute of Westminster II (13 Ed. I, st. I (1285) ec. 11). 61 Ric. II (1377) c. 12. (The sheriff or warden was liable for the sum owed by the debtor.) 75 Hen. IV (1403) ¢. 8. 8 Ante, [Edward Jenks, A Short History of English Law,] p. 64. 9 Ante, p. 57. “HistorrcaL INTRODUCTION 3 istance. Thus the form of action known as “Detinue sur bailment” ecame the orthodox form; and thus Detinue appeared to be an action ounded on contract.1°- For a voluntary delivery or bailment of a chattel, ccepted by the defendant, is something very like an agreement, from which promise to return the chattel can well be implied. Nevertheless, the tomise is only implied; and it is very doubtful whether, to the mind of tlanville or Bracton, Detinue was really regarded as a contractual action. n the middle of the fourteenth century, the plaintiff was allowed to ubstitute for the allegation of bailment the wider allegation that the goods came to the hands” (devenerunt ad manus) of the defendant, without aying how; and thus the Action of Detinue lost whatever contractual haracter it may once have had. How it acquired its tortious character, we hall see later on. At any rate, there was no possibility of a general theory f contract developing out of the Action of Detinue. A third possible source of contract at the beginning of the period was the ‘ction of Covenant, about which, unfortunately, we know very little. We lave seen!® that Glanville treats a deed or charter as one of the causae or rounds of Debt; and it is very significant that Debt and not Covenant re- aained the proper form of action on a common money bond until quite ate in this period.18 This curious fact may be accounted for by assuming ‘as we are warranted in doing) that in early times the sealed bond was ooked upon rather as the symbol than as the ground of the debtor’s lia- ility; in other words that the debtor was regarded as the object pledged, i bound,!£ the document being given as a security for his return to cap- ivity if he failed to pay the debt. Nevertheless, the language of Glanville, hat, if the defendant acknowledges the genuineness of the charter, he is ound to warrant its terms, and to observe the compact expressed in it, »oints to the fact that, even in the twelfth century, the sealed charter was ssuming a wider form than the mere acknowledgment of a debt. Indeed, ve know independently that at least two very important transactions, viz. . lease for years and an agreement to levy a Fine, were being made hy deed iefore the end of the thirteenth century. But both*these were rather in the iature of “covenants real” than personal contracts; and the remedy for ireach of them seems to have been more in the nature of specific perform- mee than a money compensation.15 Nevertheless, it is clear that, before the end of the fourteenth century, he writ of Covenant enabled an action to be brought for “unliquidated lamages” on breach of any of the terms of a sealed instrument. And‘ this ule has prevailed to the present day; giving us our “specialty” or “formal” ontract, which includes any lawful promise made under seal. By far the greater number of contracts entered into in ordinary life are, 10 This is the view taken by the late Professor Ames, whose brilliant studies f£ the history of Contract and Tort are reprinted in Select Essays in Anglo- \merican Legal History, Vol. III, pp. 259-319, 417-445. But the difficulties of rying to build a theory of contract on bailment are well illustrated by the amous case of Coggs v. Bernard (1703), 2 Ld. Raym. 909. 11 Wagworth v. Halyday, Y. B. 29 Edw. III (1855) fo. 38b. 12 Ante, p. 66. 18 Thus, in 1584 (Anon. 3 Leon. 119) it was doubted if covenant lay on a ‘pecialty promise to pay a fixed sum. 14The word points to the original physical bondage of the debtor. Early egal history is full of such cases. 166 Ed. I (1278) c. 11 (1) “recover by Writ of Covenant.” . 4, CasEs on THE LAW oF CONTRACTS however, not embodied in sealed documents. They are either contained in ordinary correspondence or mere written memoranda, or they are made solely by word of mouth or conduct. These are all now, by English Law, termed “simple” or “parol” contracts; and our problem is, to discover how they obtained a foot-hold in the common law, despite the attitude of the King’s Courts so clearly stated by Glanville. To do this, we must turn aside entirely from the realm of Debt and Covenant, and enter what seems, at first sight, a very unlikely quarter. Apparently, the inventiveness of the Chancellor and judges in the matter of making new writs had come to an end in the latter half of the thirteenth century. At any rate, there were complaints in Parliament of suitors being turned away empty-handed because there was no writ to suit their cases. Accordingly, the great Statute of Westminster the Second!® sought to provide a remedy by enacting that “whensoever from henceforth it shall fortune in the Chancery, that in one case a writ is found, and in like case falling under like law, and requiring like remedy, is found none, the Clerks of the Chancery shall agree in making a writ” (and if they don’t there is to be an appeal to Parliament). This enactment, though it appears only at the end of a chapter on special cases, seems to have been taken as a general authority for the ex- pansion of legal remedies; and under it were formed many new writs on the analogy of the older writs found in the Register. These new writs were all grouped together under the name of “Case” ; apparently from the words used in the Statute of Westminster the Second—in consimili casu. Another feature common to them all was, that each was framed on the model of a specific older writ; enlarging its scope by omitting one or more of the technical requirements of the older document. One of the first, if not the very first model made use of for this purpose was the famous Writ of Trespass, which, as we have seen!” had been intro- duced into the Register at the end of the preceding period, and which speedily became very popular. The gist of the Writ of Trespass was an allegation that the defendant had, “with force and arms,” (vt et armis) and “against the peace of our Lord the King,” (contra pacem domini regis) interfered with the plaintiff’s possession of his body, land, or goods. No doubt at first the “force and arms” were taken seriously; but the writ speedily came to cover every interference with possession, however trifling and accidental. Nevertheless, the Courts held fast to the technical point, that, to amount to a trespass, there must have been interference with the- plaintiff’s possession by some voluntary act of the defendant, his servants or his cattle. It speedily came to be perceived, however, that there were many circum- stances in which the plaintiff had suffered serious loss by the defendant’s action, though the latter had not, technically, been guilty of trespass. Thus, in the middle of the fourteenth century, a Humber ferryman so overloaded his boat, that the plaintifi’s horse, which was on board, was drowned.¥8 There was no trespass; because the plaintiff had voluntarily parted with the possession of his horse when he put him on the defendant’s boat. Similarly, when a smith lamed a horse entrusted to him to be shod,?® or a leech so 1613 Edw. 1 St. 1 (1275) c. 24 (2). 17 Ante, pp. 52-54. 18 Y. B. 22 Ass. (1348) 94, Pl. 41. 19 Y, B. 46 Edw, III (1372) fo, 19, pl. 19, HistoricaL INTRODUCTION 5 egligently did his cure, that the horse died,®° or a surgeon mismanaged ne plaintiff’s hand which he undertook to cure.*! In all these cases, though tere was no trespass, there: was actual malfeasance or wrongdoing in aspect of a physical object by the defendant, from which the plaintiff affered loss; and so the analogous action of “Case,” or “Trespass on the tase,” 82 was allowed. For some time, the action was restricted to cases a which the defendant pursued a “common calling”—i. e. that of a smith, r ferryman, or surgeon, in which he was bound to attend all comers. But, y the middle of the fifteenth century, for the general “holding out” implied a the assumption of a common calling, the alternative of a “special as- umption,” or undertaking might be pleaded. One or the other was iecessary.22 And so we find the allegations: assumpsit super se, emprist ur lui, manuceptt, and other forms, appearing in the Writs of Case. Now hese allegations do not, perhaps, necessarily imply promises; but they are ery near it. Perhaps if we say that a man “takes upon himself” to do a hing, we do not necessarily allege that. he promises to do it. But what if re say “he undertakes” to do it? The difference is not great. Still, in “respass on the Case, the stress was laid on the physical damage, rather han on the breach of undertaking. 4 Half a century after the full recognition of the Trespass class of cases, re find another model followed, viz., the Writ of Deceit. The old Writ of Jeceit was very technical; it could, practically, only be used where the efendant had been guilty of trickery in legal proceedings in the King’s - Jourts.2# But, before the end of the first half of the fifteenth century, we ‘et two cases, at least, in which the plaintiff was allowed to recover, because, Ithough there had been no physical damage to the plaintiff or his goods, ie had suffered loss by the deliberate fraud of the defendant in breaking is undertaking. In Somerton’s case, three times reported,®® and so, pre- umably, regarded as of great interest, the defendant had been employed by he plaintiff to buy a manor, and had persuaded some one else to buy it wer the plaintiff’s head. In a slightly later case,?° the defendant had greed to sell the plaintiff a manor, and subsequently enfeoffed a third verson. In each case the plaintiff suffered damage, though not of a physical ind. The second case is called a “Bill of Deceit” ; but, as it was brought in he King’s Bench, this probably only meant that the fiction of the mar- hhal’s custody was employed.?” Any way, these two cases bring us a step iearer to a law of contract. We may cal] them the Deceit or misfeasance ‘ases. Lastly, we come to the non-feasance group. Here the sole ground of leged liability is the failure to fulfil a promise; and, when this group is tablished, we have clearly a law of simple contract. Unfortunately at his stage, another and more obscure question arises. So early as the year 1424, we find a case which looks very much like one f mere non-feasance. It was an action against a mill-maker for failing to 20Y. B. 43 Edw. III (1369) fo. 33, pl. 38. 21Y. B. 48 Edw. III (1374) fo. 6, pl. 11. 22The proper title is: “Action on the Case in the Nature of Trespass.” 3ut the form in the text is the more usual. 23 Y. B. 19 Hen. VI (1441) fo. 49, pl. 5. Per Paston J. 24 Fitzherbert, Natura Brevium, 95 B. 25 Y. B. 11 Hen. VI (1483) fo. 18 pl. 10; fo. 24, pl. 1; fo. 55, pl. 26. 26 Y. B. 20 Hen. VI (1442) fo. 34, pl. 4, 87 Post, p. 171, , 6 Cases on THE LAw oF CoNTRACTS build a mill according to his promise.28 The action seems to have been allowed, with some hesitation. Professor Ames strongly urges that this and a slightly later case to the same effect®® were premature freaks, due to the idiosyncrasy of a particular judge, and that it is not till the very end of the sixteenth century, that we get a definite legal recognition of the truth that a man may be just as much harmed by his neighbor’s mere non- fulfillment of his promise, as by his active fraud or deceit.2° But by this time it had been perceived, that to allow an action to be brought for the non-fulfillment of any promise would be to open the door too wide; and accordingly we find, that only those promises were actionable which had been given in return for some recompense received by the promisor, or some detriment suffered by the promisee. This is the famous doctrine of “consideration,” without which no simple contract is valid. How it exactly arose, we do not know. The writer sug- gests that it is a compound doctrine, of which the positive side (recompense or benefit to the promisor) is a reflection from the original character of the older action of Debt, while the negative side (detriment to the proi- isee) is merely a slight antedating of the damage which was necessary to support an action of “Case.” The action of Debt, as we have seen, was, originally, an action to recover something of the plaintiffs which had been bailed to the defendant (quid pro. quo). Strictly speaking, the damage to the plaintiff should have been that which he suffered by breach of the defendant’s promise; but it is not difficult to see how this requirement could be changed into damage suffered in exchange for the promise. What- ever be the explanation, the doctrine itself was clearly known by the begin- ning of the sixteenth century; for it was made the basis of an’ elaborate discussion in the Dialogues between a Doctor of Divinity and a Student of the Laws of England, published in 1523, and attributed to St. Germain. The parties are debating the respective merits of the Canon and English Laws; and they come into sharp conflict over the theory of the simple contract. The Doctor wishes to make the enforceability of a contract depend on the occasion on which it was made, and the intention of the promisor.8!_ This is the old doctrine of causae, with a new touch of casuistry added. The Student maintains the doctrine of English Law; though, oddly enough, he does not, in that place, employ the word “con- sideration.” Ez nudo pacto non orttur actio, he alleges, with a triumphant quotation from the Institutes; but then he goes on to explain, that a “nude contract” is one made without any “recompense” appointed for it—an explanation which would have sounded strange to a Roman lawyer. It is the Doctor who uses the word “consideration” in the chapter; and, with him, it obviously means merely “motive” or “object” in which sense it is also adopted by the Student in another passage,8? when he says that the “consideration” of the Statute of Fines was to ensure the certainty of titles. But the word had become appropriate to the new doctrine by the middle of the sixteenth century, and appears in the Reports shortly afterwards.33 By that time, it was admitted that the consideration to support a simple 28 Y. B. 3 Hen. VI (1424) fo. 36, pl. 33. 29 Y. B. 14 Hen. VI (1435) fo. 18, pl. 58. 30 Select Essays in Anglo American Legal History, III, 270. 81 Dialogues II, cap. 25, 82 Dialogues I, cap. 26. 33 Jocelyn v. Skelton (1558), Benloe, 57; Gill v. Harewood (1587), 1 Leon. 61. HistToricaL INTRODUCTION q oe might itself be a promise ;34 and so the purely executory contract ecame a recognized institution. After that, it was not difficult to clear away the surviving vestiges of its origin, and allow it to appear as a sub- stantive and distinct institution. In 1520,°5 the Court had allowed As- sumpsit to be brought against executors, in spite of the fact that it was then, in form, clearly an action of Tort; but this decision had been scoffed at by Fitzherbert.36 In 1557,37 however, and again in 1611,38 the Court allowed Assumpsit against executors, and thus removed a substantial grievance; for, as has been pointed out, Debt could not be maintained against them where the deceased could have “waged his law.” Finally, it was resolved in Slade’s Case,?® that “every contract executory imports in itself an as- sumpsit”; and thus the necessity of suing in Debt* which let in the “wager of law,” was abolished, practically in all cases. This case gave rise to the well-known sub-division of contractual actions into indebitatus assumpsit (where the defendant was really liable apart from express promise, e. g. for rent), and special assumpsit, where the promise was the true cause of action. Thus freed entirely from its early restrictions, the Action of Assumpsit took its place in the legal armoury as the typical action of contract; though, as we have seen, it was, historically, an action founded on a tort. Thus it became possible, also, to classify personal actions into actions of Contract and actions of Tort. 84 Peske v. Redman (1555) Dyer, 113. The point was discussed in Wichals v. Johns (1599), Cro. Eliz. 703. ' 85 Cleymond v. Vincent, Y. B. 12 Hen. VIII, fo, 11, pl. 3. 86 Y. B. 27 Hen. VIII (1535) fo. 23, pl. 21. 87 Norwood v. Read, Plowd. 180. 38 Pinchon’s Case, 9 Rep. 86b. 89 (1603) 4 Rep. 92b. 40 This necessity was not merely due to the absence of an express promise, but also to the old theory that a man who had a “higher” remedy, might not resort to a lower. CHAPTER I. SEALED CONTRACTS.'. James Barr Ames, Lectures on Legal History, pp. 98-99.2 When the Germans became familiar with Roman civilization it was natural to put the terms of the agreement into a written document, which was passed to the creditor along with the wadia [pledge]; and in time the wadia itself was omitted. This document, adding the requirement of a seal to make it formal, is the English covenant. The earliest covenants we find in the books seem to touch the land.3 The earliest instance of a covenant not relating to land is of the time of Edward III. The earliest covenants were regarded as grants, and suit could not be brought on the covenant itself. So a covenant to stand seised was a grant, and executed itself. The same is true of a covenant for the payment of money; it was a grant of the money and executed itself. For failure to pay the money, debt would lie. Afterwards an action of covenant was allowed, so that today there is an option. A seal was always essential. It was considered, formerly, of much greater importance than now. Glanville says that if the defendant admits that a seal upon the instrument is his seal, but denies the execution of the instrument, he is, nevertheless, bound, for he must set it down to his own carelessness that he could not keep his seal. The case supposed would arise where the seal had been lost or stolen. There is a case to this effect in the time of John.6 The doctrine was somewhat qualified by the time of Bracton.? He seems to think that a covenantor would not be liable unless it was by his negligence that the matter occurred, as by leaving the seal in the possession of his bailiff or his wife. In the time of Edward I® is a case on the same principle, being a petition to the King that a certain seal that had been lost should no longer have validity. In Riley’s Memorial of London?® it is said that public cry was made that A. had lost his seal and 10n seals at the common law and by statute, see 3 Bench & Bar. (N. S.) 25: Frederick E. Crane, The Magic of the Private Seal, 15. Col. L. Rev. 24; R. C. Backus, The Origin and Use of Private Seals Under The Common Law, 51 Am. L. Rev. 369; Edward H. Decker, The Case of the Sealed Instrument in Illinois, 1 Ill. Law Bull., 65, 188. As to formal contracts which preceded con- tracts under seal, see Harold D. Hazeltine, The Formal Contract of Early Eng- lish Law, 10 Col. L. Rev. 608; Robert L. Henry, Jr., Forms of Anglo-Saxon Contracts and Their Sanction, 15 Mich. L. Rev. 552, 639. 2 The notes to this passage are those of the author quoted. 8 Y. B. 20 & 21 Ed. I 494, 496. 4Y. B. 4 Ed. III, 57, 71; Y. B. 7 Ed. III, 65, 67. 5 Chawner v. Bowes, Godb. 217. 6 Abb. pl. 55, col. 2, R. 4 (8 John). 7 Bract. 396b. 8 This is the doctrine of the well-known case on bills and notes of Young v. Grote. 9 Abb. pl. 284, col. 2 R. 7 (19 Ed. I). 10 Page 45 (29 Ed. I). SEALED CoNTRACTS 9 that he would no longer be bound by the same. Riley also gives an account of making a new seal for the city of London, and it is stated, as if it was important, that the old seal was broken with due formality. Of course this doctrine has left no trace in modern times. John H. Wigmore, A Treatise on the System of Evidence in Trials at Common Law, Vol. IV, § 2426, p. 3414. The rise of the seal brings a new era for written documents, not merely by furnishing them with a means of authenticating genuineness, but also by rendering them indisputable as to the terms of the transaction and thus dispensing with-the summoning of witnesses. The vogue of the seal and of the transaction-witness wax and wane, the one relatively to the other. This legal value of-the seal was the result of a practice working from above downwards, from the King to the people at large. It is involved, in the beginning, with the Germanic prin- ciple that the King’s word is undisputable. Who gives him the lie, forfeits life. The King’s seal to a document makes the truth of the document in- contestable. This leads, along another line, to the modern doctrine of the verity of judicial records. * * * ‘For private men’s documents, its sig- nificance is that the indisputability of a document sealed by the King marked it with an extraordinary quality, much to be sought after. As the habitual use of the seal extends downwards, its valuable attributes go with it. First, a few counts and bishops acquire seals; and then their courtesies are sought in lending the impress and guarantee of their seal to some document of an inferior person, as serving him in future instead of wit- nesses. Finally-the ordinary freeman comes usually to have a seal; and his : seal too makes a document indisputable—at least, by himself. This ex- tension of the seal begins in the 1000s, and is completed by the 1200s.: John Cordy Jeaffreson, A Book About Lawyers, (186% ed.) Vol. I, pp. 21, 23-24. In days when writing was an art almost entirely confined to re- ligious persons, sealing was a far more important and efficacious means of testifying the genuineness of documents than it is at present. * * * Tn estimating the security given by seals, the reader must bear in mind that the forger of deeds in older time had not overcome all difficulties, when he had surreptitiously obtained a seal. The mere act of sealing was by no means the simple matter that it is now-a-days. To place the seal on fit labels rightly placed; and in all respects to make the fictitious deed an accurate imitation of the intended deeds to which the particular seal of a particular great man was applied, were no trifling feats of dexterity, ere scriveners had congregated into fraternities, and law-stationers had been called into existence. To get a supply of suitable wax was an undertaking by no means easy in accomplishment. Sealing wax was not to be bought by the pound or stick in every street of feudal London. Cure d’Espagne— sealing wax akin to the bright, vermillion compound now in use—was not invented till the middle of the sixteenth century. William Howe assures his readers that “the earliest letter known to have been sealed with it was written from London, August 3, 1554, to Heingrave Philip Francis von 11 Page 447 (4 Rich. II). 10 Cases on THE LAw oF CONTRACTS Daun, by his agent in England, Gerrand Herman,” and long after that date the manufacture of sealing wax was a secret known to comparatively few persons. In feudal England there were divers adhesive compounds used for sealing. Every keeper of an official seal-had his own recipe for wax. Sometimes the wax was white; sometimes it was yellow; occasionally it was tinged with vegetable dyes; most frequently it was a mess bearing much resemblance to the dirt pies of little children. But its combination was a mystery to the vulgar; and no man could safely counterfeit a seal impres- sion who had not at command a stock of particular sealing earth or paste, or wax. Eyes powerless to detect the falsity of a forger’s handwriting, could see at a glance whether his wax was of the right colour. Moreover, . the practice of attesting private deeds by public or well-known seals gave to transactions a publicity which was the most valuable sort of attestation. A simple knight could not obtain the impression of his feudal chieftain’s seal without a formal request, and a full statement of the business in hand. The wealthy burgher, who obtained permission to affix a municipal seal to a private parchment, proclaimed the transaction which occasioned the request. The thriving freeholder who was allowed the use of his lord’s graven device, had first sought for the privilege openly. “Quia sigillum meum plurimis est incognitum” were the words introduced into the clause of attestation; and the words show that publicity was his object. And to attain that object the seal was pressed in open court, in the presence of many witnesses. Indeed the process of sealing was.so much more respected than the act of signing, that in some countries the practice of sealing was alone employed; and in England the seal was long regarded as that which imparted validity to a deed, whilst signature was held to be a needless ceremony. PILLOW, PuarntirF in Error, v. ROBERTS. (Supreme Court of the United States, 1851. 13 How. 472, 14 L. Ed. 228.) Grizr, J.!2 Roberts, the defendant in error, was plaintiff below, in an action of ejectment for 160 acres of land. * * * On the trial the plain- tiff below gave in evidence a patent for the land in dispute. from the United States to Zimri V. Henry, dated May ‘th, 1835; and then offered a deed from said Henry to himself dated November 10th, 1849. This deed pur- ported to be acknowledged before the clerk of the Circuit Court of Walworth County, in the State of Wisconsin, and was objected to, * * * 3dly. Be- cause the seal of the Circuit Court authenticating the acknowledgment was an impression stamped on paper, and not “on wax, wafer, or any other adhesive or tenacious substance.” * * * [The objections were overruled.] Formerly wax was the most convenient, and the only material used to receive and retain the impression of a seal. Hence it was said: “Sigillum est cera impressa; quia cera, sine impressione, non est sigillum.” But this is not an allegation, that an impression without wax is not a seal. And for this reason courts have held that an impression made on wafers or other 12 Parts of the opinion are omitted. SEALED CoNTRAOTS 11 adhesive substance capable of receiving an impression, will come within the definition of cera impressa, If, then, wax be construed to be merely a gen- eral term including within it any substance capable of receiving and re- taining the impression of a seal, we cannot perceive why paper, if it have that capacity, should not as well be included in the category. The simple and powerful machine, now used to impress public seals, does not require any soft or adhesive substance to receive or retain their impression. The impression made by such a power on paper is as well defined, as durable, and less likely to be destroyed or defaced by vermin, accident, or intention, than that made on wax. It is the seal which authenticates, and not the substance on which it is impressed; and where the court can recognize its identity, they should not be called upon to analyze the material which ex- hibits it. In Arkansas, the presence of wax is not necessary to give validity to a seal; and the fact that the public officer in Wisconsin had not thought proper to use it, was sufficient to raise the presumption that such was the law or custom in Wisconsin till the contrary was proved. It is time that such objections to the validity of seals should cease. The court did not err, therefore, in overruling the objections to the deed offered by the plaintiff. * OF [But, for other reasons, | Judgment reversed.48 13 “Though wax and wafer are most frequently spoken of as the material of seals, yet other things were used. The bulls of the Pope were sealed with lead or gold. Jac. Law Dict., Seals. And in our state, as well as elsewhere, seals were very commonly impressions made upon pieces of paper annexed by a wafer, gum or paste, to the instrument sealed, or two such pieces of paper were secured to each other, and to tapes passing through the paper, or parch- ment of the instrument by wafer or other adhesive substance, and the im- pression made upon one of these pieces of paper. “It seems to us, then, that there is nothing necessary to constitute a seal but some material of a suitable character to receive an impression, and an impression bearing the character of a seal upon it. Where wax or a paper annexed: by wafer, were fixed to an instrument in the place of a seal, and with the apparent intention that they should be seals, the court would not look curiously to discover the impression made upon it; but where there was nothing but the impression made upon the paper to indicate that there was a seal, the court would not regard anything as a seal but such a clear and manifest impression as left no doubt as to its purpose. “The cases of Warren v. Lynch, 5 Johns. 239; Bank v. Gray, 2 Hill 227, and Bank v. Haight, 3 Hill 493, are inconsistent with these views: the two latter holding directly that a mere impression on the paper is not a seal.” Bell, J., in Allen v. Sullivan R. R. Co., 32 N. H. 446, 450-451 (1855). In Hendee v. Pinkerton, 14 Allen (Mass.) 381, 388 (1867), in speaking of the mortgage before him which bore an impression of the seal of the cor- poration mortgagor stamped upon and into the substance of the paper itself, Foster, J., said: “In the present instance we have a durable impression upon a tenacious substance made for the express purpose of solemn authentication. And after our own courts have allowed wafers instead of wax, and paper with gum or mucilage instead of wafers, there seems little reason why we should 12 Cases on THE Law or CoNnTRACTS JONES & TEMPLE v. LOGWOOD. (Court of Appeals of Virginia, 1791. 1 Wash. 42.) This was an action of debt upon a bond—plea payment. At the trial the plaintiff offered a writing to the jury as evidence in support of the declara- tion, to which there was no seal but a scroll; and the court permitting this writing to go to the jury, the defendants excepted. The President [Pendleton].!* It is important that the court should settle a question so interesting to the community as the following: whether a scroll used as a seal, constituted a good bond before the act of 1788 or whether to make it a seal, wax or something capable of impression, and impressed, was necessary. Acts of Parliament in England, and acts of Assembly in this country, frequently speak of seals; but none of them define what shall constitute a seal. Nor is there an adjudged case recol- lected, which determines that a seal must be necessarily something im- pressed on wax. To consider it upon the reason of the thing; a seal is required to give solemnity to the act; and I cannot perceive a difference, hesitate also to allow the sufficiency of an impression of a corporate seal on the paper itself.” . In Pease v. Lawson, 33 Mo. 35 (1862), one question was whether a letter of attorney which recited that it was sealed, really was sealed. It appeared on inspection that there was no scrawl by way of seal made with pen or pencil, but there was a small round piece of paper, cut into scallops on the edges, attached to the end of the name, the usual place for a seal, with a wafer, but no impression made thereon. Dryden, J., for the,court said: “In this case it is not pretended the statutory mode [of a ‘scrawl by way of seal’] was adopted; so, that, unless what was done comes up to the common law standard, the letter of attorney is not a sealed instrument in the sense of the law. Does it, then, reach this standard? The point of the objection is that no impression was made on the wafer, and so, although everything. else had happened necessary to a valid sealing, yet the want of this crowning requisite was fatal. Now, as in the days of the greatest strictness, the com- mon law prescribed no particular instrument with which to make the im- pression, nor fixed the breadth or length or depth it should be made, and as the execution of the paper was attended with the usual circumstances of deliberation, and as it was manifestly intended as a sealed instrument, and as the scalloped paper, when applied to the wafer and caused to adhere, must from a physical necessity have made an impression, we feel warranted, for the effectuation of the clear intention of the parties, in regarding the scalloped paper a sufficient instrument, and the impression made by it to cause cohesion, a sufficient impression to comply with the requirement of the law.” In Bowen v. Lazalere, 44 Mo. 382 (1869), where “the only sealing” of a power of attorney was that “opposite the signature in the usual place of a seal, a small piece of colored paper in the form of a seal was attached and made to adhere by the application and use of mucilage,” the fact that mu- cilage was used instead of a wafer was held not to differentiate the case from Pease v. Lawson, supra, and accordingly the power of attorney was held to be under seal. 14 The statement of facts is abbreviated and parts of the opinion are omitted. SEALED CoNnTRACTS 13 in point of solemnity, between the act of impressing wax and that of making a scroll. Public corporate bodies have a known and fixed seal; and it is necessary that their acts should be under that common seal. In that instance an impression may be necessary, to shew that the act has been done in their corporate capacity. But what is the private seal of an individual? Does an impression fur- nish any criterion by which to decide whether it be his seal or not? It is true that some few gentlemen have seals which impress their family coats of arms; some have such as impress the initials of their names; but these are rare indeed when compared with the great body of the community who have no seals, and who use such as are placed on the writing for them, and make them their own by acknowledging them to be such. In truth and reality then, it is unimportant whether this adoption be of wax or a scroll. Lord Coke in his 2nd Institute, in a commentary upon a statute which speaks ofa seal, says “a seal is wax with an impression.” But there is neither an act of Parliament nor an adjudged case to bind the court.15 It was his opinion only, founded probably on the practice of the day, and if that gives a binding rule, we may, by going further back, discover a period of 15 “President Pendleton, in the case of Jones and Temple v. Logwood, 1 Wash. Rep. 42, which was cited upon the argument, said that he did not know of any adjudged case that determines that a seal must necessarily be something impressed on wax; and he seemed to think that there was nothing but Lord Coke’s opinion to govern the question. He certainly could not have examined this point with his usual diligence. ‘ The ancient authorities are explicit, that a seal does, in legal contemplation, mean an impression upon wax. ‘It is not requisite,’ according to Perkins (§ 134), ‘that there be for every grantor who is named in the deed a several piece of wax, for one piece of wax may serve for all the grantors if every one put his seal upon the same piece of wax.’ And Brooke (tit. Faits, 30 and 17) uses the same language. In Lightfoot and Butler’s Case, which was in the Exchequer, 29 Eliz. (2 Leon. 21) the Barons were equally explicit as to the essence of a seal, though they did not all concur upon the point, as stated in Perkins. One of them said that twenty men may seal with one seal upon one piece of wax only, and that should serve for them all, if they all laid their hands upon the seal; but the other two Barons held that though they might all seal a deed with one seal, yet it must be upon several pieces of wax. Indeed this point, that the seal was an impression upon wax, seems to be necessarily assumed and taken for granted in several other passages which might be cited from Perkins and Brooke, and also in Selden’s Notes to Fortescue (De Laud. p. 72); and the nature of a seal is no more a matter of doubt in the old English law than it is that a deed must be written upon paper or parchment, and not upon wood or stone. Nor has the common law ever been altered in Westminster Hall upon this subject, for in the late case of Adam v. Keer, 1 Bos. & Puller, 360, it was made a question whether a bond executed in Jamaica, with a scrawl of the pen, according to the custom of that island, should operate as such in England, even upon the strength of that usage.” Kent, C. J., in Warren v. Lynch, 5 Johns. 239, 246, 247 (1810). 14 Casrs on THE Law or CONTRACTS time when the impression was made with the eye tooth. There was some utility in that custom, since the tooth impressed was the man’s own, and furnished a test in case of forgery.!® But both are founded on the usage of the times. Scrolls have been long substituted for seals in this country. The party acknowledges the scroll to be his seal, and as such this court will consider it. If there had been a positive law to bind the court, we must have obeyed it, however inconvenient; but since none is shewn or recollected, we will not make a precedent which would not only let loose great numbers of individuals from their engagements, but all-or most of the executors, administrators, guardians and perhaps public collectors, from the force of their bonds; a decision which would dishonor government: relax public and private security, and convulse the state. The late act, if it operates, is conclusive; if it does not, it is at least a legislative construction of the law in general; agreeable to, and adding strength to, that of the court. On this point there is no error. * * * Judgment affirmed.” « 16“But this reason, however applicable in Virginia in 1791, does not hold true in this epoch of dentistry, when no man’s tooth is his own, but teeth, like almost everything else, are artificial.” Lumpkin, J., in Lowe v. Morris, 13 Ga. 147, 154 (1853). See also Brackenridge, J., in Alexander v. Jameson, 5 Bin. (Pa.) 238, 244 (1812). 17“He was a bold fellow who first in these colonies, and particularly in Pennsylvania, in time whereof the memory of man runneth not to the contrary, substituted the appearance of a seal by the circumflex of a pen, which has been sanctioned by usage and the adjudication of the courts, as equipollent with a stamp containing some effigies or inscriptions on stone or metal.” Bracken- ridge, J., in Alexander v. Jameson, 5 Bin. (Pa.) 238, 244-245 (1812). In Hendee v. Pinkerton, 14 Allen 381, 388 (1867) Foster, J., said: “If we should pronounce every scroll a seal, we should speedily be called upon to take the next step of pronouncing every flourish to be a scroll, and nothing would remain of the ancient formality of sealing.” “Is there any more solemnity in a bit of wafer than in a scroll made with a pen? The feeling of solemnity, if any, attending the execution of a sealed in- strument, arises from a sense of the effect of the instrument, and not from the symbol used to characterize it as a sealed instrument; and as to the remark of the Court [Kent, C. J., in Warren v. Lynch, 5 Johns. (N. Y.) 239], that to adopt a scroll for a seal would be to abolish all distinction between writings sealed and writings not sealed, I apprehend, with great respect, it was not well considered.” Halsted, C., in Corrigan v. Trenton Delaware Falls Co., 1 Halst. Ch. 52 (1845). In Appeal of William Hacker, Trustee, 121 Pa. St. 192, (1888) the question was whether a power required to be exercised by the donee of the power “by writing under hand and seal in nature of a last will and testament” was exer- cised by a will which ended: “In witness whereof I have hereunto set my hand and seal. Ellen Waln —”, Clark, J., said: “Was the will of Ellen Waln under seal? * * * A seal is not necessarily of any particular form or figure; when not of wax it is usually made in the form of a scroll, but the letters ‘L. S.’ or the word ‘Seal,’ inclosed in brackets, or in some other design, are in frequent use. It may, however, consist of the outline without any enclosure; it may have a dark ground or a light one; it SEALED CONTRACTS 15 LANGLEY v. OWENS. (Supreme Court of Florida, Division A, 1906. 52 Fla. 302, 42 So. 457, 11 Ann. Cas. 247.) WuitFieLp, J.48 The declaration, filed January 20, 1905, in the Circuit Court for Escambia county in this cause, is as follows: “The plaintiff, T. E. Owens, by his attorney, sues the defendant, Frank Langley, for that prior to the institution of this suit, on the 11th day of May, A. D. 1893, the defendant by his three promissory notes under seal, which notes are attached hereto and are hereby made a part hereof, promised to pay to the firm of Weinberg & Hays the sum of.$97.37 thirty days after date, and the sum of $100 sixty days after date, and the sum of $100 ninety days after date; that the said payees thereafter for a valuable consideration indorsed the said notes and delivered them to the plaintiff; that the defendant has not paid said notes, or any part thereof, though often requested so to do. Wherefore plaintiff sues and claims damages in the sum of six hundred dollars.” Attached to the declaration are three notes, similarly executed, one of which is as follows: “97.37, Tampa, Fla., May 11th, 1893. “Thirty days after date I promise to pay to the order of Weinberg & Hays may be in the form of a circle, an ellipse, or a scroll, or it may be irregular in form; it may be a simple dash or flourish of the pen: Long v. Ramsey, 1S. & R. 72. Its precise form cannot be defined; that, in each case, will depend wholly upon the taste or fancy of the person who makes it. “The mere fact that in the testimonium clause the testatrix states that she has affixed her hand and seal, is insufficient to constitute the instrument a writing under seal, if in fact there be no seal; but if there be any mark or im- pression which might reasonably be taken for a seal, this statement of the _testatrix will certainly afford the strongest evidence that the mark was so intended. * * * “Whether or not any mark or impression shall be held to be a seal, depends wholly upon the intention of the party executing the instrument, as exhibited on the face of the paper itself. The dash which follows the signature in this case, it must be conceded, is not in the usual or ordinary form of a seal, but as no particular form is prescribed by law, we think that upon a consideration of the plain requirements of the writing creating the power, and of the manifest purpose and effort of the testatrix to execute that power, in the manner desig- nated, and her avowed purpose to affix a seal, together with the presence of a mark or flourish of the pen, which may be taken as such, we are justified in assuming that the mark was made and intended for a seal, and that the writing is in this respect in compliance with the donor’s directions. It is said that the same or a similar mark is found in other parts of the will, used for punctua- tion, and that this is a circumstance evidencing a different intention of the testatrix. But if the testatrix did use a mark in this form indifferently for a comma, a colon, or a period, what good reason is there for supposing she did not also use it for a seal?” 18 Parts of the opinion are omitted. 16 Cases ON THE LAW oF CONTRACTS ninety-seven & 37/100 dollars at Gulf National Bank. Value received. “No. ——————. Due ——————_-. “Frank Langley. (L. S.)” The defendant presented a plea that “the said promissory notes the decla- ration described were not under seal, and that the above cause of action thereon did not accrue within five years before this suit.” The plaintiff demurred to this plea on the grounds (1) that it appears from the record that the instrument sued on is a specialty and is not barred in five years; (2) that the said plea does not set forth any defense to the cause of action herein.” This demurrer being sustained, the defendant by leave of court filed [second, third and fourth pleas to which plaintiff also demurred ] * ok * The demurrers to the second, third, and fourth pleas were sustained, and, the defendant failing to plead further, final judgment for the plaintiff was entered, and the defendant on writ of error here assigns as error the orders sustaining the demurrers to the several pleas. * * * In support of the assignments of error it is urged here that the notes as executed should not be regarded as being under seal, and that, if it be pre- sumed that the maker adopted as his seal the letters inclosed in brackets, as shown in the notes, such presumption can be rebutted. The argument is that the device used is not in fact either a scroll or a scrawi, but it only indicates the place where the seal should be put, if used; that the device is ambiguous, is not plainly designated as a seal, and it does not appear that the maker had the particular device in mind when signing the notes: and that since promissory notes do not require a seal, and as there is no refer- ence to the seal in the body of the notes, it should not be conclusively pre- sumed that the maker of the notes intended to adopt and use the device as his seal, so as to make the notes in law sealed instruments. It is not contended that the defendant did not in fact adopt and use the character or device, “(L. 8.),” as it appears to the right of his signature in the notes, but that he did not adopt and intend it as a seal. Where there is no dispute as to the character or ‘evice used in the execu- tion of a written instrument, it is for the court to determine whether the device as used constitutes a seal. See Beardsley v. Knight, 4 Vt. 471; Jack- sonville, M. P. Ry. & Nav. Co. v. Hooper, 160 U. 8. 514, 16 Sup. Ct. 379, 40 L. Ed. 515. Chapter 4148, p. 72, Acts of 1893, which took effect April 28, 1903, provides: “That a scrawl or scroll, printed or written, affixed as a seal to any written instrument shall be as effectual as a seal. That all written in- struments heretofore or hereafter made with a scrawl or scroll, printed or written, affixed as a seal are declared to be sealed instruments, and shall be construed and received in evidence as such in all the courts of this state.”1® Under this statute a scrawl or scroll, affixed as a seal to the 19 Local statutes should be consulted as to what constitutes a seal. SEALED Contracts 17 signature of the maker of a promissory note, is as effectual as a seal, and when such scrawl or scroll, printed or written, appears affixed to the maker’s signature in the place usually occupied by the seal, it is, in the absence of anything in the note to the contrary, and in the absence of fraud, sufficient to give it effect as a seal. See Hudson v. Poindexter, 42 Miss. 304; Barnard vy. Gantz, 140 N. Y. 249, 35 N. E. 430; Hacker’s Appeal, 121 Pa. 192, 15 Atl. 500,1L. R. A. 861. In 1841, under the statute then in force here, which provides that “a scrawl affixed as a seal to any instrument shall be as effectual as a seal,” this court, in the case of Comerford v. Cobb, 2 Fla. 418, text 423, held that a promise in writing to pay money in which the device or character, “[ |,” with the word “Seal” included therein, appears opposite the signature of the maker, in the usual place for the seal, but with no reference to it in the body of the writing, was in law “a sealed instrument, and was so intended by the parties at the time of its execution.” In that case the word “Seal” was in the brackets, and it is urged that such word, so used, indicated an intention to make the note a sealed instrument, and that in this case the letters “L. S.,” appearing in the marks “[' ],” do not indicate an intention to use the device as a seal. If the device or character, “[ ],” is of itself a scrawl, as it was called in Comerford v. Cobb, 2 Fla. 418, text 420, and in Bacon v. Green, 36 Fla. 325, text 336, 18 South. 870, then the device or character, “( _),”’ must also be a scrawl; and if the latter device or character is of itself a scrawl, cer- tainly it is none the less so when the letters “L. S.” are contained within it. If the word “Seal” contained witain the scrawl, “[ ]” or “(_ ),” is evi- dence that the scrawl was affixed as a seal, the letters “L. S.,” which are in common use in the making of sealed instruments, when they appear within a scrawl opposite the signature of the maker of the notes, are certainly evidence of the purpose for which the scrawl was used; and, as nothing to the contrary appears by the notes, it must be presumed that the maker of the notes so used the device as his seal. While a seal was not necessary in making a promissory note, the party had a right to make the promise by a sealed instrument, and by the manner of its use the device or character, “(L. 8.),” was really and in effect affixed as a seal to the notes, and thev were thereby in law made sealed instruments. The act of 1893 does not require that the use of the seal, or of a scrawl or scroll as a seal, shall be referred to in the instrument,?° nor that any par- 20 “For whether an instrument be a specialty must always be determined by the fact whether the party affixed a seal; not upon the assertion of the obligor, in the body of the instrument, or by the form of the attestation.” Archer, J., in Trasher v. Everhart, 3 G. & J. 284, 246 (1881). See Taylor v. Glaser, 2 8S. & R. 502, 504 (1816). The jurisdictions differ in regard to this matter, some re- quiring a recitation that the instrument is sealed and others not, and a few requiring the recitation in the case of a scrawl but not in the case of a common law seal. See 19 Ann. Cas. 674, note; 1 A. R. C. 184, note. 18 Cases oN THE LAW oFf CoNTRACTS ticular scrawl or scroll shall be used. The only requirement is that a scrawl or scroll, printed or written, be affixed as a seal, to make the writing a sealed instrument. The character or device, “(L. 8.),” printed or written, as it appears in the usual place for the seal, opposite the signature of the maker of the notes, is not ambiguous, since it has a definite legal meaning and effect when so used. It does not merely indicate the place where the seal should be put, because, when it is so used, the statute makes it as effectual as a seal; but it is a plainly designated scrawl or scroll affixed as a seal, within the meaning of the act of 1893 above quoted. See Comerford v. Cobb, 2 Fla. 418; Giles v. Mauldin, 7 Rich. Law (S. C.) 11; Williams v. Starr, 5 Wis. 534; Hudson v. Poindexter, 42 Miss. 304; Lorah v. Nissley, 156 Pa. 239, 27 Atl. 242; Muckleroy v. Bethany, 23 Tex. 163; Osborn v. Kistler, 35 Ohio St. 99. See, also, Sanders v. Ransom, 37 Fla. 457, 20 South. 530. The demurrer to the first plea was properly sustained. * * * “The notes are in law sealed instruments, and pleas which in effect admit the execution of the notes as alleged in the declaration, but aver that it was not intended that they should be executed as sealed instruments are demurrable. * * * Judgment affirmed.*1 Re SMITH. OSWELL v. SHEPHERD. (Court of Appeal, 1892. 67 L. T. Rep. (N. 8.) 64.) Linpuey, L. J.28 In this case we are asked to say that the document in question was sealed at the time of its execution. It is a bond, and it was Since a corporate seal does not necessarily show that the instrument is sealed, it has been held that if the instrument bearing the corporate seal does not purport to be sealed it is a simple contract. Smith v. Woman’s Medical College, 110 Md. 441 (1909). But see Grand Lodge, etc., v. State Bank of Florida, (Fla.), 84 So. 528 (1920), where the contrary position is taken on the ground that since the corporation need not affix its seal to any instru- ment not required to be under seal its use of a seal, nothing to the contrary _ appearing, evidences a purpose to have a sealed instrument. 21In Jackson v. Security Mut. Life Ins. Co., 233 TIl. 161 (1908) the word “Seal”, which was on a release when the signature was placed before it, was held to be a seal under a statute authorizing a scrawl to be affixed by way of seal. In that case there was a bracket about the word seal and it was disputed whether the bracket was there at_ the time of signature or was placed there later, but the court disregarded the bracket. On “Seal” as a sufficient seal, see 11 Ann. Cas. 1110, note. On “L. S.” as a sufficient seal, see 11 Ann. Cas. 250, note. On the definition and requisites of a seal, see 1 A. R. C. 181, note. See also 1 Am. L. Rev. 638. 22 The statement of facts and a part of the opinion of Kay, L. J. are omitted. SEALED CONTRACTS 19 prepared by a solicitor, and was copied by his clerk, or by a law stationer. It is stamped as a bond and intended to be executed as a bond, but it does not bear on the face of it any trace of a seal. The lady who executed it has signed it, and it bears the words “sealed with my seal,” and the attestation clause states that the bond was “signed, sealed and delivered” by the ob- ligor. But those words are not in the handwriting of the person who signed, but in the handwriting of the law stationer. It is quite obvious that the bond, when copied was sent to Mrs. Smith, who signed it. Now, the attest- ing witness: has not been called to give evidence as to whether the bond was sealed or not, and there is absolutely nothing to show that it was actu- ally sealed. It seems to me perfectly impossible for us to say that the document was sealed. We have been pressed with authorities, but au- thorities are not of use on a question such as this. We think therefore that the appeal must be dismissed with costs. Bowen, L. J. I am of the same opinion. A seal need not consist of wax nor of wafer. It may be a mark affixed to the document. As was said by Byles, J. in the case which has been referred to of Re Sandilands, (24 L. T. Rep. n. s. 273; L. Rep. 6 C. P. 411, 413) the sealing of a deed may be done by the end of a ruler or anything else. So long as it takes the place of a seal, that will do. But the difficulty of this case is that there is not a scintilla of evidence that the bond was in fact sealed. It is true that there is a signature to the bond by the obligor, and there are the words “sealed with my seal.” But that is perfectly consistent with this, that the person, though about to affix the seal, omitted actually to do so. The attest- ing witness has not been called to give evidence as to whether the bond was sealed or not. In this case the document ought to have been sealed and has not been sealed. We have been pressed with the authority of Re Sandi- lands, ubi supra, but it seems to me that that case is distinguishable from the present. And, as Lindley, L. J. said in the later case of The National Provincial Bank of England v. Jackson (55 L. T. Rep. N.S. 458; 383 Ch. Div. 1, 14), Re Sandilands, udi supra, was a “good-natured decision, in which I am not sure that I could have concurred.” In Re Sandilands, a deed was sent out to Melbourne under a special commission for execution and acknowledgment by certain married women. When sent out the deed had pieces of green ribbon attached to the places where the seals should. be, but no wax or other material to receive the impression, and it was returned to this country in the same state, but in all other respects duly executed. The attestation clause states that the deed was “sealed, signed and deliv- ered,” one of the attesting witnesses being the Mayor of Melbourne, and two of the commissioners certified that the married women had produced the deed before them and “acknowledged the same to be their respective acts and deeds.” In these circumstances the court held that there was sufficient prima facie evidence that the deed was sealed to warrant the court in allow- ing it to be received and filed with the other documents by the proper officer, under 3 & 4 Will. 4c. 74. It seemed to me that Re Sandilands was an ex- 20 Casrs on THE LAw oF CoNTRACTS ceptional case, and that the decision there depended upon the particular facts of that case. It does not justify the court, whenever a document is produced before it, which, though bearing no seal, purports to have been sealed, in assuming that it has actually been sealed. I cannot see my way to assuming that fact in the present case, and I agree that the appeal should be dismissed with costs. Kay, L. J. * * * It is said that it is possible that any impression that may have been made may have disappeared in the lapse of time which has occurred since the bond was executed. But I do not think that such was the case. Authorities have been cited which show that the courts have gone very far in treating documents as having been duly sealed which should be executed as deeds, and have inferred that there was due ful- fillment of that requirement. Under certain circumstances, and in very old documents, it might be said that the seal may have disappeared. The older the document becomes, the more likely it is that that which was a seal has in the lapse of time disappeared. But here there is no trace of anything like a seal. Indeed, there is no space opposite the name of the obligor where a seal might have been put. I confess that, in furtherance of the intention of the obligor, I should be glad to say that the document was duly sealed. But, before one can say that, one must exhaust all the evidence on the point which could be adduced. The witness who attested the signature of the obligor has not been called, so that we are unable to learn what she has to say on the subject. Counsel says that it is admitted that the signature of the obligor is genuine, and therefore that it is un- necessary to prove the signature. But has the person who claims under the bond exhausted all the evidence? At least the witness who attested the bond ought to have been called. As that has not been done it seems to me against all reason to ask the court to give this document the effect it would have had if it had been properly sealed. I think, therefore, that this appeal should be dismissed with costs. Appeal dismissed.** 23 In National Provincial Bank v. Jackson, 33 Ch. D. 1, (1886), cited in the principal case, Cotton, L. J. said: “Although these instruments are expressed to be signed, sealed and delivered in the presence of the attesting witness * * * there is no trace of any seal, but merely the piece of ribbon for the usual pur- pose of keeping the wax on the parchment. * * * It is true that if the finger be pressed upon the ribbon that may amount to sealing, but no such inference can be drawn here where the, attesting witness who has given evi- dence recollects nothing of the sort and when Jackson, [the solicitor grantor, a brother of the grantees,] had already committed one fraud in the matter and perhaps then intended another. The question is merely one of fact, and * * * the conclusion I come to is that the instruments never were sealed.” Srarep Contracts © 21 EAMES v. PRESTON. (Supreme Court of Illinois, 1858. 20 Ill. 389.) Caton, C. J.24 This was an action of assumpsit brought against Eames, Burlingame and Gray, upon a note thus executed, “Eames, Gray & Co. [ ],” and the only question is, whether assumpsit can be maintained on this note. If this be a sealed instrument, then assumpsit cannot be main- tained upon it (1 Chit. PL, title Assumpsit, p. 99), and this would seem to settle the question, for this is certainly an instrument under seal. If the member of the firm who executed the note had authority under seal to add the seals of all, then the seal attached is the seal of all; if he had not, then it is his seal only. In any event it is, as to him, a sealed instrument. If, as to the others, it is a simple instrument, that would not remove his seal. If one party executes an instrument and attaches his seal, and others afterwards sign it silently without attaching seals, they are presumed to adopt the seal of the first, and as to all, it is a sealed instrument.®> If, however, the first sign without a seal, and the others add seals to their names, without the direction or consent of the first, then he cannot be pre- sumed to adopt their seals as his, and it continues, as to him, a simple instrument, as it was when he first executed it.26 .Nor would this prevent 24 The statement of facts is omitted. 25 “In Davis v. Burton, 3 Scam. 41, 36 Am. Dec. 511, it was held that where a bond or sealed instrument purports, on its face, to be sealed by all the signers, and there are several seals attached, but not so many as there are names, the court will presume that each signer has adopted some one of the seals already attached. To the same effect is Ryan v. Cooke, 172 Ill. 302, 50 N. E. 213. See, also, Hames v. Preston, 20 Ill. 389. The recital of the seal is not essential. If the instrument be actually sealed, it will operate as such without the recital, and the general rule is that, if there is no seal at the end, the instrument will not be held to be a specialty, although the parties in the body of the writing make mention of a seal. 2 Bouvier’s Law Dic. (Rawle’s Rev.) p. 1020; 9 Am. & Eng. Ency. of Law (2d Ed.) p. 147, and cases cited.” Carter, J., in Jackson v. Security Mut. Life Ins. Co., 233 Ill. 161, 166-167 (1908). “In Stabler v. Cowman, 7 G. & J. 284, where a contract in writing was entered into between two parties intended to be signed and sealed by both, but which was signed and sealed by one only, and signed by the other but not sealed, it was held that both were bound, but in different forms; that while it was the covenant of the former, it was merely the parol contract of the latter, and an action of assumpsit against him was sustained.” Bartol, C. J., in Western Md. R. Co. v. Overendorff, 37 Md. 328, 334-335 (1872). See also Pearl Hominy Co. v. Linthicum, 112 Md. 27 (1910). “It is true that one piece of wax may serve as a seal for several persons, if each of them impresses it himself, or one for all, by proper authority, or in the presence of all, as was held in Ball v. Dunsterville, 4 T. R. 313, following Lord Lovelace’s Case, W Jones, 268, but then it must appear by the deed and profess to be the seal of each, whereas here the seal appears by the deed, and professes to be, the seal not of individuals, but of a corporation.” Lord Denman, C. J., in Cooch v, Goodman, 2 Q. B. 580, 598 (1842). 26 “It is to be observed, however, that the question is whether the instrument 22 Cases oN THE LAW of CoNnTRACTS it from being a sealed instrument as to those who deliberately attached their seals. As to one of the makers of this note, it was a sealed instrument, and assumpsit could not be maintained upon it.?? The judgment must be reversed. Judgment reversed, PARKS v. HAZLERIGG. (Supreme Court of Indiana, 1845. 7 Blackford, 536, 43 Am. Dec. 106.) Sunutivan, J. This was an action of debt on an appeal-bond. The plain- tiff declared against Hazlerigg, Kizer, Russell, and Dugan; for that the defendants, on, etc., at, etc., by their certain writing obligatory sealed with their seals, etc. acknowledged themselves to be held and firmly bound, ete. On oyer it appeared that the above defendants were named in the bond as obligors. There were four seals affixed to the bond, but it was signed only by Hazlerigg, Russell, and Dugan. Opposite to the fourth seal there was no signature. Demurrer to the declaration and judgment for the defendants. This. case presents the simple question, whether it is necessary to the validity of a bond, which has been sealed by the obligor, that it be signed by him also. At common law, signing was not necessary to the validity of a deed. 2 was sealed when it was delivered. If the first signer, therefore, delivered the instrument, or authorized its delivery, after a seal had to his knowledge been attached by subsequent parties, there seems as much reason to infer an adoption of the seal from recitals in the instrument as if the unsealed signature were the last on the instrument.” 1 Williston on Contracts, pp. 417-418 § 208. On adoption of seal of another, see 1 A. R. C. 189, note. 271f the obligation was joint and some obligors sealed and others did not, debt was the appropriate common law action against all, if the amount re- coverable was liquidated. Oldman v. Hunt, 4 Humph. (Tenn.) 332, (1843); Rankin v. Roler, 8 Gratt.. (Va.) 63 (1851). In Oldham v. Hunt, 4 Humph. (Tenn.) 331, 332 (1843) Reese, J. said that an instrument worded as a promissory note, sealed by one defendant but not sealed by the other, could be recovered upon in debt. He said: “The contract and liability of the defendants was joint and they can be sued jointly thereon, al- though one of them creates against himself evidence of a higher and more enduring character than does the other. The simple contract of the one does not merge, in such case, in the obligation of the other. Each continues liable to the plaintiff, and the paper writing is the common vinculum which makes that liability a joint one.” See also Rankin v. Roller, 8 Gratt. (Va.) 63 (1851), where the court said that in the one action of debt each defendant would be entitled to make any defense which he might make in a separate action. The court in Rankin v. Roller refused to decide whether several actions could be brought, one on a simple contract and one on a sealed contract. On the nature and effect of an instrument sealed by some but not by all of parties executing it, see 20 Ann. Cas. 1327, note. SEALED CoNTRACTS 23 Blacks. Comm. 305-306. Cromwell v. Grunsden, 2 Salk. 462. To this point it is not necessary to multiply authorities. It has been intimated that since the Statute of Frauds and Perjuries, signing, as well as sealing, is necessary, 2 Blacks. Comm., supra; but the better opinion seems to be, that the statute has made no alteration in this respect, since it applies only to mere agreements and not to deeds. 1 Shepp. Touch., by Preston, 56, note 24; Hurlstone on Bonds, 8. “Signing,” says Gresley, in his Equity Evidence, p. 121, in speaking of the execution of a deed, “is not ordinarily essential, but it is always as well to prove it as a regular part of the transac- tion. Besides, it assists the other parts of the proof of execution, for the circumstance that the party has written his name opposite to the seal, on an instrument bearing on its face a declaration that it was sealed by him, is prima facie evidence of sealing and delivery.” The common law, therefore, remains unchanged, and signing was not essential to the validity of the bond declared on in this case. If the plaintiff can prove that Kizer, with the other defendants, sealed the bond, the proof will support the declaration, which is in the usual form. The court erred in sustaining the demurrer. Per Curiam. The judgment is reversed with costs. Cause remanded, etc.?8 28 See Jeffery v. Underwood, 1 Ark. 108, 112-113 (1838). But as to conveyancés of real estate, it is sometimes said, as by Carter, J., in Osby v. Reynolds, 260 Ill. 576, 581 (1913): “Under the common law a deed, to be binding, must be signed, sealed and delivered by the parties.” And a statute may make it so. Local statutes should be consulted. Signing is of course of practical importance. , “The signing of a deed is now the material part of the execution; the seal has become a mere form, and a written or ink seal, as it is called, is good.” By the court in McDill’s Lessee v. McDill, 1 Dall. (Pa.) 63 (1782). If the clear intention of the parties is that a release shall not be effective un- til signed, such intention will prevail. Ambler v. Whipple, 20 Wall. (U. S.) 546 (1874). If there is a signature, there is authority to the effect that the sealing has to be a separate act. “It was the fact that the obligor did two independent acts, first that of signing, and secondly, that of sealing, that in theory of the law gave so much more solemnity to the contract, and imparted so much greater deliberation, and therefore entitled it to be enforced without any proof of a particular considera- tion or recital that it was for value received * * *.” Dewey, J., in Bates v. Boston & N. Y. C. R. Co., 10 Allen (Mass.) 251, 254 (1865). Yet the first act, as affixing the seal, might be done by the printer even under that doctrine. Royal Bank of Liverpool v. Grand Junction R. R. & Depot Co., 100 Mass. 444 (1868). 24 Cases oN THE LAW oF CONTRACTS TUPPER and others v. FOULKES. (Court of Common Pleas, 1861. 9 C. B. (N. S.) 797.) This was an action brought to recover from the defendant his proportion of certain expenses which had been incurred by the plaintiffs as trustees under a deed of arrangement entered into. between one Richard Clements and his creditors, of whom the defendant was one. The defendant pleaded, amongs other pleas, non est factum. Verdict for the plaintiff. Rule nisi for new trial. Witiiams, J; * * * The deed having been executed by the son in his own name, thus,—“John William Foulkes for Thomas Foulkes,”— it was brought into a room in which the defendant was, and, the deed being shewn to him, he was asked: whether his son had authority to execute it for him and whether he adopted the signature, and the defendant answered that his son had authority and that he adopted the deed as his; and there was proof that he subsequently acted as if the deed was a valid deed. This clearly amounted to a second delivery. It has long been established that to constitute a delivery, it is not necessary that the party should take the document in his hand and say, “I deliver this as my act and deed.” Any- thing to shew that he treated the deed as his deed is enough. Several cases are put in Sheppard’s Touchstone, 8th Ed. p. 58, mostly taken from Lord Coke; amongst others,—“If the deed be sealed and lying in a window or on a table, and I use these or the like words, ‘there it is; take it as my deed,’ this is a good delivery, and doth perfect the deed; for, as the deed may be delivered by words, without deeds, so may it also be delivered by deeds, without words.” Here it is plain upon the evidence that the deed being in the room and already sealed, and his nate being affixed to it, the defendant in effect says “I recognize that as my deed.” The case of Hundson v. Revet, 5 Bingh. 368, 2 M. & P. 663, as recognized by Lord Wensleydale in Hibblewhite v. M’Morine, 6 M. & W. 200, shews that there was abundant evidence to prove the affirmative of the issue. Rule discharged.*® +The statement of facts is abbreviated. The opinions of Erle C. J., and of Willes and Keating, JJ., are omitted, as is part of the opinion of Williams, J. 29“In Bryan v. Wash, 2 Gilm. 557, it was held that no particular form is necessary to constitute a delivery. It may be by acts without words, or by words without acts, or by both [acts and words. Byars v. Spencer, 101 Ill. 429, 423]. Anything which clearly manifests the intention of the grantor and the person to whom it is delivered, that the deed shall presently become operative and effectual, that the grantor loses all control over it, and that by it the grantee is to become possessed of the estate constitutes a sufficient delivery.” Craig, Cc. J., in Benneson v. Aiken, 102 Ill. 284, 287 (1882). In Storey v. Storey, 214 Fed. 973, 975 (1914), Baker, Circuit Judge, said of the delivery of promissory notes: : “Delivery is a composite act. There must be both a manual transfer, actual or constructive, and an operation of minds intending to enter into the contract. In the ages-old strife for predominance between objective or external and subjective or internal measurements of conduct, evolution has been away from SEALED CoNTRACTS 25 BUTLER and BAKER’S CASE. (Court of King’s Bench, 1591. 3 Coke, 25a, 26b.) * * Tf A makes an obligation to B and delivers it to C to the use of B, this is the deed of A presently; but if C offers it to B, there B may refuse it in pais, and thereby the obligation will lose its force®® (but perhaps symbolism toward the inner truth. And in the law of commercial paper, be- tween the original parties, the animus contrahendi has become the predominant element.” : ‘ ; In Bogie v. Bogie, 35 Wis. 659, 667 (1874) Ryan, C. J., in speaking of delivery of a deed of conveyance said that the authorities “establish that there is no set ritual of delivery; that when a deed is executed, and the minds of the parties to it meet, expressly or tacitly, in the purpose to give it present effect, the deed is validly delivered; and that such meeting of minds may be gathered from acts or signs, words or silence, in multitudinous variety of circumstances.” Here may appropriately be noted Professor Williston’s statement that ‘‘One may guess that study of the civil law was responsible for the substitution of the subjective test of that law for the objective standard of the common law.” 1 Williston on Contracts, p. 423, n. For various views on the delivery of insurance policies, see article by Edwin W. Patterson, The Delivery of a Life Insurance Policy, 33 Harv. L. Rev. 198. 80 Compare Taylor v. Sanford, 108 Tex. 340 (1917), where title under a deed was held to vest in the grantee where the grantor had it recorded and mailed it-to the grantee though the grantee did not learn of its existence, let alone receive and accept it, until after the grantor’s death. See notes on delivery of deed to third person, or record, or delivery for record, by grantor in 54 L. R. A. 865, 38 L. R. A. (N. S.) 941, and note on deposit of deed in mail as a delivery in 5 A. L. R. 1664, In Marqusee v. Hartford Fire Ins. Co., 198 Fed. 475 (1912), one who pur- ported to act as agent for the owner, but who was in fact without authority, took out a fire insurance policy on the owner’s property, and it was held that the owner could ratify the insurance contract and hold the company, though the ratification’ came after the property was destroyed and after the owner knew of such destruction, the insurance company not having cancelled the insurance. In Adams v. Adams, 21 Wall. (U. S.) 185 (1874), Hunt, J., for the court said: “Although a trustee may never have heard of the deed [to him as trustee], the title vests in him, subject to a disclaimer on his part. Such disclaimer will not, however, defeat the conveyance as a transfer of the equitable interest to a third person,” (p. 192), i. e., will not defeat it as to the equitable interest created by the conveyance in the cestui que trust. See Mallott v. Wilson, [1903] 2 Ch. 494. “The mere affixing the seal does not render it a deed; but as soon as there are acts or words sufficient to show that it is intended by the party to be executed as his deed presently binding on him, it is sufficient. The most apt and expressive mode of indicating such an intention is to hand it over, saying: “I deliver this as my deed;” but any other words or acts that sufficiently show that it was intended to be finally executed will do as well. And it is clear on the authorities, as well as the reason of the thing, that the deed is binding on the obligor before it comes into the custody of the obligee, may, before he even knows of it; though, of course, if he has not previously assented to the making of the deed the obligee may refuse it.” Blackburn, J., in Xenos v. Wickham, L. R. 2 H. L. Cas. 296, 312 (1866), citing Butler and Baker’s Case, reported supra. “It is true that judges have said with more solemnity than I think the occa- sion warranted, that no one can have an estate thrust upon him against his 26 Caszes on THE Law of CoNTRACTS in such case A in an action brought on this obligation cannot plead non est factum, because it was once his deed). * * * will, and that consequently a delivery of a deed to a stranger, for the use of the grantee, is of no effect until assented to by the latter. How much weight this argument is entitled to may be judged of by the fact that estates are every day thrust upon people by last will and testament; and it would certainly sound somewhat novel to say that the devises were of no effect until assented to by the devisees. If a father should die testate, devising an estate to his daughter, and the latter should afterwards die without a knowledge of the will, it would hardly be contended that the devise became void for want of acceptance, and that the heirs of the devisee must lose the estate. Neither will it be denied that equitable estates are every day thrust upon people by deeds or assignments, made in trust for their benefit, nor will it be said that such beneficiaries take nothing until they assent. Add to these the estates that are thrust upon people by the statute of descent, and we begin to estimate the value of.the argument that a man shall not be made a property holder against his will, and that courts should be astute to shield him from such a wrong. “It is certainly true, as a general rule, that acceptance, by the grantee, is necessary to constitute a good delivery, for a man may refuse even a gift. * * * But where the grant is a pure, unqualified gift, I think the true rule is that the presumption of acceptance can be rebutted only by proof of dissent; and it matters not that the grantee never knew of the conveyance, for as his assent is presumed from its beneficial character, the presumption can be over- thrown only by proof that he did know of and rejected it. If this is not so, how can a deed be made to an infant of such tender years as to be incapable of assent? Is it the law that if a father make a deed or gift to his infant child, and deliver it to the recorder to be recorded for the use of the child, and to vest the estate in it, the deed is of no effect until the child grow to years of intelligence and give its consent? May the estate, in the meantime, be taken for the subsequently contracted debts of the father, or will the statute of limitations begin to run in favor of a trespasser upon the idea that the title remains in the adult? Or will the conveyance entirely fail, if either grantor or grantee die before the latter assent I do not so understand the law. In such a case, the acceptance of the grantee is a presumption of law arising from the beneficial nature of the grant, and not a mere presumption of an actual acceptance. And for the same reason that the law makes the presump- tion, it does not allow it to be disproved by anything short of actual dissent.” Thurman, C. J., in Lessee of John Mitchell v. Ryan, 3 Oh. St. 377, 386-888 (1854). “The importance of a deed was due originally to the rule of evidence that a party was bound by all statements and promises therein contained. The theory that mutual assent had any connection with the making of a deed was unknown to the common law. The requirement of delivery, orfginally unnecessary, was added in order to make the deed what it purported to be, the act and deed of the party bound by it. The theory that acceptance is necessary ignores the historical development of the contract under seal as a formal contract depend- ent solely upon its execution for its validity.” Harriman on Gontracts, 2 ed. § 83. In Baxter v. Baxter, 44 N. C. 341, 342 (1853) Battle, J., said: “A deed may be delivered to a stranger for the use of the grantee, or bargainee, and as it may be to his advantage his acceptance of it will be presumed until the con- trary appears; but as it may also be to his prejudice, or whether to his prejudice or not, he is not bound to accept it; he may disagree to it, and then it will become inoperative. * * * The principle is the same where a deed is SEALED CoNTRACTS 27 KINGSBURY, an infant, by his next friend, v. BURNSIDE, et al. (Supreme Court of Illinois, 1871. 58 Ill. 310, 11 Am. Rep. 67.) McAuuister, J.81_ The first point which claims the consideration of the court is, whether the deed from Buckner and wife to Henry W. Kings- bury was ever so far legally executed as to become operative. It was signed, sealed and acknowledged at Louisville, Ky., May 15th, 1861, in the absence, and without the knowledge or assent of Kingsbury; then sent to Chicago, by Buckner to Mitchell, a stranger to the transaction, not authorized by the grantee to receive it, but with the simple direction from Buckner to have it recorded. It was placed on file on the 17th of May, and there re- mained until after the death of Kingsbury, occurring in Sept., 1862. There is no evidence that Kingsbury ever had it in his possession, or even saw it, but it is quite conclusive the other way. “Tt is necessary to the validity of a deed that there be a grantee willing to accept it. It is a contract, a parting with property by the grantor, and an acceptance thereof by the grantee.” Jackson v. Bodle, 20 Johns. R. 184. In Jackson v. Dunlap, 1 Johns. Cases, 114, the court said: “It is also essential to the legal operation of a deed that the grantee assents to receive it. It can not be imposed on him and there can be no delivery without acceptance.” This rule is expressly recognized in Herbert v. Herbert, Breese, 278, where the court * * * [however, makes a statement which, taken lit- erally] imports that when a deed is made to one without authority, and is delivered to a stranger for the use of him for whom it is so made, with a declaration by the grantor to that effect, then there is a delivery which makes the deed operative, whether the grantee assent or accept it or not. If this be so, it therefore follows, that although a deed be a contract, as was said by Spencer, Chief Justice, in Jackson v. Bodle, supra, that is, a parting with property by the grantor and an acceptance thereof by the grantee, yet such contract may be completed by the acts and words of the grantor alone, without the assent of the grantee. Suppose it to be one from which the grantee derives no benefit, but it subjects him to a duty, the perform- ance of a trust, can he be obligated to the performance of such trust by the mere act of delivery and declaration of purpose by the grantor to an unauthorized stranger.2? Jf it be said that such act and words may bind made to two persons, and delivered to one without the knowledge of the other. The latter may, upon being informed of it, disagree to it, and the deed as to him will be void. Whether his share will, upon such a disagreement, accrue to the other grantee, or will return to the grantor it is not necessary for us to decide.” 31 The statement of facts and portions of the opinions are omitted. 82 Where the deed contains a covenant on behalf of the grantee, as to assume and pay a mortgage, the covenant is not binding on the grantee in the absence of knowledge and assent by him. Blass v. Terry; 156 N. Y. 122 (1898). On the form of action against such a grantee in a jurisdiction where the form of action is of importance, see note 48, p. 40, post. 28 CASES ON THE LAW oF CONTRACTS the grantor, though perhaps not the grantee, then we have an instance of a contract where only one of the parties to it is bound, without any condition to that effect contained in it—where the grantor is estopped by deed and the grantee not estopped. * * * Suppose the stranger to whom the delivery is made, offer the deed to the grantee, and this is his first knowledge of it, has he no option? May he not refuse to accept it? Would tender to the grantee and refusal, be equiv- alent to acceptance? * * * That a deed takes effect only from the time of delivery, with a few ex- ceptions, where the necessities of the case require the application of the doctrine of relation, there can be no doubt. Was the act of sending it to Mitchell a delivery? He was a stranger and had no authority from the grantee to receive it. There was no declaration that it was delivered to him for the grantee’s use; nor was it delivered as an escrow. But it was sent merely to have it filed for record. He was, therefore, a mere medium through which it was to pass to the hands of the recorder. The act was no more of a delivery, in the legal sense, than placing it in the possession of the carrier, to be conveyed from Louisville to Chicago—than if Buckner had taken it himself to the recorder to be recorded. In Herbert v. Herbert, supra, it was expressly held, under the circumstances of that case, that “the act of recording a deed cannot amount to a delivery, when there does: not appear an assent or knowledge by the grantee, of the act.”’%8 There not only does not appear any assent, or knowledge on the part of Henry W. Kingsbury, of the act of recording the deed, but the want of both as clearly appears as any fact in the case. On the 17th of May, therefore, when the deed was recorded, it was not so. far legally executed as to become operative. * * * There can be no doubt, that up to the time of Buckner and the grantee meeting in July, the deed had not become operative. Although the grantors had parted with the personal possession of it, by leaving it with the re corder, still they could, at any time, have reclaimed and cancelled it, with no other effect than that, perhaps, of casting a cloud upon their title. by its being recorded. The question to which we are directly brought is, there- fore, whether, while the deed was so in the hands of the recorder, it was competent for the parties to effectuate a delivery and make the deed opera- tive, by mere words alone, without any manual or personal possession of the deed by the grantee, or a previously authorized agent? * * * Ifa grantor, with or without any previous arrangement with the grantee, sign, seal and acknowledge a deed, place it in the hands of the register to be recorded, notify the grantee of the act, and he assent to receive it, by words, only, this would be a good delivery, though the grantee die before taking it into his actual possession; because the assent is the principal element, 33 There are cases contra. See Cloud v. Calhoun, 10 Rich. Eq. (S. C.) 358 (1858); Adams vy. Adams, 21 Wall. (U. S.) 185 (1874), SEALED CONTRACTS 29 and taking the deed into possession is not indispensable, but only evidence of assent and acceptance. We think, therefore, that when Buckner notified Kingsbury, in July, of the making of the deed, the latter by his reply, assented to receive it, and that this view is confirmed by his subsequent acts and declarations. The deed, then, for the first time became operative.3# But by the very words which made it operative was created a trust by 84“‘To render a deed operative to pass title, there must be not only a delivery of the deed by the grantor, but also an acceptance thereof by the grantee. The acceptance of the conveyance by the grantee is as essential as the delivery by the grantor and where the acceptance is not proven, and the facts do not justify the presumption of law that the grantee has accepted, the title does not pass. * * * In respect to a grantee who is not under legal disability * * * no such presumption [of acceptance] will arise so long as the grantee is igno- rant of the conveyance.” Baker, J., in Moore v. Flynn, 135 Ill. 74, 79-80 (1890). “It is well settled in this commonwealth that the delivery of a deed is not complete and effectual without an acceptance by the grantee, or by some one authorized to represent him, or who assumes to represent him, and whose act of acceptance is afterwards ratified.” Knowlton, J., in Meigs v. Dexter, 172 Mass. 217, 218 (1898). “All agree that neither the grantor nor the stranger who consents to receive and hold the deed can, by their acts, bind the grantee, and that the latter may, on receiving notice of it, repudiate it altogether. If the title vests in the grantee at once, it must, of course, vest according to the terms of the con- veyance and in the case of an absolute conveyance, he would have an absolute title. If after delivery to the stranger, and before notice to the grantee a creditor of the latter should fasten upon the property by execution or attach- ment, no reason can be given why he could not hold it. If it is the property of the grantee, it follows, as of course, that the creditor would have this right, and that he would at once acquire a lien to the extent of his demand. Suppose after this is done, that the grantee, on receiving notice, refuses to accept the conveyance, what becomes of the property? Does the refusal unbind and set the property free from the seizure of the creditors and remit the title at once back to the grantor? Or does the intendment of Justice Ventris [in Thompson v. Leach, 2 Vent. 198 (1691)] step in, in behalf of the creditor as well, and say, because the grant is presumed beneficial to the grantee, and he might, at some future period, accept it, that therefore he shall be deemed to have accepted it before the seizure, and at a time when he was utterly ignorant of it, and thus en- able the creditor to withhold the property from the grantor? * * * I leave them [these questions] to be replied to by those who maintain that the title to property, real or personal, may, without words written or spoken, or other act of transfer, be thus mysteriously passed and repassed between parties by contract. I deny that it may be. It seems to me very plain that it does not pass in fact until the grantee has actually consented to receive it; and, as of course, that it remains with the grantor who is unable, without such consent, to vest it in the grantee. No other conclusion is consistent with the doctrine that a grant is a contract, and that the assent of the grantee is necessary to give it validity.” Dixon, C. J., in Welch v. Sackett, 12 Wis. 243, 289-290 (1860). But deeds of conveyance as such are not contracts, though in warranties, as- sumptions of indebtedness, etc., they may contain contracts. The problem of what constitutes delivery seems to be. the same for sealed contracts as for deeds of conveyance, not because deeds are contracts but probably because for @ long time they were regarded as being contracts, 30 CasEs oN THE LAW oF CoNTRACTS contract, which, if manifested and proved by some writing signed by the grantee, as required by the statute of frauds, is valid. * * * The late Henry W. Kingsbury was, as this case shows, not only a trustee of the property, for his sister, but he was an honest trustee. By the last act of his life, in this respect, he designed to, and did, admit the existence of the trust and endeavored to execute it. Immediately after his death his widow, one of the defendants, in a letter to the mother of her deceased husband, recognized and admitted the trust, so far as she was concerned, in the most express terms, and seemed distressed at the suggestion of any obstacle to its immediate execution. * * * The trust.being sufficiently manifested and proved by writings, signed by the party who was, by law, enabled to declare it, must be executed. . * * %& Decree [dismissing cross-bill to declare a trust] reversed. Z HUBBARD v. GREELEY et al. (Supreme Judicial Court of Maine, 1892. 84 Me. 340, 24 Atl. 799, 17 L. R. A. 511.) Action by Joshua G. Hubbard against Everard H. Greeley and others. Judgment for plaintiff. Watton, J.85 Whether the grantee named in a deed delivered as an escrow, who has wrongfully obtained it, and put it on record, can convey a good title to a bona fide purchaser, is a question in relation to which the authorities are in conflict, * * * But * * * the authorities all agree that a deed cannot be delivered directly to the grantee himself, or to his agent or attorney, to be held as an escrow; that, if such a delivery is made, the law will give effect to the deed immediately, and according to its terms, divested of all oral conditions. The reason is obvious. An escrow is a deed delivered to a stranger, to be delivered by him to the grantee upon the performance of some condition, or the happening of some contingency, and the deed takes effect only upon the second delivery. ‘Till then, the title remains in the grantor. And if the delivery is in the first instance directly to the grantee, and he retains the possession of it, there can be no second delivery, and the deed must take effect on account of the first delivery, or it can never take effect at all. And if it takes effect at all, it must be according to its written terms. Oral conditions cannot be annexed to it. It will therefore be seen that a delivery to the grantee himself is utterly inconsistent with the idea of an escrow. And it is perfectly well settled, by all the authorities, ancient and modern, that ‘an attempt to thus deliver a deed as an escrow cannot be successful ; that in all cases where such deliveries are made the deeds take effect im- mediately and according to their terms, divested of all oral conditions. 85 Portions of the opinon are omitted. SEALED CoNTRACTS 31 And it is equally well settled that, if the delivery is to one who is acting at the time as an agent or attorney of the grantee, the effect is the same. In Worrall v. Munn, 5 N. Y. 229, the delivery was to an agent of the grantee; and in Duncan v. Pope, 47 Ga. 445, the delivery was to the attor- neys of the grantee; and it was held in both cases that the deeds took effect immediately, divested of all oral conditions. And the same principle has been extended to official bonds. Ordinary of New Jersey v. Thatcher, 41 N. J. Law, 403; State v. Peck, 53 Me. 284. * ok OK It is easy to see, said the court in Miller v. Fletcher, 27 Grat. 403, that the most solemn obligations given for the payment of money would be of little value as securities, if they might, at a future day, be defeated by parol proof of conditions annexed to their delivery, and not performed; and that a doctrine of this kind would, perhaps, be still more mischievous, if applied to deeds of real estate; that, if such a doctrine should prevail, the title of the grantee would be liable to be defeated at any time by evidence of nonperformed parol conditions annexed to the delivery of the deed; and that in such cases there would be no safeguards against perjury or the mistakes of “slippery memory,” and all titles would be as unstable as sand upon the seashore.2é The principal contention in the present case is whether one of the deeds through which the defendants have derived their title was legally delivered. The deed is from George E. Seavey and Nathaniel H. Clark to Thomas Boyd and Robert W. Boyd. It is dated January 26, 1878, was acknowledged the same day, and recorded July 15, 1878. The plaintiff claims that this deed was delivered as an escrow, and, al- though acknowledged and recorded, never became operative. Upon the proofs in the case, we do not think such an attack upon the defendants’ title is permissible. The proof is that the deed was made and accepted in part payment of a debt owing from the grantors to the grantees, and that it was in fact delivered to one G. C. Bartlette, an attorney at law, who had been employed by the grantees to collect the debt; that Bartlette afterwards sent the deed by mail to the grantees, and that they caused it to be recorded; and that, at the time of the defendant’s purchase, the deed had been on record for more than eight years, its validity apparently uncontested and unchal- lenged. And it is admitted that the defendants are innocent purchasers for value, and, at the time of their purchase, had no notice of the condition of the title other than that disclosed by the record. Under these circum- stances, and for the reasons already given, we think the plaintiff is estopped to deny that the deed was legally delivered. We rest our decision upon the ground that the deed was, in fact, delivered to the grantees’ attorney as 86 Miller v. Fletcher, cited supra, has been repudiated in Whitaker & Fowle v. Lane, (Va.) 104 S. H. 252 (1920) which holds that a sealed contract and promis- sory notes may be delivered to the obligee and payee to become effective only on the happening of a specified condition. 32 Cases on THE Law oF ConTRACTS such, and that such a delivery is equivalent to a delivery to the grantee himself; and that, when such a delivery is made, it is not competent for the grantor, or those claiming under him by a subsequent conveyance, to show by oral evidence that a condition was annexed to the delivery, for the nonperformance of which the deed never became operative. It seems to us that to hold otherwise would render all deeds of little value as evidence of title. * * * Escrows are deceptive instruments. They are not what they purport to be. They purport to be instruments which have been delivered, when in fact they have not been delivered. They clothe the grantees with apparent titles which are not real titles. Such deeds are capable of being used to enable the grantees to obtain credit which otherwise they could not obtain. They are capable of being used to deceive innocent purchasers. And the makers of such instruments cannot fail to foresee that they are liable to be so used. And when the maker of such an instrument has voluntarily parted with the possession of it, and delivered it into the care and keeping of a person of his own selection, it seems to us that he ought to be respon- sible for the use that may in fact be made of it; and that in no other way can the public be protected against the intolerable evil of having our public records incumbered with such false and deceptive instruments. Another question is whether the deed conveys the whole, or only an un- divided half, of the grantor’s interest in the demanded premises. We think it conveys only an undivided half. The original deed is not before us. It is said to be lost. We have only an office copy. This copy contains these words: “Undivided half of one and also one other parcel of land, situated in said Eden,” etc. This is a bad sentence; but there is evidence tending to show that in the original deed the words “undivided half of” were inter- lined, and it is not improbable that in recording the deed they were mis- placed. It seems to us that such must have been the fact. But whether so or not, we have the words “undivided half” in the deed, and we cannot doubt that they were put there for a purpose, and that that purpose was to describe the interest conveyed. This construction of the deed entitles the plaintiff to judgment for one undivided sixth part of the demanded premises. Judgment for plaintiff for one undivided sixth part of the demanded premises, and no more.8" 87In Whittaker & Fowle v. Lane, (Va.) 104 S. E. 252 (1920), contra, Burke, J., for the court, pointed out that the doctrine that a deed cannot be delivered to the grantee to be held as an escrow, resting upon the statements in Coke on Littleton, and in Sheppard’s Touchstone, had been abandoned in England, had been modified in Virginia by permitting incomplete sealed instruments to be delivered on condition, had been made difficult of application by letting the grantor or obligor hand the sealed instrument to the grantee or obligee without making a delivery but only giving the instrument to him as custodian, and had been deprived of justification in reason, policy or expediency by the prac- tical similarity in informality of execution of scroll-sealed and unsealed writ- a SEALED CoNTRACTS 33 GODDARD’S CASE. GODDARD v. DENTON. (Court of Common Pleas, 1584. 2 Co. Rep. 5a.) Goddard, administrator of James Newton, brought an action of debt against John Denton, upon a bond made to the intestate, bearing date 4 April, 24 Eliz. The defendant pleaded, that the intestate died before the date of the bond, and so concluded that the said writing was not his deed, upon which they were at issue; the jury found, that the defendant did deliver it as his deed, 30 July, anno. 23 Eliz. and found the tenor of the deed in haec verba, Noverint universi, &c., dat. 4 Aprillis, anno. 24 Hliz.; and that the intestate was living 30 July, 23 Eliz. and that he died before the said date of the bond; and prayed the advice of the court, whether this was the defendant’s deed. And it was adjudged by Anderson, Chief Justice, Windham, Periam, and Walmesly, that it was his deed; and the reason of their judgment was,88 that * * * there are but three things of the essence and substance of a deed, that is to say, writing in paper or parchment, sealing and delivery * * * And when a deed is delivered it takes effect by the delivery, and not from the day of the date. And therefore be the deed without date, or of a false or ings. On the last point, the opinion concedes that “there may exist good reasons for retaining a scroll to certain instruments in order to dispense with consideration, or to extend the period of limitation” (104 S. E. at p. 263), but insists that the parol evidence rule alone should be applied to sealed and unsealed instruments alike. The opinion pointed out other departures in Virginia from the original common law rule, as follows: “Of course, it is admitted everywhere that it can be shown that there never was any delivery at all. In addition, we have held that a deed absolute on its face may be shown by parol to be a mortgage, which is nothing more than a condition for the payment of money (Holladay v. Willis, 101 Va. 274, 43 S. E. 619; Motley v. Carstairs, 114 Va. 429, 76 S. E. 948); that parol evidence will be received to show that a consideration expressed in a conveyance of land as paid by one was in fact paid by another, the effect of which is to create a resulting trust in favor of the party paying the money (Bank of U. S. v. Car- rington, 7 Leigh (34 Va.) 566; Jesser v. Armentrout, 100 Va. 666, 42 S. E. 681); that a deed absolute on its face may be shown to be subject to an expressed parol trust (Young v. Holland, 117 Va. 616, 84 S. E. 637); and that in suits for the specific performance of contracts for the sale of land it may be shown that the plaintiff is not entitled to have performance. This is placed on the ground that specific performance is not a matter of right, but of grace, and that the object of the evidence is to rebut an equity. This last proposition, though not expressly decided, appears to be a concession in Towner v. Lucas, 13 Grat. (54 Va.) 713.” (104 S. BE. at p. 262.) See Harry A. Bigelow, Conditional Deliveries of Deeds of Land, 26 Harv. L. Rey. 565. For cases on delivery to the grantee as an escrow, see 130 Am. St. Rep. 923, note; 16 L. R. A. (N. S.) 941, note. 38 Part of the reasoning is omitted. 34 Cases oN THE Law or ContTRACTS impossible date, yet the deed is good. * * * And many times bonds are delivered at other days than they bear date. So it appeareth by this judgment that the mistaking of the date of the bond shall not hurt, upon non est factum pleaded.%9 THOROUGHGOOD’S CASE. THOROUGHGOOD v. COLE. (Court of Common Pleas, 1582, 2 Co. Rep. 9a.) Thoroughgood brought an action of trespass for breaking of his close against Cole, defendant, who pleaded, that long time before the trespass, the plaintiff released to one William Chicken all demands whatsoever, &c., whose estate in the land the defendant hath, and justified the trespass, &e. The plaintiff said, that he was a layman, not lettered, and that at the time of the said release made, divers arrearages of an annuity were due to him by the said William Chicken, and that the said writing of release was read and declared to him as writing or acquittance for those arrearages only; and that he (giving credit thereunto) did seal and de- liver the same to the said William Chicken, and so, not his deed; upon which issue was joined; and the jury found a special verdict to this effect; , that is to say, that the plaintiff was a layman and not lettered, and that divers arrearages of the said annuity were behind, and that the writing was never read to him; but after that one Thomas Ward, had begun to read it to the plaintiff, and before he had read a line of the writing, one John Ward took the writing out of his hands, saying to the plaintiff, “Goodman Thoroughgood, you are ‘a man unlearned, and I will declare it unto you, and make you understand it better than you can by hearing it read;” and then said further to him, “Goodman Thoroughgood, the effect of it is this, that you do release to William Chicken all the arrearages of rent that he doth owe you, and no otherwise, and then you shall have your land again;” To which the plaintiff said, “If it be no otherwise, I am content;” and thereupon the plaintiff, giving credit to the said John Ward, delivered the said release to the said William Chicken; and whether this, upon the whole matter, be the plaintiff’s deed, the jury refer to the court, &. And it was adjudged, that it was not the plaintiffs deed; 39 “The time of delivery is the important time when it takes effect as a deed; and the case of Stone v. Bale, 3 Lev. 348, is in point to show that the delivery may be averred to be after the date.” Lord Ellenborough, C. J., in Hall v. Cazenove, 4 Hast 477, 481-482 (1804). Where a deed is acknowledged before an officer, there is a division of au- thority as to whether delivery should be presumed at the date of the deed or the date of the acknowledgment. : SEALED CONTRACTS 35 and in this case three points were resolved:* first, that although the party to whom the writing is made, or other by his procurement, doth not read the writing, but a stranger of his own head read it in other words than in truth it is, yet it shall not bind the party who delivereth it; for it is not material who readeth the writing, so as he who maketh it be a layman, and being not lettered, be (without any covin in himself) deceived; #4 * * * Thirdly, although the writing be not read to the party, yet if the effect be declared to him in other form than is contained in the writing and upon that he deliver it, he shall avoid the deed; for it is all one in law to read it in other words, and to declare the effect thereof in other manner than is contained in the writing. * * * J. M. WALKER, Administrator, 1. ROBERT WALKER. (Supreme Court of North Carolina, 1852. 13 Ired. L. [85 N. C.] 335.) This is an action of debt on a [sealed] single bill for forty dollars, and was tried on non est factwm, payment at and after the day. On the trial it appeared that it had been executed in 1830 to the intestate of the plaintiff, payable one day after date; that the defendant had always been able to pay the amount; and that it was presented to him in 1846, and payment demanded; that he denied its execution several times, but at last said to the holder, “If you will prove that it is my handwrite, and is a just note, I will pay it.” Two witnesses deposed that the signature ‘and the body of it was in the defendant’s proper handwriting. The defendant’s counsel moved the court to charge the jury that the plaintiff ought to prove that the said note had not been paid. The court declined so to charge, and told the jury, if the defendant promised to pay the note in question, if it were proved to be in his handwriting and a just note, and they were satisfied’ from the testimony that it was in the handwriting of the defendant, it was sufficient to remove the pre- sumption of payment; that where the execution of a sealed instrument was proved, the law inferred that it was just and founded upon a just 40 Portions of the resolutions are omitted. 41In Shulter’s Case, 12 Co. Rep. 90, John Shulter, 115 years old, who “could read and write very well, but by reason of his great age was blind,” sealed and delivered two leases on the false statement of the scrivener that they were in all points according to his directions. “And it was resolved by the Lord Elles- mere Chancellor, and the two Chief Justices, that the said indentures could not bind the said John Shulter for this, that he was blind and like to one who could not read at all.” In Hunter v. Walters, L. R. 7 Ch. App. 75, 81, Lord Hatherly, L. C., said: “In the early books we find Lord Coke saying that if a man is blind or illiterate, and an instrument is read over to him falsely, then the instrument is void. 2 Rep. 2b, 9a. This is a proposition which one would not be inclined to dispute when broadly laid down.” 36 Casres on THE LAw or CoNnTRACTS consideration. The jury returned a verdict for the plaintiff. Rule for a venire de novo, because of misdirection. Rule discharged. Judgment; and the defendant appealed to the Supreme Court. Pearson, J. His honor charged, “That where the execution of a sealed instrument was proved, the law inferred that it was just, and founded upon a just consideration.” In this there is error. We are not aware of any rule of law by which a consideration is in- ferred from the fact of execution of a sealed instrument. No considera- tion is necessary in order to give validity to a deed. It derives its efficacy from the solemnity of its execution—the acts of sealing and delivery—noi upon the idea that the seal imports a consideration, but because it is his solemn act and deed, and is therefore obligatory. No consideration being necessary to give validity to a deed, it follows that the law does not, from the fact of execution, make any inference one way or the other in reference to a consideration. A misapprehension of this subject may have arisen from the fact that in deeds of conveyance, operating under the statute of uses, either a valuable or a good consideration is necessary in order to raise the use. But the general rule is, a deed is valid without a consideration. A voluntary bond for money, executed to a stranger, and professing on its face to be without consideration, and for mere friend- ship, is binding.*# 42‘‘A bond needs no consideration. The solemn act of sealing and delivering is a deed, a thing done which, by the rule of the common law, has full force and effect, without any consideration. Nudum pactum applies only to simple con- tracts—deeds need no consideration, except such as take effect under the doc- trine of uses, or such as are made void by the statutes of Elizabeth, as against creditors and purchasers for valuable consideration, but are valid, as at com- mon law, between the parties.” Pearson, C. J., in Harrell v. Watson, 63 No. Car. 454, 456-457 (1869). “To say that the ‘want of consideration’ is a defence against a bond is to express, in language not remarkable for precision, nothing more than the familiar principle that where the obligor fails to receive the consideration con- tracted for, and on the faith of which he entered into the contract, he is not bound to pay his bond. This principle has no application whatever to the case before us, because no consideration was contracted for or expected. A voluntary bond, it is true, must be postponed until creditors are paid; but it. is always good against the party himself, and against heirs, legatees, and others who stand in no higher equity. 2 Williams on Executors, 871; 3 P. Wms. 228; 2 Mylne & K. 769. In this respect a simple contract differs from a specialty. In the one case the party is not bound without a consideration. 5 T. R. 8. In the other no consideration is necessary if none was contracted for. 17 Johns. Rep. 301.” Lewis, C. J., in Candor and Henderson’s Appeal, 27 Pa. St. 119, 120-121 (1856). “It was once gravely considered whether if a man accepted a dinner invita- tion on a paper indented and sealed with his seal, and failed to turn up, he could be sued for breach of contract; but as his legal position was in no wise altered, it was equally gravely asserted that he could not.” J. W. Brodie-Innes, Some Outstanding Differences Between English and Scots Law, 28 Jurid. Rev. at p. 74. 4 SEALED Contracts 37 Another view may be taken of the case. The defendant annexed to the promise, which is relied on to rebut the presumption of payment, two conditions precedent: First, proof of his handwriting; secondly, proof of its being a just note. But his Honor put the case to the jury in such a way as entirely to exclude the second condition and deprive the defendant of all benefit from it. He had as much right to the bene- fit of the second condition as of the first, and might well insist upon proof of the justness of the note; as, for instance, that:it should be proven what it was given for, the circumstances under which it was given, etc., so as to show that it was not obtained by fraud or surprise, and was in fact a “just note.” The promise is expressed in these words, “I will pay it, if you will prove that it is in my handwriting, and is a just note.” By a proper construction, the latter condition may have reference to the present as well as the past. If so, the defendant had a right to insist, not only upon proof that the note was just in its inception, but continued to be just; that is, had not been paid. The matter will then stand thus: Although the note was duly executed, the law presumes that it has been paid, and at the same time, according to the charge, the law, from proof of its execution, infers that it is just; that is, has not been paid—which inference is inconsistent and repugnant. This question of construction is not adverted to by his Honor, although it is presented by the exceptions. But it is said, according to this construction, the promise amounts to nothing. That may be so, and if so, it only shows that the defendant was cautious, and was careful to require proof sufficient to rebut the presump- tion of payment which the law made in his favor. Per Curiam. A venire de novo awarded. TOWNSHIP OF DANBY v. BEEBE, ET AL. (Supreme Court of Michigan, 1907. 147 Mich. 312, 110 N. W. 1066.) Action by the township of Danby against Henry O. Beebe and others on a bond whereby the defendants, farmers, living along a road which Jed to a stream flowing between two different townships, agreed to pay a certain sum into the bridge fund of the township in which they resided, if the construction of a bridge across the stream should be ordered by the supervisors on a petition by the township board of the other township. Judgment in favor of plaintiff, and defendants bring error. Reversed. OstranpEr, J.48 * * * No consideration, in fact, moved from the 43 The statement of facts is abbreviated and parts of the opinion are omitted. 38 CAsrs ON THE LAw oF CONTRACTS obligee to the obligors, and no burden has been assumed, or undertaking begun, by the obligee in reliance upon the bond. * * * There is ju- dicial precedent for the proposition that the statute (Comp. Laws, § 10,185), which provides that in any action upon a sealed instrument the seal thereof shall only be presumptive evidence of a sufficient con- sideration, which may be rebutted in the same manner and to the same effect as if such instrument were not sealed,** has no application in a case where a consideration, passing between the parties thereto, was never con- templated. Aller v. Aller, 40 N. J. Law, 446. The reasoning employed is that, no consideration for the promise having been contemplated, in the absence of fraud, illegality, or mistake, the rights of creditors not being involved, the law should, notwithstanding the statute, execute a promise made in a writing, sealed and delivered with the most solemn sanction known to the law; that, if such an instrument contained the recital that it was given upon no consideration, it would not for that reason be refused enforcement.*® See, also, Harris v. Harris’ Exr, 23 44 Some statutes abolish the common law effect of a seal. Local statutes should be consulted. 45 “Our statute concerning evidence (Rev., p. 380, § 16) which enacts that in any action upon an instrument in writing, under seal, the defendant in such action may plead and set up as a defence therein fraud in the consideration, is not applicable, for here there is no fraud shown. “But it is said that the act of April 6th, 1875 (Rev., p. 387, § 52), opens it to the defence of want of. sufficient consideration, as if it were a simple contract, and, that being shown, the contract becomes inoperative. The statute reads: ‘That in every action upon a sealed instrument or where a set-off is founded on a sealed instrument, the seal thereof shall be only presumptive evidence of a sufficient consideration, which may be rebutted, as if such instrument was not sealed,’ etc. “Suppose the presumption that the seal carries with it, that there is a sufficient consideration, is rebutted, and overcome by evidence showing there was no such consideration, the question still remains, whether an instrument under seal, without sufficient consideration, is not a good promise and enforceable at law. It is manifest that here the parties intended and understood that there should be no consideration. The old man said, ‘Now here, girls, is a nice present for each of you,’ and so it was received by them. The mischief which the above quoted law was designed to remedy, was that where the parties intended there should be a consideration, they were prevented by the common law from showing none, if the contract was under seal. But it would be going too far to say that the statute was intended to abrogate all voluntary contracts, and to abolish all distinction between specialties and simple contracts. “Tt will not do to hold that every conveyance of land, or of chattels, is void by showing that no sufficient consideration: passed when creditors are not affected. Nor can it be shown by authority that an exeoutory contract, entered into intentionally and deliberately, and attested in solemn form by a seal, can- not be enforced: * * * If a party has fully and absolutely expressed his intention in a writing sealed and delivered, with the most solemn sanction known to our law, what should prevent its execution where there is no fraud or illegality? But because'deeds have been used to cover fraud and illegality in the consideration, and just defences have been often shut out by the conclusive SEALED CoNTRACTS 39 Grat. (Va.) 73%. But the effect given to our statute has been stated to be one which with respect to the consideration places simple executory, and sealed executory, contracts upon the same footing. Green v. Lang- don, 28 Mich. 221, 226; Hobbs v. Electric Light Co., 75 Mich. 550, 42 N. W. 965. It must be held, in the light of the evidence, that the bond is a mere voluntary, gratuitous promise by the obligors to the obligee to pay a sum of money. Being so, it cannot be sustained as a gift in jurisdictions in which a seal may be impeached. 4 Am. & Eng. Ency. L. 665; Matter of James, 146 N. Y. 78, 40 N. E. 876, 48 Am. St. Rep. Wa Oe The judgment is reversed, and, as it appears that upon no theory can plaintiff recover, no new trial is awarded.*¢ NURSE wv. FRAMPTON. (Court of King’s Bench, 1695. 1 Ld. Raym. 28.) Nurse brought debt against Frampton for a certain sum of £25 due to Nurse by agreement by deed between the plaintiff and the defendant. Upon oyer of the deed it appeared to be thus, viz. ’tis agreed, that a grey character of the formality of sealing, we have enacted in our state the two re- cent statutes above quoted. The one allows fraud in the consideration of in- struments under seal to be.set up as defence, the other takes away the conclusive evidence of a sufficient consideration heretofore accorded to a sealed writing, and makes it only presumptive evidence. This does not reach the case of a voluntary agreement, where there was no consideration, and none intended by the parties. The statute establishes a new rule of evidence, by which the con- sideration of sealed instruments may be shown, but does not take from them the effect of establishing a contract expressing the intention of the parties, made with the most solemn authentication, which is not shown to be fraudulent or illegal. It could not have been in the mind of the legislature to make it im- possible for parties to enter into such promises; and without a clear expression of the legislative will, not only as to the admissibility, but the effect of such evidence, such construction should not be given to this law. - Even if it should be held that a consideration is required to uphold a deed, yet it might still be implied where its purpose is not within the mischief which the statute was intended to remedy. It was certainly not the intention of the legislature to abolish all distinction between simple contracts and specialties, for in the last clause of the section they say that all instruments executed with a scroil, or other device by way of scroll, shall be deemed sealed instruments. It is evident that they were to be continued with their former legal effect, except so far as they might be controlled by evidence affecting their intended consideration.” Scudder, J., in Aller v. Aller, 40 N. J. L. 446, 449-452 (1878). See also, 95 Am. Dec. 287, note. 46 “A formal instrument like the present, drawn up by lawyers and executed in the most solemn form known to the law, is less likely to be a vehicle for fraud than a parol contract based on a technical detriment to the promisee.” Holmes, J., in Krell v. Codman, 154 Mass. 454, 457 (1891). 40 Cases oN THE Law or CONTRACTS nag bought of J. 8. by Mr. Frampton shall run twenty-five miles in two hours time, for, &c., in witness whereof we have set our hands and seals, &e., omitting the names of the persons between whom this deed was made, but the plaintiff and defendant had signed the deed. And after demurrer the court was of opinion that inasmuch as the plaintiff and defendant had signed this, although it was not mentioned in the body of the deed, by whom or to whom it was made; yet it will warrant the declaration’s reciting, that it was made by the plaintiff and defendant. And judgment was given for the plaintiff.4” GREEN v. HORNE. (Court of King’s Bench, 1695. 1 Salk. 197.) In covenant the plaintiff declared, that A. being indebted to hin, and arrested at his suit, the defendant, in consideration that he would order the bailiff to let A. go at large, undertook and covenanted with the plaintiff to bring in the body of the said A. and deliver him into the custody of the said bailiff, such a day, &. The defendant prayed oyer of the deed, which was, I (the defendant) do promise and engage myself to bring in the body of A. to the custody of B. bailiff, such a day; and thereupon it was demurred. Ht per Cur. first, the plaintiff cannot set forth matter of fact in his declaration not contained in the deed, so as to alter the case; therefore, all such matter of fact so alleged or averred is imma- terial. 8 Rep. 151. 2dly, the plaintiff is no party to the deed, nor so much as named in it, and though covenant may be brought on a deed-poll, yet the party must be named in the deed. 1 Rol. Ab. 517.% 47 “If one party only be named as obligor in the body of a bond, and others sign it also, all are bound. In no other way can any effect be given to the signatures of those not so named. The intent is clear, and that is sufficient. Parks v. Brinkerhoff, 2 Hill (N. Y.) 663; Perkins v. Goodman, 21 Barb. (N. Y.) 218.” Swayne, J., in George v. Tate, 102 U. S. 564, 569 (1881). 48 “But it cannot be meant that his name of baptism and his surname must necessarily be set out. If he be sufficiently designated in the deed, this must be enough to entitle him to sue for breach of a covenant to pay money to the person so designated.” Lord Campbell, C. J., in Sunderland Marine Ins. Co. v. Kearney, 16 Q. B. 925, 988 (1851). If a party is named as grantee in a deed poll which contains covenants which purport to bind him, the nature of his obligation is in dispute. “How it came to be thought by the profession at an early day and to be handed down to the present, that an action of covenant might be maintained against the grantee in a deed poll under any circumstances, or against anyone else who had not sealed it, I cannot imagine. * * * This supposition had its root in the case obscurely stated in Co. Litt. 33la; but it is clearly shown by Mr. Platt, the only lawyer who has searched the original roll, that there has SEALED CoNnTRACTS 41 SCUDAMORE v. VANDENSTENE. (Court of King’s Bench, 1587. 2 Co. Inst. 673.) In an action of debt between Scudamore and others plaintifes and Vandenstene defendant, upon an indenture of charterparty the case was this: the indenture of charterparty was made between Scudamore and others owners of the good ship, called B., whereof Robert Pitman was master, on the one partie, and Vandenstene on the other party. In which indenture the plaintife did covenant with the said Vandenstene and Rob- ert Pitman, and also Vandenstene covenanted with the Plaintife and Robert Pitman, and bound themselves to the plaintife and Robert Pitman for performance of covenants in 600 pounds. And the conclusion of the said indenture was, “In witnesse whereof the parties abovesaid to these present indentures have put to their seals’ And the said Robert Pitman to the said indenture put his hand and seal, and delivered the same. The defendant in barre of the said action pleaded the release of Pitman, &c. whereupon the plaintife demurred. And it was adjudged, that the release of Pitman did not barre the plaintife, because hee was no party to the indenture. And the diversity was taken and agreed betweene an indenture reciprocall betweene parties on the one side, and parties on the other side, as this was; for there no bond, covenant, or grant can be made to or with any that is not party to the deed.4® But where the deed indented been a prodigious misconception of the language of Lord Coke, which was pred- icated, not of an action of covenant, but of an action of debt. * * * It ought to have occurred to them [the profession] that forms of pleading are touch- stones of the law, and that the most dexterous pleader would find himself un- able tc make a successful profert of a deed poll as the act of one who had not sealed it. Mutual covenants may be contained in the same instrument; but each party must seal and deliver his own exactly as if they were contained in several parts of it.” Gibson, C. J., in Maule v. Weaver, 7 Pa. St. 329, 331-332 (1847). See Taylor v. Forbes, 101 Va. 658 (1903), holding that the grantee’s obliga- tion is subject to the statute of limitations applicable to sealed contracts in- stead of that which applies to specialties. Cf. Lock v. Wright, post, p. 694. But see Midland Railway Co. v. Fisher, 125 Ind. 19 (1890). See note on lia- bility of grantee upon a condition of a deed poll in 23 L. R. A. 396. 49 “The rule and distinction as to deeds inter partes and deeds not of that character is very old, and to be found in the ancient legal authorities, but it is impoxsible to state or illustrate it more clearly than is done by Lord Tenterden in his Book on Shipping, p. 170. * * * He states the rule to be a technical one, and thus illustrates it: ‘If a charter-party under seal is expressed to be made between certain parties, as between A and B, owners of a ship whereof C is master of the one part, and D and E of the other part, and purports to con- tain covenants with C, nevertheless C cannot bring an action in his own name upon the covenant, and this even although he sealed and delivered the instru- ment; but if the charter-party is not expressed to be made between parties, but is written thus “This charter-party indented witnesseth” it is otherwise.’ He adds, ‘this latter then is the most proper form.’ In the case of Berkeley v. Hardy, 5 B. & C. 355, the same rule is laid down, and in the judgment it is 42 CASES ON THE LAW OF CONTRACTS is not reciprocall, but is without a between, &c. as, omnibus Christi fidelibus, Gc. there a bond, covenant, or grant may be made to divers severall persons. stated to be a long established technical rule and one believed to be peculiar to the law of England.” Martin, B., in Chesterfield & Midland Silkstone Colliery Co. v. Hawkins, 3 H. & C. 677, 692 (1865). “At common law a person though not a party to a deed poll, could sue upon it, if the instrument showed upon its face that it was made for his benefit, but this was not so as to a deed inter partes. The latter was only available between the parties to it and their privies, and a third person could not maintain an action of covenant upon it. Jones v. Thomas, 21 Gratt. 96; Stuart v. James River & K. Co., 24 Gratt. 274; Ross v. Milne, 12 Leigh 204; and Fellows v. Gil- man, 4 Wend. 414.” Riley, J., in Newberry Land Co. v. Newberry, 95 Va. 119, 120 (1897). In Saunders v. Saunders, 154 Mass. 337 (1891), where there was an inter partes sealed contract, recovery was denied to the widow of one of the cov- enantors who was suing the surviving covenantor on his covenant to pay to such person as might be the deceased covenantor’s widow certain sums. The court said that only those who are parties to contracts under. seal can sue upon them and that the instrument was objectionable as ‘An attempt to create a covenant to arise wholly in the future between the defendant and a party who at the time was unascertained, and from whom no consideration was to move and who was not in any way privy to the contract.” In a jurisdiction which will permit the beneficiary of a contract under seal to sue upon the contract, how- ever, the fact that the beneficiary will not be known, or even will not come into being, until some time after the contract, would not seem to be a sufficient ground for denying a recovery. CHAPTER II. THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT! HUDSON v. COLUMBIAN TRANSFER CO. (Supreme Court of Michigan, 1904. 187 Mich. 255, 110 N. W. 402, 109 Am. St. Rep. 679.) Action by Horace A. Hudson against the Columbian Transfer Com- ‘pany. Judgment for plaintiff. Defendant brings error. Affirmed. Monrecomery, J.* This action is brought to recover the value of goods stored with the defendant as warehouseman, and destroyed by fire. * * * In March, 1901, plaintiff made a contract to store the goods in question with defendant for hire, on the fourth floor of the building known as 21 and 23 Campau street. This statement is denied, but the question was submitted to the jury, and found in favor of the plaintiff. The plain- tiff thereupon took out insurance on his goods as located in the build- ing. known as 21 and 23 Campau street, but whether this fact was com- municated to the defendant is a matter of dispute; and, as this question was not submitted to the jury, the plaintiffs rights are to be deter- mined upon the assumption that notice of the insurance was not. given.. The goods were taken from plaintiff’s house, and were stored by defendant not in the building known as 21 and 23 Campau street, but in the [adjoin- ing] Hopson-Haftencamp building, where, without negligence on the part of the defendant, they were destroyed by fire. * * * 1“There are two modes of making simple contracts * * *. The one is, when one party promises to do a certain thing and in consideration of that promise the other party engages to do something on his part. Then as nothing is done but the making of the promises, it is absolutely necessary that mutual, valid promises, amounting to an express contract, should appear; otherwise one of the parties might claim the benefit of the promise of the other, without in return doing any act or being liable for any loss whatever. * * * The other mode is, when one party promises in consideration that the other will or will not do some act. Then no mutual promise need be set forth or exist; but it is necessary and sufficient to show the act done. It is not requisite that it _ Should appear the plaintiff might have been sued for not doing the act; for he may recover after the thing done, though it was at his election whether he would do it or not up to the moment of its execution.” Ruffin, C. J., in Gurvin v. Cromartie, 11 Ired. (N. C.) 174, 179 (1850). In an acceptance of a bilateral contract “The term ‘I accept’ fully expressed would read ‘I accept and promise.’” Ashley on Contracts, p. 86. * Parts of {he opinion are omitted. 43 44 Casts on THE Law oF CONTRACTS Complaint is made of the failure to present certain special questions to the jury. * * * The other questions asked for the defendant’s understanding of the agreement, and were preferred upon the theory that, as the minds of the parties must have met, the defendant’s failure of understanding would answer plaintiff’s claim of a contract. This is a fallacy. What is meant by “meeting of minds” is the agreement reached by the parties and ex- pressed. As is well said in Brewington v. Mesker, 51 Mo. App. 348, “The meeting of minds which is essential to the formation of a contract is not determined by the secret intentions of the parties, but by their expressed intention, which may be wholly at variance with the former.” See, also, 9 Cyc. 244; 9 Cyc. 578; Brown v. Hare, 3 H. & N. 484. The question then, is whether, under the facts as found by the jury, the plaintiff was entitled to recover. We think this question should be answered in the affirmative. The theory of the plaintiff’s case is that the defendant broke its contract of bailment, and subjected the property to a risk never contemplated by plaintiff, nor assumed or assented to by him. In such a case the rule is general that the bailee assumes the risk of the destruction of the property. The defendant was guilty of a tech- nical conversion of plaintiff’s property. See Lawson on Bailments, § 20; Martin v. Cuthbertson, 64 N. C. 328; Lane v. Cameron, 38 Wis. 603. A case precisely in point is that of Lilly v. Doubleday, L. R. 7 Q. B. 310, which case is cited with approval in Bradley v. Cunningham, 61 Céna. 485, 23 Atl. 9382, 15 L. R. A. 679, and followed in Line v. Mills, 12 Ind. App. 100, 39 N. BE. 870. * * * We discover no error in the case. Judgment affirmed? 2“I dare say few assured have any distinct view of their own on the point, and might not even see it, if it were explained to them, but what they intend contractually does not depend on what they understand individually.” Lord Sumner in Becker v. London Assur. Corp., 117 L. T. 609 (1918). “A contract has, strictly speaking, nothing to do with the personal, or in- dividual intent of the parties. A contract is. an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mistake, or something else of the sort. Of course, if it appear by other words or acts of the parties, that they attribute a peculiar meaning to such words as they use in the contract, that meaning will prevail, but only by virtue of the other words, and not because of their unexpressed intent.” Learned Hand, J., in Hotchkiss v. National City Bank of N. Y., 200 Fed. 287, 298 (1911). “To lead a person reasonably to suppose that you assent to an oral arrange- ment is to assent to it, wholly irrespective of fraud. Assent, in the sense of the law, is a matter of overt acts, not of inward unanimity in motives, design, or the interpretation of words.” Holmes, J., in O’Donnell v. Inhabitants of Clinton, 145 Mass. 461, 463 (1888). THE OFFER AND THE ACCEPTANCE or A SIMPLE ConTRACT 45 SPENCER v. SPENCER. (Supreme Judicial Court of Massachusetts, 1902. 181 Mass. 471, 63 N. B. 947.) Action by Sarah Jane Spencer against John Spencer. Judgment for defendant, and plaintiff brings exceptions. Sustained. Hormes, C. J. This is an action for personal services brought against the defendant by his sister, an unmarried woman. For a time she lived with him as his housekeeper for pay. Then he fell ill and ‘she kept on for two years, receiving no pay, or at most, five dollars, which was disputed, but on the contrary working out and using the money she earned for the support of the defendant and his children. The judge instructed the jury in substance that the plaintiff could not recover unless she had expected to be paid for her services and had believed that the defendant knew that See generally, Samuel Williston, Mutual Assent in the Formation of Con- tracts, 14 Ill. L. Rey. 85; George P. Costigan, Jr., Constructive Contracts, 19 Green Bag, 512, and Implied in Fact Contracts and Mutual Assent, 33 Harv. Law Rev. 376. See, also, Arthur L. Corbin, Offer and Acceptance and Some of the Resulting Legal Relations, 26 Yale L. J. 169. : A meeting of the minds of the parties, however, may be essential to a re- covery in chancery even though the lack of a meeting of minds may not be so serious as to prevent a contract from arising. “A court of equity will not enforce a contract which is uncertain and indefinite, or where, from all the evidence, there is grave doubt as to whether the minds of the parties really met. Even where there has been a mistake as to the terms of a contract, equity will not enforce it, if it is unreasonable, unconscientious, or a hard bargain that ought not to be enforced. In an early case this court decided that— ‘ “Upon breach of a contract for the sale of real estate, it is not a matter of course for the court to enter a decree of specific performance. That will be done only when upon all the facts it is equitable it should be done.’ Fowler v. Marshall, 29 Kan. 665, Syl. par. 1. “In another case it was held-that, while in legal contemplation two persons May make a contract that would be enforced at law, yet, if it should seem probable from the facts of the case that the parties did not in fact and equity agree to the same thing, the supposed contract would not be decreed in equity to be enforced specifically. Burkhalter v. Jones, 32 Kan. 5, 3 Pac. 559. In that case there was an offer to purchase and an agreement to sell land for the sum of $2,000. The court said, however, that in all probability the vendor at the time did not believe he was making a contract to sell the land for that sum, but believed that he was making a contract to sell the land for $2,100. The court below refused to order specific performance and the judgment was _afirmed. * * * “The opinion recognized that on the facts the case was a close one: “In strict law, and by the words of the letters of the parties, we think the parties made a contract; but we also think that in fact and in equity the minds of the parties never came together; that they really never agreed to the same thing; and therefore, in equity and good conscience, they did not make a contract, or at least they did not make such a contract as equity should adjudge to be specifically enforced.’ 32 Kan. 13, 3 Pac. 565. “The case was followed and approved in Bird v. Logan, 35 Kan. 228, 10 Pac. 564.” Porter, J., in Young v. Schwint (Kans.) 195 Pac. 614, 615, 616 (1921), 46 Cases on THE Law of ConTRACTS payment was expected for them, and unless the defendant had expected to pay for them and had believed that the plaintiff expected to have pay for them. The plaintiff excepted, and brings the case here after a verdict for the defendant. We have felt some doubt whether these instructions should be con- strued to mean anything more than that the parties must have under- stood that they were dealing on a business footing, in which case we should hesitate to sustain the exceptions merely because of a theoretical leak to which no attention was called. Even so construed the proposition would be inaccurate since it would be enough to make a contract if the defendant as a reasonable man ought to have understood that the services were rendered for pay and not merely for love. But we are of opinion that the language of the judge went further than we have suggested, and too far for us to save it, however, proper the verdict may seem to have been. Of course it does not matter whether the defendant expected to pay for the services or not, the question is as to the natural import of his overt acts. Manufacturing Co. v. Sawyer, 169 Mass. 477, 48 N. E. 620; Hobbs v. Whip Co., 158 Mass. 194, 197, 33 N. E. 495. Again, it is not neces- sary that the defendant should have believed that the plaintiff expected pay. If as a reasonable man he should have understood from what he knew that such was the expectation, he would be bound by accepting the services. Day v. Caton, 119 Mass. 513, 20 Am. Rep. 347.3 It is unneces- sary to criticise the ruling further. Exceptions sustained.* 3In Day v. Caton, supra, Devens, J., said: “If a person saw day after day a laborer at work in his field doing services, which must of necessity inure to his benefit, knowing that the laborer expected pay for his work, when it was perfectly. easy to notify him if his services were not wanted, even if a request were not expressly proved, such a request, either previous to or contemporaneous with the performance of the services, might fairly be inferred. But if the fact was merely brought to his attention upon a single occasion and casually, if he has little opportunity to notify the other that he did not desire the work and should not pay for it, or could only do so at the expense of much time and trouble, the same inference might not be made. The circumstances of each case would necessarily determine whether silence with a knowledge that another was doing valuable work for his benefit, and with the expectation of payment, indicated that consent which would give rise to the inference of a contract. The question would be one for the jury.” 4“In People v. Dummer, 274 Ill. 637, 640-641, 113 N. E. 934 (1916), Cartwright, J., said: ‘A contract may be implied where an agreement in fact is presumed from the acts of the parties, and this is the préper meaning of an implied contract. An illustration of such a contract is where one performs services for another under circumstances showing that they were not intended to be gratuitous and the services are accepted.’ “In Ramsden & Carr v. Chessum & Sons, 110 L. T. 274 (1913), Lord Chan- cellor Haldane said: ‘If A. brings goods to B. to be used in work which B. is doing, and B. knows that A. has brought them, not as a gift but as expecting to be paid for them, and B. uses these goods in his work, then prima facie B. is liable to pay the price of the goods.’ THE OFFER AND THE ACCEPTANCE oF A SIMPLE ConTRACT 40 YALE v. CURTISS. (Court of Appeals of New York, 1897. 151 N. Y. 598, 45 N. BE. 1125.) Action by Nellie E. Yale against William R. Curtiss. From the af- firmance of a judgment in favor of plaintiff (24 N. Y. Supp. 981), defendant appeals. Reversed. Haircut, J.+ This action was brought to recover damages for a breach of promise to marry. * * * The rule governing contracts of this character has been fully discussed in the case of Homan v. Earle, 53 N. Y. 267%. Formerly, contracts of this character were often inferred or implied: from proof of such circumstances as usually attend an engagement; but, after the statute was changed so as to permit parties to testify in their own behalf, they were expected to state all that was said and done, so as to remove from the field of speculation facts that had theretofore been inferred, thus leaving the court to deter- “In Wojahn v. National Union Bank, 144 Wis. 646, 667, 129 N. W. 1068 (1911), Marshall, J., said: ‘The general rule is that if a person performs valuable services for another at that other’s request, the law implies, as matter of fact, the making of a promise by the latter and acceptance thereof by the former to pay the one performing the service the reasonable value thereof [citations]. If one merely accepts services from another which are valuable to him, in general, the presumption of fact arises that a compensation equivalent is to pass between the parties, and the burden of proof is upon the recipient of the service to rebut such presumption if he would escape from rendering such equivalent. The burden may be much more easily lifted in such a case than in the case of there being a request for the performance. * * *’ “Professor Corbin has suggested that this true meeting-of-the-minds implied- in-fact contract is really one form of express contract. He says: ‘A contract implied in fact is a true contract based upon a real agreement of the parties. It differs from an express contract only in the evidence necessary to establish its existence and its terms. In reality a contract implied in fact is an express contract, for intentions can be expressed as clearly by actions as by words.’ Corbin, ‘Quasi-Contractual Obligations,’ 21 Yale L. J., 533, 546-547. No doubt that is a possible way of looking at them, but it is also possible to emphasize their inferred-as-a-fact nature, as the courts have done. The situation, there- fore, is not like that which existed when the courts were pronouncing the non- contractual obligations now known as quasi-contracts to be contracts implied in law and when the courts were, accordingly, demonstrably in error. Instead of dealing with a truth having only one aspect, as was the case in that instance, we have here a double-aspect truth. In a sense the inferred as a fact or tacit contract is expressed by conduct, but in a sense also it is implied-in-fact. It would seem to be hopeless, therefore, to attempt to get rid of the term implied- in-fact as applied to these true contracts enforced because of conduct expres- sions.” George P. Costigan, Jr., Implied in Fact Contracts and Mutual Assent, 33 Harv. L. Rev. 376, 382, n. On implication of agreement to pay for services rendered by relative or member of household, see 1 L. R. A. (N. 8.) 819, note; 11 L. R. A. (N. S.) 878, note; 8 Ann. Cas. 203, note. See, as between husband and wife, 15 L. R. A. 215, note, and, as between parties living in illicit relations, 29 L. R. A. (N. S.) 787, note; L. R. A. 1917 B, 683, note. {Parts of the opinion are omitted. 48 CASES ON THE LAW or CONTRACTS mine whether the facts sworn to constituted a contract. In determining this question, however, while we may not imply facts not sworn to, we may infer the meaning and intention of the parties. In the absence of fraud and deception, there must be a contract. There must be a meet- ing of the minds of the contracting parties, and the evidence must “be of such a character as to justify a finding that such was the case. No form of words is required. A formal offer and acceptance is not necessary, but there must be an offer and an acceptance “sufficiently disclosed or expressed to fix the fact that they were to marry, as clearly as if put in formal words.” The language used must be such as to show that the minds of the parties met. Contracts of marriage concern the highest interests of life, and should be sacredly guarded. If the conduct and declarations of the parties clearly indicate that they regard themselves as engaged, it is sufficient; otherwise, not. Mere courtship, or even an intention to marry, is not sufficient to constitute a contract. Thorough acquaintance with character, habits, and disposition is essential in order to make an intelligent contract. The parties, therefore, may form such an acquaintance without having the inférences of a contract attach. Ap- plying these rules to the facts of this case, it is apparent that the evi- dence falls short of that which is necessary to establish a contract. * * * Judgment reversed HIGGINS »v. LESSIG. (Appellate Court of Illinois, Second District, 1893. 49 Ill. App. 459.) Cartwricut, J.{ Appellant was the owner of a set of old double harness, worth perhaps $15.00, which was taken from his premises with- out his knowledge, and he offered a reward of $100 for the recovery of the harness and the conviction of the thief. A few days afterward a boy named Wilt found part of the harness in appellee’s berry patch, and appellant went with appellee to the place and brought that part of the harness into appellee’s blacksmith shop. Appellant gave the boy who had found the harness a quarter of a dollar, and said that he would give him a dollar to find the rest of it. Appellee claims that appellant at that time offered a reward of $100 to the one who would find out who the 5It has been held that if the defendant’s acts induced the plaintiff to believe that they were engaged and the defendant knew that plaintiff was acting on that belief and yet continued to act so as to induce that belief, he cannot avoid liability by showing that he did not intend an engagement. Stamm v. Wood, 86 Oré. 174 (1917). For a contract to exist it is not necessary to have “express words clearly expressed.” Zilske v. Grohn, 128 Wis. 159 (1906). + Part of the opinion is omitted. THE OFFER AND THE ACCEPTANCE or A SimpLte Contract 49 thief was, and that he earned the reward. This suit was brought to recover the amount so claimed as a reward, and a trial resulted in a verdict and judgment for appellee for $100. The evidence showed that the defendant was much excited on the oceasion, when it is claimed that the offer was made in the shop. Plain- tiff’s version of the language used was that the defendant said, “I will give $100 to any man who will find out who the thief is, and I will give a lawyer $100 for prosecuting him,’ using rough language and epithets concerning the thief. There was evidence of substantial repeti- tion of the same statement, together with the assertion that he would not hire a cheap lawyer, but a good lawyer. The harness had been taken by a man called Red John Smith, who had been adjudged insane, and a Mrs. Phillips told the plaintiff that she saw Smith walking by with the harness on his back, on Sunday morning which was the time when it was taken. Plaintiff watched Smith that night and saw him hiding the collars, and the next day he waited for the return of the defendant from Galesburg, and told him that Red John Smith had the harness. A search warrant was procured, and the remainder of the harness was found. We do not think that the language used was such as, under the cir- cumstances, would show an intention to contract to pay the reward, and think plaintiff had no right to regard it as such. Defendant had pre- viously offered a very liberal reward for the return of the old harness and the conviction of the thief. On this occasion he paid the boy only a trifling sum, and offered only $1 for finding the rest of the property. His further language was in the nature of an explosion of wrath against some supposed thief who had stolen the harness, and was coupled with boasting and bluster about the prosecution of the thief. It was indicative of a state of excitement so out of proportion to the supposed cause of it, that it should be regarded rather as the extravagant exclamations of an excited man than as manifesting an intention to contract.® 6 “We are constrained to believe that what is called an offered reward of $200, was nothing but a strong expression of his feelings of anxiety for the arrest of those who had so severely injured him, and this greatly increased by the dis- tracted state of his own mind, and that of his family; as we frequently hear persons exclaim, oh! I would give a thousand dollars if such an event were to happen, or vice versa. No contract can be made out of such expressions; they are evidence of strong excitement, but not of a contracting intention.” Turley, J., in Stamper v. Temple, 6 Humph. (Tenn.) 113, 115-116 (1845). The joke contract cases are of a similar nature. In McClung v. Terry, 21 N. J. Eq. 225 (1870) a marriage was annulled where the parties went through the ceremony in joke, even though -the justice who performed it was in doubt whether they were in earnest or in jest. But in Girvan v. Griffin, N. J. 108 Atl. 182 (1919), where the clergyman and the only witness who testified did not think that the parties were acting in jest, the court refused to annul the marriage. 3 “The transaction looks like * * * a bantering proposition by the plaintiff to the defendant, and wanting the intention to contract. * * * It is not every loose conversation that is to be turned into a contract although the 50 Cases on THE LAW or CoNTRACTS But if we concede that defendant’s language indicated an intention to contract to pay a reward, the plaintiff, although he obtained some definite knowledge by watching Smith, was neither the discoverer nor the first in- former as to the identity of the thief. The evidence was that other persons learned of facts which showed that Red John Smith had taken the har- ness and told the defendant of such facts before the plaintiff did. * * * The judgment will be reversed and the cause remanded. parties may seem to agree. A man is not to be snapped up for an unintended proposition made when he has no reason to suppose anybody wants io accept what he proposes. When people meet to do business they are presumed to mean what they propose, and expect to be taken up; but a proposition made and accepted where no expectation of contracting exists should be carefully weighed with all the circumstances when the question of assent at the time comes to be questioned, as here.” Thompson, J., in Brown v. Finney, 53 Pa. St. 373, 378 (1866). “Jokes are sometimes taken seriously by the young and inexperienced in the deceptive ways of the business world, and if such is the case and thereby the person deceived is led to give valuable services in-the full belief and expectation that the joker is in earnest, the law will also take the joker at his word and give him good reason to smile.” Dent, J., in Plate v. Durst, 42 W. Va. 63, 66-67 (1896) and “A person is estopped to deny the sincerity of his conduct, to the injury of a person misled thereby,” Id. p. 68. In Plate v. Durst a promise which the defendant declared made in jest was allowed to rebut the presump- tion of a gift of services rendered by plaintiff while a member of defendant’s household, that is, was allowed to uphold plaintiff's recovery on an implied in fact contract. In Thruston v. Thornton, 1 Cush. (Mass.) 89 (1848), Wilde, J., for the court, agreed with the trial judge that it was for the jury to decide whether “at the interview between the parties, their minds met, and they made a legal and binding contract; or whether the transaction, as was insisted by the defendant, was a loose conversation, not understood or intended by them as an agreement.” In Stollery v. Maskelyne, 15 T. L. R. 79 (1898), there was a dispute as to the meaning of an oral offer by a conjurer of £500 to any person who could dis- cover the secret of his box trick or produce a correct imitation of it. The dispute was as to the second branch of the offer, for defendant contended that the plaintiffs did not profess to have discovered his secret, but merely to have made a box by which they could produce an illusion similar to that produced by him. The jury having found a verdict for the plaintiffs for £500, the Court of Appeal dismissed an application for judgment or a new trial because the words were capable of bearing the meaning which the plaintiffs put upon them and therefore twelve reasonable men could properly come to the conclusion which the jury did. 7 In Balfour v. Balfour, [1919] 2 K. B. 571, the Court of Appeal held that a promise by a husband to his wife to pay her £30 a month to cover her esti- mated expenses was not contractual. Atkin, L. J., pointed out (pp. 578-579) that “it is necessary to remember that there are agreements between parties which do not result in contracts within the meaning of that term in our law. The ordinary example is where two parties agree to take a walk together, or where there is an offer and an acceptance of hospitality. Nobody would sug- gest in ordinary circumstances that those agreements result in what we know as a contract and one of the most usual forms of agreement which does not THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 51 SPENCER v. HARDING. (Court of Common Pleas, 1870. L. R., 5 C. P. 561.) The second count of the declaration stated that the defendants by their agents issued to the plaintiffs and other persons engaged in the wholesale trade a circular in the words and figures following: that is to say, “28 King Street, Cheapside, May 17th, 1869. We are instructed to offer to the wholesale trade for sale by tender the stock in trade of Messrs. G. Hilbeck & Co., of No. 1 Milk Street, amounting as per stock-book to £2,503. 13s. 1d., and which will be sold at a discount in one lot. Pay- ment to be made in cash. The stock may be viewed on the premises, No. 1, Milk Street, up to Thursday, the 20th instant, on which day, at 12 o’clock at noon precisely, the tenders will be received and opened at our offices. Should you tender and not attend the sale, please address to us, sealed and inclosed, “lender for Hilbeck’s stock.” Stock-books may be had at our office on Tuesday morning. Honey, Humphreys & Co.” And the defendants offered and undertook to sell the said stock to the highest bidder for cash, and to receive and open the tenders delivered to them or their agents in that behalf, according to the true intent and mean- ing of the said circular. And the plaintiffs thereupon sent to the said agents of the defendants a tender for the said goods, in accordance with the said circular, and also attended the said sale at the time and place named in the said circular. And the said tender of the plaintiff was the highest tender received by the defendants or their agents in that behalf. And the plaintiffs were ready and willing to pay for the said goods according to the true intent and meaning of the said circular. And all conditions were performed, &c., to entitle the plaintiffs to have their ‘said tender accepted by the defendants, and to be declared the purchasers of the said goods according to the true intent and meaning of the said circular; yet the defendants refused to accept the said tender of the plaintiffs, and refused to sell the said goods to the plaintiffs, and refused to open the said tender or proceed with the sale of the said goods, in ac- cordance with their said offer and undertaking in that behalf, whereby the plaintiffs had been deprived of profit, &c. Demurrer, on the ground that the count showed no promise to accept constityite a contract appears to me to be the arrangements [as to allowances] which are made between husband and wife * * * To my mind those agreements, or many of them, do not result in contracts at all and they do not result in contracts even though there may be what as between other parties would constitute consideration for the agreement. * * * They are net contracts because the parties did not intend that they should be attended by legal consequences. * * * They are not sued upon, not because the parties are reluctant to enforce their legal rights when the agreement is broken, but because the parties, in the inception of the arrangement, never intended that they should be sued upon. Agreements such as these are outside the realm of contracts altogether.” 52 Caszs on THE Law oF CoNnTRACTS the plaintiffs’ tender or sell them the goods. Joinder. Wittzs, J. I am of opinion that the defendants are entitled to judg- ment. ‘The action is brought against persons who issued a circular of- fering a stock for sale by. tender, to be sold at a discount in one lot. The plaintiffs sent in a tender which turned out to be the highest, but which was not accepted. They now insist that the circular amounts to a con- tract or promise to sell the goods to the highest bidder—that is, in this case, to the person who should tender for them at the smallest rate of discount; and reliance is placed on the cases as to rewards offered for the discovery of an offender. In those cases, however, there never was any doubt that the advertisement amounted to a promise to pay the money to the person who first gave the information. The difficulty sug- gested was that it was a contract with all the world. But that, of course, was soon overruled. It was an offer to become liable to any person who before the offer should be retracted should happen to be the person to fulfill the contract of which the advertisement was an offer or tender. That is not the sort of difficulty which presents itself here. If the circular had gone on, “and we undertake to sell to the highest bidder,” the reward cases would have applied, and there would have been a good contract in respect of the persons. But the question is, whether there is here any offer to enter into a contract at all, or whether the circular amounts to anything more than a mere proclamation that the defendants are ready to chaffer for the sale of the goods, and to receive offers for the purchase of them. In advertisements for tenders for buildings it is not usual to say that the contract will be given to the lowest bidder, and it is not always that the contract is made with the lowest bidder. Here there is a total absence of any words to intimate that the highest bidder is to be the purchaser. It is a mere attempt to ascertain whether an offer can be ob- tained within such a margin as the sellers are willing to adopt. Keating and Montacue SmituH, JJ., concurred. Judgment for the defendants.” 7In Grainger & Son v. Gough, [1896] A. C. 325, 333, Lord Herschell discussed the argument of counsel as to the effect of orders given by buyers who received price lists from the London agents of M. Louis Roederer, a wine merchant of Reims, France, who, in his arrangements with his agents, reserved the right to reject any particular order. Lord Herschell said: “He [counsel] called attention to certain price lists which were distributed by the appellants among persons likely to give orders, and contended that as soon as an order was given to them by a person receiving one of those lists a contract to supply the specified quantity at the price named in the list was complete, subject only to a right on the part of Roederer to disavow it. I think it impossible to accede to this contention. In my opinion, this would not be understood by any one in the trade to be the effect of giving an order for goods specified in such a price list. The transmission of such a price list does not amount to an offer to supply an unlimited quantity of the wine described at the price named, so that as soon as an order is given there is a binding contract to supply that quantity. If it were so, the merchant might find him- THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 53 DAVID SEARS, Jr., v. EASTERN RAILROAD COMPANY. (Supreme Judicial Court of Massachusetts, 1867. 14 Allen 433, 92 Am. Dec. 780.) : CuapMan, J. If this action can be maintained, it must be for the breach of the contract which the defendants made with the plaintiff. He had purchased a package of tickets entitling him to a passage in their cars for each ticket from Boston to Lynn. This constituted a contract between the parties. Cheney v. Boston & Fall River Railroad, 11 Met. 121; Boston & Lowell Railroad v. Proctor, 1 Allen 267; Najac v. Boston & Lowell Railroad, 7 Allen 329. The principal question in this case is, what are the terms of the contract? ‘The ticket does not express all of them. A public advertisement of the times when their trains run enters into the contracts, and forms a part of it. Denton v. Great Northern Railway, 5 El. & Bl. 860. It is an offer which, when once publicly made, becomes binding, if accepted before it is retracted. Boston & Maine Rail- road v. Bartlett, 3 Cush. 227. Advertisements offering rewards are illus- trations of this method of making contracts. But it would be unreasonable to hold that advertisements as to the time of running trains, when once made, are irrevocable. Railroad corporations find it necessary to vary the time of running their trains, and they have a right, under reasonable limitations, to make this variation, even as against those who have pur- chased tickets. ‘This reserved right enters into the contract, and forms a part of it. The defendants had such a right in this case. But if the time is varied, and the train fails to go at the appointed time, for the mere convenience of the company or a portion of their self involved in any number of contractual obligations to supply wine of a particular description which he would be quite unable to carry out, his stock of wine of that description being necessarily limited.” “And an invitation to prospective buyers to negotiate for a license [to sell defendant’s patented products] and to trade with the defendant, even when confined to a definite class, imposes no obligation on the sender of accepting any offer which thereafter might be received. The order of the prospective buyer does not ripen into a contract of sale until the defendant’s acceptance, and then only as to goods specifically ordered.” Braley, J., in Montgomery Ward & Co. v. Johnson, 209 Mass. 89, 91 (1911). —. “There may be offers not resulting, when the offer is accepted, in a contract. An excellent illustration of that proposition is offered by Spencer v. Harding, L.R.5 C. P. 561. * * * Applying the principles of that case to the present, is there a contract? In my opinion there is nothing more than a proclamation that an examination for a scholarship will be held, and there is no announce- ment that the scholarship will be awarded to the scholar who obtains the highest number of marks. Consequently by coming in and submitting to the examination [and getting the highest number of marks] the plaintiff did not do that which resulted in a contract.” Chitty, J.. in Rooke v. Dawson, [1895] 1 Ch. 480, 485-486. On the distinction between offer or acceptance and a preliminary step in negotiation, see 4 L. R. A. (N. S.) 177, note. a sat Me lib 54 Cases ON THE LAW.OF CONTRACTS expected passengers, a person who presents himself at the advertised hour, and demands a passage, is not bound by the change unless he has had a-reasonable notice of it. The defendants acted upon this view of their duty, and gave certain notices. Their trains had been adver- tised to go from Boston to Lynn at 9.30 Pp. M., and the plaintiff presented himself, with his ticket, at the station to take the train; but was there informed that it was postponed to 11.15. The postponement had been made for the accommodation of passengers who desired to remain in Boston to attend places of amusement. Certain notices of the change had been given; but none of them had reached the plaintiff. They were printed handbills posted up in the cars and stations on the day of the change, and also a day or two before. Though he rode in one of the morning cars from Lynn to Boston, he did not see the notice, and no legal presumption of notice to him arises from the fact of its being posted up. Brown v. Eastern Railroad, 11 Cush. 101; Malone v. Boston & Wor- cester Railroad, 12 Gray, 388. The defendants published daily adver- tisements of their regular trains in the “Boston Daily Advertiser,” “Post,” and “Courier,” and the plaintiff had obtained his information as to the time of running from one of these papers. If they had published a notice of the change in these papers, we think he would have been bound by it. For as they had a right to make changes, he would be bound to take reasonable pains to inform himself whether or not a change was made. So if in their advertisement they had reserved the right to make occasional changes in the time of running a particular train, he would have been bound by the reservation. It would have bound all pas- sengers who obtained their knowledge of the time-table from either of these sources. But it would be contrary to the elementary law of con- tracts to hold that persons who relied upon the advertisements in either of those papers should be bound by a reservation of the offer, which was, without their knowledge, posted up in the cars and stations. If the defendants wished to free themselves from their obligations to the whole public to run a train as advertised, they should publish notice of the change as extensively as they published notice of the regular trains. And as to the plaintiff, he was not bound by a notice published in the cars and stations which he did not see. If it had been published in the newspapers above mentioned, where his information had in fact been ob- tained, and he had neglected to look for it, the fault would have been his own. The evidence as to the former usage of the defendants to make oc- casional changes was immaterial, because the advertisement was an ex- press stipulation which superseded all customs that were inconsistent with it. An express contract cannot be controlled or varied by usage. Ware v. Hayward Rubber Co., 3 Allen 84. The court are of opinion that the defendants, by failing’ to give such notice of the change made by them in the time of running their train THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 55 on the evening referred to as the plaintiff was entitled to receive, violated their contract with him, and are liable in this action. Judgment for the plaintiff. 8It has been said that “The passing of a street railway car is the offer of a contract of transportation which is accepted by the passenger’s board- ing the car.” Brantly on Contracts, 2 ed., 22-23. “The printed schedule is an offer which was accepted by the plaintiff when he asked for a ticket, and he had a legal right to be transported by the first train stopping at Harrisburg. If the train arrives after schedule time or misses connection, or delivers a passenger at his destination after the schedule time, unless the delay is caused by no fault of the carrier, the passenger has a right to recover compensation for his loss of time and actual expenses.” Clark, C. J., in Coleman v. R. R., 188 N. C. 351, 354, (1905). But Professor Williston has pointed out (1 Williston on Contracts, § 32a) that the exception of delay without the fault of the carrier shows that the doctrine is erroneous, and that accordingly, “the obligation of the railroad to conform to its time table seems rather due to its obligations as a public service corporation, irre- spective of contract, than to an obligation voluntarily assumed.” The railroads have avoided the contract difficulty by printing on their time tables, “subject to change without notice.” ; In Mulligan v. Southern Rwy., 84 So. Car. 171, 175-6 (1909), Jones, C. J., said: “The carrier cannot by contract limit its common law liability for injury resulting from its negligence, but if the passenger has, or should have, knowledge that the schedules as published are not guaranteed by the carrier, he takes passage subject to such delays in making advertised schedules and connections as are not due to the negligence or wilful act of the carrier; but if the carrier negliently or wilfully fails to make the published schedules, the pas- senger injured thereby may recover damages.” . It seems judicially assumed that by inserting “Subject to change with- out notice” and other conditions in time tables, the railroads have eliminated the contract question raised in Sears v. Eastern Railroad Co. This is well illustrated in several English cases. In Driver v. London & North-Western Rwy. Co., 16 T. L. R. 293 (1900) railway tickets referred passengers to the time tables which contained a condition which A. L. Smith, L. J., summarized as stating that the defendants “would not undertake that the trains would arrive at the times stated in their time tables, nor would they be accountable for any loss or inconvenience or injury arising from delays or detention.” The validity of the condition was recognized by holding that in the absence of evidence of negligence on their part, the defendants were not liable. Similar conditions were held to form part of the contract of carriage in McCartan v. The North-Hastern Rwy. Co. 54 L. J. Q. B. 441 (1885); Prevost v. Great Eastern Rwy. Co., 13 L. T. R. 20 (1865); Thompson v. Midland Rwy. Co., 34 L. T. R. 34 (1875). But by such a contract the company cannot escape responsibility for its negligence. Buckmaster v. Great Eastern Rwy. Co., 23 L. T. R. 471 (1870). As was said in Prevost v. Great Eastern Rwy. Co., supra, by Crompton, J.: “The company expressly say, ‘We will not contract, and it shall not be taken as part of our duty, to guarantee the arrival of trains,’ but they go on to say, we will take the greatest care to insure punctuality. I think that the contract and duty is simply this, that they will use proper care and not be negligent” (p. 21). 56 Cases ON THE LAW or CoNTRACTS CHEROKEE TANNING EXTRACT CO. v. WESTERN UNION TELEGRAPH CO. (Supreme Court of, North Carolina, 1906. 143 N. C. 376, 55 S. HB. 777, 118 Am, St. Rep. 806.) Action by the Cherokee Tanning Extract Company against the Western Union Telegraph Company, for damages alleged to have been sustained through the negligence of the defendant in failing to transmit and deliver promptly a certain telegram. Judgment for plaintiff, and defendant appeals. Reversed, and partial new trial ordered. Brown, J. There is no dispute as to the material facts. The evidence shows: That on the 7th day of November, 1903. an agent of the Stand- ard Oil Company at Wilmington, N. C., wrote to the plaintiff at Andrews, N. C., a letter containing among other things, this request: “Kindly advise us by wire Monday if you can use about 1,500 creosote barrels be- tween now and January ist at 95 cents each delivered in car load lots.” That the plaintiff received this letter on Monday, November 9th, and at 7:30 Pp. m., of that day filed with the defendant, at its Andrews office, a message addressed to the Standard Oil Company, Wilmington, N. C., and reading as follows: “We accept your offer 1,500 barrels as per yours of the 7th.” This message was delivered to the sendee at 10:36 a. M., November 10th. At the same time it wrote to plaintiff, the oil company addressed a similar letter to the Brevard Tanning Company and others. The latter company purchased the barrels by telegram received by the oil company shortly before plaintiffs message. The plaintiff claims sub- stantial damage. Defendant requested the court to charge that plaintift was entitled to recover nominal damages only, to wit, the price paid for the telegram. We think this instruction should have been given. Damages are measured in matters of contract not only by the well- known rule laid down in Hadley v. Baxendale, 9 Exch. 341, but they must not be the remote, but the proximate, consequence of a breach of contract, and must not be speculative or contingent. Unless the reply of plaintiff by wire to the letter of the oil company created a contract between the two for the sale and delivery of 1,500 barrels at 95 cents each, then plaintiff can recover only nominal damages for any other damages would necessarily be purely speculative or contingent. The language of Bran- non, J., in a similar case in West Virginia is appropriate to this: “But the trouble facing the plaintiff in this case is that there was no final contract between the parties, but only a proposal for a contract, and there can be no contract without both a proposal and its acceptance. The failure of the telegram company did not cause the breach of a consummate contract; it only prevented one that might or might not have been made.” Beatty v. Tel. Co. (W. Va.) 44 S. E. 309. See, also, Hosiery Co. v. Tel. Co. (Ga.) 51 8. HE. 290 and Wilson v. Tel. Co. (N. ©.) 52S. EB. 153. The offer must be distinct as such, and not merely an invitation THE OFFER AND THE ACCEPTANCE oF A SIMPLE CONTRACT 57 to enter into negotiations upon a certain basis. Wire Works v. Sorrell, 142 Mass 442, 8 N. E. 332; Beaupre v. Tel. Co., 21 Minn. 155; 24 Am. & Eng. Enc. 1029, and cases cited. Again, the offer must specify the specific quantity to be furnished, as a mere acceptance of an indefinite offer will not create a binding con- tract. McCaw Mfg. Co. v. Felder, 115 Ga. 408, 41 S. E. 664; 24 Am. & Eng. Enc. 1030, note 1, and cases cited. “The offer must be one which is intended of itself to create legal relations on acceptance. It must not be an offer merely to open negotiations which will ultimately result in a contract.” 1 Page on Cont. § 26, and cases cited; Clark on Contracts, § 29. In Moulton v. Kershaw, 59 Wis. 316, 18 N. W. 172, 48 Am. Rep. 516, the defendants wrote to the plaintiff as follows: “In consequence of a rupture in the salt trade, we are authorized to offer Michigan fine salt in full car load lots of 80 to 75 barrels, delivered at your city at 85 cents per barrel to be shipped per C. & N. W. R. R. Co. only. At this price it is a bargain as the price in general remains unchanged. Shall be pleased to receive your order.” The plaintiff at once telegraphed the defendant: “Your letter of yesterday received and noted. You may ship me two thousand barrels Michigan fine salt as offered in your letter.” The defendant declined to deliver the sale and plaintiff sued for damages. The Supreme Court of Wisconsin, sustaining a demurrer to the complaint, held that the communication between the parties did not show a con- tract; that the letter of the defendants was not such an offer as plaintiff could by an acceptance change into a binding agreement.® See, also, Smith v. Gowdy, 90 Mass. 566. The letter from the oil company to the plaintiff was a mere inquiry. Walser v. Tel. Co., 114 N. C. 440, 19 S. E. 366. It was evidently a “trade inquiry” sent out by the oil company to customers, and did not purport and was not intended to be a legal offer binding on acceptance. “Care should be taken always not to construe as an agreement letters which the parties intended only as preliminary negotiations.” Lyman v. Robinson, 14 Allen (Mass.) 254, Again, the acceptance by the plaintiff was not in terms of the offer. The acceptance was for 1,500 barrels. The oil company could not have compelled the plaintiff to take a less number. If the plaintiff regarded the oil company’s letter as a valid offer, it should have replied that it would take what barrels the oil company had, not exceeding 1,500, as 9In Moulton v. Kershaw, cited supra, Taylor, J., for the court said: “They say, ‘We are authorized to offer Michigan fine salt,’ etc, and volunteer an opinion that at the terms stated it is a bargain. They do not say, ‘We offer to sell to you.’ They use general language proper to be addressed generally to those who were interested in the salt trade. It is clearly in the nature of an ad- vertisement or business circular, to attract the attention of those interested in that business to the fact that good bargains in salt could be had by applying to them, and not as an offer by which they were to be bound, if accepted, for any amount the persons to whom it was addressed might see fit to order. We think the complaint fails to show any contract between the parties.” 58 CASES ON THE LAW OF CONTRACTS that company had offered no exact specific number. “An acceptance to bind the other party must be unconditional and unqualified and must correspond exactly to the terms of the offer.” 24 Am. & Eng. Enc. 1031, 1032, and cases cited; 1 Parsons, Cont. 476, 477. As the plaintiffs mes- sage to the oil company seasonably delivered would not, of itself, have effected a legal contract between the plaintiff and the oil company for the delivery of 1,500 barrels at 95 cents each, it follows that any other than nominal damages would be purely speculative. The oil company might have delivered the barrels, and then, again, it might not have done so. It might have delivered 1,500, and again it might have delivered a much less number. Its letter specified no exact number and it was under no. legal compulsion to deliver any. As the defendant manifests its willingness to pay nominal damages, it is unnecessary to consider the exceptions to his honor’s rulings on the issue of negligence. We award a new trial upon the second issue relating to the damages. Partial new trial. 10 In Cox v. Denton, 104 Kans. 516 (1919), of a letter to plaintiff by one of the defendants for all, reading: “Do you want to buy 240 good 100 lb. [1000 Ib.] cattle at 8.25 must be sold py Friday. * * * Phone me at Wichita Ks.,” Dawson, J., for the court said: “But in all justice and good conscience, it must be said that the letter of inquiry was not an offer; it was merely a com- mon and practical inquiry to arouse the interest of one with whom preliminary negotiations and an eventual bargain might be made” (p. 262). See Smith v. Gowdy, 8 Allen (Mass.) 566 (1864); Lincoln v. Erie Preserving Co., 132 Mass. 129 (1882). In Davis v. Brigham, 56 Ore. 41 (1910), one Mitchell wrote Brigham in Mich- igan that one Davis of a certain lumber company had been looking over timber in Lane County, Oregon, where Mitchell and Brigham had land, and that “they will buy in there if they can get thirty or more claims at about $1500 or $1600 per claim” etc. Mitchell’s second letter was dated Aug. 19. On Aug. 25 Brigham wrote to Mitchell “Yours of the 19th relative to my quarter section near yours, I consider $1600 decidedly too small a price, but if mine is needed to develop the country I will let it go for that price provided it is taken within twenty days.” On Sept. 13th Mitchell wired Brigham: ‘Send deed in name of W. G. Davis to Dexter Horton & Co., bankers, Seattle, Wash., per your letter August 25.” Held, (1) Brigham’s letter of Aug. 25 was not an offer but an authoriza- tion to bring a purchaser; (2) Mitchell’s telegram was not an acceptance. In Sellers v. Warren, 116 Me. 350 (1917) to an offer which seemingly was that offeree should receive one-fourth of the purchase money named, the offeree tele- graphed “would not consider less than half.” Bird, J., said (pp. 353-4): “It cannot be held that a refusal to consider less than half is an offer to accept one- half. It is tantamount to saying that a party will consider, think or reflect upon such an offer of one-half, if made. The words are appropriate to the in- vitation rather than to the proposal of an offer.” THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 59 BOYERS & CO. v. D. & R. DUKE. (High Court of Justice in Ireland, King’s Bench Division. [1905] 2 Ir. Rep. 617, 3 B. R. C. 220.) Motion on behalf of the plaintiffs to set aside the verdict [directed by Wright, J.], and judgment entered for the defendants, and enter verdict and judgment for the plaintiffs for £29 13s. 9d and costs. Lorp O’Brizn, L. C. J.* The short question in this case is, whether these letters or documents which passed between the plaintiffs and the defendants constitute a completed contract—whether they amount to an offer and an acceptance of the offer, or to a quotation and an order? If they amount to the former, they constitute a contract; if to the latter, that is to say to a quotation and order, they do not constitute a contract. The action in which the question arises was brought by the plaintiffs against the defendants for alleged breach of contract for the supply of canvass. * ™ ™* The controversy arises, as I have said, upon the con- struction of the documents. My brother Wright, who tried the case, held that they did not constitute a completed contract, and we are of the opinion that he was right in so holding. What then, are these documents? The first is dated the 23rd February, 1904, from the plaintiffs to the defendants, and is in the following terms: “Please give us your lowest quotation for 3000 yards of canvas, 321% inches wide, to the enclosed sample, or near, and your shortest time for delivery, and oblige, etc.” Now, this is expressly a request for a quo- tation. The reply is dated the 24th February 1904, and is as follows: “We enclose sample, No. B3932, nearest we have to match yours, also enclosed. Lowest price, 3214 inches wide, is 45g¢d per yard, 36 inches measure. Delivery of 3000 yards in 5/6 weeks.” This, in my opinion, amounts only to a quotation. Certainly, quantity, price and time of delivery are stated, but I think it is nothing more than a statement of their ability to turn out the subject-matter at a certain price at a certain time, and not an offer to sell it at the price and to deliver it within the time mentioned. It amounted to nothing more, in my opinion, than a quotation in reply to a request for one. Now comes the third and last letter, which is said by the plaintiffs to be an acceptance of an offer to sell on certain terms. It is dated March the 8rd. I shall read it: “Messrs D. & R. Duke, Brechin, N. B. Gents, —Please get made for us 3000 yards of canvas, 3214 inches wide, as per your quotation, February 24th, at 45gd per yard; deliver same as quickly as possible. Also please quote us for same, 52 inches wide, for quantity of amount 20,000 yards annually. As we have not had the pleasure of doing business with you before, we give you as reference Messrs. Baxter Brothers, Dundee; Messrs. Richards, Ltd. Aberdeen. Canvas No. B. 3932. *The statement of facts and portions of the opinions are omitted. 60 Cases oN THE LAw or CoNTRACTS —(Signed) Boyers & Co. Also please quote us for canvas to sample enclosed, 52 inches wide, and oblige, B. & Co.” Is this an acceptance of an offer or an order? In my opinion it is not the acceptance of an offer, because the letter to which it was a reply was a quotation and not an offer. This letter is nothing more than it purports to be, namely, an order based on a quotation. The words are “Please get made for us 3000 yards of canvas, 3214 inches wide, as per your quotation, February 24th.” The first letter, that is to say, the letter of the 23rd February asked for a quotation; the letter of the 24th sent what was asked for; and the plaintiffs’ letter of the 3rd March expressly refers to the letter of the 24th, as “per your quotation February 24th.” Light is also thrown upon the true character of the letter of the 3rd March by the giving of references as therein, which is certainly far more compatible with the giving of an order or offer to purchase, than with a completed contract. -The words “as quickly as possible” in the letter of the 3rd March would perhaps point to an uncompleted contract, but I think this criticism is so minute that much weight is not to be attached to it. We are of the opinion that my brother Wright’s view was correct and that judgment should be for the defendants. Gizson, J. * * * It is suggested for the plaintiffs that defend- ants’ only reason for denying the existence of a contract is that there was a mistake in the price quoted. Whatever was the reason—whether mistake, rise of price, or otherwise—what we have to determine is whether there was a proposal to sell followed by an acceptance. It is very much a question of mercantile fact. * * * The case is a difficult one; but, taking all the circumstances together, * * * I am not satisfied that a concluded contract is made out. If the plaintiffs’ reference had proved unsatisfactory, could not the defendants have declined to execute the order? The letter of March 3rd following the letter of February 23rd is much more like an order, offered on the basis of a quotation, than the acceptance of a proposal to sell by which the plaintiffs understood the defendants to be bound. Mappen, J. The defendants in this case were asked for a “quo- tation”. Now the word “quotation” is capable of different meanings ac- cording to the connexion in which it is used, but there is a common idea underlying them all, that of notation and enumeration. The thing quoted may be passages in an author, the price of specific articles, or the terms upon which work is to be done. In the case before us both parties agree that the documents before us must be read and construed giving the words the ordinary meaning which they bear in the English language, having regard to the subject-matter to which they relate; for neither party has contended that evidence should have been taken as to the use of the word “quotation” in mercantile transactions. Tur OFFER AND THE ACCEPTANCE or A SIMPLE CONTRACT 61 A quotation might be so expressed as to amount to an offer to provide a definite article, or to do a certain work, at a defined price. But the ideas of a quotation, and of an offer to sell, are radically different. The difference is well illustrated by the case of Harvey v. Facey, [1893] A. C. 552. There, to a telegram in these terms, “Will you sell us B.H.P.? Telegraph lowest cash price,” the answer was returned, “Lowest price for B.H.P., £900.” The inquirer telegraphed, “We agree to buy B.H.P. for £900 asked by you.” An exceptionally strong judicial committee of the Privy Council, in a judgment delivered by Lord Morris, held that the statement, or quotation, of the lowest price at which a definite thing will be sold, does not import an offer to sell. The principle on which this case was decided applies with greater force to mercantile transactions than to an application for a statement of the price of a single parcel of land. It is a matter of common knowledge that quotations of prices are scattered broadcast among possible customers. Business could not be carried on if each such recipient of a priced cata- logue offering a desirable article—say a rare book—at an attractive price, were in a position to create a contract of sale by writing that he would buy at the price mentioned. The catalogue had probably reached many collectors. The order of one only can be honoured. Has each of the others who write for the book a right of action? Wholesale dealers have 11In Harvey v. Facey, Lord Morris said: “The first telegram asks two ques- tions. The first question is as to the willingness of L. M. Facey to sell to the appellants; the second question asks the lowest price, and the word ‘Telegraph’ is in its collocation addressed to that second question only. L. M. Facey re- plied to the second question only, and gives his lowest price. The third tele- gram from the appellants treats the answer of L. M. Facey stating his lowest price as an unconditional offer to sell to them at the price named. Their Lord- ships cannot treat the telegram from L. M. Facey as binding him in any re- spect, except to the extent it does by its terms—viz., the lowest price. Every- thing else is left open, and the reply telegram from the appellants cannot be treated as an acceptance of an offer to sell to them; it is an offer that required to be accepted by L. M. Facey. The contract could only be completed if L. M. Facey had accepted the appellant’s last telegram. It has been contended for the appellants that L. M. Facey’s telegram should be read as saying ‘yes’ to the first question put in the appellant’s telegram, but there is nothing to support that contention. L. M. Facey’s telegram gives a precise answer to a precise question—viz., the price. The contract must appear by the telegrams, whereas the appellants are obliged to contend that an acceptance of the first question is to be implied. Their Lordships are of opinion that the mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at that price to the persons making the inquiry.” In Knight v. Cooley, 34 Ia. 218 (1872) Beck, C. J. said: “The mere statement of the price at which property is held cannot be understood as an offer to sell. The seller may desire to choose the purchaser and may not be willing to part with his property to any one who offers his price.” See Smith v. Gowdy, 8 Allen (Mass.) 566 (1864). On naming price as‘an offer to sell or a quotation, see L. R. A. 1915 F, 824, note; 3 B. R. C. 229, note. 62 Cases ON THE Law oF CoNTRACTS not in stock an unlimited supply of the articles the prices of which they quote to the public at large. This stock usually bears some proportion to the orders which they may reasonably expect to receive. Transactions of the kind under consideration are intelligible and business-like, if we bear in mind the distinction between a quotation, submitted as a basis of a possible order, and an offer to sell which, if accepted, creates a contract, for the breach of which damages may be recovered. These observations seem to apply with special force to a quotation fur- nished by a manufacturer, in the position of the defendants, stating the terms on which he is prepared to work, as to price and time for com- pletion. He may receive and comply with many applications for quota- tions on the same day. If his reply in each case can be turned into a contract by acceptance, his looms might be burdened with an amount of work which would render it impossible for him to meet his engagements. In my opinion, a merchant, dealer, or manufacturer, by furnishing a quotation invites an offer which will be honored or not according to the exigencies of the business. A quotation based on current prices usually holds good for a limited time. But it remains a quotation on the basis of which an offer will not be entertained after a certain date.1# I have arrived at this conclusion irrespective of the terms of the letter of the 3rd March, as to which I will only say that it suggests to my mind that the writer knew well that he was giving an order, not accepting an offer for sale. [Motion to set aside judgment for defendants denied.] FAIRMOUNT GLASS WORKS v. GRUNDEN-MARTIN WOODEN- WARE CO. (Court of Appeals of Kentucky, 1899. 106 Ky. 659, 51 S. W. 196.) Action by the Grunden-Martin Woodenware Company against the Fair- ‘mount Glass Works to recover damages for breach of contract. Judgment for plaintiff, and defendant appeals. Affirmed. 12In Johnston Bros. v. Rogers Bros., 30 Ontario, 150 (1899), defendants wrote to plaintiffs who were bakers, about flour, saying, “We quote you, R. O. B. or F. O. B. your station, Hungarian $5.40 and strong Bakers $5.00, car lots only, and subject to sight draft with bill of lading.” Plaintiffs immediately telegraphed, “We will take two cars Hungarian at your offer of yesterday.” Defendants tele- graphed back the same-day, “Will accept advance of thirty on yesterday’s quotations.” It was held that there was no contract. After giving dictionary definitions of “quotation” and “quote” as “to give” or “to name” or “to state” “the current or market price of,” Falconbridge, J., said: “Now if we write the equivalent phrase into the letter—‘We give you the current or market price, F. O. B. your station of Hungarian Patent $5.40— can it be for a moment contended that it is an offer which needs only an acceptance in terms to con- stitute a contract?” THE OFFER AND THE ACCEPTANCE oF A SIMPLE ConTRACT 63 Hosson, J. 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 a case, either deliv- ered here, or f. 0. b. cars your place, as you prefer. State terms and cash discount. Very truly, Grunden-Martin W. W. Co.” ‘To this letter appellant answered as follows: “Fairmount, Ind., April 23, 1895. Grunden-Martin Wooden Ware Co., St. Louis, Mo.—Gentlemen: Replying to your favor of April 20, we quote you Mason fruit jars, complete, in one-dozen boxes, delivered in East St. Louis, Ill.: Pints $4.50, quarts $5.00, half gallons $6.50 per gross, for immediate acceptance, and shipment not later than May 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. Grunden-Martin W. W. Co.” In response to this telegram, appellant sent the following: “Fairmount, Ind., April 24, 1895. Grunden-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 10 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 24. This is the chief question in the case. The court below gave judgment in favor of appellee, and appellant has 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 that 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 transac- tion is not completed until the order so made is accepted. 7 Am. & Eng. Ene. Law (2d Ed.) p. 188; Smith v. Gowdy, 8 Allen 566; Beaupre v. 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 64 CasEs ON THE LAW or CONTRACTS 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 carloads of Mason green jars. * * * State terms and cash dis- count.” 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 ac- ceptance; * * * 2 off, cash in ten days,”—it must be deemed as in- tending 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. In 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 expresssion in appellant’s letter, “for immediate ac- ceptance,” 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 specifi- cations 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 23rd this morning, and telegraphed you in reply as follows: ‘Your letter 23rd 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, 60 days’ ac- ceptance, 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 9 cars we will send later. Grunden-Martin W. W. Co.” It is insisted for THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 65 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 the 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 express- ing the same idea. Appellant’s conduct would seem to confirm this evi- dence. } Appellant also insists that the contract was indefinite, because the quantity of each size of the jars was not fixed, that 10 car loads is too indefinite a specification of the quantity sold, and that appellee had no tight to accept the goods to be delivered on different days. The proof shows that “10 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. John- ston’s Heirs, 4 T. B. Mon. 253; Wheeler v. Railroad Co., 115 U. S. 34, 5 Sup. Ct. 1061, 1160. The petition, if defective, was cured by the judg- ment, which is fully sustained by the evidence. Judgment afirmed.'8 18In Philip & Co. v. Knoblauch, [1907] Session Cases 994, a merchant wrote to a firm of oil-millers, “I am offering today Plate linseed for January-February shipment, and have pleasure in quoting you 100 tons at 414, usual Plate terms. I shall be glad to hear if you are buyers and await your esteemed reply.” On the following day the oil-millers telegraphed: “Accept hundred January- February Plate” and confirmed this by a letter of the same date, in which, referring to their telegram, they wrote: “Thus buying from you 100 tons Plate linseed January-February shipment usual contract.” It was held that the merchant’s letter was an offer to sell and not merely a quotation of price and that this offer was accepted so as to constitute a concluded contract by the oil-miilers’ telegram, although it did not expressly refer to the condition of “usual Plate terms” mentioned in the offer. In that case the judges emphasized the words “await your esteemed reply.” As Lord Ardwell puf it: ‘The de- fender [in his letter] says, ‘I shall be glad to hear that you are buyers.’ This does not mean buyers in general, but buyers of the quantity specified at the price quoted, otherwise there would be no meaning in the phrase which fol- lows, ‘and await your esteemed reply’” (p. 998). 66 CasEs oN THE LAW or ContTRACTS BENTON v. SPRINGFIELD YOUNG MEN’S CHRISTIAN ASS’N. (Supreme Judicial Court of Massachusetts, 1898. 170 Mass. 534, 49 N. BE. 928, 64 Am. St. Rep. 320.) Action by &dward R. Benton against the Springfield Young Men’s Christian Association for breach of contract. Judgment for defendant, and plaintiff excepts. Exceptions overruled. AuuEN, J.14 The “notice to architects” issued by the defendant invited the plaintiff and other architects “to participate in the competition for plans, on the conditions” therein stated. One of these conditions was that “the committee reserve the right to reject any and all of the designs submitted.” According to the plaintiff’s offer of proof, he presented to the committee a full set of drawings of the proposed building. Other architects did the same. The committee thereupon, on May 19, 1893, passed a vote “that we proceed to examine drawings and specifications presented to us on basis of compliance with each and every requirement in our letter of invitation; and, after considering and discussing each requirement separately, a vote of the committee be taken as to which plan best meets the letter of requirements and the needs of the association, and that, on completion of this examination, we select the architect who has the largest number of votes.” The offer of proof also states that the committee “agreed that the person who should receive the greatest num- ber of votes should superintend the construction of the same.” This can mean only that they so agreed among themselves. The next day, another meeting of the committee was held, and the plaintiff was found to have received the greatest number of first marks in the competition. Afterwards, at this meeting, the committee voted to reject all the plans submitted, and to return them to their owners, and all the plans were rejected. Immediately after this vote had been passed, another vote was passed, that the plaintiff “be chosen architect in accordance with the vote of last night”; the words “vote of last night” having reference to the receipt of the greatest number of first marks. This vote remained upon the books of the defendant for 40 days without being changed, at the end of which time it was rescinded. The committee did not, as a com- mittee, communicate this vote to the plainiff, or ask him to act under it; but two members of the committee notified him that he had been appointed as architect of the building, and this fact was known to the secretary of the committee, and also to other members of the committee, who made no objections to the notification, and did nothing in regard to the matter until the time of passing the vote of rescission. On July 3, 1893, the plaintiff wrote a letter to the ‘committee claiming to act as architect, and saying that he had just heard that the committee had lately taken action which appeared to show their intention to deprive him 14 Part of the opinion is omitted. THe OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 67 of the position. The committee answered that no contract with him had been made. * * * It is. apparent, in the first place, that no contract arose out of the “notice to architects” and the presentation of plans by, the plaintiff, because the right to reject any and all of the designs submitted was ex- pressly reserved, and this right was exercised by a formal vote. The plaintiff, however, contends that his presentation of plans was an offer of his services as architect of the building, and that this offer was accepted by the vote of May 20th. There is nothing in the offer of proof to sup- port this position. The notice to architects called simply for the sub- mission of plans, with a description and explanation of them. Rejected designs were to be returned to their authors without any compensation. The plaintiff submitted drawings “in the manner specified.” There is nothing to show that either by express words or by implication, he offered or was understood to offer his services as architect, unless his plans should be accepted. The vote rejecting his plans rejected all that he had offered. The new vote that he be chosen architect was not an offer to him. It was not communicated to him by the committee, nor voted to be so communi- cated. Those members who gave notice of the vote to the plaintiff did not act for or by authority of the committee. Their notification was not official, and did not purport to be so. The vote did not specify any terms or duties in detail, and it was not in form or intention a contract or the offer of a contract. It was merely an initiatory step, signifying the in- tention or purpose of the committee, and was not an act by which they meant to be bound as by a contract. If the plaintiff had notified them at once that he would act as architect, in pursuance of their vote, they might have answered that their vote was not a proposal or offer to him. Shaw v. Stone, 1 Cush. 228, 244; Dunham v. City of Boston, 12 Allen 375; Sears v. Railway Co., 152 Mass. 151, 25 N. E. 98; Edgemoor Bridge Works v. Bristol County, 49 N. E. 918. If the plaintiff’s letter was sent after the formal rescission of the vote, the plaintiff would fail to maintain his case for the additional reason that his acceptance of an offer after it had been recalled would be too late. But the decision is not put upon that ground, because, upon the facts stated, the vote was not a proposal or offer to him, and he could not con- vert it into a contract by signifying his acceptance of it, even though he acted promptly. Exceptions overruled.t® 15“A proposition for a contract, to be competent to be accepted, must be communicated to the party with whom the contract is proposed. It will not be sufficient. that the latter acquired knowledge of it unless the knowledge is acquired with the express or implied intention of the proposing party. An owner of land, contemplating a sale thereof, might direct his stenographer or other agent to draft a contract for sale to a particular person on specified terms. If the owner has not communicated, or intended to communicate, the 68 Casrs oN THE Law oF ConTRACTS THE “SATANITA.” (Court of Appeal. [1895] P. 248.) The Mudhook Yacht Club having advertised a regatta to be held on the Clyde in July, 1894, the appellant entered his yacht the Satanita, and the respondent entered his yacht, the Valkyrie, for a first-class race in the regatta, each owner signing a letter to the secretary of the club undertaking that while sailing under the entry he would obey and be bound by the sailing rules of the Yacht Club Association. Those rules contained a number of regulations to be observed in races, and among them rule 18 which corresponded to art. 14 of the Regulations for Pre- venting Collisions at Sea. By rule 24, “* * * If a yacht, in conse- quence of her neglect of any of these rules, shall foul another yacht, or compel another yacht to foul, she shall forfeit all claim to the prize and, shall pay all damages.” By rule 32, “Any yacht disobeying or infringing any of these rules, which shall apply to all yachts whether sailing in the same or different races, shall be disqualified from receiving any prize she would otherwise have won, and her owner shall be liable for all dam- ages arising therefrom.” While sailing under the entry, the Satanita, without the actual fault or privity of the owner, broke the 18th rule and ran into and sank the Valkyrie. The respondent and the master and crew of the latter vessel brought an action in the Admiralty Division against the appellant claiming damages. The appellant paid into court a sum as the amount of damages for which he was answerable under the Merchant Shipping Act Amendment Act 1862, c. 63 s. 54, calculated at the rate of £8 per ton on the registered tonnage of the Satanita. Bruce, J., before whom the action was tried, held that even if there was a special contract binding the appellant, the words in the rules, “all damages” were not so express as to override the statutory limitation. Lorp EsHer, M. R.16 * * * Was there any contract between the proposed contract to that person, the latter having acquired knowledge thereof, could not, by acceptance, bring the owner into a contractual relation of sale. The owner might leave his uncommunicated draft in his agent’s hands without liability and retract his agency and abandon his plan at any time. Until communication there is no efficacious proposal which could be accepted.” Magie, Chancellor, in Jersey City v. Harrison, 72 N. J. L. 185, 189 (1905). So a vote of the managers of a school accepting the offer of one who had applied for the position of head teacher did not amount to an acceptance where the managers gave no instructions to any one to communicate the vote to the offeror and later rescinded the vote, although one of the managers did tele- graph him, without authorization but the day before the vote of rescission, that he had been selected as head master. Powell v. Lee, 99 L. T. R. 284 (1908). See Cozart v. Herndon, 114 No. Car. 252 (1894). 16 The statement of facts is taken from the report of the case in the House of Lords where it appears as Clarke v. Earle of Dunraven, and Mount-Harl, [1897] A. C. 59. The House of Lords affirmed the judgment of the Court of Appeal. Portions of the opinion of Lord Esher, M.R., of Lopes, L. J. and of Rigby, L. J. are omitted. THE OFFER AND THE ACCEPTANCE or 4 SimpLe Conrract 69 owners of those two yachts? Or it may be put thus: Did the owner of the yacht which is sued enter into any obligation to the owner of the other yacht, that if his yacht broke the rules; and thereby injured the other yacht, he would pay damages? It seems to me clear that he did; and the way that he has undertaken that obligation is this. A certain number of gentlemen formed themselves into a committee and proposed to give prizes for matches sailed between yachts at a certain place on a certain date, and they promulgated certain rules, and said: “If you want to sail in any of our matches for our prize, you cannot do so unless you submit yourselves to the conditions which we have thus laid down. And one of the conditions is that if you do sail for one of such prizes you must enter into an obligation with the owners of the yachts who are competing, which they at the same time enter into similarly with you, that if by a breach of any of our rules, you do damage or injury to the: owner of a competing yacht, you shall be liable to make good the damage which you have so done.” If that is so, then when they do sail, and not till then, that relation is immediately formed between the yacht owners. There are other conditions with regard to these matches which constitute a relation between each of the yacht owners who enters his yacht and sails it and the committee; but that does not in the least do away with what the yacht owner has undertaken, namely, to enter into a relation with the other yacht owners, that relation containing an obligation. Here the defendant, the owner of the Satanita, entered into a relation with the plaintiff Lord Dunraven, when he sailed his yacht against Lord Dunraven’s yacht, arid that relation contained an obligation that, if, by any breach of any of these rules, he did damage to the yacht of Lord Dunraven, he would have to pay the damages. Now thé defendant admits that his yacht, the Satanita, broke the rules. It is not material at present to consider which rule was broken, but, as a consequence of breaking the rule, his yacht ran into Lord Dunraven’s yacht and sank it. That is conceded. Now comes the question, What damage is he liable for? * |* * I know that the plaintiff has relied in a sense upon rule 24; but I think the governing rule in this case is rule 32, which runs as follows: “Any yacht disobeying or infringing any of these rules, which shall apply to all yachts, whether sailing in the same or different races,”—I do not construe that part of the rule because I do not think it is material— “shall be disqualified from receiving any prize she would otherwise have won”—that condition by which they have agreed with the committee, the persons who give the prizes, that they shall be disqualified from receiving any prize, does not affect the owners of other yachts. Now we come to this: “And her owner shall be liable for all damages arising therefrom.” Can that mean an obligation which they have undertaken to the com- mittee? If a yacht runs into one of the other yachts as was done on this occa- 70 CASES ON THE LAW OF CONTRACTS sion, how can that damage the committee? The committee have no in- terest in the yacht, they have not to pay for the loss of the yacht, and have nothing to do with the yacht, except that they have allowed her to run in the race for a prize; and if she won the race the committee has en- tered into an obligation to give her a cup, or money, or whatever it might be; but the committee is not damaged and cannot be damaged. Then who has the right to claim these damages? It seems to me clear that it is the owner of the yacht which has been sailing against this yacht, or at all events in the regatta. You must read in “to any other yacht which he may damage” for “all damages arising therefrom.” If rule 24 is looked at, it seems to me to make it clearer that that must be the meaning, be- cause it says: “If a yacht, in consequence of her neglect of any of these rules, shall foul another yacht,’—that is the thing which does the injury to the other yacht owner—‘“she shall forfeit all claim to the prize and-shall pay all damages.” What meaning are we to put upon these words, “all damages”? If it had been “shall pay damages” it would have been a futile rule, because if the rule was broken negligently the yacht owner would be liable to damages. Why is the word “all” put in? Nobody has been able to suggest any meaning to this word “all” except that it must be all the damages caused by the fouling. All the damages to whom? All the’ damages to the owner whose yacht has been injured. To my mind it is plain and clear. It is all damage caused to the owner of another yacht by reason of an injury having been done to that yacht. On the other hand, as the liability is for injury done to the yacht, if the yacht owner is going to make a present of valuable jewels to a lady after the race is over, and has the box containing them on his: yacht at the time, or is allowing a lady to be on board during the race, with boxes of dresses or jewels, or the like, I have no doubt that the loss of these jewels or dresses would be a thing which the other party could not contemplate as a possible result of what he was doing, and therefore he would not he liable. I cannot see how to construe that word “all” without saving that the effect of it is clearly to do away with the limitation contained in the Merchant Shipping Act. * * * J think, therefore, that this appeal must be allowed. Lores, L. J. * * * The questions are, first, was there a contract? secondly, what was the contract? * * * As to the first question, I have no doubt that there was a contract. Probably a contract with. the committee in certain cases, but also a con- tract between the owners of the competing yachts among themselves, anc that contract was an undertaking that the owner of one competing yacht would pay the owner of any other competing yacht injured by his yacht all the damages arising from any infringement or disobedience of the rules. In my opinion, directly an owner entered his yacht to sail, this contract arose; and it is clear that the owners of the Valkyrie and the Satanita did Tue OFFER AND THE ACCEPTANCE oF A SIMPLE ConTRACT V1 enter their respective yachts and did sail. Therefore, there was a con- tract, and under rule 32 damages became payable. * * * The case was suggested by counsel for the Satanita of a lady falling into the water and damaging her dress. It is said that, if we give this large econstruction to the word “all” we should be including a case like that; but the lady would not be a party to this contract, and therefore could not recover under this rule. I am of the opinion that the judgment of the learned judge in the court below must be reversed. Riesy, L. J. I am of the same opinion, and out of deference to the learned judge, will shortly state my reasons. The first question is that of contract or no contract. It appears to me that all that is necessary to constitute a contract between the yacht owners is to bring home to each of them the knowledge that the race is to be run under the Yacht Racing Association rules, and that they, the one and the other, deliberately enter for the race upon these terms. In this case we have a written document signed by each yacht owner, which, if there were any doubt at all, would render it abundantly clear that he was per- fectly well aware of the bargain he was entering into. In no other way than that does it appear to me to be material. The contract did not arise with any one, other than the managing com- mittee, at the moment that the yacht owner signed the document, which it was necessary to sign in order to be a competitor. But when the owner of the Satanita on the one hand, and the owner of the Valkyrie on the other, actually came forward and became competitors upon these terms, I think it would be idle to say that there was not then, and thereby, a contract between them, provided always that there is something. in the tule which points to a bargain between the owners of the yachts. Under tule 24, “If a yacht, in consequence of her neglect of any of these rules, shall foul another yacht, or compel other yachts to foul, she shall forfeit all claim to the price and shall pay all damages.” To whom is the owner of that yacht to pay those damages? He cannot pay them to the club, nor do I think the club could recover them. The true and sensible con- struction is that he must pay the owner of the yacht fouled. * * #* I agree that the judgment below must be reversed. Appeal allowed. ANDERSON et al. vu. WISCONSIN CENT. RY. CO. (Supreme Court of Minnesota, 1909. 107 Minn. 296, 120 N. W. 39, 20 L. R. A. (N. S.) 1133, 181 Am. St. Rep. 462.) Enuiorr, J.17 The Wisconsin Central Railway Company, having ac- quired certain real property in the city of Duluth through condemnation 17 Parts of the opinion are omitted. 2 Cases oN THE Law or CONTRACTS proceedings advertised that at a time and place stated the buildings thereon would be sold at public auction. Bids for a certain house had been made un- til the amount offered amounted to $675. Anderson then increased his bid, $5, making his offer $680. The auctioneer refused to consider this bid, because, as he stated, the amount of the raise was too insignificant. Aftere waiting for a time to give Anderson an opportunity to increase it, the auctioneer announced that the house was sold to the last previous bidder for $675. An entry of this sale was made by the auctioneer in his entry book, as required by section 2815, Rev. Laws 1905. Anderson demanded to know why the auctioneer had not accepted his bid, and on the same day he tendered the $680, and it was refused. Before this tender was made a bill of sale of the building had been executed and delivered to the party to whom the building had been knocked down. Anderson then brought this action for damages, and recovered a verdict for $1,500. The defendant appealed from an order denying its motion for judgment notwithstanding the verdict or for a new trial. The conflicting contentions of the parties arise out of fundamentally different conceptions of the nature of an auction. The appellant contends that the advertisement of a sale at auction is a mere declaration of intention which does not bind the owner to sell, or to sell to any particular bidder, and that the contract is not made until the bid is accepted. The complaint [of appellee, however,] * * * proceeds upon the theory that * * * a contract has its inception in the announcement or advertisement of the owner’s intention to sell the designated property at public auction to the highest bidder; that, unless the contrary is expressly stated in the an- nouncement, the sale is to be without reserve; that the bid of the highest bidder ‘is the acceptance of the offer; that the fall of the hammer is an announcement by the agent of the owner that he will wait no longer for.a higher bid; and that the one whose bid was highest when the hammer fell is the purchaser without reference to the action of the auctioneer in an- nouncing that some other bidder is the purchaser. Reduced to its lowest terms, this means that the offer to sell is made in the advertisement of intention to sell at auction, and that the contract is completed by the ac- ceptance of that offer by the bidder. There is some ground for this theory, but the decided weight of authority sustains the view that the announce- ment is a mere statement of intention to hold an auction, and that no contract of any character is made until the offer to purchase is accepted by the auctioneer. The jury, under proper instructions, found that the property was offered without express reservations as to the amount of the bids, that the bid of $5 was made in good faith, and that under the circumstances the amount was not so small as to justify the auctioneer in declining to consider it on that ground. No exceptions were taken to the instructions which sub- mitted these questions to the jury, and on this appeal we accept the con- clusions of the jury as final. The issue is also simplified by the fact that Tue OFFER AND THE ACCEPTANCE OF A SIMPLE ContTRACT 13 the case involves no question of puffing or by-bidding by the owner, or of fraud or misrepresentation in the announcement of the sale. For the purpose of the argument, we assume the correctness of the respondent’s claim that an advertisement or announcement of an auction sale which does not state limitations and conditions is equivalent to the announce- ment that the sale will be without reserve. The issue of law is thus clearly defined. , The custom of selling goods at auction is as old as the law of sale. In Rome military spoils were disposed of at the foot of the spear—sub hastio— dy auction, or increase. In later times we find a mode of auction called a “sale ‘by the candle,” or by the “inch of candle,” which consisted of offering the property for sale for such a length of time as would suffice for the burning of an inch of candle. In Holland they inverted the usual process, and put the property up at a price usually greater than its value, and then gradually lowered the price until some one closed the sale by accepting the offer and thus becoming the purchaser. In ancient Babylon the young women were sold at a public auction according to a method which combined the features of the Dutch and ordinary kinds of auctions. The group of prospective wives would ordinarily contain some who, by reason of personal beauty, were thought more desirable than others. The attractive ones were first sold to the highest bidders. When the supply of this quality was exhausted, those less favored by nature were offered and sold to the bid- ders who would take them with the least dowry, which was payable out of the money received from the sale of the beauties. Herodotus considered this custom very commendable. . In view of the general prevalence of the custom of selling by auction, it is remarkable that no very early cases are found in the English reports. The parent case of Payne v. Cave, 3 Term R. 148, was decided by Lord Kenyon, C. J., sitting at Guildhall in 1788. The plaintiff offered a distilling ap- paratus for sale, including a pewter worm, at public auction, on the usual conditions that the highest bidder should be the purchaser. There were several bidders for the worm, of whom Cave, who bid £40, was the last. The auctioneer dwelt on this bid for some time, until Cave said: “Why do you, dwell?. You will not get more.” The auctioneer stated that he was informed that the worm weighed at least 1,300 hundredweight, and was worth more than £40. The bidder then asked him if he would warrant it to weigh so much, and, receiving an answer in the negative, he declared that he would not take it. The worm was then resold on a subsequent day for £30, and an action was brought against Cave for the difference. Lord Kenyon ruled that the bidder was at liberty to withdraw his bid at any time before the hammer fell, and nonsuited the plaintiff. On motion to set aside the nonsuit, it was contended that a bidder is bound by the conditions of the sale to abide by his bid, and could not retract; that the hammer ig suspended, not for the benefit of the bidder, or to give him an opportunity for repenting, but for the benefit of the’seller; and that in thé 94 Casrs on THE LAW or ConTRACTS meantime the person who bid last is a purchaser, conditional upon no one bidding higher. But the court thought otherwise, and held that the auc- tioneer was the agent of the vendor, and that the assent of both parties was necessary to make the contract binding, and “that is signified on the partiof the seller by knocking down the hammer, which was not done here until the plaintiff had retracted.” “An auction,” said the court, “is not in- aptly called a locus penitentia. Every bidding is nothing more than an offer on one side, which is not binding on either side until assented to.” The idea that an action will lie for the breach of an implied undertaking to sell to the highest bidder was advanced in Warlow v. Harrison (1859) 1 El. & El. 309, and dicta supporting it will be found in Harris v. Nicker- son (1873) L. R. 8 Q. B. 288, Spencer v. Harding (1870) L. R. 5 C. P. 563, Re Agra & Masterman Bank (1867) 2 Ch. App. 391, 397, and Johnson v. Boyes, [1899] 2 Ch. 73. These cases assume that an offer to sell property at auction is indistinguishable from the case of an offer to the general public, such as a reward for the return of lost property, where it is held that contract rights are created in favor of one who complies with the conditions of the offer. Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q. B. 256: Anson, Contracts, p. 52. Langdell seems to be the only text-writer who takes this view of what the law should be. In his Summary of the Law of Contracts (page 24) it is stated that the correct view is “that the seller makes the offer when the article is put up, namely, to sell it to the highest bidder, and when a bid is made there is an actual sale, subject to the condition that no one else shall bid higher.” See note to Tillman v. Dun- man in 57 L. R. A. 784, 789. Warlow v. Harrison, the source of all the uncertainty, was an action against an auctioneer who had advertised that he would sell certain horses, the property. of a gentleman, “without reserve,” at auction. Warlow bid 60 guineas for one of the horses, whereupon the owner bid 61 guineas. Warlow refused to increase his bid, and the horse was announced as sold for 61 guineas to the owner. Warlow, claiming to be the highest good-faith bidder, tendered the amount of his bid to the auctioneer and demanded the horse, and on this being refused, brought an action against the auc- tioneer, alleging that the defendant was his agent to complete the contract, that he had refused to do so, and that he had thereby lost certain money in attending the auction and had been deprived of the benefit of his con- tract. The defendant pleaded (1) not guilty; (2) that the plaintiff was not the highest bidder; and (3) that the auctioneer did not become the bidder’s agent to complete the sale. The plaintiff recovered a verdict, but the Common Pleas (Lord Campbell, C. J., Wightman, J., and Erle, J.) ordered a nonsuit on the ground that the plaintiff’s allegation as to the agency of the defendant and the duty of the defendant to complete the contract on behalf of the plaintiff was not sustained. * * * (In the Ex- chequer Chamber the decision was affirmed; but, as the plaintiff might amend his declaration, the court discussed the merits of the case which THE OFFER AND THE ACCEPTANCE OF A SIMPLE CoNTRACT 75 might be made. Barons Martin, Byles, and Watson were of the opinion that the plaintiff was entitled to recover from the auctioneer, because the auction was announced to be “without reserve,” which meant that neither the owner nor any one in his behalf should bid at the auction, and that the property would be sold to the highest bidder, whether the sum bid was equivalent to the real value or not. On the principle which creates a contract between the loser of property who offers a reward for its return and the finder, or a railway company which advertises a time-table and one who purchases a ticket, it was said that an auctioneer who put the property up for sale upon such conditions pledges himself that the sale shall be without reserve, and that a contract is made with the highest bidder, who, in case of a breach thereof, has a right of action against the auctioneer. “We think,” said Baron Martin, “that the auctioneer has contracted that the sale shall be without reserve, and that the contract is broken upon a bid being made by or on behalf of the owner, whether it be during the time the property is under the hammer or it be the last bid upon which the article is knocked down. In either case the sale is not ‘without reserve’ and the contract of the auctioneer is broken. We entertain no doubt that the owner may, at any time before the contract is legally complete, interfere and revoke the auctioneer’s authority; but he does so at his peril. and if the auctioneer has contracted any liability in consequence of his employ- ment and the subsequent revocation or conduct of the owner he is entitled to be indemnified.” Baron Bramwell and Willes, J., preferred to rest the judgment upon the ground that the auctioneer had undertaken to have, and yet there was evidence that he had not, authority to sell without reserve. * * & In Harris v. Nickerson (1875) L. R. 8 Q. B. 286, the nature of the advertisement was considered, and it was held that it should be construed as a mere declaration of intention, which did not amount to a contract with any one who might act upon it, or constitute a warranty that the articles advertised would be offered for sale. Certain articles were not offered. and a party: who attended for the purpose of bidding brought an action to re- cover for his loss of time and expense. Blackburn, J., said: “This is certainly a startling proposition, and would be excessively inconvenient if carried out. It amounts to saying that any one who advertises a sale by publishing an advertisement becomes responsible to every one who.attends the sale for his cab hire and traveling expenses.” * * * The real point - in the case was brought out by Justice Archibald, who said: “This is an attempt on the part of the plaintiff to make a mere declaration of intention a binding contract. He has utterly failed to show authority or reason for the proposition. If a false and fravidulent representation had been. made, it would have been quite another matter. But to say that a mere advertise- ment that certain articles are to be sold at auction amounts to a contract to indemnify all who attend, if the sale of any part of the articles does not 76 CasEs oN THE Law or CoNTRACTS take place, is a proposition without authority or ground for supporting it.” a In Johnson v. Boyes, [1899] 2 Ch. 73, * * * it was held that the bidder had not complied with the conditions of sale, which required that the deposit should be in cash. This disposed: of the case; but the court stated that the action could have been maintained, had the deposit been tendered in cash and the highest bidder been refused the property. “A vendor,” said Cozens-Hardy, J., “who offers property for sale by action on the terms of the printed conditions can be made liable to a member of the public who accepts the offer, if these conditions be violated”—citing War- low v. Harrison, 1 El. & El. 295, and Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q. B. 256. But the doctrine of Warlow v. Harrison was never generally acquiesced in, and in Lord Halsbury’s Laws of England, vol. 1, p. 511 (n), doubt is expressed as to its correctness. * * * Sale of Goods Act 1893 (St. 56 & 57 Vict. c. 71) § 58 (2), provides that “* * * (2) a sale by auction is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner. Until such announcement is made; any bidder may retract his bid.” It was held in the Scotch case of Fenwick v. MacDonald, [1904] 6 F. (Ct. of Sess.) 850, that, whatever may have been the law formerly, this statute entitles a bidder to withdraw his bid at any time before the fall of the hammer, and the vendor must be equally free to withdraw his offer to sell, because one party cannot be bound while the other is free. But in the recent case of McManus v. Fortescue, [1907] 2 K. B. 1, some support was again given to Warlow v. Harrison. * * * In the United States a distinction has sometimes been made between ordinary private and judicial and official sales, but the only difference seems to be that the latter may require the approval of the court. Clifford, J., in Blossom v. Railway Co., 3 Wall. 196,18 L. Ed. 43. * * * It has been held that the highest bidder at a judicial sale is entitled, as a matter of law, to the property. State v. Johnston, 2 N. C. 293; McLeod v. McCall, 48 N. C. 89; Gilbert v. Watts-De Golyer Co., 169 Ill. 129, 48 N. E. 430, 61 Am. St. Rep. 154; Morton v. Moore, 4 Ky. Law Rep. 717.. But the decided weight of wathonited is otherwise. Knox y. Spratt, 19 Fla. 833; Rogers Co. v. Cleveland Co., 132 Mo. 458, 34 S. W. 57, 31 L: R. A. 335, 53 Am. St. Rep. 494; Davis v. McCann, 143 Mo. 178, 44 S. W. 795. See, also, Kneightley v. Bich, 3 Camp. 521. * * * The earnestness with which the respondent contends that the trial court ~ was right in holding that the contract was complete when the bid was made, conditional on there being no higher bid, hds induced us to make a some- what extended examination of the authorities. The result discloses the fact that there has been running through some of the English cases a recognized, but never applied, principle which would sustain the right of action in such a case as the present. But all the cases in which the doctrine is recognized : THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT Wy were decided on other grounds. No substantial support for the doctrine is found in the American cases. * * * On principle and authority the correct rule is that an announcement that a person will'sell his property at public auction to the highest bidder is a mere declaration of intention to hold an auction at which bids will be received; that a bid is an offer which is accepted when the hammer falls, and until the acceptance of the bid is signified in some manner neither party assumes any legal obligation to the other. At any time before the highest bid’ is accepted, the bidder may withdraw his offer to purchase or the auctioneer his offer to sell. The.owner’s offer to sell is made at the time through the auctioneer, and not when he advertises the auction sale. A merchant advertises that on a certain day he will sell his goods at bar-. gain prices; but no one imagines that the prospective purchaser, who visits the store and is denied the right to purchase, has an action for damages against the merchant. He merely offers to purchase, and if his offer is refused, he has no remedy, although he may have lost a bargain, and have incurred expense and lost time in visiting the store. The analogy between such a transaction and an auction is at least close. As the ad- vertisement in this case was a mere statement of intention to offer the property for sale at public auction to the highest bidder, the respondent’s bid did not complete either a contract of sale or a contract to make a sale. * * * The order is therefore reversed, with directions to enter judgment for the defendant.}8 COOKE v. OXLEY. (Court of King’s Bench, 1790. 3 Term Reports, 653.) This was an action upon the case; and the third count in the declaration, upon which the verdict was taken, stated that on, etc., a certain discourse was had, etc., concerning the buying of 266 hogsheads of tobacco; and on that discourse the defendant proposed to the plaintiff that the former should sell and deliver to the latter the said 266 hogsheads [at a certain 18‘See McPherson Bros. Co. v. Okanogan County, 45 Wash. 285 (1907): Freeman v. Poole, 37 R. I. 489 (1915). : Even if the conditions of sale prescribe that “no person shall retract his or her bid,” the bid, being only an offer, may be retracted before it is accepted by the fall of the hammer. Fisher v. Seltzer, 23 Pa. St. 308 (1854). By § 21 (2) of the Uniform Sales Act at an auction, until the fall of the ham- mer “any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless theauction has been announced to be without reserve.” Local statutes as to auction sales should be consulted. On right of action by highest bidder at auction sale for refusal of auctioneer to knock down property to him, see 16 Ann. Cas. 386, note. 78 Casts oN THE Law or CONTRACTS price]; whereupon the plaintiff desired the defendant to give him (the plaintiff) time to agree to or dissent from the proposal till the hour of four in the afternoon of that day, to which the defendant agreed; and thereupon the defendant proposed to the plaintiff to sell and deliver the same upon the terms aforesaid, if the plaintiff would agree to purchase them upon the terms aforesaid, and would give notice thereof to the defendant before the hour of four in the afternoon of that day; the plaintiff averred that he did agree to purchase the same upon the terms aforesaid, and did give notice thereof to the defendant before the hour of four in the after- noon of that day ; he also averred that he requested the defendant to deliver to him the said hogsheads, and offered to pay to the defendant the said . price for the same, yet that the defendant did not, etc. A rule having been obtained to show cause why the judgment should not be arrested, on the ground that there was no consideration for the defend- ant’s promise, Erskine and Wood now showed cause. This was a bargain and sale on condition ; and though the plaintiff might have rescinded the contract before 4 o’clock, yet not having done so, the condition was complied with, and both parties were bound by the agreement. The declaration considered this as a complete bargain and sale; for the breach of the agreement is for not delivering the tobacco, and not for not selling it. Lorp Kenyon, C. J. (stopping Bearcroft, who was to have argued in support of the rule). Nothing can be clearer than that at the time of entering into this contract the engagement was all on one side; the other party was not bound; it was therefore nudum pactum. Butuer, J. It is impossible to support this declaration in any point of view. In order to sustain a promise; there must be either a damage to the plaintiff, or an advantage to the defendant; but there was neither when the contract was first made. Then as to the subsequent time, the promise can only be supported on the ground of a new contract made at 4 o’clock; but there is no pretence for that. It has been argued that this must be taken to be a complete sale from the time when the condition was complied with; but it was not complied with, for it is not stated that the defendant did agree at 4 o’clock to the terms of the sale; or even that the goods were kept till that time. Grosz, J. The agreement was not binding on the plaintiff before 4 o'clock; and it is not stated that the parties came to any subsequent agreement; there is therefore no consideration for the promise. Rule absolute. 19In Routledge v. Grant, 4 Bing. 653, 660-661 (1828), Best, C. J., said: “Here is a proposal by the defendant to take property on certain terms— namely, that he should be let into possession in July. In that proposal he gives the plaintiff six weeks to consider; but if six weeks are given on one side to accept an offer, the other has six weeks to put an end to it. One party cannot be bound without the other. * * * These cases [Cooke v. Oxley, 3 THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT v9 THE BOSTON & MAINE RAILROAD v. BARTLETT. (Supreme Judicial Court of Massachusetts, 1849. 3 Cushing, 224.) This was a bill in equity for the specific performance of a contract in writing. ‘ ‘The plaintiffs alleged that the defendants on April 1st, 1844, being the owners of certain land situated in Boston, and particularly described in the bill, “in consideration that said corporation would take into considera- tion the expediency of buying said land for their use as a corporation, signed a certain writing, dated April 1st, 1844,” whereby they agreed to convey to the plaintiffs “the said lot of land, for the sum of $20,000, if the said corporation would take the same within thirty days from that date;” that afterward and within the thirty days, the defendants, at the request of the plaintiffs, “and in consideration that the said corporation agreed to keep in consideration the expediency of taking said land,” etc., extended the said term of thirty days, by a writing underneath the written contract above mentioned, for thirty days from the expiration thereof: that, on May 29th, 1844, while the extended contract was in full force, and un- rescinded, the plaintiffs elected to take the land on the terms specified in the contract, and notified the defendants of their election, and offered to pay them the agreed price (producing the same in money) for a convey- ance of. the Jand, and requested the defendants to execute a conveyance thereof, which the plaintiffs tendered to them for that purpose; and that the defendants refused toexecute such conveyance, or to perform the con- tract, and had ever since neglected and refused to perform the same. The defendants demurred generally. FLETCHER, J. In support of the demurrer, in this case, the only ground assumed and insisted on by the defendants is, that the agreement on their part was without consideration, and therefore not obligatory. In the view taken of the case by the court, no importance is attached to the considera- tion set out in the bill—namely, “that the plaintiffs would take into con- sideration the expediency of buying the land.” ‘The argument for the defendants, that their agreement was not binding, because without con- sideration, erroneously assumes that the writing executed by the defendants is to be considered as constituting a contract at the time it was made. The decision of the court in Maine in the case of Bean v. Burbank, 4 Shepl. 458, which was referred to for the defendants, seems to rest on the ground assumed by them in this case. In the present case, though the writing signed by the defendants was but an offer, and an offer which might 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, T. R. 653, and Payne v. Cave, 3 T. R. 148] have established the principle on which I decide—namely, that till both parties are agreed either has a right to be off.” 80 Cases on THE Law or CoNTRAOCTS but as soon as it was accepted, it ceased to be an offer merely, and then ripened into a contract. The counsel for the defendants is most surely in the right, in saying that the writing when made was without consideration, and did not therefore form a contract. It was then but an offer to contract, and the parties making the offer most undoubtedly might have withdrawn it at any time before acceptance. But when the offer was accepted, the minds of the parties met, and the contract was complete. There was then the meeting of the minds of the parties, which constitutes and is the definition of a contract. The accept- ance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the defendants. There was then nothing want- ing, in order to perfect a valid contract on the part of the defendants. It was precisely as if the parties had met at the time of the acceptance, and the offer had then been made and accepted and the bargain completed at once. A different doctrine, however, prevails in France and Scotland and Hol- land. It is there held that whenever an offer is made, granting to a party a certain time within which he is to be entitled to decide, whether he will accept it or not, the party making such offer is not at liberty to withdraw it before the lapse of the appointed time. There are certainly very strong reasons in support of this doctrine. Highly respectable authors regard it as inconsistent with: the plain principles of equity, that a person, who has been induced to rely on such an engagement, should have no remedy in case of disappointment. But whether wisely and equitably or not, the common law unyieldingly insists upon a consideration, or a paper with a seal attached. The authorities, both English and American, in support of this view of the subject, are very numerous and decisive; but it is not deemed to be needful or expedient to refer particularly to them, as they are collected and commented on in several reports as well as in the text-books. The case of Cooke v. Oxley, 3 T. R. 653, in which a different doctrine was held, has occasioned considerable discussion, and in one or two instances has probably influenced the decision. That case has been supposed to be in- accurately reported, and that in fact there was in that case no acceptance. But however that may be, if the case has not been directly overruled, it has certainly in later cases been entirely disregarded, and cannot now be con- sidered as of any authority. As therefore in the present case the bill sets out a proposal in writing, and an acceptance and an offer to perform, on the part of the plaintiffs, within the time limited, and while the offer was in full force, all which is ad- mitted by the demurrer, so that a valid contract in writing is shown to exist, the demurrer must be overruled. THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 81 THOMASON v. BESCHER. (Supreme Court of North Carolina, 1918. 176 N. C. 622, 97 S. E. 654, 2 A. L. R. 626.) Action by C. E. Thomason and J. F. Curry against J. C. and W. M. Bescher for specific performance of a sealed option which, for the expressed consideration of $1.00 the defendants Bescher, who were tenants in com- mon, gave to plaintiff Thomason, and in which the plaintiff Curry acquired prior to suit a one-half interest. The sealed option was given June 18, 191%, and was to purchase a certain tract of timber, roads and sawmill sites for $6,000.00, provided the option was exercised and payment rendered on or before August 18,1917. The jury found specially that the $1.00 recited in the option was not paid; that the plaintiffs notified one of the defendants prior to June 23, 1917, that they would take the timber, roads and mill sites and would be down the following week to pay the price and take the deed therefor; that the plaintiffs were at all times able and willing to pay the purchase price for the deed; but that the defendants on June 23, 1917, notified the plaintiffs that the option was withdrawn and that they would net convey. On August 7, 1917, plaintiff Thomason tendered the purchase price. The defendants’ evidence tended to show that before any accentance or notice thereof by the plaintiffs, the defendants had in writing notified plaintiffs that they elected to terminate the contract. Judgment on verdict for plaintiffs, and defendants excepted and appealed. Hoxg, J.29 It is the accepted principle of the common law that in- struments under seal require no consideration to support them. Whether this should rest on the position that a seal conclusively imports a considera- tion, or that the solemnity of the act imports such reflection and care that a consideration is regarded as unnecessary, such instruments are held to he binding agreements enforceable in all actions before the common-law courts. Speaking to the question in Harrell v. Watson, 63 N. C. 454, Pearson, C. J., said: “A bond needs no consideration. The solemn act of sealing and deliver- ing is a deed; a thing done, which, by the rule of the common law, has full force and effect, without any consideration. Nudum pactum applies only to simple contracts.” * * * _ While there is much diversity of opinion on the subject, we think it the better position and sustained by the weight of authority that the principle should prevail in reference to these unilateral contracts or options when, as in this case, they take the form of solemn written covenants under seal and its proper application is to render them binding agreements, irrevocable within the time designated, and that the stipulations may be enforced and made effective by appropriate remedies, when such time is reasonable and 20The statement of facts is rearranged and abbreviated and parts of the opinion are omitted. 82 CASES ON THE LAW OF CONTRACTS there is nothing offensive and unconscionable in the terms of the principal contract. In Watkins v. Robertson, 105 Va. 269, 54 8S. E. 33, 5 L. R. A. (N. 8.) 1194, 115 Am. St. Rep. 880, the question is directly presented, and in a convincing and learned opinion by Judge Cardwell the conclusion of the court on the subject is announced to the effect : “That an option under seal for the sale of shares in a joint-stock com- pany is a binding offer from which the promiser cannot recede during the time stipulated for in the option, and, if accepted during that time, con- stitutes a contract the specific performance of which a court of equity will compel. The option is in the nature of a continuing offer to sell, and, being under seal, must be regarded as made upon a sufficient consideration, and no proof to the contrary will be received at law or in equity.” In Willard v. Tayloe, 75 U. S. (8 Wall.) 557, 19 L. Ed. 501, Associate Justice Field delivering the opinion, it was held, among other things: “A covenant in a lease giving to the lessee a right or option to purchase the premises leased at any time during the term is in the nature of a con- . tinuing offer to sell. The offer thus made, if under seal, is regarded as made upon sufficient consideration, and therefore one from which the lessor is not at liberty to recede.” And the position is approved by other courts of the highest authority and by writers of established repute. O’Brien v. Boland, 166 Mlass. 481, 44 N. E. 602; Weaver v. Burr, 31 W. Va. 736, 8 8. FE. 743, 3 L. R. A. 94; McMillan v. Ames, 33 Minn. 257, 22 N. W. 612; Pomeroy on Contracts, § 3887, nete 1; 9 Cye. p. 287. * * * We are not unmindful of the position that, in equity causes, the court looks beyond the form and will usually refuse to exert its powers in aid of a sealed instrument, its collection and enforcement, except when there is a valuable consideration ; in our own court the case of Woodal v. Prevatt, 45 N. C. 199, being an apt illustration of the principle. But. these options, containing a continuing offer to sell and constituting a contract, binding on the parties because in the form of a covenant under seal, serve their purpose in keeping the offer open for the time specified and preventing a with- drawal by the vendor. On acceptance and offer to perform within the time, a bilateral contract is then constituted, which, on breach, is enforce- able by appropriate remedies, legal or equitable. And in case of action for specific performance the consideration is not restricted to the seal or the nominal amount usually present in these bargains, but extends to and includes the purchase price agreed upon. This position is recognized with us in the case of Ward v. Albertson, 165 N. C. 218, 222, 81 8. EB. 168. * * * On the same question in McMillan v. Ames, 33 Minn. 257, 22 N. W. 612, supra, Vanderburgh, Judge, delivering the opinion, said: “Tt is true that equity will not lend its auxiliary remedies to aid in the enforcement of a contract which is inequitable, or is not supported by a substantial consideration, but at the same time it will not on such grounds THE OFFER AND TIE ACCEPTANCE OF A SIMPLE CONTRACT 83 interfere to set it aside. But no reason appears why equity might not have decreed specific performance in this case (had the land not been sold), be- cause the substantial and meritorious consideration required by the court in such case would consist in-that stipulated in the instrument as the con- dition of a conveyance, performance of which by the plaintiff would have been exacted as a prerequisite to relief, so as to secure to defendant mutu- ality i in the remedy, and all his rights under the contract.” And see, also, Woodruff v. Woodruff, 44 N. J. Eq. 349, 16 Atl 4, 1 L. R. A. 380; 6 Pomeroy’s Eq. § 773. As heretofore stated, there are opposing decisions on the question, hold- ing that a written option without valuable consideration, though under seal, may be recalled at any time before notice of acceptance given.21, Some of these, as pointed out in Watkins v. Robertson, supra, are dependent on statutes which change or modify the effect given to seals under the prin- ciples of the common law. In others, there being nothing in the record to present it, the mind of the judges was not specially called to the distinc- tions existent and usually observable between a mere offer to sell without consideration and without seal and one that is effective as a binding agree- ment by reason of the seal. * * * So far as examined, we have found no case with us in which the question has been directly considered, and under the principles stated, and on the facts of this record, we are of opinion, and so hold, that the defendants are bound by their covenant under seal and not at liberty to withdraw their offer before the expiration of the (21 Among the cases holding that in equity, i. e., so far as specific performance is concerned, a sealed option is revocable, see Crandell v. Willig, 166 Ill. 233 (1899); Corbett v. Cronkhite, 239 Ill. 13 (1909); Storch v. Duhnke, 76 Minn. 521 (1899); Graybill v. Brugh, 89 Va. 985 (1893). In Crandall v. Willig, 166 Ill. 283, 239-240 (1897) Carter, J. said: “The contract in the case at bar was a mere option given by the Willigs to Wickersham to purchase the land in question within the time mentioned, and there was, before its acceptance, no consideration to support the contract. It was therefore within the power of the Willigs to withdraw this option at any time before their offer to sell was accepted. True the contract was under seal and purported to be based upon the nominal consideration of one dollar, but the evidence showed that there was in fact no consideration whatever, and it is well settled that in equity the real consideration may be inquired into, and the parties are not concluded by the recitals in the contract, though under seal. * * * Tt is clearly proved in this case that after the expiration of one year— the period which the Willigs claimed they understood the contract was to run— and before its acceptance by Wickersham, the Willigs refused to perform but declared it to be at an end, and so notified Wickersham. After they had repudiatéd it and had declared to him that they would never perform it, he sent them his written acceptance to which they paid no attention, and still later he assigned the contract to appellant. When therefore appellant received the contract, it had [in equity] no binding force.” The Illinois cases were based on a passage in Pomeroy’s Equity Jurispru- dence, but in the second edition (Vol. 5, p. 4934n) they are repudiated. A paid for option is irrevocable. Cummins v. Beavers, 103 Va. 230 (1904). 84 CasrEs ON THE LAW oF CONTRACTS time agreed upon. The verdict having established that, before any at- tempted withdrawal by defendants, plaintiff [Thomason] had notified one of the parties of acceptance, he would in any event be entitled to judgment as to that interest. And it further appearing that plaintiff has been at all times ready and able to comply, tendering the entire purchase money, at latest, by August 7th, that defendants refused to accept the same and deny any and all obligations under the alleged contract, plaintiff, as held in Ward v. Albertson and other cases of like import, is entitled to have specific performance as to both interests, and the judgment to that effect is affirmed. No error.?® 22 The nature of an option has been explained in many cases. The following are a few judicial statements: “There may be (1) a sale of lands; (2) an agreement to sell lands and (3) what is popularly called an ‘option.’ The first is the actual transfer of title from grantor to grantee by appropriate instrument of conveyance. The second is a contract to be performed in the future, and if fulfilled results in a sale. It is a preliminary to a sale, and is not the sale. Breaches, rescission, or release may occur by which the contemplated sale never takes place. The third, an option originally, is neither a sale nor an agreement to sell. It is simply a contract by which the owner of property (real estate being the species we are now discussing) agrees with another person that he shall have the right to buy his property, at a fixed price, within a time certain. He does not sell his land; he does not then agree to sell it; but he does then sell something, viz., the right or privilege to buy at the election or option of the other party. The second party gets, in presenti, not lands, or an agree ment that he shall have lands, but he does get something of value; that is, the right to call for and receive lands if he elects. The owner parts with his right to sell his lands, except to the second party, for a limited period. The second party receives this right, or rather, from his point of view, he receives the right to elect to buy.” De Witt, J., in Ide v. Leiser, 10 Mont. 5, 11 (1890). “The contract purported to be an option. It contained no promise to be per- formed by the optionee. It is conceded by plaintiff that nothing was paid therefor. The only consideration contended for * * * is amplified in the reply argument of appellant by a statement that he was promoting an addition which would include the tract in question and adjoining tracts, and that this was known to the contracting parties, and that he was also looking for pur- chasers for the tract. If a consideration for the option can be thus supplied with mere subsequent voluntary conduct of the optionee, then an option offer would seldom be revocable. It may be fairly presumed that every optionee does something after obtaining his option looking to his possible acceptance thereof. In Axe v. Tolbert, 179 Mich. 556, 146 N. W. 418, it was expressly held that: ““Time and money spent by a party in trying to sell property for which he holds an option cannot be construed as a consideration to the party from whom he has secured the option.’ “We agree with that view. . “An option without consideration [or a seal where seals have their common law effect] is a mere offer, and is not binding until its acceptance. It neces- sarily follows that it may be withdrawn before its acceptance. In Hopwood v. McCausland, 120 Iowa, 218, 94 N. W. 469, we said: “*An option is not a sale. It is not even an agreement for a sale. At best, it is but a right of election in the party receiving the same to exercise a priv- Tm OFFER AND THE ACCEPTANCE OF A SIMPLE CoNTRAOCT 85 ADAMS »v. LINDSELL. (Court of King’s Bench, 1818. Barnewall & Anderson, 681.) Action for non-delivery of wool according to agreement. At the trial at the last Lent assizes for the county of Worcester, before Burrough, J., it appeared that the defendants, who were dealers in wool at St. Ives, in the county of Huntington, had, on Tuesday, September 2d, 1817, written the following letter to the plaintiffs, who were woollen, manufacturers residing in Bromsgrove, Worcestershire. “We now offer you eight hundred tods of wether fleeces, of a good fair quality of our country wool, at 35s. 6d. per tod, to be delivered at Leicester, and to be paid for by two months’ bill in two months, and to be weighed up by your agent within fourteen days, re- ceiving your answer in course of post.’ This letter was misdirected by the defendants, to Bromsgrove, Leicestershire, in consequence of which it was not received by the plaintiffs in Worcestershire till 7 p. m. on Friday, September 5th. On that evening the plaintiffs wrote an answer, agreeing to accept the wool on the terms proposed. The course of the post between St. Ives and Bromsgrove is through London, and consequently this answer was not received by the defendants till Tuesday, September 9th. On Monday, September 8th, the defendants not having, as they expected, re- ceived an answer on Sunday, September 7th (which in case their letter had not been misdirected would have been in the usual course of the post), sold the wool in question to another person. Under these circumstances the learned judge held, that the delay having been occasioned by the neglect of the defendants, the: jury must take it that the answer did come back in due course of post; and that then the defendants were liable for the loss that ilege, and only when that privilege has been exercised by acceptance does it become a contract to sell.’ “There was not a moment prior to June 11th when the plaintiff was bound to anything under this option. He had parted with nothing, and had made no promises. There was therefore no consideration, and the option was revocable.” Evans, J., in Jester v. Gray, (Ia.) 175 N. W. 758, 760 (1920). “It is only when the vendee has made his election and complied or in good faith attempted to comply with the terms of the option, that it becomes a contract enforceable by him in equity. And it is strictly speaking, inaccurate to speak of the specific performance of an option; for before the remedy can be invoked it has ceased to be an option and has ripened into a mutually binding and mutually enforceable contract.” Helm, J., in Rude v. Levy, 43 Colo, 482, 487-488 (1908). “It is the established rule, both in law and equity, that time is of the essence of an option.” Carroll, J., in Morgan v. Forbes, (Mass.) 128 N. E. 792, 793 (1920). On rights conferred by a “refusal” or “option”, see 21 L. R. A. 127, note. On instrument for purchase of land as a contract or an option, see 3 A. L. R. 576, note. See Arthur L. Corbin, Option Contracts, 23 Yale L. J. 641. 86 CasEs ON THE Law oF CoNTRACTS had been sustained, and the plaintiffs accordingly recovered a verdict. Jervis having in Easter Term obtained a rule nisi for a new trial, oa the ground that there was no binding contract between the parties. Dauncey, Puller & Richardson showed cause. They contended that at the moment of the acceptance of the offer of the defendants by the plaintiffs the former became bound: And that was on the Friday evening, when there had been no change of circumstances. They were then stopped by the court, who called upon Jervis & Campbell in support of the rule. They relied on Payne v. Cave, 3 T. R. 148, and more particularly on Cooke v. Oxley, Ibid., 653. In that case Oxley, who had proposed to sell goods to Cooke, and given him a certain time at his request, to determine whether he would buy them or not, was held not liable to the performance of the contract, even though Cooke, within the specified time, had determined to buy them, and given Oxley notice to that effect. So here the defendants who have proposed by letter to sell this wool, are not to be held liable, even though it be now admitted that the answer did come back in due course of post. ‘Till the plaintiffs’ answer was actually received there could be no binding contract between the parties; and before then the defendants had retracted their offer by selling the wool to other persons. : But the court said that if that were so, no contract could ever be com- pleted by the post. For if the defendants were not bound by their offer when accepted by the plaintiffs till the answer was received, then the plain- tiffs ought not to be bound till after they had received the notification that the defendants had received their answer and assented to it. And so it might go on ad infinitum. The defendants must be considered in law as making, during every instant of the time their letter was travelling, the same identical offer to the plaintiffs, and then the contract is completed by the acceptance of it by the latter. Then as to the delay in notifying the acceptance, that arises entirely from the mistake of the defendants, and it therefore must be taken as against them that the plaintiffs’ answer was received in course of post. Rule discharged. DUNLOP v. HIGGINS. (House of Lords, 1848. 1 House of Lords Cases 381.) This was an appeal against a decree of the Court of Session, made under the following circumstances: Messrs. Dunlop & Co. were iron masters in Glasgow, and Messrs. Higgins & Co. were iron merchants in Liverpool. 28 “It seems to me to have been properly decided that a letter posted in one place and received in another has a continuous effect and speaks in the place where it is received.” Lindley, J., in Bennett v. Cosgriff, 38 L. T. R. (N. S.) 177, 178 (1878). Tre OFFER AND THE ACCEPTANCE OF A SIMPLE CoNTRACT 87 Messrs. Higgins had written to Messrs. Dunlop respecting the price of iron, and received the following answer: “Glasgow, January 22, 1845. “We shall be glad to supply you with 2000 tons, pigs, at 65s. per ton, net, delivered here.” Messrs. Higgins wrote the following reply:: Liverpool, January 25, 1845. “You say 65s. net, for 2000 tons pigs. Does this mean for our usual four months bill? Please give us this information in course of post, as we have to decide with other parties on Wednesday next.” On the 28th Messrs. Dunlop wrote: “Our quotation meant 65s. net, and not a four months bill.” This letter was received by Messrs. Higgins on January 30th, and on the same day, and by post, but not by the first post of that day, they dis- patched an answer in these terms: “We will take the 2000 tons pigs vou offer us. Your letter crossed ours of yesterday, but we shall be glad to have your answer respecting the addi- tional 1000 tons. In your first letter you omitted to state any terms, hence the delay.” This letter was dated “January 31st.” It was not delivered in Glasgow until 2 o’clock p. m. on February 1st, and, on the same day, Messrs. Dunlop sent the following reply: “Glasgow, February 1, 18-45.. “We have your letter of yesterday, but are sorry that we cannot now enter the 2000 tons pig iron, our offer of the 28th not having been accepted in course.” Messrs. Higgins wrote on February 2d to say that they had erroneously -dated their letter on January 31st, that it was really written and posted on the 30th, in proof of which they referred to the postmark. They did not, however, explain the delay which had taken place in its delivery.t Theiron was not furnished to them, and iron having risen very rapidly in the market, the question whether there had been a complete contract between the parties was brought-before a court of law. Messrs. Higgins instituted a suit in the Court of Session for damages, as for breach of contract. The defence of Messrs. Dunlop was, that their letter of the 28th, offering the contract, not having been answered in due time, there had been no such acceptance as would convert that offer into a lawful and binding contract; that their letter having been delivered at Liverpool before 8 0 ’elock in the morning of January 30th, Messrs. Higgins ought, according to the usual practice of merchants, to have answered it by the first post, which left Liverpool at 3 o’clock p. m. on that day. A letter so dispatched would be due in Glasgow at 2 o’clock p. m. on January 31st; another post left Liver- pool for Glasgow every day at 1 o’clock a. m., and letters to be dispatched by t+ At the trial it appeared that because of the slippery state of the roads from frost the mail bag did not arrive at the station on the 30th until after the departure of the down train that should have conveyed it. 88 CASES ON THE LAW OF CONTRACTS ‘that post must be put into the office during the preceding evening, and if ‘any letter had been sent by that post on the morning of the 31st, it must have been delivered in Glasgow in the regular course of post at 8 o’clock in the morning of February 1st. As no communication from Messrs. Hig- gins arrived by either of these posts, Messrs. Dunlop contended that they were entitled to treat their offer as not accepted, and that they were not bound to wait until the third post delivered in Glasgow at 2 o’clock p. m., of Saturday, February 1st (at which time Messrs. Higgins’ letter did actu- ally arrive), before they entered into other contracts, the taking of which would disable them from performing the contract they had offered to Messrs. Higgins. The cause came before Lord Ivory, as Lord Ordinary, who directed an issue. The counsel for Messrs. Dunlop tendered exceptions. These exceptions were afterward argued before the judges of the First Division, who pronounced an interlocutor, disallowing the exceptions; and that interlocutor was the subject of the present appeal. The Lord Chancellor [Lord Cottenham].2* * * * I do not think that, in the facts of the case, there is anything to warrant the appeal. The con- test arises from an order sent from Liverpool to Glasgow, or rather a proposition sent from Glasgow to Liverpool, and accepted by the house at Liverpool. It is unnecessary to go earlier into the history of the case than the letter sent from Liverpool by Higgins, bearing date of January 31st. A proposition had been made by the Glasgow house of Dunlop, Wilson & Co., to sell 2000 tons of pig iron. The answer is of that date of January 31st: “Gentlemen, we will take the 2000 tons, pigs, you offer us.” An- other part of the letter refers to other arrangements; but there is a distinct and positive offer to take the 2000 tons of pigs. To that letter there is annexed a postscript in which they say: “We have accepted your offer un- conditionally, but we hope you will accede to our request as to delivery and mode of payment by two months bill.” That, my Lords, therefore, is an unconditional acceptance, by the letter dated January 31st, which was proved to have been put into the post-office at Liverpool on the 30th; but it was not delivered, owing to the state of severe frost at that time, which delayed the mail from reaching Glasgow at the time at which, in the ordinary course it would have arrived there. The letter having been put in on January 30th, it ought to have arrived at Glasgow on the following day, but it did not arrive till the 1st of February. It appears that between the time of writing the offer and February 1st, the parties making the offer had changed their minds; and instead of being willing to sell 2000 tons of pig iron on the terms proposed, they were anxious to be relieved from that stipulation, and on that day, February 1st, they say: “We have yours of yesterday, but are sorry that we cannot enter the 2000 tons of pig iron, our offer of the 28th not having been accepted in course.” ’ 24 The statement of facts is abbreviated and parts of the opinion are omitted. Tur OFFER AND THE ACCEPTANCE OF A SIMPLE CoNTRACT 89 Under these circumstances, the parties wishing to buy, and by their letter accepting the offer, instituted proceedings in the Court of Session for damages sustained by the non-performance of the contract. And the first question raised by the first exception applies not to the summing up of the learned judge, but to the admission of evidence by him. * * * The exception is that the learned judge was wrong in permitting the pursuer to explain his mistake [in dating January 31 the letter written and posted on the 30th]. The proposition is, that if a man is bound to answer a letter on a particular day, and by mistake puts a date.in advance, he is to be bound by his error, whether it produces mischief to the other party or not. It is unnecessary to do more than state this proposition in order to induce you to assent to the view I take of the objection, and to corne to the conclusion that the learned Judge was right in allowing the pursuer to go into evidence to show the mistake. * * #* The next exception to be considered is the second, and that raises a more important question, though not one attended with much difficulty. The exception is, that his Lordship did direct the jury in point of law, that if the pursuers posted their acceptance of the offer in due time, according to the usage of trade, they are not responsible for any casualties in the post- office establishment. Now, there may be some little ambiguity in the construction of that proposition. It proceeds on the assumption that, by the usage of trade, an answer ought to have been returned by the post, and that the 30th was the right day on which that answer ought to have been notified. Then comes the question, whether, under those circumstances, that being the usage of trade, the fact of the letter being delayed, not by the act of the party send- ing it, but by an accident connected with the post, the party so putting the letter in on the right day is to lose the benefit which would have belonged to him if the letter had arrived in due course? I cannot conceive, if that is the right construction of the direction of the learned judge, how any doubt can exist on the point. If a party. does all that he can do, that is all that is called for. If there is a usage of trade to accept such an offer, and to return an answer to such an offer, and to forward it by means of the post, and if the party accepting the offer puts his letter into the post on the correct day, has he not done everything he was bound to do? How can he be responsible for that over which he has no control? It is not the same as if the date of the party’s acceptance of the offer had been the subject of a special contract; as if the contract had been, “I make you this offer, but you must return me an answer on the 30th, and on the earliest post of that day.” The usage of trade would re- quire an answer on the day on which the offer was received, and Messrs. Higgins, therefore, did on the 30th, in proper time, return an answer by the right conveyance—the post-office. If that was not correct, and if you were to have reference now to any usage constituting the contract between the parties a specific contract, it is 90 Cases on THE Law or ConTrRACTS quite clear to me that the rule of law would necessarily be that which has obtained by the usage of trade. It has been so decided in cases in England, and none has been cited from Scotland which controverts that proposition ; but the cases in England put it beyond all doubt. It is not disputed—it is a very frequent occurrence—that a party having a bill of exchange, which he tenders for payment to the acceptor, and payment is refused, is bound to give the earliest notice to the drawer. That person may be resident many miles distant from him; if he puts a letter into the post at the right time, it has been held quite sufficient; he has done all that he is expected to do as far as he is concerned; he has put the letter into the post, and whether that letter be delivered, or not, is a matter quite immaterial, because for accidents happening at the post-office he is not responsible. * * * It was ordered that the interlocutor complained of should be affirmed with costs. THE HOUSEHOLD FIRE AND CARRIAGE ACCIDENT INSUR- ANCE COMPANY (Limited) v. GRANT. (Court of Appeal, 1879. L. R. 4 Exch. D. 216.) Action to recover £94 15s., being the balance due upon 100 shares allotted to the defendant on October 25th, 1874, in pursuance of an application from the. defendant for such shares dated September 30th, 1874. At the trial before Lopes, J., during the Middlesex Sittings, 1878, the following facts were proved. In 1874 one Kendrick was acting in Glamor- ganshire as the agent of the company for the placing of their shares, and on September 30th the defendant handed to Kendrick an application in writing for shares in the plaintiff’s company, which stated that the de- fendant had paid to the bankers of the company £5, being a deposit of 1s. per share, and requesting an allotment of 100 shares, and agreeing to pay the further sum of 19s. per share within twelve months of the date of the allotment. Kendrick duly forwarded this application to the plaintiffs in London, and the secretary of the company on October 20th, 1874, made out the letter ‘of allotment in favor of the defendant, which was posted ad- dressed to the defendant at his residence, 16 Herbert Street, Swansea, Glamorganshire ; his name was then entered on the register of shareholders. This letter of allotment never reached the defendant. The defendant never paid the £5 mentioned in his application, but the plaintiffs’ company being indebted to the defendant in the sum of £5 for commission, that sum was duly credited to his account in their books. In July, 1875, a dividend at the rate of 214 per cent was declared on the shares, and in February, 1876, a further dividend at the same rate; these dividends, amounting alto- gether to the sum of 5s., were also credited to the defendant’s account in the books of the plaintiffs’ company. Afterward the company went into THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 91 liquidation, and on December 7th, 1877, the official liquidator applied for the sum sued for from the defendant; the defendant declined to pay bn the ground that he was not a shareholder. On these facts the learned judge left two questions to the jury. 1. Was the letter of allotment of October 20th in fact posted? 2. Was the letter of allotment received by the defendant? The jury found the first question in the affirmative and the last in the negative. The learned judge reserved the case for further consideration, and after argument directed judgment to be entered for the plaintiffs on the au- thority of Dunlop v. Higgins, 1 H. L. C. 381. The defendant appealed. THESIGER, L. J.25 In this case the defendant made an application for shares in the plaintiffs’ company under circumstances from which we must imply that he authorized the company, in the event of their allotting to him the shares applied for, to send the notice of allotment by post. The com- pany did allot him the shares, and duly addressed to him and posted a letter containing the notice of allotment, but upon the finding of the jury it must be taken that the letter never reached its destination. In this state of circumstances Lopes, J., has decided that the defendant is liable as a shareholder. He based his decision mainly upon the ground that the point for his consideration was covered by authority binding upon him, and IT am of opinion that he did so rightly, and that it is covered by authority equally binding upon this court. The leading case upon the subject is Dunlop v. Higgins, 1 H. L. C. 381. It is true that Lord Cottenham might have decided that case without decid- ing the point raised in this. But it appears to me equally true that he » did not do so, and that he preferred to rest and did rest his judgment as to one of the matters of exception before him upon a principle which em- braces and governs the present case. * * * But if Dunlop v. Higgins were out of the way, Harris’s Case, L. R. 7 Ch. 587, would still go far to govern the present. ‘There it was held that the acceptance of the offer at all events binds both parties from the time of the acceptance being posted, and so as to prevent any retractation of the offer being of effect after the acceptance had been posted. Now, whatever in abstract discussion may be said as to the legal notion of its being necessary, in order to the effecting of a valid and binding contract, that the minds of the parties should be brought together at one and the same moment, that notion is practically the foundation of English law upon the subject of the formation of contracts. Unless therefore a contract constituted by correspondence is absolutely con- cluded at the moment that the continuing offer is accepted by the person to whom the offer is addressed, it is difficult to see how the two minds are ever to be brought together at one and the same moment. This was pointed out by Lord Ellenborough in the case of Adams vy. Lindsell, 1 B. & A. 681, 25 Parts of the opinion of Thesiger, L. J. and all of the opinion of Baggallay, L, J., are omitted. 92 Cases on THE LAw or CoNnTRACTS which is recognized authority upon this branch of the law. But, on the other hand, it is a principle of law, as well established as the legal notion to which I have referred, that the minds of the two parties must be brought together by mutual communication. An acceptance, which only remains in the breast of the acceptor without being actually and by legal implication communicated to the offerer, is no binding acceptance. How, then, are these elements of law to be harmonized in the case of contracts formed by correspondence through the post? I see no better mode than that. of treating the post-office as the agent of both parties, and it was so con- sidered by Lord Romilly in Hebb’s Case, L. R. 4 Eq. at p. 12, when in the course of his judgment he said: “Dunlop v. Higgins, 1 H. L. C. 381, decides that the posting of a letter accepting an offer constitutes a binding con- tract, but the reason of that is, that the post-office is the’ common agent of both parties.” Alderson, B., also in Stocken v. Collin, 7 M. & W. at p. 516,. a case of notice of dishonor, and the case referred to by Lord Cottenham, says: “Tf the doctrine that the post-office is only the agent for the delivery of the notice were correct, no one could safely avail himself of that mode of transmission.” But if the post-office be such common agent, then it seems to me to follow that, as soon as the letter of acceptance is delivered to the post-office, the contract is made as complete and final and absolutely binding as if the acceptor had put his letter into the hands of a messenger sent by the offerer himself as his agent to deliver the offer and receive the acceptance. What other principle can be adopted short of holding that the contract is not complete by acceptance until and except from the time that the letter containing the acceptance is delivered to the offerer, a principle ‘which has been distinctly negatived? This difficulty was attempted to be got over in the British and American Telegraph Co. v. Colson, L. R. 6 Ex. 108, which was a case directly on all fours with the present and in which Kelly, C. B., (at p..115,) is reported to have said: “It may be that in general, though not in all cases, a contract takes effect from the time of acceptance and not from the subsequent notification of it. As in the case now before the court, if the letter of allotment had been delivered to the defendant in the due course of the post he would have become a shareholder from the date of the letter. And to this effect is Potter v. Sanders, 6 Hare, 1. And hence, perhaps, the mistake has arisen that the contract is binding upon both parties from the time when the letter is written and put into the post, although never delivered; whereas although it may be binding from the time of acceptance, it is only binding at all when afterward duly notified.” But with deference I would ask how a man can be said to be a shareholder at a time before he was bound to take any shares, or to put the question in the form in which it is put by Mellish, L. J., in Harris’s Case, L. R. 7 Ch. 586, at p. 596, how there can ‘be any relation back in a case of this kind as there may be in bankruptcy? If, as the Lord Justice said, the contract after the letter has arrived in time is to be treated as having been made from the time the letter is posted, the reason is that the Tuer OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 93 contract was actually made at the time when the letter was posted. The principle indeed laid down in Harris’s Case, L. R. % Ch. 586, at p. 596, as well as in Dunlop v. Higgins, 1 H. L. C. 381, can really not be reconciled with, the decision in the British and American Telegraph Co. v. Colson, L. R. 6 Ex. 108. James, L. J., in the passage I have already quoted, Har- ris’s Case, L. R. 7 Ch. 592, affirms the proposition that when once the acceptance is posted neither party can afterward escape from the contract, and refers, with approval, to Hebb’s Case, L. R. 4 Eq. 9. There a dis- tinction was taken by the Master of the Rolls that the company chose to send the letter of allotment to their own agent, who was not authorized by the applicant for shares to receive it on his behalf, and who never delivered it, but he at the same time assumed that if, instead of sending it through ‘an authorized agent, they had sent it through the post-office, the applicant: would have been bound, although the letter had never been delivered. Mel- lish, L. J., really goes as far, and states forcibly the reasons in favor of this view. The mere suggestion thrown out (at the close of his judgment, at p. 597), when stopping short of actually overruling the decision in the British and American Telegraph Co. v. Colson, L. R. 6 Ex. 108, that al- though a contract is complete when the letter accepting an offer is posted, yet it may be subject to a condition subsequent that, if the letter does not arrive-in due course of post, then the parties may act on the assumption that the offer has not been accepted, can hardly, when contrasted with the rest of the judgment, be said to represent his own opinion on the law upon the subject. The contract, as he says, L. R. 7 Ch. at p. 596, is actually made when the letter is posted. The acceptor, in posting the letter, has, to use the language of Lord Blackburn, in Brogden v: Directors of Metro- politan Ry. Co., 2 App. Cas. 666, 691, “put it out of his control and done an extraneous act which clinches the matter, and shows beyond all doubt that each side is bound.” How, then, can a casualty in the post, whether resulting in delay, which in commercial transactions is often as bad as no delivery, or in non-delivery, unbind the parties or unmake the contract? To me it appears that in practice a contract complete upon the acceptance of an offer being posted, but liable to put an end to by an accident in the post, would be more mischievous than a contract only binding upon the parties to it upon the acceptance actually reaching the offerer, and I can see no principle of law from which such an anomalous contract can be deduced. There is no doubt that the implication of a complete, final, and abso- lutely binding contract being formed, as soon as the acceptance of an offer is posted, may in some cases lead to inconvenience and hardship. But such there must be at times in every view of the law. It is impossible in trans- actions which pass between parties at a distance, and have to be carried on through the medium of correspondence, to adjust conflicting rights be- tween innocent parties, so as to make the consequences of mistake on the part of a mutual agent fall equally upon the shoulders of both. At the 94 Cases oN THE LAW OF CONTRACTS same time I am not prepared to admit that the implication in question will lead to any great or general inconvenience or hardship. An offerer, if he chooses, may always make the formation of the contract which he proposes dependent upon the actual communication to himself of the ac- ceptance. If he trusts to the post he trusts to a means of communication which, as a rule, does not fail, and if no answer to his offer is received by -him, and the matter is of importance to him, he can make inquiries of the person to whom his offer was addressed. On the other hand, if the contract is not finally concluded, except in the event of the acceptance actually reaching the offerer, the door would be opened to the perpetration of much fraud, and, putting aside this consideration, considerable delay in com- mercial transactions, in which despatch is, as a rule, of the greatest con- sequence, would be occasioned; for the acceptor would never be entirely safe in acting upon his acceptance until he had received notice that his letter of acceptance had reached its destination. Upon balance of conveniences and inconveniences it seems to me, ap- plying with slight alterations the language of the Supreme Court of the United States in T'ayloe v. Merchants’ Fire Insurance Co., 9 How. (U. 8.) 390, more consistent with the acts and declarations of the parties in this case to consider the contract complete and absolutely binding on the trans- mission of the notice of allotment through the post, as the medium of communication that the parties themselves contemplated, instead of post- poning its completion until the notice had been received by the defendant.*6 26“But a little reflection will show, that, in all cases of contracts entered into between parties at a distance by correspondence, it is impossible that both should have a knowledge of it the moment it becomes complete. This can only exist where both parties are present. “The position may be illustrated by the case before us. If the contract be- came complete, as we think it did, on the acceptance of the offer by the appli- cant, on the 21st of December, 1844, the company, of course, could have no knowledge of it until the letter of acceptance reached the agent, on the 31st of the month; and, on the other hand, upon the hypothesis it was not complete until notice of the acceptance, and then became so, the applicant could have no knowledge of it at the time it took effect. In either aspect, and, indeed, in any aspect in which the case can be presented, one of the parties must be unadvised of the time when the contract takes effect, as its consummation must depend upon the act of one of them in the absence of the other. “The negotiation being carried on through the mail, the offer and acceptance cannot occur at the same moment of time; nor, for the same reason, can the meeting of the minds of the parties on the subject be known by each at the moment of concurrence; the acceptance must succeed the offer after the lapse of some interval of time; and, if the process is to be carried further in order to complete the bargain, and notice of the acceptance must be received, the only effect is to reverse the position of the parties, changing the knowledge of the completion from the one party to the other. “It is obviously impossible, therefore, under the circumstances stated, ever to perfect a contract by correspondence, if a knowledge of both parties at the moment they become bound is an essential element in making out the obligation. And as it must take effect, if effect is given at all to an endeavor to enter into a Tin OFFER AND THE ACCEPTANCE oF 1 Srmpie Contract 95 Upon principle, therefore, as well as authority, I think that the judgment of Lopes, J., was right and should be affirmed, and that this appeal shonld therefore be dismissed. BraMwELL, L. J. The question in this case is not whether the post-office was & proper medium of, communication from the plaintiffs to the de- fendant. There is no doubt that it is so in all cases where personal service is not required. It is an ordinary mode of communication, and every per- son who gives any one the right to communicate with him gives the right to communicate in an ordinary manner, and so in this way and to this extent, that if an offer were made by letter in the morning to a person at a piace within half an hour’s railway journey of the offerer, I should say that an acceptance by post, though it did not reach the offerer till the next morning, would be in time. Nor is the question whether, when the letter reaches an offerer, the latter is bound and the bargain made from the time the letter is posted or despatched, whether by post or otherwise. The question in this case is different. I will presently state what in my judg- ment it is. Meanwhile I wish to mention some elementary propositions which, if carefully borne in mind, will assist in the determination of this case: First. Where a proposition to enter into a contract is made and accepted, it is necessary, as a rule, to constitute the contract that there should -be a communication of that acceptance to the proposer. Per Brian, C. J., and Lord Blackburn: Brogden v. Metropolitan Ry. Co., 2 App. Cas. at p. 692. Secondly. That the present case is one of proposal and acceptance. Thirdly. That as a consequence of or involved in the first. proposition, if the acceptance is written or verbal—i. e., is by letter or message—as a rule, it must reach the proposer or-there is no communication, and so no acceptance of the offer. Fourthly. That if there is a difference where the acceptance is by a letter sent through the post which does not reach the offerer, it must be by virtue of some general rule or some particular agreement of the parties. As, for instance, there might be an agreement that the acceptance of the proposal may be by sending the article offered by the proposer to be bought, or hanging out a flag or sign to be seen by the offerer as he goes by, or leav- ing a letter at a certain place, or any other agreed mode, and in the same contract by correspondence, in the absence of the knowledge of one of the parties at the time of its consummation, it seems to us more consistent with the acts and declarations of the parties, to consider it complete on the transmis- sion of the acceptance of the offer in the way they themselves contemplated; instead of postponing its completion till notice of such acceptance has been received and assented to by the company. “For why make the offer, unless intended that an assent to its terms should bind them? And why require any further assent on their part, after an uncon- ditional assent by the party to whom it is addressed”? Nelson, J., in Tayloe v. Merchants Fire Ins. Co., 9 How. (U. 8.) 390, 400-401 (1850). 96 Casrs oN THE LAW oF CONTRACTS way there might be an agreement that dropping a letter in a post pillar-box or other place of reception should suffice. Fifthly. That as there is no such special agreement in this case, the de- fendant, if bound, must be bound by some general rule which makes a difference when the post-office is employed as the means of communication, Sixthly. That if there is any such general rule applicable to the com- munication of the acceptance of offers, it is equally applicable to all com- munications that may be made by post. Because, as I have said, the question is not whether this communication may be made by post. If, therefore, posting a letter Which does not reach is a sufficient communication of acceptance of an offer, it is equally a communication of everything else which may be communicated by post—e. g., notice to quit. It is impos- sible to hold, if I offer my landlord to sell him some hay, and he writes accepting my offer, and in the same letter gives me notice to quit, and posts his letter, which, however, does not reach me, that he had commu- nicated to me his acceptance of my offer, but not his notice to quit. Sup- pose a man has paid his tailor by check or bank-note, and posts a letter containing a check or bank-note to his tailor, which never reaches, is the tailor paid??? If he is, would he be if he had never been paid. before in that way? Suppose a man is in the habit of sending checks and bank-notes to his banker by post, and posts a letter containing checks and bank-notes, which never reaches. Is the banker liable? Would he be if this was the first instance of a remittance of the sort? In the cases I have supposed, the tailor and banker may have recognized this mode of remittance by sending back receipts and putting the money to the credit of the remitter. Are they liable with that? Are they liable without it? The question then is, Is posting a letter which is never received a communication to the person addressed, or an equivalent, or something which dispenses with it? It is for those who say it is to make good their contention. I ask why is it? My answer beforehand to any argument that may be urged is, that it is not a communication, and that there is no agreement to take it as an equiva- lent for or to dispense with a communication. That those who affirm the contrary say the thing which is not. That if Brian, C. J., had had to adjudicate on the case, he would deliver the same judgment as that re- ported. That because a man, who may send a communication by post or 27In Mitchell-Henry v. Norwich Union Life Insurance Society, Ltd., [1918] 2 K. B. 67, the defendant in asking plaintiff for an instalment payment on a loan wrote: “Please return this notice when remitting.” The amount was £48 5s. 8d. and plaintiff put £48 in £1 Treasury notes and the balance in a postal order and stamps in an ordinary envelope and registered it to the de- fendant. The elevator boy of the building, not employed by the defendant, re- ceipted for the letter and stole the money. The plaintiff claimed a declaration that he had paid the instalment. It was held that though the defendant had impliedly authorized the plaintiff to send the money through the post, it was not usual to send so large a sum ‘by post in notes as small as that and so there was no payment. THE OFFER AND THE ACCEPTANCE or A StMPLE ContTRACT 97 otherwise, sends it by post, he should bind the person addressed, though the communication never reaches him, while he would not so bind him if he had sent it by hand, is impossible. There is no reason in it; it is simply arbitrary.28 I ask whether any one who thinks so is prepared to fol- " 98“A letter missive is only a series of words fixed upon paper; but these words are addressed to an absent person; it is necessary, therefore, in order that they should have their effect, that the absent person to whom they are addressed should understand them; they are, therefore, without effect so far as he to whom they are addressed has not understood them; as they would be without effect if, being addressed to a person present, that person was, from a physical cause, not in a condition to understand them. Now how can an absent person understand the words that are addressed to him? Certainly he can only understand them by reading the letter which contains them. The letter by which I contract an obligation .can therefore only fulfil its object so far as I can be supposed to persist, at the moment when it arrives, in the will which I had in writing it. If, therefore, at the moment when my letter arrives, I have already in another way manifested and notified a contrary will, my letter can no longer bind me; it is paralyzed in advance. - “That is so true that if, at the moment when my letter arrives, I am ‘no longer able to speak to the person to whom it is addressed, or to persist in the will which I had in writing it, that will cannot be opposed to me, it cannot produce any effect against me; and it is upon this foundation that all the doctors teach that if, after having written to a person with whom I was in treaty for a bargain, that I accepted his proposition, I happen to die before my letter reaches that person, there is no contract between him and me. * * * “And here recurs the comparison, which we made just now, of the consent expressed by a letter addressed to an absent person, with the consent expressed by words addressed to a person present. “T find myself in the presence of a deaf person who says to me: Will you buy of me such a thing for such a price? I answer him: I will; but he does not hear me; he declares to me that he has not heard me, and he prays me to give him in writing the answer which he judges, by the movement of my lips, that I have made to him. Then I take a pen and trace for him these words: I said that I would, but on further reflection your proposition is not satisfactory. Could this man pretend that, by the answer which I admit that I made to him viva voce, I am bound to him irrevocably? Certainly not; and if he prosecuted me, the judge would dismiss him without hesitation. “Wherefore would it be otherwise in the case of a letter written to an absent person? Because the absent person has become proprietor of my letter from the moment when it left my hands? But let us take another comparison. “A man has in his cabinet an acoustic vault, constructed in such a manner that, by reason of the various and extremely multiplied windings of the tubes which compose it, the words transmitted through one of the extremities do not reach the other till after a space of five minutes. I am in the presence of that man, and in his cabinet in question. There, after saying to me: Will you buy of me such a thing for such a sum? he adds: Answer me by my acous- tic vault. Thereupon we take our places, I at one of the extremities of his vault, he at the other and I say to him by his speaking trumpet: I will. But a minute after I change my resolution; I run to him, and before he has been able to hear my answer, I say to him: I will not. Could he, after having heard the answer which I made to him at first by his acoustic vault, pretend that this answer having been transmitted to him by tubes of which he was pro- 98 Cases oN THE Law oF CONTRACTS low that opinion to its consequence; suppose the offer is to sell a particular chattel, and the letter accepting it never arrives, is the property in the chattel transferred? Suppose it is to sell an estate or grant a lease, isthe bargain completed? The lease might be such as not to require a deed; could a subsequent lessee be ejected by the would-be acceptor of the offer because he had posted a letter? Suppose an article is advertised at so much, and that it would be sent on receipt of a post-office order. Is it enough to post the letter? If the word “receipt” is relied on, is it really meant that that makes a difference? If it should be said let the offerer wait, the answer is, may be he may lose his market meanwhile. Besides, his offer may be by advertisement to all mankind. Suppose a reward for information, information posted does not reach, some one else gives it and is paid, is the offerer liable to the first man? It is said that a contrary rule would be hard on the would-be acceptor, who may have made his arrangements on the footing that the bargain was concluded. But to hold as contended would be equally hard on the offerer, who may have made his arrangements on the footing that his offer was not accepted; his non-receipt of any communication may be attributable to the person to whom it was made being absent. What is he to do but to act on the negative, that no communication has been made to him? Further, the use of the post-office is no more authorized by the offerer than the sending an answer by hand, and all these hardships would befall the person posting the letter if he sent it by hand. Doubtless in that case he would be the person to suffer if the letter did not reach its destination. Why should his sending it by post relieve him of the loss and cast it on the other party? It was said, if he sends it by hand it’ is revocable, but not if he sends it by post, which makes the difference. But it is revocable when sent by post, not that the letter can be got back, but its arrival might be antici- pated by a letter by hand or telegram, and there is no case to show that such anticipation would not prevent the letter from binding. It would be a most alarming thing to say that it would [not],—that a letter honestly but mistakenly written and posted must bind the writer if hours before its arrival he informed the person addressed that it was coming, but was wrong and recalled. Suppose a false but honest character given, and the mistake found out after the letter posted, and notice that it was wrong given to the person addressed. prietor, and having consequently become his property at the very instant that it left my mouth, I could not retract it before it had struck his ear? No, em- phatically no; a hundred times no! “For the same reason, the obligation which I contract by a letter to an absent person does not bind me, so long as the absent person to whom I have addressed that letter has not received it.” Merlin’s argument in S— v. F—, as reported in 1 Langdell’s Cases on Contracts, 2 ed., pp. 160, 162. THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 99 Then, as was asked, is the principle to be applied to telegrams ?#9 Fur- ther, it seems admitted that if the proposer said, “Unless I hear from you by return of post the offer is withdrawn,” that the letter accepting it must reach him to bind him. There is, indeed, a case recently reported in the Times, before the Master of the Rolls, where the offer was to be accepted 29 It is applied to telegrams. If the offer is by telegram, a telegram of accept- ance, promptly sent prepaid and properly addressed completes a contract. In Trevor v. Wood, 36 N. Y. 307, 309-311 (1867), Scrugham, J., said for the court: “The sending of a letter accepting the proposition is regarded as an acceptance, because it is an overt act clearly manifesting the intention of the party sending it to close with the offer of him to which it is sent, and thus marking that aggregatio mentium which is necessary to constitute a contract. * * * “It was agreed between these parties that their business should be transacted through the medium of the telegraph. The object of this agreement was to substitute the telegraph for other methods of communication, and to give to their transactions by it the same force and validity they would derive if they had been*performed through other agencies. In accordance with this agreement the offer was made by telegraph to the appellants in New York, and the ac- ceptance addressed to the respondents in New Orleans, and immediately de- spatched from New York by order of the appellants. It cannot, therefore, be said that the appellants did not put their acceptance in a proper way to be communicated to the respondents, for they adopted the method of communica- tion which had been used in the transaction by the respondents, and which had been selected by prior agreement between them as that by means of which their business should be transacted. “Under these circumstances the sending of the despatch must be regarded as an acceptance of the respondents’ offer, and thereupon the contract became complete. “I cannot conceive upon what principle an agreement to communicate by telegraph can be held to be in effect a warranty by each party that his com- munication to the other shall be received. On the contrary, by agreeing be- forehand to adopt that means of communication the parties mutually assume its hazards, which are principally as to the prompt receipt of the dispatches.” “The fact that there was a valid contract has been found by the referee. The evidence showed that a proposal, in writing, was made by Mr. Daly to the plaintiff for an engagement of her services for the year 1869. The plaintiff testifies that she signed an acceptance on Saturday, April 13th, 1870, and placed it in the letter-box of the defendant, at the theatre. The defendant admits that this letter-box was sometimes used as a place for deposit of the duplicates of contracts made between hjm and the actors. It is true that he testified that he never received the papers which the plaintiff asserts that she deposited in the box. This, however, is immaterial. The minds of the parties met when the plaintiff complied with the usual, or even occasional, practice, and left the acceptance in a place of deposit recognized as such by the defendant. This doctrine is analogous to that which has been adopted in the case of communica- tion by letter or by telegraph. (Vassar v. Camp, 11 N. Y. 441; Trevor v. Wood, 36 id. 307.) The principle governing these cases is, that there is a concurrence of the minds of the parties upon a distinct proposition, manifested by an overt act. (White v. Corlies, 46 N. Y. 467). The deposit in the box, under the cir- cumstances of the present case, is such an act.” Dwight, C., in Howard v. Daly, 61 N. Y. 862, 365, 366 (1875). 100 CASES oN THE LAW or ConTRACTS within fourteen days, and it is said to have been held that it was enough to post the letter on the 14th, though it would and did not reach the offerer till the 15th. Of course there may have been something in that case not mentioned in the report. But as it stands it comes to this, that if an offer is to be accepted in June, and there is a month’s post between the places, posting the letter on June 30th will suffice, though it does not reach till July 31st; but that case does not affect this. There the letter reached, here it has not. If it is not admitted that “unless I hear by return the offer is withdrawn” makes ‘the receipt of the letter a condition, it is to say an express condition goes for naught. If it is admitted, is it not what-every letter says? Are there to be fine distinctions, such as, if .the words are “anless I hear from you by return of post,” ete., it is necessary the letter should reach him, but “let me know by return of post,” it is not; or if in that case it is, yet it is not where there is an offer without those words. Lord Blackburn says that Mellish, L. J., accurately stated that where it is expressly or impliedly stated in the offer, “you may accept the offer by posting a letter,” the moment you post this letter the offer is ‘accepted. I agree; and the same thing is true of any other mode of acceptance offered with the offer and acted on—as firing a cannon, sending off a rocket, give your answer to my servant the bearer. Lord Blackburn was not dealing with the question before us; there was no doubt in the case before him that the letter had reached. As to the authorities, I shall not re-examine those in existence before the British and American Telegraph Co. v. Culson, L. R. 6 Ex. 108. But I wish to say a word as to Dunlop v. Higgins, 1 H. L. C. 381; the whole difficulty has arisen from some expressions in that case. Mr. Finlay’s argument and reference to the case when originally in the Scotch Court has satisfied me that Dunlop v. Higgins, 1 H. L. C. 381, de- cided nothing contrary to the defendant in this case. Mellish, L. J., in Harris’s Case, L. R. 7 Ch. 596, says: “That case is not a direct decision on the point before us.” It is true, he adds, that he has great difficulty in reconciling the case of the British and American Telegraph Co. v. Colson, L. R. 6 Ex. 108, with Dunlop v. Higgins, 1 H. L. C. 381. I do not share that difficulty. I think they are perfectly reconcilable, and that I have shown so. Where a posted letter arrives, the contract is complete on the posting. So where a letter sent by hand arrives, the contract is complete on the writing and delivery to the messenger. Why not? All the extra- ordinary and mischievous consequences which the*Lord Justice points out in Harris’s Case, L. R. 7 Cr. 569, might happen if the law were otherwise when a letter is posted, would equally happen where it is sent otherwise than by the post. He adds that the question before the Lords in Dunlop v. Higgins, 1 H. L. C. 381, was whether the ruling of the Lord Justice Clerk was correct, and they held it was. Now Mr. Finlay showed very clearly that the Lord Justice Clerk decided nothing inconsistent with the judgment in.the British and American Telegraph Co. v. Colson, L. R. 6 Ex. 108. Since the last case there have been two before Vice-Chancellor THe OFFER AND THE ACCEPTANCE OF A SIMPLE Contract ‘101 Malins, in the earlier of which he thought it “reasonable,” and followed +. In the other, because the Lord Justices had in Harris’s Case, L. R. 7 Sh. 596, thrown cold water on it, he appears to have thought it not reason- ible. He says, suppose the sender of a letter says, “I make you an offer, et me have an answer by return of post.” By return the letter is posted, ind A. has done all that the person making the offer requests. Now that § precisely what he has not done. He has not let him “have an answer.” He adds there is no default on his part. Why should he be the only per- son to suffer? Very true. But there is no default in the other, and why should he be the only person to suffer? The only other authority is the 2xpression of opinion by Lopes, J., in the present case. He says the pro- ooser may guard himself against hardship by making the proposal expressly xonditioned on the arrival of the answer within a definite time. But it aeed not be express nor within a definite time. It is enough that it is to oe inferred that it is to be, and if it is to be it must be within a reasonable ‘ime. The mischievous consequences he points out do not follow from that which I am contending for. I am at a loss to see how the post-office is the agent for both parties. What is the agency as to the sender? merely to ‘eceive? But suppose it is not an answer, but an original communication. What then? Does the extent of the agency of the post-office depend on the sontents of the letter? But if the post-office is the agent of both parties, then the agent of both parties has failed in his duty, and to both. Suppose the offerer says, “My offer is conditional on your answer reaching me.” Whose agent is the post-office then? ‘But how does an offerer make the dost-office his agent, because he gives the offeree an option of using that or any other means of communication ? I am of opinion that this judgment should be reversed. I am of opinion that there was no bargain between these parties to allot and take shares, chat to make such bargain there should have been an acceptance of the lefendant’s offer and a communication to him of that acceptance. That there was no such communication. That posting a letter does not differ ‘rom other attempts at communication in any of its consequences, save that t is irrevocable as between the poster and post-office. The difficulty has irisen from a mistake as to what was decided in Dunlop v. Higgins, 1 H. L. C. 381, and from supposing that because there is a right to have recourse 0 the post as a means of communication, that right is attended with some veculiar consequences, and also from supposing that because if the letter reaches it binds from the time of posting, it also binds though it never ‘eaches. Mischief may arise if my opinion prevails. It probably will not, 's so much has been said on the matter that principle is lost sight of. I relieve equal if not greater, will, if it does not prevail. I believe the latter vill be obviated only by the rule being made nugatory by every prudent nan saying, “Your answer by post is only to bind if it reaches me.” But ‘he question is not to be decided on these considerations. What is the law? What is the principle? If Brian, C. J., had had to decide this, a public post 102 CASES ON THE LAW OF CONTRACTS being instituted in his time, he would have said the law is the same, new there is a post, as it was before, viz., a communication to affect a man must be a communication, i. e., must reach him. Judgment affirmed,50 30 McCulloch v. Eagle Fire Ins. Co., 1 Pick. (Mass.) 278 (1822), seemingly the only case contra not expressly overruled, has been discredited in Massa- chusetts and might not be followed there. See Brauer v. Shaw, 168 Mass. 198 (1897) quoted from in note to Byrne & Co. v. Van Tienhoven & Co., post, p. 103, and Com. Mut. Fire Ins. Co. v. Knabe & Co., 171 Mass. 265 (1898). In Ashley on Contracts, p. 42, it is stated that while Brauer v. Shaw, supra, actually decides nothing more than that a revocation was ineffectual because not communicated before the acceptance was received, “nevertheléss the case has been regarded as quietly overruling McCulloch v. Eagle Ins. Co., and con- forming the Massachusetts law to that of the rest of the country. The question cannot be regarded as settled, however.?’ On the time when a contract consisting of letters or telegrams is complete, see 6 Ann. Cas. 378, note; 110 Am. St. Rep. 742, note. For the contract to be complete on the mailing of the letter of acceptance, the latter must be properly addressed and stamped. Blake v. Hamburg-Bremen Fire Ins. Co., 67 Tex. 160 (1886). If, however, a letter of acceptance not properly addressed, or not stamped so as to be entitled to be forwarded promptly according to the postal regulations, is in fact so forwarded and actually reaches the offerer before the offer has been revoked or has expired, it would seem that there is a contract. Postal regulations determine when a letter is mailed. Differences in such regulations make delivery to a letter carrier mailing in the United States (Pearce v. Langfit, 101 Pa. St. 507 (1882)) while it is not so in England until the carrier, as the messenger of the sender, deposits the letter in the proper mailing place of the proper post office. In re London & Northern Bank, [1900] 1 Ch. 220. The fact that by acting. promptly and complying with certain postal require ments, the sender of a letter may reclaim it from the post office is not deemed to prevent the mailing of an acceptance of an offer made by mail from com- pleting a contract. ‘Nor can it be conceded that except on some extraordinary occasion and on evidence satisfactory to the post office authorities, a letter once mailed can be withdrawn by the party who mailed it. When letters are placed in a post office they are within the legal custody of the officers of the government, and it is the duty’ of postmasters to deliver them to the persons to whom they are addressed.” Shiras, J., in McDonald v. Chemical Nat. Bk., 174 U. S. 610, 620 (1898) fA So the fact that a telegram of acceptance may be in- tercepted and withdrawn by the accepter is not deemed tq prevent a contract from arising on the despatch of the telegram of acceptance. Occasionally, how- ever, a doubt is expressed. ; On withdrawal, or right to withdraw letter from the mail as affecting the consummation of a contract, see 9 A. L. R. 386, note. A letter deposited in the mails, properly addressed and with postage prepaid, will be presumed to have reached its destination in due course of post. Ruder v. National Council of Knights and Ladies of Security, 124 Minn. 431 (1914). “During the Trangvaal war, the holder of an option to buy certain land mailed three lett of acceptance before the expiration of that option. As owing to th , there was no regular postal communication, only one letter THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 103 BYRNE & CO v. VAN TIENHOVEN & CO. (High Court of Justice, Common Pleas Division, 1880. L. R., 5 C. P. Div. 344.) Linp.ey, J.21_ This was an action for the recovery of damages for the non-delivery by the defendants to the plaintiffs of 1000 boxes of tinplates, pursuant to an alleged contract, which I will refer to presently. The ac- tion was tried at Cardiff before myself without a jury; and it was agreed at the trial that in the event of the plaintiffs being entitled to damages they should be £375. The defendants carried on business at Cardiff and the plaintiffs at New York, and it takes ten or eleven days for a letter posted at either place to reach the other. The alleged contract consists of a letter [containing an offer to sell 1000 boxes of tin plate branded “Hensol” at 15s. 6d. per box] written by the defendants to the plaintiffs on October 1st, 1879, and re- ceived by them on the 11th, and accepted by telegram and letter sertt [by the plaintiffs] to the defendants on October 11th and 15th resfectively. * * * These letters and telegram would, if they stood alone, plainly constitute a contract binding on both parties. * * * The defendants, however, raise two other defences to the action which remain to be con- sidered. First, they say that the offer made by their letter of October 1st was revoked by them before it had been accepted by the plaintiffs by their telegram of the 11th or letter of the 15th. The facts as to these are as follows: On October 8th the defendatts wrote and sent by post to the plaintiffs a letter withdrawing their offer of the 1st. The material part of this letter was as follows: “Confirming our respects of the ist inst. we hasten to inform you that there having been a regular panic in the tinplate market during the last few days, which has caused prices to run up about 25 per cent, we are reluctantly compelled to withdraw any offer we have made to our constituents, and must therefore also consider our offer to you for 1000 boxes ‘Hensols’ at 17%s. 6d. to be cancelled from this date.” This letter of October 8th reached the plaintiffs on October 20th. On the was delivered, and that after the option had expired. It was held that the acceptance did not take effect when mailed. Bal vy. Van Staden, 20 So. Afric. L, J. 407. The decision is doubtless sound. The acceptor ought not to be allowed knowingly to throw any risk upon the offerer which the latter has not, at least by implication, agreed to accept. The same principle applies as in the case of his negligence. Whenever at the time the acceptor mails the letter he knows that he is incurring an unauthorized risk or whenever at that time his negligence has occasioned such a risk, the acceptance should not take effect until received.” 17 Harv. L. Rev. 342. But cf. Pead v. Trull, reported post, p. 806, which, however, related to performance under an existing contract and not to the acceptance of an offer. What if the offer be paid for? In such case, is inability to find a representative of the other party who has died a stronger reason for extending a period than is inability because of war to get a letter to a living person? Of course time is generally of the essence of options and may not have been of the essence in Pead v. Trull. 81 Parts of the opinion are omitted. 104 Casrs oN THE LAW OF CONTRACTS same day the plaintiffs telegraphed to the defendants demanding shipment, and sent them a letter insisting on completion of the contract. * * * This letter is followed by one from the defendants to the plaintiffs of October 25th refusing to complete. * * * There is no doubt that an offer can be withdrawn before it is accepted, and it is immaterial whether the offer is expressed to be open for accept- ance for a given time or not. Routledge v. Grant, 4 Bing. 653. For the decision of the present case, however, it is necessary to consider two other questions—viz.: 1. Whether a withdrawal of an offer has any effect un- til it is communicated to the person to whom the offer has been sent? 2. Whether posting a letter of withdrawal is a communication to the person to whom the letter is sent? It is curious that neither of these questions appears to have, been actually decided in this country. As regards the first question, I am aware that Pothieyand some other writers of celebrity are of opinion that there can be no contract if an offer is withdrawn before it is accepted, although the withdrawal is not communicated to the person to whom the offer has been made. The reason for this opinion is that there is not, in fact, any such consent by both parties as is essential to constitute a contract between them. Against this view, however, it has been urged that a state of mind not notified cannot be regarded in dealings between man and man; and that an uncommunicated revocation is for all practical purposes and in point of law no revocation at all. This is the view taken in the United States. See Tayloe v. Merchants’ Fire Insurance Co., 9 How. (U. 8.) 390, cited in Benjamin on Sales, pp. 56-58, and it is adopted by Mr. Benjamin. The same view is taken by Mr. Pollock in his excellent work on Principles of Contract, ed. ii, p: 10, and by Mr. Leake in his Digest of the Law of Contracts, p. 48. This view, moreover, appears to me much more in ac- cordance with the general principles of English law than.the view main- tained by Pothier. I pass, therefore, to the next question—viz., whether posting the letter of revocation was a sufficient communication of it to the plaintiff. The offer was posted on October 1st, the withdrawal was posted on the 8th, and did not reach the plaintiff until after he had posted his let- ter of the 11th, accepting the offer. It may be taken as now settled that where an offer is made and accepted by letters sent through the post, the contract is completed the moment the letter accepting the offer is posted (Harris’s Case, L. R. 7 Ch. 587, Dunlop v. Higgins, 1 H. L. C. 381) even although it never reaches its destination. When, however, these authorities are looked at, it will be seen that they are based upon the principle that the writer of the offer has expressly or impliedly assented to treat an answer to him by a letter duly posted as a sufficient acceptance and notification to himself, or, in other words, he has made the post-office his agent to receive the acceptance and notification of it. But this principle appears to me to be inapplicable to the case of the withdrawal of an offer. In this particular case I can find no evidence of any authority in fact given by the plaintiffs ‘THE OFFER AND THE ACCEPTANCE or A SIMPLE ConTRACT 105 io the defendants to notify a withdrawal of their offer by merely posting a etter; and there is no legal principle or decision which compels me to hold, contrary to the fact, that the letter of October 8th is to be treated as com- nunicated to the plaintiff on that day or any day before the 20th, when the etter reached them. But before that letter had reached the plaintiffs they iad accepted the offer, both by telegram and by post; and they had them- selves resold the tin-plates at a profit. In my opinion the withdrawal by the defendants on October 8th of their offer of the 1st was inoperative; and 1 complete contract binding on both parties was entered into on October 11th, when the plaintiffs accepted the offer of the 1st, which they had no reason to suppose had been withdrawn. Before leaving this part of the rase it may be'as well to point out the extreme injustice and inconvenience which any other conclusion would produce. If the defendants’ contention were to prevail, no person who had received an offer by post and had ac- 2epted it would know his position until he had waited such a time as to be quite sure that a letter withdrawing the offer had not been posted before his acceptance of it: It appears to me that both legal principles and prac- tical convenience require that a person who has accepted an offer not known to him to have been revoked shall be in a position safely to act upon the footing that the offer and acceptance constitute a contract binding on both parties. * * * © Judgment for plaintiffs.32 32 “At half past 11 the defendants telegraphed, ‘Subject prompt reply, will let you May space, fifty-two, six. This was received in New York at 16 minutes past 12, and at 28 minutes past 12 a reply was sent accepting the offer. For some reason this was not received by the defendants until 20 minutes past 1. At 1 the defendants telegraphed, revoking their offer, the message being re- ceived in. New. York at 43 minutes past 1. The plaintiffs held the defendants to their bargain, and both parties stand upon their rights. “There is no doubt that the reply was handed to the telegraph company promptly, and, at least, it would have been open to a jury to find that the plaintiffs had ‘done all that was necessary on their part to complete the contract. If, then, the offer was outstanding when it was accepted, the contract was made. But the offer was outstanding. At the time when the acceptance was received, even, the revocation of the offer had not been received. It seems to us a reasonable requirement that, to disable the plaintiffs from accepting their offer, the defendants should bring home to them actual notice that it had been revoked. By their choice and act, they brought about a relation between them- selves and the plaintiffs, which the plaintiffs could turn into a contract by an act on their part, and authorized the plaintiffs to understand and to assume that that relation existed. When the. plaintiffs acted in good faith on the assumption, the-defendants could not complain. Kngwingly to lead a’ person reasonably to suppose that you offer, and to offer, are the same thing. O’Don- nell v. Clinton, 145 Mass.-461, 463, 14 N. E. 747; Cornish v. Abington, 4 Hurl. & N. 549. The offer: must be made before the acceptance, and it does not matter whether it is made a longer or a shorter time before, if, by its express or implied terms, it is- outstanding at the time of the acceptance. Whether much or little time has intervened, it reaches forward to the moment of the acceptance, and speaks then. It would be monstrous to allow an inconsistent / 106 CASES ON THE LAW oF CONTRACTS HENTHORN »v. FRASER. (Court of Appeal. [1892] 2 Ch. 27.) In 1891 the plaintiff was desirous of purchasing from the Huskisson Benefit Building Society certain houses in Flamank Street, Birkenhead. In May he, at the office of the society in Chapel Street, Liverpool, signed a memorandum drawn up by the secretary, offering £600 for the property, which offer was declined by the directors; and on July 1st he made in the same way an offer of £700, which was also declined. On July 7th he again called at the office, and the secretary verbally offered to sell to him for £750. This offer was reduced into writing, and was as follows: “T hereby give you the refusal of the Flamank Street property at £750 for fourteen days.” The secretary, after signing this, handed it to the. plaintiff, who took it away with him for consideration. On the morning of the 8th another person called at the office, and offered £760 for the property, which was accepted, and a contract for purchase signed, subject to a condition for avoiding it if the society found that they could not withdraw from the offer to the plaintiff. Between 12 and 1 o’clock on that day the secretary posted to the plain- tiff, who resided in Birkenhead, the following letter : “Please take notice that my letter to you of the 7th instant, giving you the option of purchasing the property, Flamank Street, Birkenhead, for £750, in fourteen days, is withdrawn, and the offer cancelled.” This letter, it appeared, was delivered at the plaintiff’s address between 5 and 6 in the evening, but, as he was out, did not reach his hands till about 8 o’clock. ‘On the same July 8th the plaintiff’s solicitor, by the plaintiff’s direction, wrote to the secretary as follows: “T am instructed by Mr. James Henthorn to write you, and accept your offer to sell the property, 1 to 17% Flamank Street, Birkenhead, at the price of £750. Kindly have contract prepared and forwarded to me.” This letter was,addressed to the society’s office, and was posted in Birken- head at 3.50 p. m., was delivered at 8.30 p. m. after the closing of the office, and was received by the secretary on the following morning. The secretary replied, stating that the society’s offer had been withdrawn. The plaintiff brought this action in the Court of the County Palatine act of the offerer, not known or brought to the notice of the offeree, to affect the making of the contract; for instance, a sale by an agent elsewhere one minute after the principal personally has offered goods which are accepted within five minutes by the person to whom he is speaking. The principle is the same when the time is longer, and the act relied on a step looking to, but not yet giving, notice.” Holmes, J., in Brauer v. Shaw, 168 Mass. 198, 199-200 (1897). See Patrick v. Bowman, 149 U. S. 411 (1893); Stephen M. Weld & Co. v. Victory Mig. Co.,:205 Fed. 770 (1913). Tur OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 10” for specifie performance. The Vice-Chancellor dismissed the action, and the plaintiff appealed. Lorp HerscHey.®8 This is-an action for the specific performance of a contract to sell to the plaintiff certain house property situate in Flamank Street, Birkenhead. The action was tried before the Vice-Chancellor of the County. Palatine of Lancashire, who gave judgment for the defendants. * * If the acceptance by the plaintiff of the defendants’ offer is to be treated as complete at the time the letter containing it was posted, I can entertain no doubt that the society’s attempted revocation of the offer was wholly ineffectual. I think that a person who has made an offer must be con- sidered as continuously making it until he has brought to the knowledge of the person to whom it was made that it is withdrawn. This seems to me to be in accordance with the reasoning of the Court of King’s Bench in the case of Adams v. Lindsell, 3 B. & W. 681, which was approved by the Lord Chancellor in Dunlop v. Higgins, 1 H. L. C. 381, 399, and also with the opinion of Lord Justice Mellish in Harris’s Case, L. R. 7 Ch. 587. The very point was decided in the case of Byrne v. Van Tienhoven, 5 C. P. D. 344, by Lord Justice Lindley, and his decision was subsequently fol- lowed by Mr. Justice Lush. The grounds upon which it has been held that the acceptance of an offer is complete when it is posted have, I think, no application to the revocation or modification of an offer. These can be no more effectual than the offer itself, unless brought to the mind of the person to whom the offer is made. But it is contended on behalf of the defendants that the acceptance was complete only when received by them and not on the letter being posted. It cannot, of course, be denied, after the decision in Dunlop v. Higgins, 1 H. L. C. 381, in the House of Lords, that, where an offer has been made through the medium of the post, the contract is complete as soon as the acceptance of the offer is posted, but that decision is said to be inapplicable here, inasmuch as the letter containing the offer was not sent by post to Birkenhead, but handed to the plaintiff in the de- fendants’ office at Liverpool. The question therefore arises in what cir- cumstances the acceptance of an offer is to be regarded as complete as soon as it is posted. In the case of the Household Fire and Carriage Acci- dent Insurance Company v. Grant, 4 Ex. D. 216, Lord Justice Baggallay said (Ibid, 227): “I think that the principle established in Dunlop v. Hig- gins is limited in its application to cases in which by reason of general usage, or of the relations between the parties to any particular transactions, or of the terms in which the offer is made, the acceptance of such offer by a letter through the post is expressly or impliedly authorized.” And in the same case Lord Justice Thesiger based his judgment, 4 Ex. D. 218, on the defendant having made an application for shares under circumstances 88 The opinion of Lindley, L. J., and parts of the opinions of Lord Herschell and of Kay, L. J., are omitted. 108 Casms oN THE LAw oF CONTRACTS “from which it must be implied that he authorized the company, in the event of their allotting to him the shares applied for, to send the notice of allotment by post.” The facts of that case were that the defendant had, in Swansea, where he resided, handed a letter of application to an agent of the company, their place of business being situate in London. It was from these circumstances that the Lords Justices implied an authority to the company to accept the defendant’s offer to take shares through the medium of the post. Applying the law thus laid down by the Court of Appeal, I think in the present case an authority to accept by post must be implied. Although the plaintiff received the offer at the defendants’ office in Liverpool, he resided in another town, and it must have been in contemplation that he would take the offer, which by its terms was to re- main open for some days, with him to his place of residence, and those who made the offer must have known that it would be according to the ordinary usages of mankind that if he accepted it he should communicate his acceptance by means of the post. I am not sure that I should myself have regarded the doctrine that an acceptance is complete as soon as the letter containing it is posted as resting upon an implied authority by the person making the offer to the person receiving it to accept by those means. It strikes me as somewhat. artificial to speak of the person to-whom the offer is made as having the implied authority of the other party to send his acceptance by post. He needs no authority to transmit the acceptance through any particular channel; he may select what means he pleases, the post-office no less than any other. The only effect of the supposed authority is to make the acceptance complete so soon as it is posted, and authority will obviously be implied only when the tribunal considers that it is a case in which this result ought to be reached. I should prefer to state the rule thus: Where the circumstances are such that it must have - been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted. It matters not in which way the proposition be stated, the present case is in either view within it. The learned Vice-Chancellor appears to have based his decision to some extent on the fact that before the acceptance was posted the defendants had sold the property to another person. The case of Dickinson v. Dodds, 2 Ch. D. 463, was relied upon in support of that defence. In that case, however, the plaintiff knew of the subsequent sale before he accepted the offer, which, in my judgment, distinguishes it en- tirely from the present case. For the reasons I have given, I think the judgment must be reversed and the usual decree for specific performance made. The respondents must pay the costs of the appeal and of the action. Kay, L.J. * * * Inhis judgment, in Household Fire and Carriage Accident Insurance Company v. Grant, Thesiger, L. J., refers to the cases in which the decision in Dunlop v. Higgins, 1 H. lu. C. 381, has been ex- THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 109 plained by saying that the post-office was treated as the common agent of both contracting parties. That reason is not satisfactory. The post-office are only carriers between them. They are agents to convey the communica- tion, not to receive it. The communication is not made to the post-office, but by their agency as carriers. The difference is between saying “Tell my agent A., if you accept,” and “Send your answer to me by A.” In the former case A. is to be the intelligent recipient of the acceptance, in the latter he is only to convey the communication to the person making the offer which he may do by a letter, knowing nothing of its contents. The post-office are only agents in the latter sense. All that Dunlop v. Higgins, 1 H. L. C. 381, decided was, that the acceptor of the offer having properly posted his acceptance, was not responsible for the delay of the post-office in delivering it; so that after receipt the said party could not rescind on the ground of that delay. I cannot help thinking that the decision has been treated as going much further than the House of Lords intended. Baggal- lay, L. J., in his judgment in Household Fire and Carriage Accident In- surance Company v. Grant, 4 Ex. D. 227, treats it as applicable “to cases in which by reason of general usage, or of the relations between the parties to any particular transactions, or of the terms in which the offer is made, the acceptance of such offer by a letter through the post is expressly or im- pliedly authorized.” If for authorized the word “contemplated” is sub- stituted, I should be disposed to agree with this dictum. But I would rather express it thus: “Posting an acceptance of an offer may be suffi- cient where it can fairly be inferred from the circumstances of the case that the acceptance might be sent by post.” Is that a proper inference in the present case? J think it is. One party resided in Liverpool, the other in Birkenhead. The acceptance would be expected to be in writing, the subject of purchase being real estate. These and the other circumstances to which I have alluded, in my opinion, war- rant the inference that both parties contemplated that a letter sent by post was a mode by which the acceptance might be communicated. I think, therefore, that we are bound by authority to hold that the contract was complete at 3.50 p. m. on July 8th, when the letter of acceptance was posted, and before the letter of withdrawal was received. Then what was the effect of the withdrawal by the letter posted between 12 and 1 the same day, and received in the evening? Did that take effect from the time of posting? It has never been held that this doctrine ap- plies to a letter withdrawing the offer. Take the cases alluded to by Lord Bramwell in the Household Fire and Carriage Accident Insurance Com- pany v. Grant, 4 Ex. D. 234. A notice by a tenant to quit can have no operation till it comes to the actual knowledge of the person to whom it is addressed. An offer to sell is nothing until it is actually received. No doubt there is the seeming anomaly pointed out by Lord Bramwell that the same letter might contain an acceptance, and also such a notice or offer as to other property, and that when posted it would be éffectual as to the 110 CasEs ON THE LAW ofr CoNTRACTS acceptance, and not as to the notice or offer. But the anomaly, if it be one, arises from the different nature of the two communications. As to the acceptance, if it was contemplated that it might be sent by post, the ac- ceptor, in Lord Cottenham’s language, has done all that he was bound to do by posting the letter, but this cannot be said as to the notice of with- drawal. That was not a contemplated proceeding. The person withdraw- ing was bound to bring his change of purpose to the knowledge of the said party, and as this was not done in this case till after the letter of accept- ance was posted, I am of opinion that it was too late. The point has been so decided in two cases: Byrne v. Van Tienhoven, 5 C. P.-D. 344, and Stevenson v. McLean, 5 Q. B. D. 346, and I agree with those decisions.3# - 84“Tt is to be taken as settled law, both in this country and in England, in cases of contracts between parties distant from each other, but communicating in. modes recognized in commercial business, that when an offer is made by one person to another, the minds of the parties meet and a contract is to be deemed concluded, when the offer is accepted in reasonable time, either by telegram duly sent in the ordinary way, or by letter duly posted to the proposer, provided either be done before the offer is withdrawn to the knowledge of or upon notice of the other party.” Harlan, J., for the court, in Burton v. U. S., 202 U. S. 344, 384-5. In that case the court regarded the offer as made in conversa- tion in Illinois and accepted by telegram confirmed by letter sent from St. Louis, Mo. to the offeror in Washington, D. C., and the contract as concluded at St. Louis. Opposed in principle to Henthorn v. Fraser, is Scottish Amer. Mortgage Co. v. Davis, 96 Tex. 504 (1903). On telegraphed acceptance of oral or written offer, see South Branch Cheese Co. v. American Butter & Cheese Co., 191 Mich. 507 (1916) saying acceptance of written offer complete when telegraphed. Cf. Perry v. Mt. Hope Iron Co., 15 R. I. 380 (1886). But see Lucas v. W. U. Tel. Co., 181 Ia. 669 (1906). On time and place of consummation of contract when offer by letter is ac- cepted by telegram or vice versa, see 6 L.R. A. (N.S.) 1016, note; L. R. A. 1916A, 1302, note. In’ Bruner v. Moore, [1904] 1 Ch. 305, it was held that the exercise of an option to purchase patent rights is within the rule of Henthorn v. Fraser. The contract giving the option was entered into in London, but as Farwell, J. said (p. 316): “In the present case the parties are American citizens staying tem- porarily at London hotels when they signed the contract. That contract obvi- ously contemplates the events that in fact happened—that the two parties would separate and would visit various parts of Europe and would communicate with one another constantly by letter and telegram. If there ever was a case in which the parties contemplated that ‘the post might be used as a means of communicating’ in all subjects connected with the contract this is that case. I hold therefore that the option was duly exercised.” But where an offer is made by telegram, an acceptance by letter may not complete a contract. In Quenerduaine v. Cole, 82 Weekly Rep. 185 (1883) Grove, J., said that the offer by telegram “implied the expectation of a prompt reply” and the alleged acceptance by letter, which was sent the same day the offer was received but which could not reach the offeror until after the time when the offer was to be kept open, “was not therefore made in reasonable time, even if the parties were ever ad idem, which I think they were not.” In Phenix THE OFFER AND THE ACCEPTANCE OF A SIMPLE CoNTRACT 111 HALDANE et al. v. UNITED STATES, (Circuit Court of Appeals, Bighth Circuit, 1895. 69 Fed. 819, 16 C. C. A. 447.) On April 30, 1890, the United States advertised for proposals to furnish hay and straw for certain military posts. A circular issued in connection with the advertisement stated that “proposals * * * will not be enter- tained unless accompanied by a guaranty * * * ; that the bidder will not withdraw his proposal within sixty days succeeding the 31st day of May, 1890, and that, if the proposal be accepted in whole or in part, he will enter into a contract and bond agreeably to the terms of his proposal within ten days after the day on which he is notified of such acceptance and award.” Peter Haldane and W. D. Moore filed a proposal on May 30, 1890 to furnish and stack hay at Ft. Riley which was among the proposals which were duly opened on May 31, 1890. The chief quartermaster, ag it is claimed, duly notified Peter Haldane and W. D. Moore that their proposal of May 30th was accepted by the government. On or about July 22, 1890, the chief quartermaster also transmitted to them, by mail, a contract, to be by them executed in accordance with their proposal. Haldane and Moore claimed that they received no notice, personal or otherwise, of the accept- ance by the government of their proposal until July 31, 1890. more than 60 days subsequent to May 31, 1890, and for that reason, and other reasons ‘ Ins. Co. v. Schultz, 80 Fed. 337 (1897) the extended negotiation between the parties seemingly made the court assume that the offer by telegram could be accepted by letter. A similar holding is found in Farmers’ Produce Co. v. Mc- Alester Storage & Com. Co., 48 Okla. 488 (1915). In Robeson v. Pells, 202 Pa. St. 399 (1902) an offer cabled from Hamburg, Germany, to sell 300 tons of Ferro Manganese, then rising in price, was re- ceived by the offeree in Philadelphia, shortly after one o’clock on Saturday. At three o’clock the following Monday an acceptance was wired. The Supreme Court approved a charge to the jury which was in part, as follows: “* * * T suppose everybody understands, I should think the inference is an irresistible one, that a message sent by telegram, in the nature of things, calls for a speedier answer than a message sent by letter. If a man in New York telegraphs to Philadelphia that he has something which he can sell at a certain price, and puts in his telegram ‘Answer whether you want it,’ it seems to me that the necessary inference to be drawn from such an inquiry made in such a way is that he is expected and ought to have a prompt reply. I cannot say to you as matter of law what would be a prompt reply; whether one hour, five hours, ten hours, twenty-four hours or forty-eight hours would be a prompt reply, but I do say that the reply ought to be prompt, as quick as under the circumstances of the case with reference to the nature of the trans- action the reply could be sent. Of course, you would say the man had a right to turn around, had a right to think and decide what would be the proper thing to do under the circumstances, but allowing all that, it would seem to me that the jury ought to say in regard to such an exchange of inquiries and replies by wire that the parties who claim that they have rights fixed by such messages should be held to prompt, quick action in the matter. If you think that this plaintiff did not make such a prompt reply as was reasonable under the circumstances, then he cannot claim that there was any contract.” 112 CASES ON THE LAW or CoNTRACTS as well, they declined to sign the contract or deliver the hay. For their refusal to execute said contract, and to deliver the hay according to their proposal of May 30, 1890, the United States brought an action against them in the District Court of the United States for the district of Kansas, and recovered a judgment against them and their guarantors in the sum of $3,572.28. To reverse that judgment, the defendants below sued out the present writ of error. Tuaver, J.t Another error, which we think has been sufficiently assigned to warrant us in noticing it, consists in the action of the trial court in charging the jury, as it did in substance, that the deposit of a notice in the mail by the officers of the government on or about July 24, 1890, ad- dressed to Haldane and Moore, notifying them that their proposal of May 30, 1890, to furnish hay at Ft. Riley, had been accepted, was a good and sufficient notice of acceptance to bind Haldane and Moore to deliver the hay, notwithstanding the fact that the notice did not reach them or either of them until July 31, 1890. The court declined to submit to the jury the question whether the defendants were notified in time of the acceptance of their bid, but decided as a matter of law, and so charged the jury, that the mailing of the notice of acceptance on or about July 24, 1890, addressed to the defendants at their place of residence, bound them to comply with their proposal of May 30, 1890. * * * There was evi- dence that neither Haldane nor Moore had any intimation of the accept- ance of their bid by the government until the morning of July 31, 1890, when Haldane returned to Junction City, and received the notice of ac- ceptance from the mail in a letter which bore date July 24, 1890, but was probably not mailed until a day or two afterwards. The doctrine is well established that, when. a statute requires notice to be given to a person for the purpose of creating a liability, personal notice is intended, unless some other form of notice is expressly authorized by the statute. Rathbun v. Acker, 18 Barb. 393; McDermott v. Board, 25 Barb. 635, 646; Ryan v. Kelley, 9 Mo. App. 396; Corneli v. Partridge, 3 Mo. App. 575; State v. Jacobs, 2 Jones (N. C.) 52; Gorham v. Luckett, 6 B. Mon. 146, 161, 168. The same rule, we think, is applicable to notices required to be given by the terms of an express contract. If a contract requires a notice to be given for the purpose of creating a liability or imposing an obligation, personal notice should be given, unless the parties expressly stipulate that the notice shall be served in some other way, as by mailing it to a designated address. This, we think, is the correct rule, except in those cases where the party to be notified conceals himself or resorts to some trick or artifice to avoid the service of personal notice. In such cases, no doubt, reasonable efforts to serve the notice personally is all that should be required of him whose duty it is to give the notice. In the present case the circular issued by the government for the information of {+ The statement of facts is abbreviated and parts of the opinion are omitted. THE OFFER AND THE ACCEPTANCE OF A SIMPLE CoNTRACT 113 dders notified them that they would be expected to enter into a contract ad give a bond within 10 days after the day on which the bidder was otified of the acceptance of his bid. No agreement having been made, ad no information having been given to them that a notice deposited in ve mail would be deemed sufficient to constitute an acceptance by the gov- mment, the bidder had the right to expect personal notice, or at least to isist that, if the mail was,used to convey notice, the acceptance of the roposal should not be deemed complete or effectual to bind the bidder ntil the agency employed to convey the notice had delivered it into the ands of the bidder. We think, therefore, that the district court erred in éciding that the deposit of the notice of acceptance in the mail some 5 r 6 days before the expiration of the 60 days during which the proposal as to remain open was a sufficient acceptance to bind the defendants. We aink that the jury should have been instructed, under the circumstances eretofore detailed, that if they found that the notice of acceptance did not a fact reach Haldane and Moore, or either of them, until July 31, 1890, hey were not bound to abide by and carry out their proposal. It was suggested in the charge of the learned trial judge, but not decided, hat possibly the government had the right to accept the defendants’ bid ven after the lapse of 60 days; that the stipulation in the circular that the id should not be withdrawn for 60 days was not tantamount to a state- ient that it should not be subject to acceptance after that time. We annot assent to that view. In the absence of the clause not to withdraw ae bid for 60 days, it would only have remained open for a reasonable time. 'y the insertion of the clause in question, the parties to the transaction, in ffect, determined how long ought to be allowed for acceptance, and, by nference at least, they agreed that more than 60 days was an unreasonable riod for the proposal to remain open and unaccepted. For the error heretofore pointed out, the judgment of the district court 3 reversed, and the cause is remanded for a new trial.%5 HORNE et al. v. NIVER et al. Supreme Judicial Court of Massachusetts, 1897. 168 Mass. 4, 46 N. E. 393.) Action by Horne and others against Niver and others. Judgment for efendants, and plaintiffs except. Exceptions overruled. Hoimzs, J. This is an action on an alleged contract to sell 400 tons of oal at $2.50 a ton. On July 17, 1895, the defendants wrote to the plain- iffs offering “a very Jow figure on a small lot of our Columbia coal at ‘alem.” The letter continued: “We beg to quote you $2.50 on cars at hat place, and, should you deem it wise to favor us with an order of 5 or 00 tons, kindly wire us at our expense on receipt of this.” On July 19th 85 Compare on mailing notice as satisfying requirement of notice under con- * cact, Wheeler v. McStay, 160 Ia. 745 (1918); Hoban v. Hudson, 129 Minn. 335 1915), and note in L. R. A. 1915B, 181. See, however, Shubert Theatrical : 0. v. Rath, 271 Fed. 827 (1921). 114 Casrs oN THE LAW OF CONTRACTS the plaintiffs replied, ordering 400 tons. The presiding judge, against the plaintiffs’ request and exception, ruled that the answer was not in time to constitute a good acceptance, and found as a fact that the offer was not accepted according to its terms. The ruling was clearly right, as applied to the written offer alone, since the offer did not purport to extend beyond the time for a reply by telegraph (Eliason v. Henshaw, 4 Wheat. 225; Maclay v. Harvey, 90 Ill. 525); and, so far.as appears, the finding was justified (Minneapolis & St. L. Ry. Co. v. Columbus Rolling Mill Co., 119 U. S. 149, 152, 7 Sup. Ct. 168). There was conflicting evidence of some conversation between the two letters, which is relied on as showing that the offer was treated as open; but, as the judge found that the only oral agreement made was conditional upon the coal not having been all disposed of. which in fact it had been, the talk cannot help the plaintiffs. The finding just mentioned made the plaintiffs’ other requests for rul- ings as to a verbal extension of time or consent to an acceptance on July 19th immaterial. Exceptions overruled.8 36In Maclay v. Harvey, 90 Ill. 525 (1878), Miss Maclay (the appellant), brought assumpsit against Harvey (the appellee), on an alleged contract whereby the latter employed the former to take charge of the millinery de partment of his store in Monmouth, Ill. Appellee’s letter of March 21 con- taining the offer, sent from Monmouth to appellant in Peoria, Ill., ended: “You will confer a favor by giving me your answer by return mail.” Appellant claimed to have accepted the offer by a postcard dated March 23. Scholfield, J., for the majority of the court, said: “The evidence shows that there were two daily mails between Peoria and Monmouth—one arriving at Monmouth at 11 o’clock a. m,, and the other at 6 o’clock p. m., and it did not require more than one day’s time between the points. Appellee’s letter to appellant making the offer, it will be remembered, bears date March 2ist. Assuming the date of appellant’s postal card (which, she says, was written on the morning after she received appellee’s letter) to be correct, she received appellee’s letter on the evening of the 22d. Appellee was, therefore, entitled to expect a reply mailed on the 23d, which he ought to have received on that day, or, at farthest, by the morning of the 24th; but appel- lant’s reply was not mailed until the 25th. It does not relieve appellant of fault that she gave the postal card to a boy on the 23d, to have him mail it. Her duty was not to place an answer in private hands, but in the post-office. The boy was her agent, not that of appellee, and his negligence in mailing the postal card was her negligence. “The question of whether it would not have equally well subserved appellee’s object had he treated the postal card of appellant as the consummation of a contract is irrelevant. Appellant: seeks to recover upon the strict letter of a special contract, and it is, therefore, incumbent on her to prove such contract. It is required of her, as we have seen, to prove an acceptance of appellee’s offer within the time to which it was limited—that is to say, by the placing in the post-office of an answer unequivocally accepting the offer in time for the return mail, which she did not do. Appellee was, thereafter, under no obligation to regard the contract as closed. He might, it is true, have done so, but he was not legally bound in that respect, nor was he legally bound to notify appellant. that her acceptance had not been signified within the time to which his offer was limited. She is legally chargeable with knowledge that her acceptance THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRAOCT 115 UNION NAT. BANK v. MILLER et al. ‘Supreme Court of North Carolina, 1890. 106 N. C. 347, 11 S. E. 321, 19 Am. St. Rep. 538.) Action by the Union National Bank of Chicago against John W. Miller md others, to recover personal property alleged to have been wrongfully ittached. Judgment for defendants, and plaintiff appeals. SHEPHERD, J.87 The only question necessary to be considered in dis- dosing of this appeal involves the correctness of his honor’s instruction that he title to the property had, by reason of the telegraphic correspondence, yassed out of the plaintiff, and into Van Landingham, at the time of the evy of the attachment. The property was in Charlotte, in the possession of a common carrier, and on the 26th of November, 1888, Van Landingham nade the following offer by telegraph to the plaintiff’s agent at Chicago: “Charlotte, N. C., Nov. 26, 1888. To Gregg, Garvey & Co.: Nineteen dol- ars per ton. Must have reply early to-morrow. Jno. Van Landingham.” On the next day, at 5.34 p. m., Van Landingham received a telegram from the said agent accepting the offer. This latter telegram was sent from Chicago before, but was not received by Van Landingham until after the levy of the attachment. His honor held that the contract was complete when the telegram was sent from Chicago, and that, the title to the prop- arty having passed to Van Landingham before the alleged conversion, the plaintiff could not recover. * * * We are of the opinion that under the peculiar terms of this correspondence, and in view of the testimony, the court was not warranted in charging the jury that the title vested in Van Landingham at the time the telegram was sent. It does not appear that it was sent early in the day, according to the terms of the offer, and it was incumbent on the defendant to have shown this fact before he could avail himself of the principle contended for. “In our own law the effect of nam- ing a definite time in the proposal is simply negative, and for the proposer’s benefit; that is, it operates as a warning that an acceptance will not be received after the lapse of the time named. In fact, the proposal so limited comes to an end of itself at the end of that time, and there is nothing for the other party to accept.” Pol. Cont. 9; Larmon v. Jordan, 56 Jil. 204; Railroad Co. v. Bartlett, 3 Cush. 224; Mactier’s Adm’r v. Frith, 6 Wend. 103; Cheney v. Cook, 7 Wis. 413. * * * The require- ment of the offerer, Van Landingham that he “must have a reply early was not in time, and in order to fix a liability thereby upon appellee, it was incumbent upon her, before assuming that appellee waived this objection, to ascertain that he in fact did so.” “It will be noticed that by its terms the offer demanded an acceptance by return mail, and there is no pretense that such was forthcoming. There was therefore no acceptance, and the offer is eliminated in law from the record and is as if it had never been made.” Bruce, J., in Ackerman v. Maddux, 26 No. Dak. 50, 56 (1913) 87 Parts of the opinion are omitted. 116 Casrs oN THE LAW or CoNTRAOTS to-morrow,” cannot be regarded otherwise than as a stipulation for an acceptance within that time; and, as the defendant has not shown a com- pliance with such stipulation, it must follow that there was error on the part of his honor in charging the jury that the mere sending of the ac- ceptance before the levy operated to transfer the title. The offer was limited to early in the day. The acceptance was not received until late in the evening. Even conceding that the contract would be complete from the sending of the dispatch, there is, as we have said, no testimony to show that it was sent within the time limited by the offer. ‘The title, therefore, did not pass. Benj. Sales, (3d Amer. Ed.) 48, note. For these reasons we are of the opinion that there should be a new trial. 88 In Lewis v. Browning, 130 Mass. 176 (1880), Gray, C. J., said: “In any view, the person making the offer may always, if he chooses, make the forma- tion of the contract which he proposes dependent upon the actual communica- tion to himself of the acceptance. Thesiger, L. J., in Household Ins. Co. v. Grant, 4 Ex. D. 223. Pollock on Con. (2d ed.) 17. Leake on Con. 39, note. And in the case at bar, the letter written in the plaintiff’s behalf by her hus- band as her agent on July 8th, 1878, in California, and addressed to the de. fendant at Boston, appears to us clearly to manifest such an intention. After proposing the terms of an agreement for a new lease, he says: ‘If you agree to this plan, and will telegraph me on receipt of this, I will forward power of attorney to Mr. Ware,’ the plaintiff’s attorney in Boston. ‘Telegraph me “yes” or “no.” If “no,” I will go at once to Boston with my wife, and between us we will try to recover our lost ground. If I do not hear from you by the 18th or 20th, I shall conclude “no.”’ Taking the whole letter together, the offer is made dependent upon an actual communication to the plaintiff of the defend- ant’s acceptance on or before July 20th, and does not discharge the old lease, nor bind the plaintiff to execute a new one, unless the acceptance reaches California within that time.” See Mercer Electric Mfg. Co. v. Conn. Electric Mfg. Co., 87 Conn. 691 (1914); Haas v. Myers, 111 Ill. 421 (1884). But of Vassar v. Camp, 11 N. Y. 441, 447-8 (1854). In Eliason v. Henshaw, 4 Wheat. (U. S.) 225 (1819), the plaintiffs sent from Harper’s Ferry to defendant at Mill Creek by a wagoner an offer to take two or three hundred barrels of flour at $9.50 per barrel, the postscript to the letter of offer stating: “Please write by return of wagon whether you accept our offer.” The wagoner not returning to Harper’s Ferry, the defendant sent an acceptance addressed to the plaintiffs at Georgetown where by the terms of the offer the flour was to be delivered, and it was in fact received by the plain- tiffs at that place. The court held that “by return of wagon” fixed Harper’s Ferry as the place to which the answer was to be sent as “an essential part of the plaintiffs’ offer’ and that “an acceptance communicated at a place different from that pointed out by the plaintiffs, and forming a part of their proposal, imposed no obligation binding upon them unless they had acquiesced in it, which they declined doing.” That is a fanciful construction of the words “by return of wagon” and if the answer reached the plaintiffs in Georgetown at as early a moment as it would have if sent to Harper’s Ferry by the first wagon or equally expeditious conveyance, the decision must be disapproved. i Tuer OFFER AND THE ACCEPTANCE OF A SimrLE ContTRACT 117 CAROW TOWING CO. v. THE “ED. McWILLIAMS.” (Exchequer Court of Canada, 1919. 46 Dom. L. R. 506.) Action for towage Ky the plaintiffs against the ship “Ed. McWilliams,” . British ship registered at Amherstburg, Ont. The plaintiffs are a partnership, with their head office at Cheboygan, Wich., in the United States of America. The contract of towage on which the claim herein was based, was ar- ‘ived at as follows: telegram from Sault Ste. Marie, Ont. by the Lake Superior Paper Co., to the plaintiffs at Cheboygan, Mich. and reply from aintiffs to the paper company. No contract was made by these tele- trams. Subsequently a long distance telephone call was sent by the plain- iff, William Martin, at Cheboygan, to Capt. Thos. R. Climies house at Sault Ste. Marie, where it was answered by Capt. Climie, who by tele- yhone discussed and agreed to the terms of the towage contract. The subsequent towage service was in accordance with the contract, ind consisted in towing the “Ed. McWilliams” a dump barge, from Sault Ste. Marie to Calcite, Michigan, light, and back to Sault Ste. Marie loaded vith limestone. The claim $434.38 was admitted to be correct. At the time of the towage contract and of said towage service, the “Md McWilliams” was subject to two registered mortgages, both of which are still subsisting. The amount of these mortgages greatly exceeds the value of the ship. _ Hopeins, L. J. A289 * * * JT think the contract was one made in Ontario, for, when Captain Climie went to his telephone, he then and there received an offer, or discussed terms, which, when accepted, formed the contract. In other words, the plaintiffs at Cheboygan, Mich., by using the long distance telephone, were able to reach Captain Climie in Ontario just as if they had telegraphed to him and he had received the telegram at the Soo. His reply at the telephone is of the same effect as if he had posted a letter or sent off a telegram from an office in Ontario. See Weyburn Townsite Company v. Honsburger (1919) 15 O. W. N. 428. eo *e Judgment accordingly. 89 The statement of facts is abbreviated and parts of the opinion are omitted. 40In Bank of Yolo v. The Sperry Flour Co., 141 Cal. 314, Beatty, C. J. said: “A contract is supposed to be made at some place, and the place where it be- comes complete is the place where it is made. If a contract is made by exchange of letters or telegrams, it is held to have been made at the place where the letter is mailed, or telegram filed, containing an unconditional acceptance by one party of the offer of the other. If the communications are oral, either with or without the telephone, between parties on opposite sides of a county line, the same principle would seem to require that the contract should be deemed to have been made in,the county where the offer of one is accepted by the other-— in this case in Sacramento”, where the acceptance was talked into the telephone. 118 CASES ON THE LAW oF CONTRACTS CARLILL v. CARBOLIC SMOKE BALL CO. (Court of Appeal. [1893] 1 Q. B. 256.) Appeal from a decision of Hawkins, J. [1892] 2 Q. B. 484. The defendants, who were the proprietors and vendors of a medical preparation called “The Carbolic Smoke Ball,” inserted in the Pall Mall Gazette of November 13, 1891, and in other newspapers, the following advertisement : “£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. £1000 is deposited with the Alliance Bank, Regent Street shewing our sincerity in the matter. “During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against the disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball. “One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s., post free. The ball can be refilled at a cost of 5s. Address, Carbolic Smoke Ball Company, 27 Princes Street, Hanover Square, London.” The plaintiff, a lady, on the faith of this advertisement, bought one of the balls at a chemist’s and used it as directed, three times a day, from November 20, 1891, to January 17, 1892, when she was attacked by in- fluenza. Hawkins, J., held that she was entitled to recover the £100. The defendants appealed. Lainpizy, L. J. * * * The first observation I will make is that we are not dealing with any inference of fact. We are dealing with an express promise to pay £100 in certain events. Read the advertisement how you will, and twist it about as you will, here is a distinct promise expressed in language which is perfectly unmistakable: “£100 reward: will be paid by the Carbolic Smoke Ball Company to any person who contracts the influenza after having ‘used the ball three times daily for two weeks according to the printed directions supplied with each ball.” We must first consider whether this was intended to be a promise to all, or whether it was a mere puff which meant nothing. Was it a mere While “the place at which a contract is made is necessarily the place of the acceptance of the offer’ (Smith, C. J., in Couret v. Conner, 118 Miss. 374, 392 (1918) ), the question in the telephone cases is whether the offer is accepted when the acceptor speaks his acceptance or when the offeror hears. Suppose the parties talk from New York to San Francisco over impeded wires and after the acceptor speaks his acceptance and before the offeror hears it, the acceptor dies of heart disease. Would there be a contract? On contracts by telephone, see 127 Am. St. Rep. 538, note, 41 The opinion of Smith, L. J., and parts of the opinions of Lindley, L. J. and Bowen, L. J. are omitted. THE OFFER AND THE ACCEPTANCE OF A SIMPLE Contract 119 puff? My answer to that question is “No,” and I base my answer upon this passage: “£1000 is deposited with the Alliance Bank, shewing our sincerity in the matter.” Now, for what was that money deposited or that statement made except to negative the suggestion that this was a mere puff and meant nothing at all? The deposit is called in aid by the ad- vertiser as proof of his sincerity in the matter that is, the sincerity of his promise to pay this £100 in the event which he has specified. I say this for the purpose of giving point to the observation that we are not inferring a promise; there is the promise, as plain as words can make it. Then it is contended that it is not binding. In the first place, it is said that it is not made with anybody in particular. Now that point is com- mon to the words of this advertisement and to the words. of all other advertisements offering rewards. They are offers to anybody who per- forms the conditions named in the advertisement, and anybody who does perform the condition accepts the offer. In point of law this advertise- ment is an. offer to pay £100 to anybody who will perform these con- ditions, and the performance of the conditions, is the acceptance of the offer. That rests upon a string of authorities, the earliest of which is Williams v. Carwardine, 4 Barn. & Adol. 621, which has been followed by many other decisions upon advertisements offering rewards. But then it is said, “Supposing that the performance of the conditions is an acceptance of the offer, that acceptance ought to have been notified.” Unquestionably, as a general proposition, when an offer is made, it is necessary in order to make a binding contract, not only that it should be accepted, but that the acceptance should be notified. But is that so in cases of this kind? I apprehend that they are an exception to that rule, or, if not an exception, they are open to the observation that the notifica- tion of the acceptance need not precede the performance. This offer is a continuing offer. It was never revoked, and if notice of acceptance is required,—which I doubt very much, for I rather think the true view is that which was expressed and explained by Lord Blackburn in the case of Brogden v. Railway Co., 2 App. Cas. 666, 691,—if notice of acceptance is required, the person who makes the offer gets the notice of acceptance contemporaneously with his notice of the performance of the condition. If he gets notice of the acceptance before his offer is revoked, that in prin- ciple is all you want. I, however, think that the true view, in a case of this kind, is that the person who makes the offer shews by his lan- guage and from the nature of the transaction that he does not expect and does not require notice of the acceptance apart from notice of the per- formance. We, therefore, find here all the elements which are necessary to form a binding contract enforceable in point of law, subject to two observations. First of -all it is said that this advertisement is so vague that you can not really construe it as a promise—that the vagueness of the language shows that a legal promise was never intended or contemplated. The 120 Cases on THE Law or CoNTRACTS language is vague and uncertain in some respects, and particularly i in this, that the £100 is to be paid to any person who contracts the increasing epidemic after having used’ the balls three times daily for two weeks. It is said, when are they to be used? According to the language of the advertisement no time is fixed, and, construing the offer most strongly against the person who has made it, one might infer that any time was meant. I do not think that was meant, and to hold the contrary would be pushing too far the doctrine of taking language most strongly against the person using it. I do not think that business people or reasonable people would understand the words as meaning that if you took a smoke ball and used it three times daily for two weeks you were to be guaranteed against: influenza for the rest of your life, and I think it would be pushing the language of the advertisement too far to construe it as meaning that. But if it does not mean that, what does it mean? It is for the defendants to shew what it does mean; and it strikes me that there are two, and possibly three, reasonable constructions to be put on this advertisement, any one of which will answer the purpose of the plaintiff. Possibly it may .be limited to persons catching the “increasing epidemic” (that is, the then prevailing epidemic), or any colds or diseases caused by taking cold, during the prevalence of the increasing epidemic. That is one sug- gestion; but it does not commend itself to me. Another suggested mean- ing is that you are warranted free from catching this epidemic, or colds or other diseases caused by taking cold, whilst you are using this remedy after using it for two weeks. If that is the meaning, the plaintiff is right, for she used the remedy for two weeks and went on using it till she got. the epidemic. Another meaning, and the one which I rather prefer, is that the reward is offered to any person who contracts the epidemic or other disease within a reasonable time after having used the smoke ball. Then it is asked, what is a reasonable time? It has been suggested that there is no standard of reasonableness; that it depends upon. the reason- able time for a germ to develop! I do not feel pressed by that. It strikes me that a reasonable time may be ascertained in a business sense and in a sense satisfactory to a lawyer, in this way: Find out from a chemist what the ingredients are; find out from a skilled physician how long the effect of such ingredients on the system could be reasonably expected. to endure so as to protect a person from an epidemic or cold,—and in that way you will get a standard to be laid before a jury, or a judge without a jury, by which they might exercise their judgment as to what a reason- able time would be. It strikes me, I confess, that the true construction of this advertisement is that £100 will be paid to anybody who uses this smoke ball three times daily for two weeks according to the printed di- rections, and who gets the influenza or cold~or other diseases caused by taking cold within a reasonable time after so using it; and if that is the true construction, it is enough for the plaintiff. I conve now to the last point which I think requires attention: that is. THE OFFER AND THE ACCEPTANCE oF A SIMPLE ContRAcT 121 the consideration. It has been argued that this is nudwm pactum—that there is no consideration. We must apply to that argument the usual legal tests. Let us see whether there is no advantage to the defendants. It is said that the use of the ball is no advantage to them, and that what benefits them is the sale; and the case is put that a lot of these balls might be stolen, and that it would be no advantage to the defendants if the thief or other people used them. The answer to that, I think, is as follows: It is quite obvious that in view of the advertisers a use by the public of their remedy, if they can only get the public to have confidence enough to use it, will react and produce a sale’ which is directly beneficial to them. Therefore, the advertisers get out of the use an advantage which is enough to constitute a consideration. But there is another view. Does not the person who acts upon this advertisement and accepts the offer put himself to some inconvenience at the request of the defendants? Is it nothing to use this ball three times daily for two weeks according to the directions at the request of the advertiser? Is that to go for nothing? It appears to me that there is a distinct inconvenience, not to say a detriment, to any person who so uses the smoke ball. I am of opinion, therefore, that there is ample consid- eration for the promise. * * * It appears to me, therefore, that the defendants must perform their promise, and, if they have been so unwary as to expose themselves to a great many actions, so much the worse for them. Bowen, L. J. I am of the same opinion. We are asked to say that this document was a contract too vague to be enforced. The first observation which arises is that the document itself is not a contract at all; it is only an offer made to the public. * * * But the main point seems to be that the vagueness of the document shews that no contract whatever was intended. It seems to me that, in order to arrive at a right conclusion, we must read this advertisement in its plain mean- ing, as the public would understand it. It was intended to be issued to the public and to be read by the public. How would an ordinary person reading this document construe it? It was intended unquestionably to have some effect, and I think the effect which it was intended to have, was to make people use the smoke ball, because the suggestions and al- legations which it contains are directed immediately to the use of the smoke ball as distinct from the purchase of it. It did not follow that the smoke ball was to be purchased from the defendants directly or even from agents of theirs directly. The intention was that the circulation of the smoke ball should be promoted, and that the use of it should be in- creased. The advertisement begins by saying that a reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic after using the ball. It has been said that the words do not apply only to persons who contract the epidemic after the publica- tion of the advertisement, but include persons who had previously con- 122 CAsEsS ON THE Law orf CoNTRACTS tracted the influenza. I cannot so read the advertisement. It is written in colloquial and popular language, and I think that it is equivalent to this: “£100 will be paid to any person who shall contract the in- creasing epidemic after having used the carbolic smoke ball three times daily for two weeks.” And it seems to me that the way in which the public would read it would be this: that if anybody, after the advertise- ment was published, used three times daily for two weeks the carbolic. smoke ball, and then caught cold, he would be entitled to the reward. Then again it was said: “How long is this protection to endure? Is it to go on forever, or for what limit of time?” I think that there are two constructions of this document, each of which is good sense, and each of which seems to me to satisfy the exigencies of the present action. It may mean that the protection is warranted to last during the epidemic, and it was during the epidemic that the plaintiff contracted the disease. I think, more probably, it means that the smoke ball will be a protection while it is in use. That seems to me the way in which an ordinary per- son would understand an advertisement about medicine, and about a specific against influenza. It could not be supposed that after you have left off using it you are still to be protected for ever, as if there was to be a stamp set upon your forehead that you were never to catch influenza because you had once used the carbolic smoke ball. I think the immunity is to last during the use of the ball. That is the way in which I should naturally read it, and it seems to me that the subsequent language of the advertisement supports that construction. It says: “During the last , epidemic of influenza many thousand carbolic smoke balls were sold, and in no ascertained case was the disease contracted by those using” (not, “who had used”) “the carbolic smoke ball,” and it concludes with saying that one smoke ball will last a family several months (which imports that it is to be efficacious while it is being used), and that the ball can be refilled at a cost of 5s. I, therefore, have myself no hesitation in saying that I think, on the construction of this advertisement, the protection was to enure during the time that the carbolic smoke ball was used. My brother the lord justice who preceded me, thinks that the contract would be suffi- ciently definite if you were to read it in the sense that the protection was to be warranted during a reasonable period after use. I have some diffi- culty myself on that point; but it is not necessary for me: to consider it further, because the disease here was contracted during the use of the carbolic smoke ball. Was it intended that the £100 should, if the conditions were fulfilled, be paid? The advertisement says £1000 is lodged at the bank for that purpose. Therefore, it cannot be said that the statement that £100 would’ be paid was intended to be a mere puff. I think it was intended to be understood by the public as an offer which was to be acted upon. But it was said there was no check on the part of the persons who issued the advertisement, and that it would be an insensate thing to promise THE OFFER AND THE ACCEPTANCE or A SIMPLE CONTRACT 123 £100 to a person who used the smoke ball unless you could check or super- intend his manner of using it. The answer to that argument seems to me to be that if a person chooses to make extravagant promises of this kind he probably does so because it pays him to make them, and, if he has made them, the extravagance of the promises is no reason in law why he should not be bound by them. It was also said that the contract is made with the world,—that is, with everybody,—and that you cannot contract with everybody. It is not a contract made with all the world. There is the fallacy of the argu- ment. It is an offer made to all the world; and why should not an offer be made to all the world which is to ripen into a contract with anybody who comes forward and performs ‘the condition? It is an offer to become liable to any one who, before it is retracted, performs the condition, and, although the offer is made to the world, the contract is made with -that limited portion of the public who come forward and perform the condition on the faith of the advertisement. It is not like cases in which you offer to negotiate, or you issue advertisements that you have got a stock of books to sell, or houses to let, in which case there is no offer to be bound by any contract. Such advertisements are offers to negotiate, offers to receive offers, offers to chaffer, as, I think, some learned judge in one of the cases has said. If this is an offer to be bound, then it is a contract the moment the person fulfills the condition. * * * Then it was said that there was no notification of the acceptance of the contract. One cannot doubt that, as an ordinary rule of law, an ac- ceptance of an offer made ought to be notified to the person who makes the offer, in order that the two minds may come together. Unless this is done, the two minds may be apart, and there is not that consensus which is necessary according to the English law—I say nothing about the laws of other countries—to make a contract. But there is this clear gloss to be made upon that doctrine, that 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. * * * Now, if that is the law, how are we to find out whether the person who makes the offer does intimate that notification of acceptance will not be necessary in order to constitute a binding bargain? In many cases you look to the offer itself. In many cases you extract from the char- 124 Casrs:oN THE LAW oF CONTRACTS acter of the transaction that notification is not required, and in the adver- tisement cases it seems to me to follow as an inference to be drawn from the transaction itself that a person is not to notify his acceptance of the offer before he performs the condition, but that if he performs the con- dition notification is dispensed with. It seems to me that from the point of view of. common sense no other idea could be entertained. If I adver- tise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write a note saying that they have accepted my proposal? Why, of course, they at once look after the dog, and as soon as they find the dog they have performed the condition. The essence of the transaction is that the dog should be found, and it is not necessary under such circum- stances, as it seems to me, that in order to make the contract binding there should be any notification of acceptance. It follows from the nature of the thing that the performance of the condition is sufficient acceptance without the notification of it, and a person who makes an offer in an advertisement of that kind makes an offer which must be read by the light of that common sense reflection. He does, therefore, in his offer impliedly indicate that he does not require notification of the acceptance of the offer. * * * Here, * * * if you once make up your mind that there was a promise made to this lady who is the plaintiff, as one of the public,—a promise made to her that if she used the smoke ball three times daily for a fortnight and got the influenza, she should have £100,—it seems to me that her using the smoke ball was sufficient consideration. I cannot picture to myself the view of the law on which the contrary could be held when you have: once found who are the contracting parties. If I say to a person, “If you use such and such a medicine for a week I will give you £5,” and he uses it, there is ample consideration for the promise. * * * Appeal dismissed.™ 42The proposition is stated by Chitty * * * that if the one party never was bound on his part to do the fact which forms the consideration for the promise of the other, the agreement is void for want of mutuality (Chitty Contr. 15); but the proposition is too broadly stated. It is confined to those cases where the want of mutuality would leave one party without a valid or available consideration for his promise (Arnold v. Mayor of Poole, 4 Man. & Gr. 860). For there are many valid contracts not mutually binding at the time when made; as where A says to B, if you will furnish goods to C I will pay for them. B is not bound to furnish them, but if he does he may recover on the promise (2 Saund. 137h; Matoon v. Burr, 7 Ad. & E. 19; Kennaway v. Trel- eavan, 5 M. & W. 498).” Edmonds, J., in L’Amoreux v. Gould, 7 N. Y. 349, 350- 351 (1852). “If there was an agreement, purporting to be made in reference to the de- fendant’s sale of the equity of redemption in the mortgaged property in the form of an offer that the defendant might, if he chose, refrain from paying the note, and from taking measures to secure’: payment of it out of the proceeds of THE OFFER AND THE ACCEPTANCE or A SIMPLE ConTRACT 125 POST v. ALBERT FRANK & CO. Supreme Court, Appellate Term, 1912. 75 Misc. 180, 132 N. Y. Supp. 807.) Action by Lyman D. Post against Albert Frank & Co. From a judg- ient for plaintiff, after a trial without a jury, defendant appeals. Af- rmed. Per Curtam. The action was brought to recover the price alleged to’ ave been agreed to be paid for certain advertising under the following rder: , “New York City, Aug. 20, 1909. “Publisher Paper Mill & Wood Pulp News, New York: Please insert the ollowing order: Title of Order Client. Advertisement. Space. Time. Position. Rate. lumber Schlisische 5 in. every Good. $229.50 3808 Cellulose ete. 3 weeks less 2% for 15 cash beg. at 15 days once “Important: If rate or space is incorrect, write us at once and we will be ‘overned according to your acceptance. Copies of each publication must be orwarded same day adv. appears. “Yours very truly, Albert Frank & Co., per F. R.” After certain insertions had been made, defendant undertook to cancel he order. Plaintiff denied defendant’s right so to do, and now sues for he full amount stated in the order, less a sum conceded to have been paid. The order being for a definite and fixed sum and for a specific number f advertisements of insertions, it must be deemed, in view of the lan- age used, to have been accepted in toto by the commencement of the dvertisement, and that plaintiff thereby undertook to complete it. Hav- ng become a binding bilateral contract, defendant could not cancel it rithout plaintiff's consent. The part performance of an order for a efinite number of insertions and for a definite amount necessarily im- lies an acceptance and an agreement to complete, as, unless completed, othing would be earned. Mendell v. Willyoung, 42 Misc. Rep. 210, 5 N. Y. Supp. 647; Humphreys Mfg. Co. v. David Williams Co., 70 fisc. Rep. 354, 128 N. Y. Supp. 680. Cases suchas White v. Allen Kings- on Motor Car Co, 69 Misc. Rep. 627, 126 N. Y. Supp. 150, are not in he mortgaged property, and that the plaintiff would look to the property alone or the payment of it, and the defendant, relying upon the offer, did refrain rom making any effort to have the property applied to the payment of the ote when it became due, and thereby suffered detriment, there ‘would be a ufficient consideration for the agreement. It would be an ordinary case of a nilateral contract growing out of an offer of one party to do something if the ther will do or refrain from doing something else. If the party to whom uch an offer is made acts upon it in the manner contemplated, either to the dvantage of the offerer or to his own disadvantage, such action makes the ontract complete, and notice of the acceptance of the offer before the action s unnecessary.” Knowlton, J., in First National Bank v. Watkins, 154 Mass. 85, 387-8 (1891). 126 CasEs oN THE Law oF CONTRACTS conflict with this rule, as there the part performance implied only an acceptance of the offer to pay according to the insertions. See Per Curiam opinion in North Side News Co. v. Michael Cypres, 1382 N. Y. Supp. 806. Judgment affirmed, with: costs.% IN THE MATTER OF KELLY. (Supreme Court of Errors of Connecticut, 1872. 39 Conn. 159.) Foster, J.44 This application is based on the 247th section of the Act concerning Crimes and Punishments, Rev. Stat., 294, and the pay- ment of the reward souglit to be recovered is resisted on several grounds. | * * * The application sets forth that the selectmen of the town offered a reward of $200 to any person or persons who should make discovery and give information against the person or persons guilty of the crime of burning the barn of Mrs. Hepzibah Kelly, October “1st, 1865, so that he or they might be tendered to justice and convicted; that the applicant made discovery and gave information against one Nathaniel B. Goodrich,. who was guilty of the crime mentioned, so that he was tendered to justice and, convicted before the Superior Court on the third Tuesday of Decem- ber, 1868. * * * The claim that the right to this reward is barred by lapse of time since the advertisement was published is not well founded. The case of Loring v. City of Boston, 7 Met., 409, is not applicable. The reward offered in that case was not for the discovery and punishment of crimes already committed; it was wholly prospective, being “for the 43 In American Publishing Co. v. Walker, 87 Mo. App. 503 (1901), the order signed and duly accepted read: “It is agreed that the American Publishing and Engraving Company will not be held responsible for any provisions not embodied in writing herein, and that this contract cannot be cancelled without the written consent of the said company. “The American Publishing and Engraving Company, Syndicate Department, 146 to 150 Nassau Street, and 2 to 6 Spruce Street, New York: You are hereby authorized to furnish the undersigned for my exclusive use one cut and no duplicate and reading matter weekly to illustrate the merchant tailor business in the city of Springfield, State of Missouri, only, for the term of one year from the commencement of service, and until notified in writing to discontinue same, for which I agree to pay to your order at New York, the sum of seventy-five cents and postage for each cut, and twenty-five cents and postage for each duplicate at the end of each calendar month; matter sent is not to be duplicated to any other concern in my line of business in Springfield, Missouri. (Name) “James Walker, “Address 220 College Street, “Dated February 26, 1898. Springfield, Mo.” It was held that one contract, rather than a series, was called for and made. 44 Part of the opinion is omitted. THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 127 prehension and conviction of any person who shall set fire to any build- g within the limits of the city.” The advertisement was first published _ the 26th of May, 1837, and was continued for about a week. In Janu- y, 1841, three years and eight months after, there was a fire within the ty set by an incendiary, which consumed several buildings. The plain- f caused the guilty party to be arrested, and he was tried and convicted. n suit brought to recover the reward, the only question was whether id offer of reward continued to be in force at the time of the fire. Chief istice Shaw, who gave the opinion of the court, said it was manifest at the offer, though not limited in terms, could not have been intended | be perpetual, or to last ten or twenty years, or more; it must have ‘en understood to have some limit. There being no limit in terms, by a meral rule of law it must be limited to a reasonable time, and as the court ought three years and eight months not a reasonable time, under the rcumstances, they gave judgment for defendants. We make no question ; to the entire correctness of this decision, and readily assent to the sound- 288 of the principles on which it rests.* But the case at bar is of a totally different character. Here, a reward as offered to any one who should make a discovery and give informa- on, &c., as to a crime committed on a previous day, especially pointed it. The offer, it is true, is not limited in its terms as to time, but the atute of limitations, which is applicable to the crime in question, neces- irily restricts the offer to the period within which the delinquent must 2 informed against and prosecuted, three years next after the offense as committed. So long as the statute of limitations continued to run zainst the offender, so long would this offer of a reward hold good. As ion as the statute becomes a bar to the prosecution, all liability to pay 1e reward of course ceases, for the conviction of the offender is an event ecessarily antecedent to the payment of the reward. We think the petitioner is entitled to recover; and the Superior Court advised to render judgment in his favor.*6 45In Loring v. City of Boston, cited supra, the action was to recover a re- ard of $1000 under an offer which recited as the occasion of its offer “the ‘equent and successful repetition of incendiary attempts,’ which necessitated shat the most vigorous efforts should be made to prevent their occurrence.” Thile the offer covered future as well as past attempts, it might weli have 2en construed as limited to attempts fairly to be deemed within the reign of ‘ime then taking place. ‘ 46 “Whether an offer remains open is a question of fact. Of course the pro- dser may limit the time for acceptance, as every man has the right to dictate 1e terms upon which he will sell his property. Where an answer by return ‘ail is requested, or may be expected from the usage of trade, or nature of le business, the making of the offer is accompanied by an implied stipulation 1at the answer shall be immediate. But unless the time is limited, the propo- tion is open until it is accepted or rejected, provided an answer is given in reasonable time.” Smith, J., in Kempner v. Cohn, 47 Ark. 519, 525-526 (1886). “When I offer anything to a person, what I mean is, I will do that if you 128 Casrs oN THE LAW OF CONTRACTS FERRIER v. STORER. (Supreme Court of Iowa, 1884. 63 Ia. 484, 19 N. W. 288, 50 Am. Rep. 752.) Action upon an account. The defendant pleaded a general denial. He also, by way of counter-claim, pleaded that the plaintiff was indebted to him for interest on money loaned, for the use of certain land, for money paid to remove an incumbrance from land purchased of plaintiff, for labor and lumber furnished plaintiff, and for an overpayment for land. There was a trial to a jury, and verdict and judgment were rendered for the defendant for $208.65. The plaintiff appeals. Apams, J.47 * * * The instruction given is in these words: “The letters given in evidence—the one from plaintiff to defendant [dated Lin- coln, May 1, 1871], proposing to defendant to use defendant’s money in plaintiff’s hands and allow him interest at the rate of ten per cent, and the other from defendant to plaintiff [dated Depere, Wis., May 29] accepting the proposal or consenting to plaintiffs use of the money,—- if written by the respective parties, would constitute a written contract between them as to that matter binding on both, unless the plaintiff im- mediately, on the receipt of the defendant’s letter, gave notice to the defendant that he had withdrawn his offer or declined to accept the money asa loan.” The giving of this instruction is assigned as error. * * * In the instruction the court ruled, in effect, that the acceptance became binding upon the parties unless the plaintiff immediately notified the de- fendant that he had withdrawn his offer. The rule now supported by the great preponderance of authority, and almost, if not quite universally adhered to, is that when a proposal is accepted by letter the contract is choose to assent to it; meaning, although it is not so expressed, if you choose to assent to it in a reasonable time. * * * It is an implied term in such an offer that you shall within a reasonable time and promptly, accept it.” Lord Chancellor Cranworth in Meynell v. Surtees, 25 L. J. Ch. 257, 259-260 (1856). “The better opinion is, that what is, or is not, a reasonable time, must de- pend upon the circumstances attending the negotiation, and the character of the subject matter of the contract, and in no better way can the intention of the parties be determined. If the negotiation is in respect to an article stable in price, there is not so much reason for an immediate acceptance of the offer, and the same rule would not apply as in a case where the negotiation related to an article subject to sudden and great fluctuations in the market. * * * “It seems clear that the intention of the plaintiff, in making the offer by telegraph, to sell an article which fluctuates so much in price, must have been upon the understanding that the acceptance, if at all, should be immediate, and as soon after the receipt of the offer as would give a fair opportunity for consideration. The delay here [24 hours] was too long, and manifestly unjust to the plaintiff, for it afforded the defendant an opportunity to take advantage of a change in the market, and accept or refuse the offer as would best sub- serve its interests.” Nelson, J., in Minnesota Linseed Oil Co. v. Collier White Lead Co., 4 Dillon 431, 435-436, Fed. Cas. No. 9685 (1876). 47 Parts of the opinion are omitted. THE OFFER AND THE ACCEPTANCE oF A StMpLE ContRAcT 129 eemed to become complete when the letter is mailed, provided the offer ; standing and the acceptance is made within a reasonable time. Moore . Pierson, 6 Iowa 292; Mactier’s Adm’rs v. Frith, 6 Wend. 103; Brisban . Boyd, 4 Paige 17; Tayloe v. Merchants’ Fire Ins. Co., 9 How. 390; Tallock v. Ins. Co., 2 Dutch. 268; Adams v. Lindsell, 1 Barn. & Ald. 681; otter v. Sanders, 6 Hare 1. The contract is deemed complete when the atter is mailed, because the mailing constitutes the overt act by which he acceptance is manifested. In Hallock v. Ins. Co., supra, Vrenden- urgh, J., speaking of the overt act by which acceptance is manifested, aid: “The overt act may be as various as the form and nature of con- racts. It may be by the fall of the hammer, by words spoken, by letter, iy telegraph. * * * The acceptor can no more overtake and counter- nand his letter mailed than he can his words of acceptance after they ‘ave issued from his lips.” And he adds: “The bargain, if struck at J, must be eo instanti with such overt act. Mailing a letter containing D acceptanee, or the instrument itself, intended for the other party, is ertainly such overt act.” Such we believe to be the well-recognized doc- rine as to the point of time when a contract made by correspondence s deemed complete. It will be seen that the rule is sharply defined. The nstruction given seems to us to be a departure from it. It assumes that he contract in the case at bar was not necessarily complete when the let- er of acceptance was mailed, and that no contract would have been nade if the plaintiff immediately upon the receipt of the letter had noti- ied the defendant that the offer was withdrawn. The departure from the ‘ecognized rule must have been deemed called for upon the ground that he letter of acceptance was not mailed within a reasonable time. * * * [he court doubtless assumed the rule to be that a contract by corre- pondence is not completed by the mailing of the letter of acceptance where hat is not done within a reasonable time. In this the court was unques- jonably correct. * * * Taking this to be the rule, we have to inquire whether an acceptance, ifter the time limited, or, in the absence of an express limitation, after the lapse of a reasonable time, imposes upon the person who made the ffer any obligation. The theory of the court below seems to have been hat it does. But in our opinion it’ does not. The offer, unless sooner vithdrawn, stands during the time limited, or, if there is no express imitation, during a reasonable time. Until the end of that time the fer is regarded as being constantly repeated. Chit. Cont. (11th Ed.) \%. After that there is no offer, and, properly considered, nothing to vithdraw. The time having expired, there is nothing which the acceptor ‘an do to revive the offer, or produce an extension of time. * * * As to whether the letter of acceptance was mailed within a reasonable ime, we have to say that the burden was upon the defendant, who sets ip the contract, to show that it was. We have already seen that the let- er of acceptance was dated four weeks later than the letter containing 130 Casts on THE Law or CoNTRACTS the offer. One was dated at Lincoln and the other at Depere. These were probably the postoffices of the respective parties. But as to where they are, there is no evidence, and we do not take judicial notice of such matters. Neither is the character of the mail communication shown. We could not say that four weeks was not an unreasonable time, unless we could say so upon a state of facts the most favorable to the plaintiff which we could assume. But it would be useless to go into any such inquiry. It is immaterial as to when the defendant’s letter was dated. The question is as to when it was mailed, and on that we find no evidence whatever. In our opinion, therefore, the instruction was erroneous, and not without prejudice. * * * Reversed.8 MACTIER’S ADMINISTRATORS, APPELLANTS, AND FRITH, , RESPONDENT. (New York Court of Errors, December, 1830. 6 Wend. 103, 21 Am. Dec. 262.) Appeal from Chancery. At New York, in the autumn of 1822, the respondent and Henry Mactier, the intestate, agreed to embark in a 48 In Phillips v. Moor, 71 Me. 78, 80 (1880) Barrows, J., for the court, said: “It is true that an offer, to be binding upon the party making it, must be accepted within a reasonable time. Peru v. Turner, 10 Maine 185. But if the party to whom it is made, makes known his acceptance of it to the party making it, within any period which he could fairly have supposed to be reasonable, good faith requires the maker, if he intends to retract on account of the delay, to make known that intention promptly. If he does not, he must be regarded as waiving any objection to the acceptance as being too late.” It has been suggested that “More exactly from an analytical standpoint the last clause should read ‘if he does not wish his silence to be construed as an acceptance of the counter-offer contained in the late acceptance.’” 1 Williston on Contracts, § 98, p. 175. But is not the real point that in determining what is a reasonable time the action of the one sending the acceptance and the silence of the one receiving it, showing that both think the offer open for acceptance, are facts to be considered? Just as in Mactier v. Frith, post, the fact that the offeror regarded his offer as still open could properly be considered by the court in determining whether more than a reasonable time for its con- tinuance had elapsed. In Morrell v. Studd, [1913] 2 Ch. 648, it was held that negotiations as to security subsequent to acceptance of an offer to purchase an interest in a lease for part cash and the rest secured to the vendor’s satisfaction might be deemed to constitute an agreement implied by conduct to treat the acceptance as in time, though it had to be given in a lunar month (28 days) and may not have been given in that time but was given in a calendar month. Asbury, J., said: “I think I am entitled to hold (subject to the question of the Statute of Frauds) that there was an, agreement upheld by the defendant’s conduct and the circumstances of the case either to enlarge the time for acceptance or to treat the actual acceptance as a proper acceptance” (pp. 657-8). See McCarty v. Helbling, 73 Ore. 356 (1914). THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 131 commercial adventure, in which they were to be jointly and equally in- erested. Frith was to direct a shipment of 200 pipes of brandy from France to New York, to be consigned to Mactier, who was to ship to Frith at Jacmel, in St. Domingo, provisions to the amount of the invoice cost of the brandy, and the respondent was to place the shippers of the srandy in funds by shipments of coffee to France, in French vessels, and he parties were to share equally in the result of the speculation all around. In pursuance of this arrangement, Frith, on the 5th September, 1822, yrote Firebrace, Davidson, & Co., a mercantile house at Havre, to ship 200 pipes of brandy to New York to the consignment of Mactier. On the 24th of December, Frith, who had returned to Jacmel, where he did busi- yess as a merchant, wrote a letter to Mactier on a variety of subjects, 1 which was contained a paragraph in these words: “TI also have the gleasure of handing you copies of Messrs. Firebrace, Davidson, & OCo.’s etters regarding the brandy order. By-the-bye, as your brother, before I eft New York, declined taking the interest I offered him in this specu- ation, and wishing to confine myself in business as much as possible, so as to bring my concerns to a certain focus, I would propose to you to take the adventure solely to your own account, holding the value to cover the transaction to my account in New York.” On the 17th January, 1823, Mactier wrote to Frith, acknowledging the receipt of his letter of the 24th ult.; thanks him for sending the copy of Firebrace, Davidson, & Co.’s letter on the subject of the brandy order; says that he has received 2 letter from them, informing that the brandy would be shipped and leave Bordeaux about the 1st of December then past; and adds, “This has been from the first a favorable speculation with me, and am pleased to say it still promises a favorable result; but to render it complete, I am Jesirous the speculation should go forward in the way first proposed, thereby making it a treble operation. As you have, however, expressed a wish that I should take the adventure to my own account, J shall delay coming to any determination till I again hear from you. The prospect of war between France and Spain may defeat the object of this speculation, as far as relates to the shipment of provisions hence to Hayti, to be in- vested in coffee for France, in which case I will at once decide to take the adventure to my own account. Our London accounts, down to the jth of December, speak confidently of a war between France and Spain, —a measure which, if carried into effect, would operate to your disadvan- age.” Also, “The next arrival from Europe will probably decide the yuestion of peace or war, and I will lose no time in communicating the same to you;” and also, “Let what will happen, I trust you will in no way ye a sufferer.” On the 7th March, 1823, Frith wrote Mactier, making 10 other allusion to the last letter of Mactier than the following: “T have ‘eceived your esteemed favors of the 17th and 31st January, and note heir respective contents.” [This letter was received by Mactier on the ‘th of April. See 1 Paige (N. Y.) 434, 442.] On the twelfth day of x 132 CasEs on THE LAW oF CONTRACTS March, 1823, the ship La Claire arrived at New York, laden with the brandy in question, and was at the wharf on the morning of the 13th of March. A clerk of Mactier testified that he had a conversation with Mactier about the time the brandy arrived, perhaps the morning after, and Mactier then said he should take it to himself. A merchant of New York also testified that Mactier consulted with him on the subject of some brandy which -he expected to arrive; there was some offer for his taking it on his own account, and he appeared inclined to take it. From the state of things, he advised Mactier to take it, and there was a letter drafted by Mactier upon the subject, in which the merchant made some alterations. The letter stated that he, Mactier, should take the brandy to his own account. On the 17th of March, Mactier entered the brandy at the custom-house as owner, and not as consignee, took the usual oath, and gave a bond for the duties. On the twenty-second day of March, he sold 150 pipes of the brandy on the wharf to several commercial houses, and took their notes for the price of the same. ‘The remaining 50 pipes were put in the public store, and remained there in bond, the liquidated duties not having been secured to be paid by Mactier. On the twenty-fifth day of March, Mactier wrote a letter directed to Frith at Jacmel, in which he said: “I have now to advise the arrival of French ship La Claire with the 200 pipes of brandy, and that in consequence of the probability of war between France and Spain, and in compliance with the wish expressed in your regarded favor of the 24th December, and my answer thereto of the 17th January last, I have decided to take this adventure to my own account. I therefore credit you with the amount of the invoice,’ amounting to $14,254.57. To this letter was attached a postscript, dated the 31st of March. On the twenty-eighth day of March, Frith wrote a letter to Mactier, dated at Jacmel, in which, speaking of the brandy in question, he says: “With regard to this ad- venture, I would wish to confirm, if altogether satisfactory to you, what I mentioned to you some time ago, and which I omitted to repeat to you in my previous letter, in reply to yours of the 17th of January. I find the more one does in this country, in the present state of trade, the more one’s affairs get shackled.” Previous to the arrival of these two last letters at their respective places of direction, Mactier was dead, he having departed this life on the 10th of April, 1823. On the 2Ist of April, Frith again wrote a letter addressed to Mactier, in which he acknowledges the receipt of his letter of the 25th of March, says he has noted its contents, and requests Mactier to charter on his account a stanch, first-class vessel, and send out to Jacmel by her 400 barrels of flour, 150 barrels of pork, 150 barrels of beef, 100 barrels of mackerel, &c., &. In the meantime, however, Mactier having died, administration of his goods, &e., was granted to A. N. Lawrence and another, who, in May, 1823, gave the requisite bonds to secure the duties on the 50 pipes of brandy which had not been bonded for by Mactier in his lifetime, except by the general Tre OFFER AND THE ACCEPTANCE OF A SIMPLE ContTRACT 133 d on entering the goods at the custom-house, and took the 50 pipes n the public store and sold them at public auction. ‘he respondent, unwilling to come in as a general creditor of Mactier receive pro rata distribution, on the 1st of April, 1824, filed his bill in Court of Chancery, alleging that the brandy was shipped from France his sole account, and that Mactier was only the consignee thereof. : respondent in his bill admits that he proposed to Mactier to become purchaser of the brandy, but avers that, after the receipt of his letter the 1%th January, he considered him as having declined his proposal . that no other offer was subsequently made by the respondent. He . forth a letter written to him by Mactier, on the thirteenth day of rch, 1823, in which, speaking of the brandy ordered from France, he 3: “I am looking daily for its arrival; it is to be regretted the order not more promptly executed, as the delay I fear will operate to our idvantage. We have London dates to the 30th January; war between mce and Spain may now be considered inevitable; France has re- ed her minister, and 100,000 Frenchmen have been ordered to march ) Spain.” He alleges that the letter of Mactier to him, of the 25th rch, was not received until several days after the death of Mactier, | that his letter to Mactier of the 21st April was written in ignorance the death of Mactier, and that he did not intend thereby, and he con- res he did not finally consummate, the sale as claimed. He avers that promissory notes, received by Mactier from the purchasers of the ) pipes of brandy, remained in Mactier’s possession at the time of his th, not discounted or passed away; and that the same came into the session of, and were at maturity collected by, the defendants; that the endants, by wrongfully and collusively representing themselves as en- ed to the 50 pipes of brandy remaining in the public store, obtained session of and sold the same; and that on the 2d July, 1823, he, by his ymey, claimed of the defendants the part of the shipment or invoice brandy which remained unsold at the decease of Mactier; and also nanded the proceeds of that part of the invoice sold by Mactier, exist- ‘ in notes or otherwise, and the proceeds of the part sold by the de- dants. The bill concludes by praying an account of the sales of the ndy, and a decree directing the defendants to retain in their hands ficient of the funds belonging to the estate of Mactier to pay and satisfy ‘respondent when his accounts shall be settled, and adjudged upon the court. Che defendants put in their answer, insisting that the brandy on its ival in the port of New York, was the sole and exclusive property of ctier; and that the portion thereof which came to their hands at his ‘ease, and the proceeds of that part thereof which was sold by him in lifetime, and which came to their hands, rightfully belonged to his ate, and was subject to be disposed of in due course of administration, % % 134 Cases oN THE LAW oF CONTRACTS The cause was heard upon the exceptions [to the master’s report]. before Chancellor Walworth, who, in March, 1829, * * * decreed that the report be referred back to the master * * * to take and state an account, and report the amount due the complainant, on the principle that he, as survivor, is entitled to the net proceeds of the adventure of brandy, so far as they can be traced and identified, and has a specific lien on the net proceeds of the 50 pipes of brandy sold by the administray tors, and on the proceeds of the notes given for the 150 pipes which re- mained uncollected or not passed away at the time of Mactier’s death, or on so much as is necessary to satisfy the balance due complainant for pay- ment and disbursements on account of that adventure, after deducting from those proceeds the balance of the amount paid for duties and ex- penses, if any, over and above the amount of proceeds of the shipment of brandy which were received by Mactier in his lifetime. From this decree the defendants appealed. For the reasons of the Chancellor. for the decree pronounced by him, see 1 Paige 434. Marcy, J.49 The object of the bill filed in this case is to obtain from the administrators of Mactier the proceeds of the 50 pipes of brandy which came to their possgssion after his death, and the amount of such notes taken on the sale of the 150 pipes on the 22d of March, 1823, as were uncollected and undisposed of at the death of Mactier, or at least so much thereof as may be necessary to pay the balance due the respondent for disbursements on account of the adventure. The question on which the decision in this case, as I apprehend, mainly depends, re- lates to the alleged sale of the brandy to Mactier. There are many defi- nitions of what constitutes a contract, but all of them are of course sub- stantially alike. Powell states a contract to be a transaction in which each party comes under an obligation to the other, and each reciprocally acquires a right to what is promised by the other. Powell on Cont. 4. In testing the validity of contracts many things are to be considered. The contract that the appellants set up in this case is alleged by the respondent to be deficient in several essential requisites. When that was done which, on the assumption of there being parties capable of contract- ing, was necessary, as the respondent contends, to complete it, Mactier was dead. If the contract was only in progress of execution, and there re- mained but a single act to be done to complete it, his death rendered the performance of that act impossible; it suspended the proceedings at the very point where they were when it occurred. * * * I am now to consider whether there was a contract before Mactier’s death, which had the consent of the contracting parties so given and made known as to be binding on them. That a consent is necessary, all agree; but what shall constitute it in a given case, may admit of much diversity 49 The statement of facts is abbreviated and the opinions of Senators Benton, Maynard, Oliver and Throop and parts of the opinion of Marcy, J., are omitted. THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 135 ypinion. The consent of the parties in a contract of sale, as explained Pothier, consists in the concurrence of the will of the vendor to sell articular thing to the purchaser for a specified price, with the will of purchaser to buy the same thing for that price. Pothier, Traité du Con- ‘de Vente, p. 1 § 2, art. 3, No. 31. * * * Although the will of the party sing the offer may precede that of the party accepting yet it must con- 1e down to the time of the acceptance. Where parties are together ffering about an article of merchandise, and one expresses a present lingness to accept of certain terms, that willingness is supposed to tinue, unless it is revoked, to the close of their interview and nego- ion on the same subject; and if during this time, the other party says t he will take the article on the terms proposed, the bargain is thereby ied. Vhere the negotiation between the contracting parties, residing at a tance from each other, is conducted, as it usually is, by letters, it is essary, in order that their minds may meet, that the will of the party king the proposition to sell should continue until his letter shall have ched the other, and he shall have signified, or at least had an oppor- ity to signify, his acceptance of the proposition. This Pothier holds be the legal presumption, unless the contrary appears. His language Cette volonté est présumé tant quwil ne parait rien de contraire. This trine, which presumes the continuance of a willingness to contract after has been manifested by an offer, is not confined to the civil law and codes of those nations which have constructed their systems with the terials drawn from that exhaustless store-house of jurisprudence; it is nd in the common law; indeed, it exists of necessity wherever the ver to contract exists in parties separated from each other. The rule the common law is, that wherever the existence of a particular sub- t-matter or relation has been once proved, its continuance is presumed proof be given to the contrary, or till a different presumption be yrded by the nature of the subject-matter. 16 Nast, 55; Stark. Hv. 2. The case of Adams vy. Lindsell, 1 Barn. & Ald. 681, proceeds upon 1 affirms the principle, that the willingness to contract thus manifested oresumed to continue for the time limited, and, if that be not indicated the offer, until it is expressly revoked or countervailed by a contrary sumption. In that case it was said, “The defendants must be consid- d in law as making, during every instant of time their letter was travel- z, the same identical offer to the plaintiffs; and then the contract is yplete by the acceptance of it by the latter.” * * * \ll the authorities state a contract, or an agreement (which is the same ag), to be aggregatio mentium. Why should not this meeting of the ids, which makes the, contract, also indicate the moment when it be- ies obligatory? I might rather ask, is it not, and must it not be, the ment when it does become obligatory? If the party making the offer not bound until he knows of this meeting of minds, for the same 136 Casns oN THE Law or Contracts reason the party accepting the offer ought not to be bound when his ae. ceptance is received, because he does not know of the meeting of the minds; for the offer may have been withdrawn before his acceptance. was received. If more than a concurrence of minds upon a distinct propo- sition is required to make an obligatory contract, the definition of what constitutes a contract is not correct. Instead of being the meeting of the minds of the contracting parties, it should be a knowledge of this meeting. It was said on the argument, that if concurrence of minds alone would make a valid contract, one might be constructed out of mere voli. . tions and uncommunicated wishes; I think such a result would not follow. The law does not regard bare volitions and pure mental abstractions. When it speaks of the operations of the mind, it means such as have been made manifest by overt acts; when it speaks of the meeting of minds, it refers to such a meeting as has been made known by proper acts; and when thus made known it is effective, although the parties who may claim the benefit of, or be bound by a contract thus made, may for a season remain ignorant of its being made. * * * TI think I am therefore warranted in saying that the proposition may be considered as established, that the acceptance of a written offer of a contract of sale consummates the bargain, provided the offer is standing at the time of the acceptance. What shall constitute an acceptance will depend in a great measure upon circumstances. The mere determination of the mind, unacted on, can never be an acceptance. Where the offer is by letter, the usual mode of acceptance is the sending of a letter announcing a consent to accept; where it is made by a messenger, a determination to accept, returned through him, or sent by another, would seem to be all the law requires, if the contract may be consummated without writing. There are other modes which are equally conclusive upon the parties: keeping silence, under certain circumstances, is an assent to a proposition; any thing that shall amount to a manifestation of a formed determination to accept, communicated or put in the proper way to be communicated to the party making the offer, would doubtless complete the contract; but a letter written would not be an acceptance, so long as it remained in the pos- session or under the control of the writer.6° An acceptance is the distinct 50 “But suppose in the case of an offer by mail, the offeree writes out a proper acceptance and then reads to several associates in his office the offer and his letter of acceptance. On the strength of this, he makes a contract with one of such associates, based upon the proposition contained in the original letter. He then sends the letter of acceptance to be mailed. Suppose further that, while his letter is on the way to the postoffice, but before it is mailed,’a telegram of revocation is received and read by the offeree. It would seem that a contract was made when the letters were read in the office.” Ashley on Contracts, p. 36. , But Professor Ashley qualifies this case by supplying a condition going to performance under the contract as follows: “Thus where the offer and acceptance are read to surrounding friends, al- THE OFFER AND THE ACCEPTANCE oF A SIMPLE ConTRACT 137 ; of one party to the contract, as much as the offer is of the other; the owledge, by the party making the offer, of the determination of the rty receiving it, is not an ingredient of an acceptance. It is not com- sugh the contract arises it is fairly to be implied that mailing a reply promptly a condition precedent in the contract. Unless this condition happens, the iginal offeror is not: compelled to perform the promise into which his offer s ripened.” Ashley on Contracts, p. 38. See Trounstine & Co. v. Sellers, 35 Kan. 447 (1886). There the plaintiffs, of ncinnati, Ohio, had sold on credit to Moore & Weaver of Ottawa, Kansas, ttain clothing and a dispute arising as to the terms of credit, Moore & eaver offered to return the goods they had not sold and pay for the rest and pressed the hope that they would hear from the plaintiffs soon. The plain- fs did not answer but, soon after Moore & Weaver’s letter was received, hn W. Harper, one of the plaintiffs, started on a business trip, intending to to Ottawa after attending to some important matters. A month after sore & Weaver wrote their offer, Mr. Harper reached Ottawa and found ‘that e day before his arrival Moore & Weaver had mortgaged the clothing to editors who had put defendant in charge. The defendant refused to yield ssession, so plaintiffs replevied the goods. Johnston, J., for the court, said: “The right of possession to the clothing in controversy depends upon iether the proposition made to the plaintiffs by Moore & Weaver on No- mber 16th, 1884, was accepted- and became a contract before the execution the mortgages by Moore & Weaver to their creditors on the 15th day of scember, 1884. * * * ‘ “If the plaintiffs intended to accept the proposal it was their duty to have znified their acceptance, either through the mails or by some equally expedi- us Means. The plaintiffs say that they determined to accept the proposition soon as the offer was received, and that Mr. Harper’s act in starting to Ottawa aS an overt act amounting to an acceptance. Every overt act caused by a ‘termination to accept a proposition does not constitute an acceptance. If it 28 the intention of the plaintiffs to accept the offer, they could and most cely would have written Moore & Weaver a letter, which was the usual mode communication between the parties, and which is the usual mode of accept- g an offer made by letter. Instead of sending a letter or telegram announcing determination to accept, one of them started on a business trip through the untry, intending finally to come to Kansas and take ‘the goods, which trip nsumed almost thirty days’ time, during which time they were at liberty to ange their purpose and reject the proposition. The mere determination accept, an offer does not constitute an acceptance which is binding on the ties. ‘The assent must either be communicated to the other party, or some t must have been done which the other party has expressly or impliedly fered to treat as a communication.’ (Benjamin on Sales, 54.) Where parties e distant, and the contract is to be made by correspondence, the writing of a tter or telegram containing a notice of acceptance is not of itself sufficient to mplete a contract. In such a case the act must involve an irrevocable ele- ent, and the letter must be placed in the mail, or the telegram deposited ‘in e office for transmission, and thus placed beyond the power or control of e sender, before the assent becomes effectual to consummate a contract; and 1 then, unless the offer is still standing. The action of the plaintiffs in nding a member of the firm by a circuitous route to Kansas, was no more an a mere mental assent, which, as we have seen, is insufficient. There was ) act of acceptance until Harper arrived at Ottawa and demanded the goods. iis was not within a reasonable time, and when the proposition was not met 138 CasEs oN THE LAW OF CONTRACTS pounded of an assent by one party to the terms offered, and a knowledge of that assent by the. other. I will now apply this law to the facts of this case. Frith’s offer to. within a reasonable time, Moore & Weaver were at liberty to regard their prop- osition as rejected, and to make other disposition of their property, which they manifestly did do.” See Beckwith v. Cheever, 21 N. H. 41 (1850) where plaintiff said he would accept an offer to cut and take timber if he could get his brother to assist him and the offeror said that plaintiff could give a decided answer later. Gilchrist, Cc. J., said: “The plaintiff did not notify Bellows, nor did he enter upon the land. He did nothing but engage his brother to assist him. It cannot with pro- priety be said that this, not brought home to the knowledge of Bellows, can be regarded as an acceptance.” In Cleveland, etc. Rwy. Co. v. Shea, 174 Ind. 303 (1910) an action on an alleged contract to pay a contractor’s debt to plaintiff in consideration of plaintiff's refraining from filing a mechanic’s lien. Monks, C. J., said: “Ap- pellee may have had it in mind to claim a lien upon the property, he may have had it in mind that appellant’s letter to him of February 17 was an offer to pay his claim if he would not file a lien upon the work for such claim, and he may have.had it in mind to accept said offer, but if so he announced none of these mental processes to appellant. In order that the mental conclusion of one party to an alleged contract shall affect the other party, such conclusion must be communicated to the party who is to be affected by it; or if it be the mere acceptance of a distinct proposal, the acceptance must be put by the party accepting, in a proper channel to be communicated to the party making the offer” (p. 309). See also O’Donnell v. Clinton, 145 Mass. 461, 463 (1888). In Brogden v. Metropolitan Railway Co., 2 App. Cas. 666, at pp. 691-2 (1877), Lord Blackburn said: “Mr. Justice ‘Brett, referring to the case of Ex Parte Harris (In re Imperial Land Company of Marseilles, L. R. 7 Ch. App. 587), be- fore the Lords Justices, and other cases, says that, looking to all this, he has come ‘to a strong opinion that the moment one party has made a proposition of terms to another, and it can be shewn by sufficient evidence that the other has accepted those terms in his own mind, then the contract is made, before that acceptance is intimated to the proposer.’ And he goes on to say, applying that to the present case, that, to his mind, as soon as Burnett put the letter into his drawer, a contract was made, although none was formally entered into. “My Lords, I must say that that is contrary to what my impression is, and that I cannot agree in it. If the law was as intimated by Mr. Justice Brett, there would be nothing to discuss in the present case. But I have always be lieved the law to be this, that when an offer is made to another party, and in that offer there is a request express or implied that he must signify his accept- ance by doing some particular thing, then as soon as he does that thing, he is bound. If a man sent an offer abroad saying: I wish to know whether you will supply me with goods at such and such a price, and, if you agree to that, you must ship the first cargo as soon as you get this letter, there can be no doubt, that as soon as the cargo was shipped the contract would be complete, and if the cargo went to the bottom of the sea, it would go to the bottom of the sea at the risk of the orderer. So again, where as in the case of Ex Parte Harris, supra, a person writes a letter and says, I offer to take an allotment of shares, and he expressly or impliedly says, if you agree with me send an answer by the post, there, as soon as he has sent that answer by the post, and put it out of his control, and done an extraneous act which clenches the matter, and shews beyond all doubt that each side is bound, I agree the contract is perfectly plain and clear. , THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 139 ] his interest in the brandy certainly continued till his letter of the th of December was received at New York, and Mactier had a fair portunity to answer it. If the answer of the 17th of January had con- ined an unqualified acceptance, the bargain would have been closed when was sent away for Jacmel; but the offer was not then accepted. There is & promise to accept upon a contingency; for Mactier says, after allud- x to the prospect of a war between France and Spain, “in which case,” at is, in case of such war, “I will at once decide to take the adventure my own account.” This concluded nothing. If the event had actually ppened, and Frith had insisted on enforcing this conditional acceptance, would not have been in his power to do so. The most that Mactier said is, that if an expected event happened, he would do an act which would mplete the bargain. The happening of the event could not, without the t, complete it. The Roman law regarded the tense of the verb used by e contracting parties to determine whether the bargain was concluded: erbum imperfecti temporis rem adhuc imperfectum significat. There a wide difference between a promise to give an assent to a proposi- om. for a contract on the happening of a contingency, and the annunci- ion of a present assent to it. If the expected event happens, and the t promised is performed, the bargain is closed; but it is the promised “But when you come to the general proposition which Mr. Justice Brett ems to have laid down, that a simple acceptance in your own mind, without 1y intimation to the other party, nd expressed by a mere private act, such ; putting a letter into a drawer, completes a contract, I must say I differ from iat. It appears from the year books that as long ago as the time of Edward IV 7 Edw. IV., T. Pasch case, 2), Chief Justice Brian decided this very point. he plea of the defendant in that case justified the seizing of some growing ‘ops because he said the plaintiff had offered him to go and look at them, id if he liked them, and would give 2s. 6d. for them, he might take them; iat was the justification. ‘That case is referred to in a book which I published good many years ago, Blackburn on Contracts of Sale, page 190, e¢ seg., and there translated. Brian gives a very elaborate judgment, explaining the w of the unpaid vendor’s lien, as early as that time, exactly as the law now ands, and he consequently says: ‘This plea is clearly bad, as you have not tewn the payment or the tender of the money;’ but he goes further, and says - am quoting from memory, but I think I am quoting correctly), ‘moreover, sur plea is utterly naught, for it does not show that when you had made up yur mind to take them you signified it to the plaintiff, and your having it . your own mind is nothing, for it is trite law that the thought of man is Mt triable, for even the devil does not know what the thought of man is; but grant you this, that if in his offer to you he had said, Go and look at them, id if you are pleased with them, signify it to such and such a man, and if uu had signified it to such and such a man, your plea would have been good, ‘cause that was a matter of fact.? I take it, my Lords, that that which was id 300 years ago and more, is the law this day, and it is quite what Lord istice Mellish in Ex Parte Harris, supra, accurately says, that where it is ‘pressly or impliedly stated in the offer that you may accept the offer by sting a letter, the moment you post the letter the offer is accepted. You are und from the moment you post the letter, not as it is put here, from the oment you make up your mind on the subject.” 140 Casrks ON THE LAW or CONTRACTS acceptance, and not the happening of the event, that gives validity to the contract. If, in this case, the offer of Frith had been to Mactier to take the brandy on the happening of a French and Spanish war, and Mactier had promised to decide to take it in such an event, the simple fact of his taking it after the war would have enabled Frith to treat him as the purchaser of it. Such an act would have been a valid acceptance; but a conditional acceptance of an unconditional offer, followed up by acts of the acceptor, after the condition was fulfilled on which the ac- ceptance depended, might not be considered as completing the bargain, without the acquiescence of the party making the offer in those acts, be- cause the minds of the parties would not have met on the precise terms of the contract. To conclude the bargain, Mactier must have accepted the offer as tendered to him by Frith, and that acceptance must have been while the offer, in contemplation of law, was still held out to him. That there was an acceptance, or rather that Mactier did all that was incumbent on him to do to effect an acceptance was not denied; but it was insisted, on the part of the respondent, that it was made after the offer was with- drawn. It will be necessary to consider when this acceptance took place, as preparatory to settling the fact of the continuance of the offer down to that time. There is not the slightest evidence of the determination on the part of Mactier to take the brandy before the seventeenth day of March; * * * but if the situatiom of the parties was changed, and Frith was now endeavoring to set up the contract, I am at a loss to con- ceive. how Mactier’s representatives could withstand the force of the facts which took place on the 17th of March. In answer to the offer, Mactier - delayed coming to a determination thereon, but promised to accept it if there should be a war; on the 17th of March, when that event was con- sidered settled, he entered the brandy as his own property, and told his clerk that he had determined to take it. But if there should be any doubt as to the effect of this conduct, there can be none as to his subse- quent acts. By a letter dated the 25th, with a postscript of the 31st of March, he accepts the offer. This letter was immediately transmitted to Frith, and as soon as the 28th of March entries were made in his books, showing that he had become the purchaser. Enough: was done by. the 31st to constitute an acceptance of Frith’s offer and to complete the bar- gain, if the offer can be considered as standing till that day. An offer, when once made, continues, as I have heretofore shown, to the satisfaction of my own mind at least, until it is expressly revoked, or until circumstances authorize a presumption that it is revoked. The offer itself may show very clearly when the presumption of revocation attaches. Where it is made to be replied to by return mail, the party to whom it is addressed must at once .perceive that it is not to stand for an acceptance to be transmitted after the mail. If an offer stands until it is expressly withdrawn, or is presumed to be withdrawn, whether it Tur OFFER AND THE ACCEPTANCE OF A SIMPLE Contract 141 is held out to a party at a particular period or not, is a matter of fact. Then we are to determine, as a matter of fact, whether Frith’s offer was held out for Mactier’s acceptance unti] the 31st of March; if Frith intended it should stand so, and he viewed himself as tendering it to Mactier down to that time, we are bound to regard it as standing, unless his intention was the result of the fraudulent conduct of Mactier. The acts of Frith, after the death of Mactier, could do nothing towards com- pleting an unfinished contract; but I think they may be fairly adverted to for the purpose of ascertaining his intentions in relation to the continu- ance of his offer. On the 7th of March he acknowledges Mactier’s letter of the 17th of January, which did not decline, as it has been construed to do, the offer, but apprised him that it was kept under advisement; and by using the expression, “noting the contents,” Frith is, I think, to be un- derstood as yielding to the proposed delay. If a doubt as to this con- struction of that-letter could spring up in the mind, it would be at once removed by the perusal of the letter of the 28th of the same month. In that he expresses a wish to confirm what he had said in the letter making the offer to sell, and declares that he had in a previous letter, which must mean that of the th, omitted to communicate the same thing. In answer- ing Mactier’s letter which contained the acceptance of his offer, he recog- nizes the bargain as closed, and gives directions as to investiyg the pro- ceeds of the brandy. All the subsequent correspondence acquiesces in the sale. It appears to me to be impossible to say, after reading the letters of Frith written subsequent to his knowledge of Mactier’s acceptance, that he did not consider the offer as held out to Mactier down to the time when it was accepted, and the bargain closed by that acceptance; and I think we must adjudge it to have been closed, unless the agreement was nuga- tory by reason that the thing to which it related had not an actual or potential existence when the contract was consummated. * * * The decree of the Chancellor was accordingly reversed with costs.51 61“Langdell, Summary, sec. 14, suggests that in this case no promise was neces- sary, because a debt would arise on Mactier’s acceptance of the brandy; but the writer believes that such an acceptance necessarily involves a promise to pay, in fact, and that without such a promise the offeror did not intend title to pass.” Arthur L. Corbin, Offer and Acceptance and Some of the Resulting Legal Relations, 26 Yale L. J. 169, 174, n. 142 CasEs ON THE Law oF CoNTRACTS AVERILL anp ANOTHER v. HEDGE. (Supreme Court of Errors of Connecticut, 1838. 12 Conn. 424.) This was an action of assumpsit, alleging that the defendant, who conducted business at Wareham, Mass., under the name of the “Wash- ington Iron Company,” promised to deliver to the plaintiffs a quantity of rods, shapes, and band-iron, in March, 1836. The whole correspondence between the parties was read in evidence; the substance of which was as follows: Harrrorp, 29th February, 1836. Dzar Sir,—Regarding the future disposal of your nails as settled, it would be improper to importune you further on that point. Perhaps, however, you will not object to send- ing us a, supply of rods and shapes for our spring sales. Please to say on what terms you will send us ten or fifteen tons, assorted, by first packet -in the spring. We shall also be glad to purchase our hollow ware of you on the same terms as heretofore. Shall be pleased to hear from you soon. [Signed, “J. & H. Averitt,” the plaintiffs; and addressed to JoHN THomas, Esq. ] WareHam, 2d March, 1836. On the writer’s return from the South last evening, he found your favor of the 29th ult., to which we now reply. We will deliver to you in Hartford ten or fifteen tons of rods, shapes, and band-iron, as follows: say—shapes and band-iron, at $110 per gross ton, six months; and old sable rods, at $116, six months. Old sable iron is now quick at $110 per ton in Boston; and there is but very little iron there at any price. We will deliver you at Hartford a common assortment of hollow ware, at $28 per ton, six months. [Signed “WasuHineTon Iron Company, per Joun THomas, Agent;” and addressed to the plaintiffs.] Harrrorp, 14 March, 1836. Drar S1r,—We have bought of Ripley & Averill their stock of hollow ware, with the understanding that we were to receive the benefit of their orders given you last July. The balance of this order we believe was in readiness last fall ; but, owing to the early closing of our navigation, was not shipped. Will you ship us this lot of ware by first packet, on terms then agreed on with R. & A.? Please advise us by return mail if we may expect it. [Signed by plaintiffs, and addressed to Joun THomas, Esq. | ‘ WaREHAM, March 14, 1836. Drar Srrs,—Your favor of the 14th inst. is at hand, and contents noted. We shall most cheerfully comply with your request to ship to you the balance of Ripley & Averill’s order of hardware, not filled in consequence of the early frost last autumn; such being the understanding between yourselves and Mr. Ripley. We learn from our neighbors, engaged in the manufacture of this article, that they THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 143 iow hold it at $30 per ton, and shall not sell it at a less price through the season; and consequently we shall not consider ourselves holden to the offer made to you on the 2d inst., unless you signify your acceptance hereof by return mail, but shall furnish the balance of Ripley & — order in conformity with the contracts made with them.” Do you accept of our proposal for supplying you with rods, shapes, and gand-iron; and if so, what quantity of each shall we send you? [Signed, “WASHINGTON Iron Company, per JoHN THomas, Agent;” and ad- Jressed to the plaintiffs. ] Harrrorp, March 19th, 1836. Dar Srr,—Your favor of the 17th came to hand last evening, too late to be answered before this morning.. We note and duly appreciate your prompt assent to send us the balance of R. & A.’s order for hollow ware, at old prices. In our future purchases of that article, we will buy of you at $28 per ton, six months, as offered in your favor of the 2d. We will also take the following shapes, &c., on your terms there given: 160 bundles of new sable or Swedes, different shapes, speci- fied; also 40 bundles smaller shapes, to be of old sable, assorted; 120 bundles band-iron, assorted; 60 bundles half-inch spike rods; 200 bundles P § I horse-nail rods, or a ton, if convenient, in 28lb. bundles, sending 5 tons in all. [Signed by the plaintiffs, and addressed to Jonn THOMAS, Esq. | In a letter dated March 21st, 1836, addressed to John Thomas, Esq., the plaintiffs alter their order for band-iron, varying the sorts. ‘WarzHam, April 2d, 1836. Your favors of the 19th and 21st reached here in the absence of the writer. We regret that you had not sooner signified your acceptance of our proposition of the 2d of March, touching supplies of shapes, band-iron, &c., as we had, prior to the reception of your favors above alluded to, entered into such engagements in other markets as rendered it impossible for us to supply you with those articles on any terms. [Signed “Wasuineron Iron Company, per JOHN Tuomas, Agent;” and addressed to the plaintiffs. ] On the 6th of April, 1836, the plaintiffs addressed a letter to the de- fendant’s agent, remonstrating against his conduct in refusing to send them the. iron ordered. The defendant’s agent replied, by a letter dated the 8th of April, as follows :— On 29th February you ask our terms for 10 or 15 tons of rods and shapes. On 2d March we give them to you per mail. On 14th March you again address us upon another subject; but although our proposition, in ordinary course of mail, must have been in your hands 10 to 12 days, yet no allusion was made to it. On 16th, after replying to yours of 14th, we ask if you accede to our proposition of the 2d. After this, we waited 144 * Cases on THE Law oF CONTRACTS for your reply until the 22d, when, not having heard from you, we made such other arrangements as made it impossible for us to fill your orders of the 19th or 21st, both which came together in the same mail on 234d. We did not intend the question proposed to you in ours of 16th as a renewal of our proposals of the 2d ult., nor do we believe that it will bear that construction; but nevertheless we should have filled your order had it been seasonably received. This correspondence was conducted through the mail; upon the part of the defendant, by his avowed agent, John Thomas, and by the plaintiffs themselves on their part. The plaintiffs resided in the city of Hartford, near the post-office. The letter written by the defendant on the 16th of March, dated 14th, arrived at Hartford on the 18th of March, about 2 o’clock p. m. The plaintifi’s answer to the letter, dated the 19th of March, was post-marked the 20th; and the letter written by the plaintiffs on the 21st of March was post-marked on the day of its date; and both letters arrived at Ware- ham at the same time, viz., on the 23d of March. The plaintiffs claimed that during said month of March the price of the article, which was the subject of controversy, was constantly advanc- ing in the market; and that they had sustained loss in their business by the non-compliance of the defendant with his contract. The defendant introduced a witness to prove that letters mailed at Hartford for Wareham were, by the usual course of mail, sent by Provi- dence, and would reach that place on the evening of the day after leaving Hlartford,—but might be sent by Boston; although, when sent by Bos- ton, on the days that both mails‘went, a letter would be one day longer in reaching Wareham; that a mail was sent every day from Hartford to Boston, and every day but Sunday from Hartford to Providence; that the Providence mail usually left the post-office in Hartford about 5 o’clock every morning, except Sunday, when no mail was sent, and Monday, when it left about 10 o’clock a. m. The mails were, in the course of business, closed one hour before they left the office. Upon the 19th of March, 1836, the Providence mail left the office at 25 minutes past 5 o’clock in the morning, and on the 21st at 6 minutes past ten in the morning. The 20th was Sunday; and letters put into the office on Saturday evening and on Sunday evening would be forwarded by the same mail. The usual course of business at the post-office in Hartford was to stamp or post- mark all letters, not on the day they were forwarded, but the day they were received into the office,—unless received after 9 o’clock in the evening. when they were post-marked as of the succeeding day. Upon the facts so proved and disclosed in the correspondence, the plaintiffs claimed that the proposal of the defendant, in his letter of the 2d of March, to furnish the plaintiffs with rods, shapes, and band- iron, was renewed by his letter written’ 16th of March, and dated 14th; THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 145 id that the plaintiffs, by their answer of the 19th of March, in due me signified their assent to the proposal therein contained; and thus as the contract stated in the declaration completed. These claims of the plaintiffs were all resisted and denied by the 2fendant. The court charged the jury, that in mercantile transactions of this iaracter, affected as they must be by the constant fluctuations of mar- ats, the utmost promptitude must be exacted consistent with a due gard to ordinary business; and that if the letter written by the plaintiffs, xcepting the proposal of the defendant relative to said rods, bands, &c., as not delivered into the post-office in Hartford before the day it was ost-marked, viz., the 20th of March, it was not sent in such reasonable me as to make their acceptance obligatory upon the defendant. A verdict was thereupon returned for the defendant; and the plaintiffs ioved for a new trial. Bissett, J.t * * * The great question in the case is, whether pon these facts there has been such an acceptance of the defendant’s ffer as that he is bound by it. The jury were instructed that if the letter written by the plaintiffs, xcepting the proposal of the defendant, was not delivered into the post- fice at Hartford until the 20th of March, it was not sent in such reason- ble time as to make their acceptance obligatory on the defendant. Several questions, not immediately growing out of the charge, but hich, if decided in favor of the defendant, make an end of the case, have zen. much discussed at the bar. 1. It has been contended that the proposal of the defendant, in his itter of the 2d, was not renewed by his letter of the 16th of March. ‘pon this point no opinion was given by the judge on the circuit, unless n opinion may be inferred from the ground on which he rested the ise in his instructions to the jury. Nor is it essential that a decided pinion on the question should be expressed by this court; because there te other grounds on which we are unanimously of opinion that the ruling f the judge below must be sustained. Were this, however, a turning point in the case, we should probably 2 prepared to say that the defendant’s letter of the 16th of March ves contain a distinct renewal of his former proposal. His language certainly very strong to show that such. was his intention. He says: Do you accept of our proposal for supplying you with rods, shapes, and ad-iron; and if so, what quantity of each shall we send you?” Now e cannot but think that the fair and obvious construction of this lan- aage is that the defendant then stood ready to supply the articles upon + Parts of the opinion are omitted. 146 CAsEs ON THE Law orf CONTRACTS the terms already specified.5® And such appears to have been his own view of the case, as is manifest from his subsequent letter of the 8th of April. 2. It has been urged, that admitting this letter to contain a renewal of the former proposal, yet by the terms of it, the plaintiffs were bound to signify their acceptance by return of mail. The question, in this aspect of it, is manifestly independent of any mercantile usage. That the defendant had a right to attach this condition to his offer is undeni- able. The question is, whether he has done so; and whether such is the true construction of his letter. In his letter of the 2d of March, the defendant had offered to sup- ply the plaintiffs an assortment of hollow ware at certain prices; and in regard to this offer, in his letter of the 16th, he says: “We shall not consider ourselves holden to the offer made you on the 2d inst., unless you signify your acceptance thereof by return of mail;” and he then puts the inquiry with regard to rods, shapes, and band-iron, that has been already mentioned. Now, it should be borne in mind, that the defendant’s proposal, in regard to these articles, had already been before the plaintiffs for at least ten or twelve days; and one claim put forth by them on the trial was, that during the month of March the price of these articles was constantly advancing in the market. The question then arises, whether under these circumstances it was the intention of the defendant to give them further time; and whether such intention can be fairly inferred from the language of his communication. In regard to the hollow ware, there can be no question. The plaintiffs were positively required to signify their acceptance by return mail. And when, in the same letter and under similar circumstances, they are also required to decide upon the proposal in regard to the rods, &., it ‘is certainly not easy to see why the defendant should have made, or should have intended to make, a distinction between these classes of articles. Had the judge directed the jury that the defendant was not bound, unless the plaintiffs signified their acceptance by return of mail, we are by no means satisfied that the direction would have been wrong. As, however, he placed the case on grounds more favorable to the plaintiff’s claim, a decision upon 52“We think we may paraphrase the observation of Dr. Paley and say that each letter should be taken in that sense in which the writer apprehended at the time that the recipient understood it. Id. [1 Chit. Con.] 104. Another and important canon of construction:is that the writings should be so construed, if possible, as to effectuate the manifest purpose of the parties to come together in an agreement; that such a construction should be adopted, if possible, as to constitute an agreement rather than defeat an agreement. * * * We must not be unmindful of the rule that a written instrument is to be taken most strongly against the writer, but this being a rule of some strictness and rigor, the established doctrine is that it is the last to be resorted to—a rule never to be relied upon except where other rules of construction fail.” Pitney, J., in Empire Rubber Mfg. Co. v. Morris, 73 N. J. L. 602, 610 (1905). THE OFFER AND THE ACCEPTANCE OF A SIMPLE CONTRACT 147 is point is unnecessary. Any further discussion of it is therefore waived. 3. We come then to the inquiry, whether the instruction actually ven to the jury is correct in point of law. And here it may be remarked, at it is very immaterial when the letter of the plaintiffs was written: til sent, it was entirely in their power and under their control,. and is no more an acceptance of the defendant’s offer than a bare determina- m, locked up in their own bosoms and uncommunicated, would have en. And it surely will not be claimed that mere volitions, a mere termination to accept a proposal, constitute a contract. ‘The plaintiffs en did not accept the defendant’s proposition until the 20th, and for ght that appears [did not accept] until the evening of that day. That ey were bound to accept within a reasonable time was distinctly ad- itted in the argument; and if not admitted, the position is undeniable. re case of the plaintiffs then comes to this, and this is the precise ound of their claim: That they had a right to hold the defendant’s ‘er under advisement for more than forty-eight hours, and to await e arrival of three mails from New York, advising them of the state of e commodity in the market; and having then determined to accept, e defendant was bound by his offer; and that this constitutes a valid ercantile contract. Now, in regard to such a claim, we can only say, at it appears to us to be in the highest degree unreasonable; and that : know of no principle, of no authority, from which it derives the slight- t support. : Indeed, it seems to us to be subversive of the whole law of contracts. r it is most obvious, that, if during the interval the defendant was und by his offer, there was an entire want of mutuality: the one rty was bound, while the other was not. Had the proposition been ade at-a personal interview between the parties, there can be no pre- ase that it would have bound the defendant beyond the termination the interview. * * * — : ; An offer then, made through a letter, is not continued beyond the time at the party has a “fair opportunity” to answer it. This is substan- ly the doctrine of the charge. And it is not only highly reasonable, t is supported by all the analogies of the law. Once establish the prin- 2 that a party to whom an offer is is made may hold it under considera- m more than forty-eight hours, watching in the mean time the fluctua- ms of the market, and then bind the other party by his acceptance, and is believed that you create a shock throughout the commercial com- anity, utterly destructive of all mercantile confidence. No offers would made by letter. It would be unsafe to make them. It is only necessary to apply these principles to the case before us; d their application is exceedingly obvious. The proposal of the de- idant, which had already been several days before the plaintiffs, was iewed early on the afternoon of the 18th. They show no act done by 2m signifying their acceptance, until the evening of the 20th. Was 148 Casts oN THE Law or Contracts this within a reasonable time? Was this the first fair opportunity of manifesting their acceptance? We think this can hardly be claimed. Had the defendant had an agent in Hartford, through whom the offer ‘was made, might the plaintiffs thus have delayed the communication of their acceptance to him? This would not be pretended. And can it vary the principle, that the offer, instead of being thus made, was made through the agency of the post-offce? Had the offer of the defendant been promptly accepted, information of the acceptance would have reached the defendant on the evening of the 20th, in due course of mail. He waited until the 22d; and hearing nothing from the plaintiffs, he then virtually retracted his offer, by making such arrangements as made it impossible for him to fill their order. We think he was fully justified in so doing; and that upon every sound principle the rule in this case must be discharged. New trial not to be granted. HYDE v. WRENCH. (Court of Chancery, 1840. 3 Beavan, 334.) This case came on upon general demurrer to a bill for specific per- formance, which stated to the effect following: The defendant being desirous of disposing of an estate, offered, by his agent, to sell it to the plaintiff for £1200, which the plaintiff, by his agent, declined; and on June 6th the defendant wrote to his agent as follows: “I have to notice the refusal of your friend to give me £1200 for my farm; I will only make one more offer, which I shall not alter from—that is, £1000 lodged in the bank until Michaelmas, when title shall be made clear of expenses, land tax, etc. I expect a reply by return, as I have another application.” This letter was forwarded to the plain- tiff’s agent, who immediately called on the defendant; and, previously to accepting the offer, offered to give the defendant £950 for the purchase of the farm, but the defendant wished to have a few days to consider. On June 11th the defendant wrote to the plaintiff’s agent as follows: “I have written to my tenant for an answer to certain inquiries, and the instant I receive his reply will communicate with you, and endeavor to conclude the prospective purchase of my farm. I assure you I am not treating with any other person about said purchase.” The defendant afterward promised he would give an answer about accepting the £950 for the purchase on June 26th; and on the 27th he wrote to the plaintiff’s agent, stating he was sorry he could not feel disposed to accept his offer for his farm at Luddenham at present. This letter being received on June 29th, the plaintiff's agent on that day wrote to the defendant as follows: “I beg to acknowledge the receipt Tue OFFER AND THE ACCEPTANCE oF A SIMPLE Contract 149 of your letter of the 27th instant informing me that you are not disposed to accept the sum of £950 for your farm at Luddenham. This being the case, I at once agree to the-terms on which you offered the farm—viz., £1000 through your tenant, Mr. Kent, by your letter of the Gth instant. I shall be obliged by your instructing your solicitor to communicate with me without delay, as to the title, for the reason which I mentioned to you.” The bill stated that the defendant “returned a verbal answer to the last-mentioned letter, to the effect, he would see his solicitor thereon ;” and it charged that the defendant’s offer for sale had not been withdrawn previous to its acceptance. To this bill, filed by the alleged purchaser for a specific performance, the defendant filed a general demurrer. Master oF THE Rotts, [Lorp Lanepate}]. Under the circumstances stated in this bill, I think there exists no valid binding contract between the parties for the purchase of the property. The defendants offered to sell it for £1000, and if that had been at once unconditionally accepted, there would undoubtedly have been a perfect binding contract; instead of that, the plaintiff made an offer of his own, to. purchase the. property for £950, and he thereby rejected the offer previously made by the de- fendant. I think that it was not afterward competent for him to revive the proposal of the defendant, by tendering an acceptance of it; and that, therefore, there exists no obligation of any sort between the parties; the demurrer must be allowed.58 ' 58In Minneapolis, &c. Railway v. Columbus Rolling Mill, 119 U. S. 149 (1886), where defendant offered to sell 2000 to 5000 tons of iron rails and Plaintiff first sent an order for 1200 tons and then, when notified that defendant could not book that order at the price of an order for 2000 tons, tried to accept, Gray, J., said: “The defendant, by the letter of December 8th, offered to sell to the plaintiff two thousand to five thousand tons of iron rail on certain terms specified, and added that if the offer was accepted the defendant would expect to be notified prior to December 20th. This offer, while it remained open, without having been rejected by the plaintiff or revoked by the defendant, would authorize the Plaintiff to take at his election any number of tons not less than two thousand nor more than five thousand, on the terms specified. The offer, while unrevoked, might be accepted or rejected by the plaintiff at any time before December 20. Instead of accepting the offer made, the plaintiff on December 16, by telegram and letter, referring to the defendant’s letter of December 8, directed the de- fendant to enter an order for twelve hundred tons on the same terms. The mention, in both telegram and letter, of the date and the terms of the defend- ant’s original offer, shows that the plaintiff's order was not an independent proposal, but an answer to the defendant’s offer, a qualified acceptance of that offer, varying the number of tons, and therefore in law a rejection of the offer. On December 18, the defendant by telegram declined to fulfil the plaintiff's order. The negotiations between the parties was thus closed, and the plaintiff could not afterwards fall back on the defendant’s original offer. 150 CAsES ON THE Law oF CONTRACTS NEER v. LANG. (Circuit Court of Appeals, Second Circuit, 1918. 252 Fed. 575, 164 Cc. Cc. A. 491.) Suit by William A. Neer against Frank R. Lang to recover damages in the amount of $17,000 for the breach of an alleged contract to sell plaintiff 20 shares of the capital stock of a corporation known as the Saxon Motor Company. Judgment for defendant, and plaintiff brings error. Affirmed. Rogers, J. The right to maintain this action depends upon whether a contract was ever made as alleged. The plaintiff relies on certain cor- The plaintiff's attempt to do so, by the telegram of December 19, was therefore ineffectual and created no rights against the defendant.” But a genuine though unsuccessful attempt to accept in writing may not preclude a subsequent valid oral acceptance. ‘The evidence also warranted the judge in finding as a fact that, in addition to the unsuccessful attempt to accept it in writing, the plaintiff through its president verbally instructed the broker to accept it and ratified his action in accepting it when notified that he had done so. There is nothing inconsistent in the plaintiff's accepting a written offer both by word of mouth and in writing. And if it turns out that, through an unguarded expression in the writing, the writing is not, although it was intended to be, an acceptance, the oral acceptance which is vot open to that objection is good. The difficulty with the defendant’s argument here is that in it he assumes that, if there is an attempt to make a written acceptance of a written offer, the result is the same as it is when the parties have reduced their agreement into a written contract. That assumption however is a mis- take. When one attempts to accept in writing an offer made in writing there is no mutual agreement that certain specific written, words shall stand as a statement of the trade ultimately struck between them. The question and the sole question is: Did the person to whom the offer was made accept it? A dozen unsuccessful attempts to accept it do not affect the validity of one which is successful, at any rate where the intention in case of all the attempts was to accept it.” Loring, J., in Metropolitan Coal Company v. Boutell Transf. & Towing Co., 196 Mass. 72, 82-3 (1907). And of course, a mere inquiry as to whether the offeror will insert different terms in his offer is not a conditional acceptance or counter offer. Stevenson v. McLean, 5 Q. B. D. 346 (1880). “It is certain that an acceptance which varies from the offer will not con- clude a contract. Davenport v. Newton, 71 Vt. 11, 21, 42 Atl. 1087. But the reply may go beyond the terms of the proposal without qualifying the accept- ance. The addition may be such as fairly to import a request instead of a condition. In determining what one party intended and the other ought to have ‘understood, regard must be had to the situation and purpose of. the parties and the subject-matter and course of the negotiations.” Munson, J., in Pur- rington v. Grimm, 83 Vt. 466, 469-470 (1910). ' In Turner v. McCormick, 56 W. Va. 161 (1904) where thé owner of land executed to the plaintiff two options of sale of a vein of coal underlying two separate tracts of land under which the plaintiff was given ‘until a certain time “to accept the coal,” the plaintiffs’ notice of acceptance read: “Morgantown, W. Va., Feb. 21, 1902. Mr. William McCormick: I hereby notify you that your coal will be accepted according to terms of the option given to me on same and respectfully request you to make delivery of deed, THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 151 respondence which passed between defendant and himself, and which he claims constituted a contract, and involves a breach. The plaintiff on October 9, 1915, received the following letter from the defendant: “Fort Leavenworth, Kansas, Oct. 7, 1915. “Wm. A. Neer & Co,, Detroit—My Dear Mr. Neer: Will you keep me posted on the Saxon Motor common market. Would like to buy 10 or 15 shares at around 300, subject to confirmation, or would sell 20 shares at 400, subject to previous sale. “Sincerely, [Signed] F. R. Lang, Major, U. S. Army.” with abstract of title, to me, in Morgantown, W. Va., on Saturday, June 28th, 1902, hour and place to be decided later. Yours truly, B. D. Turner.” In holding that the letter constituted an acceptance of the offer of sale, rather than a promise to accept, and that the request that: the deed with abstract of title; be delivered at the time and place mentioned, did not make the acceptance conditional, the court reviewed the cases at length, Poffenbarger, P., writing the opinion, and said that the review “seems to establish the following propo- sitions: First, a request for a change or modification of a proposed contract, made before an acceptance thereof, amounts to a rejection of it; second, a mere inquiry as to whether the proposer will alter or modity its terms, made before acceptance or rejection, does not amount to a rejection, and, if the offer be not withdrawn before acceptance made within a reasonable time, the offer becomes a binding contract; third, a request, suggestion, or proposal of altera- tion or modification, made after unconditional acceptance, and not assented to by the opposite party, does not affect the contract put in force and effect by the acceptance, nor amount to a breach thereof, giving right of rescission; fourth, acceptance of a formal and carefully prepared option of sale of land, within the time by it allowed, and according to its terms, although accom- panied by a request for a departure from its terms as to the time and place of performance, is an unconditional acceptance, and converts the option into an executory contract of sale, provided the request be not so worded as to limit or qualify the acceptance.” So a’ mere suggestion that one ought to change the terms of the proposed contract, even though made before the acceptance, does not amount to a rejection of the offer. Foster v. West Publishing Co., (Okla.) 180 Pac. 1083 (1920). So objections to certain provisions of the offer and an expression of opinion that the offeror should not ask such conditions will not prevent the acceptance from being unqualified if a favor only is being sought. Bleecher v. Miller, 40 Okla. 374 (1914). “Suppose, in reply to an offer by A, B writes: ‘I shall want to consider your offer'for more of the time which you have allowed me for that purpose because I am so situated now that I cannot return an immediate answer. However, the situation is such that if you want to settle the matter at once, I will close with you now at 5% less than the price you name.’ It seems clear that A could conclude a contract by accepting the lower price, but this reply should not, under ordinary circumstances, be held to terminate the original offer.” Herman Oliphant, The Duration and Termination of an Offer, 18 Mich. L. Rev. 201, 209. “Does a rejection in the ordinary sense of that term always terminate an offer? Suppose the offerer says when making an offer, ‘I expect you to reject this offer upon first consideration, but I want you to consider it further be- cause I think you will accept when you have thought about it a while.’ The 152 CasEs ON THE LAW OF CONTRACTS The plaintiff, upon the receipt of the letter, sent the following telegram to defendant : “Western Union Telegram. “10—9—1915. “To Major F. R. Lang, Fort Leavenworth, Kansas: We accept twenty Saxon at four hundred ship with draft attached and wire when you have done this. “Wm. A. Neer & Co.” This telegram plaintiff followed with a letter as follows: “10—9—1915. “Major F. R. Lang, Fort Leavenworth, Kansas—Dear Sir: Upon receipt of your letter offering us 20 Saxon Motor common at 400, we immediately wired you as follows: ‘We accept 20 Saxon at 400 ship with draft attached and wire when you have done this.’ We trust we will receive your confirma- tion on this transaction very soon. ; “Very truly yours, Wm. A. Neer & Co.” ‘ The defendant, upon receipt of plaintiff’s telegram, sent to plaintiff the following letter: offeree immediately sends a rejection which the offerer ignores. On further thought, the offeree sends an acceptance. It is believed the courts would hold the offerer bound. He has been taken at his word. His objective will is decisive. Possibly it may be useful to confine the term, rejection, to a meaning more limited than its ordinary one.” Id., 209, n. On “right” to accept offer after submitting counter proposition, see L. R. A. 1915D, 145, note. A question has been raised, not settled by authority, as to when a rejection by mail or telegram to an offer by the same means of communication takes effect. See Clarence D. Ashley, Must the Rejection of an Offer be Communicated to the Offeror? 12 Yale L. J. 419; 1 Williston on Contracts, § 52. It would seem as if an outright rejection would take effect when mailed or telegraphed, but as if a counter-offer is not a counter-offer and therefore not an effective implied rejection until received. See dictum in Harris v. Scott, 67 N. H. 487, 439 (1893) to the effect that the offeror authorizes the means of communication for an unqualified answer; but under the doctrine of Henthorn v. Fraser, re- ported ante, p. 106, what the offeror intends is not of primary importance and courts agreeing with that decision conceivably might hold the counter-offer effective as a rejection when mailed though not effective as an offer until received. As Professor Williston has said: “It may seem odd to suggest the possibility that a letter containing a rejection of an offer and also a new offer might become effective as to the rejection immediately, but as to the offer not until communication was complete; but if it is remembered that a letter revoking one offer and accepting another unquestionably takes effect at two different times there will seem less reason for surprise. The acceptance and revocation, however, though in the same letter are two distinct things whereas the counter-offer is itself the rejection.” 1 Williston on Contracts, § 52, p. 89, n. Tre OFFER anp THE ACCEPTANCE oF A StmMpLE Contract 158 “Fort Leavenworth, Kansas, October 9, 1915. “Wm. A. Neer & Co., Detroit—Gentlemen: Saxon stock sold before receipt of your telegram. Seems to be much demand for it. Think I may be able to locate ten and possibly twenty-five shares more. What is best offer you would make for this and for how long a period is bid open? “Very truly, [Signed] F. R. Lang, Major, U. 8. Army.” The statement in the above letter, “Saxon stock sold before receipt of your telegram,” plaintiff claims was false, and was made with the pur- pose of taking advantage of the condition in his letter of October 7th that the offer there of 20 shares at 400 was subject to previous sale. The court below held that the correspondence disclosed no contract and dismissed the complaint. If a contract exists, it is to be found in the letter of October 7th and the telegram of October 9th. The letter contains an offer to “sell 20 shares at 400, subject to previous sale.” The telegram “accepts twenty Saxon at four hundred.” If nothing more had been added, a valid con- tract would have resulted, provided the-defendant had not previously sold the shares. But the telegram contained something more, and that was, “Ship with draft attached and wire when you have done this.” This im- perted a new item into the acceptance and prevented a contract from being made. Every agreement is the result of an offer and an acceptance thereof. An offer must not be uncertain or ambiguous, and it was not in this case as respects the 20 shares of Saxon, for it is not impossible for a court to say just what the language used meant. But an acceptance is required to be identical with the offer, or there is no meeting of the minds, and no agreement; and in this case the offer and the acceptance are not identical. ‘ Every trade or business has its usages, and persons who make offers relating thereto assume that all the customary incidents of such callings shall be part of the agreement, and they do not need to be expressly stated in the written or oral offer, as the law implies them. The law im- plies that the place of delivery of the stock shall be at the place of the seller, nothing appearing to the contrary; that is to say, in this case the place of delivery under the offer as made was Ft. Leavenworth, Kan. But under the acceptance delivery was to be made at Detroit, Mich., where plaintiff resided. The law implies from the terms of the offer that pay- ment was to be made in cash on delivery at Ft. Leavenworth. - But the acceptance provided for a payment by draft on delivery at Detroit. The defendant was required to part with possession of his stock before actual payment. ; In Cameron v. Wright; 21 App. Div. 395, 47 N. Y. Supp. 571, an offer was made to sell stock at 33 cents on the dollar, subject to the right to sell to other parties. The alleged acceptance was in a tele- gram reading, “I accept offer; 33 for all your stock; draw three days’ sight draft with stock attached.” This was held to be a variance from 154 CASES ON THE LAW or ContTRACTS the offer, and the interposition of a term not embraced in the original offer, and therefore not binding. And see Greenwalt v. Este, 40 Kan. 418, 19 Pac. 803; Sharp v. West (D. C.) 150 Fed. 458; Lacey v. Thomas (C. C.) 164 Fed. 623. As there was no contract, and therefore no right to sue for a breach, the other questions raised need not be considered. Judgment affirmed.®4 54“The vendee in his letter of acceptance may not attach any condition to such acceptance, even to the extent of undertaking to dictate the place where payment shall be made. If his attempted acceptance is coupled with any condition that varies or adds to the offer to sell, it is not an acceptance, but is in reality a counter proposition.” Barnes, J., in Curtis Land & Loan Co. v. Interior Land Co., 187 Wis. 341, 345-6 (1908). In Seymour v. Armstrong, 62 Kans. 720 (1901), in an attempted acceptance of an offer to supply defendants eggs by the case, plaintiff added: “The eggs are all packed in new No. 2 white wood cases and I will accept fifteen cents each for them or you can return them or new ones in place of them.” The court said that this acceptance “affixed conditions not comprehended in the pro- posal” in that it “required the defendants” to pay for the cases or return them or new ones, whereas by the usages of the business the cases went with the eggs, and hence, the acceptance not being unconditional, there was no contract. “An acceptance incorporating a term, condition, or reservation not embraced within the terms of the offer is equivalent to a rejection.” Aspinall, J., in Stanley v. Gannon, 180 N. Y. Supp. 602, 606 (1919). “Where an offer is made by one party, and the other annexes a condition to his acceptance, there is no completed contract till the party making the first offer assents to the condition.” Allen, J., in Putnam v. Grace, 161 Mass. 237, 245 (1894). In Corcoran v. White, 107 Ill. 118 (1886) an acceptance of an offer of sale of real property “provided the title is perfect” was held conditional. Com- pare Von Hatzfeldt-Wildenburg v. Alexander, [1912] 1 Ch. 284, where an ac- ceptance of an offer of sale of a leasehold house was on condition that the purehaser’s solicitors should “approve the title to, and covenants contained in the lease, the title from the freeholder and the form of contract” and where Parker, J., said: “There is some authority for saying that where a purchaser stipulates that his solicitor shall approve the title of the property such stipu- lation may possibly be construed as a recognition that the title will be exam- ined in the usual way and need not be construed as a condition at all. But such a construction is impossible in this case, for the plaintiff’s solicitors have to approve also the freehold title, which cannot be called for on an open con- tract for the sale of a lease.” “An acceptance which in terms is conditioned on what the law implies is a good acceptance, as it introduces nothing new into the contract. See Anglo- American etc. Co. v. Prentiss, 157 Ill. 506.” Rogers, J., in Morse v. Tillotson & Wolcott Co., 258 Fed. 340, 348 (1918). See McCleskey & Whitman v. Howell Cotton Co., 147 Ala. 573 (1906). See also 1 A. L. R. 1508, note. And it has even been held that adding to an acceptance a demand for some performance to which the acceptor will not be entitled under the contract will not invalidate the acceptance, if it goes only to performance and is not a condition of the acceptance. Horgan v. Russell, 24 No. Dak. 490 (1913). In Earle v. Angell, 157 Mass. 294 (1892) there was a question whether an oral acceptance did not vary from the oral offer, both occurring on the one occa- THe OFFER AND THE ACCEPTANCE OF A SIMPLE ConrTRACT 155 THURBER v. SMITH. (Supreme Court of Rhode Island, 19038. 25 R. I. 60, 54 Atl. 790.) Assumpsit heard on defendants exceptions. Stiness, C. J.* The plaintiff gave a mortgage to the defendant for $200, due March 19, 1902. August 1, 1901, the defendant wrote to the plaintiff as follows: “Providence, R. I., August 1, 1901. “Walter Thurber— “Dear Sir: : “Your mtge. calls for interest less than I generally get, and knowing I can let the money out to better advantage if I could get it in, I am willing to allow you $20 discount, if you can raise the money or find somebody else to take it up this month. I have offered this same com. elsewhere, and give you the same opportunity. “Very truly, H. N. Smith.” The plaintiff replied on the 8th day of August, A. D. 1901, by letter: “I would like to accept the offer, and expect to have the money for it in about two weeks.” August 21, 1901, the defendant notified the plaintiff, by letter, that he had sold the mortgage for its face. August 30, 1901, the plaintiff went to the defendant and offered to pay the $180.00. * * * Upon these facts the court * * * gave judgment for the plaintiff in the sum of $32.00. * * * The ruling that the plaintiff’s letter was not an acceptance was not excepted to by the defendant, being in his favor, and is not before us on exception’ It is proper to add, however, for further proceedings in this case, that we think that this ruling was correct. The letter did not accept the offer expressly or impliedly. The words, “I would like: to accept,” and “expect to have the money for it in about two weeks,” imply a willingness to accept, but a doubt as to ability. Suppose, upon the ground of a completed contract for earlier payment, the defendant had sought to foreclose his mortgage or to sue upon the note. The defend- ant could have urged with much force that he had not accepted the offer, but had simply expressed a desire to do so. An acceptance of an offer must be definite, unambiguous, and unqualified; such as to complete a contract. In Martin v. Northwestern Co. (C. C.), 22 Fed. 596, an offer of coal upon specified terms was replied to as follows: “Telegram received. sion, but Holmes, J., said: ‘But the parties were face to face, and separated seemingly agreed. The jury might well have found, if that was the only ques- tion, that the variation, if any, was assented to on the spot” (p.° 296). * Part of the opinion is omitted. 156 CAsEs oN THE LAW or CoNTRACTS You can consider the coal sold.. Will be in Cleveland and arrange par- ticulars next week.” This was much more definite than the letter in this case, but it was held that there. was no definite contract and ac- ceptance thereof. Brewer, J., said: “It is not ‘I accept your offer,’ but “You may consider the coal sold.’ It is not, perhaps, a natural expression when a definite acceptance of an offer is intended. It is more equivalent to this: ‘There is so little to be settled, and I am so sure that all can be arranged, that you are safe in looking at the sale as closed, and prepare to make your arrangements accordingly.’ ” In Potts v. Whitehead, 23 N. J. Eq. 512, to an offer to sell land the reply was: “Have twice attempted the tender of the first payment of $500 upon the agreement made between us on the 7th December last. I will meet you,” etc., “when I shall be ready to make tender of the money and execute the proper agreements thereupon.” It was held that this letter was not, either in terms or substantially, an acceptance of an offer, and concluded no contract.” In Myers v. Smith, 8 Barb. (N. Y.) 614, an offer of malt “delivered on boat” was accepted as “deliverable on boat,” and it was held that this was not an acceptance of the offer. In Havens v. American Co., 11 Ind. App. 315, 39 N. E. 40, the words, “T am prepared to make the arrangement with you,” were held not to be an unqualified and unequivocal acceptance. In Carr v. Duval, 4 Pet. (U. S.) 77%, the rule is stated that if it be doubtful whether an agreement has been concluded, or is a mere negotia- tion, chancery will not decree a specific performance. In Hutchinson v. Bowker, 5 M. & W. 535, an offer was made of a quantity of good barley, with terms stated. The reply was: “Of such offer we accept, expecting you will give us fine barley and full weight.” The jury found that there was a distinction in the trade between good and fine barley, but that it was not applied in the letter in that particular sense. ‘The court held that the meaning was ambiguous, and hence no acceptance. See also, Isham v. Therasson, 53 N. J. Eq. 10; Marschall v. Hisen, 7 N.Y. Mise. 674. We think the terms of the letter in the case at bar were ambiguous, and so no acceptance, from which it follows that the defendant had the right to revoke his offer, which he did by his notice of sale of the mortgage, and therefore, judgment should have been for the defendant. Exceptions sustained and case remitted * * * with direction to enter judgment for the defendant. Tue OFFER AND THE ACCEPTANCE OF A SIMPLE ContTRACT 157 TINN v. HOFFMAN & CO. (Court of Exchequer Chamber, 1873. 29 Law Times [N. S.] 271.) This was an action brought by the plaintiff against the defendant: recover damages in respect of a breach of contract to deliver 800 is of iron; and by the consent of the parties, and by order of Martin, , dated May 30th, 1872, the facts were stated for the opinion of the urt of Exchequer in the following SPECIAL CASE. 1. The plaintiff, Mr. Joseph Tinn, is an iron manufacturer, carry- g on business at the Ashton Row Rolling Mills, near Bristol; and e defendant, who trades under the name and style of Hoffmann & ., is an iron merchant, carrying on business at Middlesbro’-on-Tees. 2. In the months of November and December, 1871, the following rrespondence passed between the plaintiff and the defendant relating the proposed purchase and sale of certain iron, the particulars of 1ich fully appear in the letters hereinafter set forth: The plaintiff to the defendant: 22nd Nov., 1871. essrs. Hoffmann & Co.: “Dear Sirs: Please quote your lowest price for 800 tons No. 4 Cleveland, or her equally good brand, delivered at Portishead at the rate of 200 tons per onth, March, April, May, and June, 1872. Payment by four months’ ceptance. Yours truly, J. Tinn. 3. The defendants’ reply: Royal Exchange Buildings, Middlesbro’-on-Tees, 24th Nov., 1871. seph Tinn Esq., Bristol: Dear Sir: We are obliged by your inquiry of the 22d inst., and by the ‘esent beg to offer you 800 tons No. 4 forge Middlesbro’ pig iron (brand at ir option, Cleveland if possible), at 69s. per ton delivered at Portishead, livery 200 tons per month, March, April, May, and June, 1872, payment by uur four months’ acceptance from date of arrival. We shall be very glad if this low offer would induce you to favor us with your der, and waiting your reply by return, we remain, dear sir, yours truly. A. Hoffmann & Co. 4, The plaintiff to the defendant: Bristol, 27th, Nov., 1871. essrs. Hoffmann & Co.: Dear Sirs: The price you ask is high. If I made the quantity 1200 tons, livery 200 tons per month for the first six months of next year J suppose you ould make the price lower? Your reply per return will oblige J. Tinn, 158 CASES ON THE LAw oF CONTRACTS 5. The defendant to the plaintiff in reply: Royal Exchange Buildings, Middlesbro’-on-Tees, 28th Nov., 1871. ‘Joseph Tinn, Esq., Bristol: Dear Sir: In ‘reply to your favor of yesterday, we beg to state that we are willing to make you an offer of further 400 tons No. 4 forge Middlesbro’ pig iron, 200 tons in January, 200 tons in February, at the same price we quoted you by ours of the 24th inst., though the rate of freight at the above-named time will doubtless be considerably higher than that of the following months. Our to-day’s market was very firm again, and we feel assured we shall see a further rise ere long. Kindly let us have your reply by return of post as to whether you accept our offers of together 1200 tons and oblige yours truly, so A. Hoffmann & Co. 6. The plaintiff to the defendant: Bristol, 28th Nov., 1871. Messrs. .Hoffmann & Co.: No. 4 Pig iron. Dear Sirs: You can enter me 800 tons on the terms and conditions named in your favor of the 24th inst., but I trust you will enter the other 400, making in all 1200 tons, referred to in my last, at 68s. per ton. Yours faithfully, Joseph Tinn. . 7%. The defendants’ reply: Royal Exchange Buildings, Middlesbro’-on-Tees, 29th Nov., 1871. Joseph Tinn, Esq.: Dear Sir: We are obliged by your favor of yesterday, in reply to which we are sorry to state that we are not able to book your esteemed order for 1200 tons No. 4 forge at a lower price than that offered to you by us of yesterday— viz., 69s., and even that offer we can only leave you on hand for reply by to- morrow before twelve o’clock. Waiting your reply, we remain, dear sir, yours truly, A. Hoffman & Co. 8. On December Ist, 1871, the plaintiff sent a telegram to the defend- ant, of which the following is a copy: From Tinn, Ashton. To Hoffmann & Co., Middlesbro’-on-Tees. Book other 400 tons pig iron for me, same terms and conditions as before. And on the same day the plaintiff sent a letter to the defendant, of which the following is a copy: 1st Dec., 1871. Messrs. Hoffmann & Co.: : Dear Sirs: I have your favor of the 29th ult. Please enter the remaining 400 tons No. 4 Forge Pig at 69s. ex-ship Portishead, delivery to commence January, 1872, payment by four months’ acceptance against delivery. Kindly send me sold note for the 800 and 400 tons, and oblige, yours truly, J. Tinn. 9. The following correspondence then took place between the plaintiff and the defendants’ clerk duly authorized in that behalf. THE OFFER AND THE ACCEPTANCE OF a SIMPLE ConTRACT 159 [he defendants’ clerk to the plaintiff: Royal Exchange Building, Middlesbro’-on-Tees. 1st Dec., 1871. seph Tinn, Esq., Bristol: Jear Sir: We have your telegram of this day, “Book other 400 tons Pig n, same terms and conditions as before,” which we note and shall lay before : Mr. Hoffman on his return next week. Yours truly, for A. Hoffman & Co. C. Jerveland. 10. Memorandum: 2d Dec., 1871. “rom A. Hoffmann & Co., Middlesbro’-on-Tees. Joseph Tinn, Esq., Bristol: ‘The contents of your yesterday’s favor is noted, and we shall lay same fore our principal on his return next week. 11. The defendants to the plaintiff: The Queen’s Hotel, Manchester. 4th Dec., 1871. seph Tinn, Esq., Bristol: Dear Sir: I am in receipt of telegram “Book other 400 tons, same terms and nditions as before,” and favor of 1st inst. addressed to my firm, in reply to 1ich I very much regret to state that I am not able to book the 1200 tons question, as your reply to ours of November 28th and 29th did not reach us thin the stipulated time; and as I had other offers for the same lot, I dis- sed of the latter previous to my leaving Middlesbro’ and receiving your cision. Trusting to be more fortunate in future, I remain, dear sir, yours truly, A. Hoffman & Co. 12. The plaintiff to the defendant: 5th Dec., 1871. éssrs. Hoffmann & Co.: Dear Sirs: I regret you cannot enter me the 400 tons No. 4 Forge Pig on e@ same terms as the 800 tons. Please send me sold note for 800 tons per turn. Yours truly, J. Tinn. 13. The reply of the defendants: Royal Exchange Buildings, Middlesbro’-on-Tees, 6th Dec., 1871. seph Tinn, Esq., Bristol: Dear Sir: Your favor of yesterday to hand, in reply to which we have to ate that we cannot send you contract for pig iron, having sold you none. The quotation for 1200 tons in our respect of 29th ult. was for your accept- ice by 12 o’clock the 30th; and failing to receive such we disposed of the on, being under other offers, as already intimated to you by our Mr. Hoffmann, id it is now utterly impossible for us to book you the quantity you require, or du may rest assured that we willingly would do-so. We are, dear sir, yours ‘uly, Pro A. Hoffmann & Co. Cc. Jerveland. 14. It is agreed that all the facts and circumstances mentioned in ‘e above correspondence are true, and that the court are to have power | draw all inferences of facts in the same way as a jury might do. 160 Cases oN THE Law or Contracts 15. The course of post between Bristol and Middlesbrough is one day. 16. The plaintiff contends that he has a binding contract with the defendant whereby the defendants are bound to deliver to him 800 tons of iron. The defendants, on the other hand, contend that there is no such contract, and refuse to deliver any of the said iron. The questions for the opinion of the court are, first, whether, upon the facts stated and documents set out in the case, there is any bind- ing contract on the part of the defendants to deliver 800 tons of iron to the plaintiff; secondly, whether, upon the facts and documents set out in the case, there is any binding contract on the part of the defend- ants to deliver any quantity of iron to the plaintiff, and if yea, what quantity and on what terms and conditions. If the court shall be of opinion in the affirmative on either of these questions, then it has been agreed between the parties in writing in accordance with the provisions of the Common Law Procedure Act 1852, that the amount of damages for breach of such contract shall be ascer- tained by reference to an arbitrator to be appointed by the said plaintiff and defendants, or in case of difference by any judge of one of the Superior Courts of Common Law, and judgment for the amount entered up for the plaintiffs with costs of suit. If the court shall be of opinion in the negative, then judgment of nol. pros. with costs of defense shall be entered up for the defendants. A majority of the Court of Exchequer gave judgment for the defend- ants, whereupon the plaintiff brought error. Honyman, J.55 TI am of opinion that the judgment of the court below was wrong, and that judgment ought to be entered for the plaintiff in respect of 800 tons. * * * On November 28th, the defendants wrote the following letter, on the construction of which I believe the difference of opinion among the members of the court mainly arises. [Reads letter of that date.] What is the meaning of that letter? It amounts to this: On November 24 we offered you 800 tons for deliv- ery at 69s: we now repeat to you that offer, and in addition to that, we make a further offer of 400 tons more—that is, we renew the offer of November 24th, and we make you a further offer of 400 tons, pro- vided you accept those offers, “by return of post.” That does not mean exclusively a reply by letter by return of post, but you may reply by telegram or by verbal message, or by any means not later than a letter written and sent by return of post would reach us. If that is so, then comes the plaintiff’s letter, written on the same day, November 28th, which crosses the defendants’ letter of the same date, in which the plaintiffs said, “You can enter me 800 tons on the terms and conditions 55 The opinions of Archibald, Grove, Keating and Quain, JJ., and parts of the opinions of Honyman, Brett and Blackburn, JJ. are omitted. THE OFFER AND THE ACCEPTANCE oF A StMpPuR Contract 161 umed in your favor of the 24th inst., but I trust you will enter the her 400, making in all 1200 tons, referred to in my last, at 68s, per in, ex ship Portishead.” I cannot agree in the opinion said to have been cpressed by my Brothers Pigott and Channell in the court below. As I aderstand, my Brother Piggott certainly says this is not a clean offer, : a clean acceptance, of 800 tons, but that it is 800 tons on the con- ition or hope or trust that they would lower the price of the other 400 ms. I cannot accede to that view of the case. I assume that it plainly mounts to this, “I will take your 800 tons on the terms and condi- ons mentioned in the letter of the 24th inst., but I hope you will let ie have the other lot at 68s. per ton; if you choose to do that, well od good.” I cannot understand how it can be said that that is not n absolute acceptance of the 800 tons, supposing it was competent to ie plaintiff to accept that quantity. In the court below it seems to have een treated as if the offer of November 28th was one offer of 1200. ms. I do not think so. I think it is a repetition of the offer of 800 tons gupled with a further offer of 400 tons, and that it was competent to ae plaintiff to accept one and not accept the other. My Brother Bram- ell appears to have thought that it was not material to consider whether ; was two separate offers of 400 tons and 800 tons, or an offer of 1200 ns, because in either view of the case, the. plaintiff could not accept the ne and reject the other. If it is to be construed as strictly one offer of 200 tons, I can understand it, and then of course he could not accept he one and reject the other. But I do not think it is one offer of 1200 ons, nor two offers, one of 400, and the other of 800 tons, but that it is repetition of the offer of 800 tons, with a further offer of further 400 ons. To say that he could not accept the 400 tons without the 800 tons zems, in my view of the matter, to throw no light on the question whether e might accept the 800 tons without the 400 tons. That being so, it eing in my judgment a separate offer of 800 tons, and 400 tons in addi- ion, I should have thought, had the plaintiff’s letter of the 28th been rritten on November 29th that nobody, but for the opinions which ave been expressed here today, could have entertained a doubt that it rould have been an acceptance. What, then is the effect when the two atters are written on the same day and crossed each other in the post? Joes that make any difference? * * * I cannot see why the fact of he letters crossing each other should prevent their making a good con- ract. If I say I am willing to buy a man’s house on certain terms, and he t the same moment says that he is willing to sell it, and these two letters re posted so that they are irrevocable with respect to the writers, why hould not that constitute a good contract? The parties are ad idem at ne and at the same moment. On these grounds it appears to me that ne judgment of the court below was wrong, and ought to be reversed. speak with some hesitation in this case when I find that the opinion of ye majority of my brothers is against me, and also when the question 162 CasES ON THE LAW OF CONTRACTS turns entirely on the constrution of a somewhat ambiguously written letter. Brett, J. The question is, whether upon a true construction of this correspondence, there is a binding contract between the plaintiff and the defendant for the 800 tongs of iron at 69s. It is argued on the one side that such a contract is disclosed because it is said that the defend- ants’ letter of November 24th is an offer for the sale of 800 tons of iron, and this letter of November 28th leaves open the time for accept- ing that offer of November 24th, and makes a new, offer with regard to another 400 tons; and that the defendants’ offer of November 24th being thus opened by their letter of the 28th, the plaintiff's letter of the 28th is an acceptance of the defendant’s offer of the 24th. On the other side it is argued that the defendants’ letter of November 28th is not an opening of their offer of the 24th, but that it is an offer with regard to 1200 tons; and that even it if were a separate offer with re- gard to 800 tons and 400 tons, still that the true view of the matter is not that it reopens the letter of the 24th, but that it makes a new offer with regard to the 800 tons, and another separate offer, with regard to 400 tons; and that, upon such a view, the renewed offer with regard to 800 tons is not accepted, because the letter of the plaintiff of Novem- ber 28th was not in answer to that offer, but was a letter crossing it. Now with regard to the construction of the defendant’s letter of No- vember 28th, it seems to me that we must consider that the defendant’s letter of November 24th is in answer to a request of the plaintiffs of November 22d for an offer with regard to 800 tons, and is therefore an offer by them with regard to 800 tons. That offer left it open to the plaintiff to accept it within a period which is to be computed by the return of post. I agree that the words, “Your reply by return of post” fixes the time for acceptance, and not the manner of accepting. But that time elapsed; there was no acceptance within the limited time. So far from there being an acceptance, it seems to me that the plaintifi’s letter of November 27th rejects that offer; it rejects it on the ground that the price is higher than the plaintiff is willing to give. That offer is, therefore, not accepted within the limited time, but is rejected, and it seems to me is at once dead. The letter of the 27th then asks for an offer with respect to 1200 tons, and the letter of November 28th is a letter written “In reply to your favor of yesterday,” that is, In reply to your request for an offer with regard to 1200 tons. “I now make you this offer.” That seems to me to show that the letter of November 28th of the defendants is an offer with regard to 1200 tons, and not with regard to 800 tons and 400 tons separately. The way in which the offer with regard to the 1200 tons is made is this. “With regard to the first 800 of them, I make you a new offer upon the same terms as I made in thé former offer on the 24th. With regard to the remaining 400 tons, I offer you to deliver them at the same price, but at different periods of deliv- THE OFFER AND THE ACCEPTANCE oF A SIMPLE ConTRACT 163 ry.’ I think that the defendants’ letter of November 28th, being a let- 7 in answer to a request with regard to 1200 tons, is an offer with sgard to 1200 tons, and that no such offer was ever accepted; but even ' it could be taken that it was a separate offer with regard to 800 tons nd 400 tons, I cannot accede to the view that it reopened the offer of fovember 24th. That offer was dead, and was no longer binding upon 1e defendants at all, and therefore it seems to me to be a wrong phrase ) say that it reopened the offer of November 24th. The only legal way f construing it is to say that it is a new offer with regard to 800 tons. f it were a separate offer, which I should think it was not, it then would 2a new offer with regard to 800 tons, and a separate offer with regard » 400 tons, but, even if it were so, I should think that the new offer with agard to the 800 tons had never been accepted, so as to make a binding yitract. The new offer would not, in my opinion, be accepted, by the ict of the plaintiff’s letter of November 28th crossing it. If the de- mdants’ letter of November 28th is a new offer of the 800 tons, that yuld not be accepted by the plaintiff until it came to his knowledge, nd his letter of November 28th could only be considered as a cross offer. ‘ut it thus: If I write to a person and say, “If you can give me £6000 wx my house, I will sell it you,” and on the same day, and before iat letter reaches him, he writes to me saying, “If you will sell me our house for £6000 I will buy it,” that would be two offers crossing each ther, and cross offers are not an acceptance of each other, therefore vere will be no offer of either party accepted by the other. That is the ise where the contract is to be made by the letters, and by the letters aly. I think it would be different if there were already a contract in ict made in words, and then the parties were to write letters to each cher, which crossed in the post, those might make a very good memo- indum of the contract already made, unless the Statute of Frauds inter- med. But where the contract is to be made by the letters themselves, yu cannot make it by cross offers, and say that the contract was made y one party accepting the offer which was made to him. It seems to me, ierefore, in both views, that the judgment of the court below was right. Buacxsurn, J. I also think that the judgment should be affirmed. * #* Tf, in answer to that letter of November 28th, written by the xfendants to the plaintiff, in which they ask for an answer by return : post, there had been a letter sent saying. “I will accept the 800 tons id not take the 400 tons,” and that had been relied upon as a binding mtract, and the defendants had resisted: that, and said: “We did not fer you 800 tons, we offered you 1200 tons if you would take them, it not 1200 tons that you might split into two quantities, taking the )0 and rejecting the 400 tons,’ the question would have been raised hether this letter of the defendants, of November 28th, read as it must : read, with the plaintiff’s letter of the 27th, was an offer of that sort nich my brothers Honyman and Quain think it was, or whether it was, 164 CASES ON THE LAw oF CoNTRACTS as the majority of the court have already said, an offer of 1200 tons, and 1200 tons only? I am of opinon that it was an offer of the 1200 tons, and the 1200 tons only. * * * But then there arises another ques- tion; on that same November 28th the plaintiff, before he received or knew of the defendants’ letter of November 28th, had written a letter which I read to be an offer on his part, “I will take 800 tons, at the price of 69s.” That letter crossed the letter of the defendants, and I think my brothers Honyman and Quain, necessarily, as part of their judgment, are of opinion, that that offer crossing the other offer, and being ad idem, according to their construction of the first contract, did make a binding engagement between the parties. It is not necessary in the present case for the Court of Exchequer Chamber to decide that point, and therefore what I am now going to say is not to be considéred at all as part of the judgment of the court of error, but as my own individual opinion. When a contract is made between two parties, there is a prom- ise by one, in consideration of the promise made by-the other; there are two assenting minds, the parties agreeing in opinion, and one hav- ing promised in consideration of the promise of the other—there is an exchange of promises; but I do not think exchanging offers would, upon principle, be at all the same thing. There is, I believe, a total absence of authority on the point.5¢ J do not think, though I am not sure, that the question has ever been raised before. The promise or offer being made on each side in ignorance of the promise or the offer made on the other side, neither of them can be construed as an acceptance of the other. * oe * Judgment of the majority of the court below affirmed. FARMERS’ HANDY WAGON CO. v. NEWCOMB. (Supreme Court of Michigan, 1916. 192 Mich. 634, 159 N. W 152.) The plaintiff is a corporation engaged in the business of manufacturing silos at Saginaw, and the defendant is a farmer living near Traverse City. On the 8th day of June, 1907, the defendant gave plaintiff a written order for a silo, to be delivered f. 0. b. at Saginaw and to be consigned to defend- ant at Traverse City. The purchase price of the silo was to be $141.21. Below the signature of the defendant to the order was written: “Re- marks: This man reserves until Aug. 1, 1907, to reconsider the buying of this silo.” On the 14th day of June, 1907, the plaintiff wrote to the defendant, accepting the order, and defendant admits receiving the letter. The reason given by defendant for not taking possession of the silo when it was shipped to him is that he canceled the order by a letter written 56 Compare Ratterman v. Campbell (Ky.) 80 S. W. 1155 (1904). THE OFFER AND THE ACCEPTANCE oF A SIMPLE ContTRAcY 165 laintiff on July 10th. He testified that he mailed the letter to plain- s address with postage fully prepaid. Plaintiff denied receiving the ar. ‘he circuit judge instructed the jury, in substance, that the order, ther with the acceptance, made a completed contract, and that upon shipment of the silo to defendant and its receipt at Traverse City defendant became indebted to the plaintiff for the agreed purchase ‘e, unless defendant had canceled and retracted the order as he claimed ; * * and that to show a cancellation or retraction of the order it necessary that the letter of cancellation should not only have been led by defendant, but that it should also have been received by, or ie to the knowledge of, plaintiff. ‘he jury returned a verdict for the plaintiff, and defendant brings the > to this court by writ of error. -erson, J.57 The trial judge correctly construed the meaning of the lerwriting appended to defendant’s order. To “reconsider” is defined Webster as the right “to consider again; review with care, especially h a view to a reversal of previous action; as, to reconsider a determina- Ee? “he order with the acceptance by plaintiff became a contract subject to ight, on the part of defendant, to withdraw from it within the time ed. It did not require an express confirmation by defendant. t was also necessary that notice of the withdrawal or cancellation uld have reached plaintiff in order to be effective and sufficient. Anson Contracts (2d Am. Ed.) 32, 33; 1 Elliott on Contracts, 37, 38; chem on Sales, § 258. Placing such a notice in the mails, properly ressed and with postage prepaid, undoubtedly creates a presumption t it is duly received; but the receipt of the notice by plaintiff was ied by such officers and agents of the company as usually received its 1, and whether it was received, if sent, became a question for the y & ee The judgment is affirmed.58 McMANUS v. FORTESCUE, and another. (Court of Appeal. [1907] 2 K. B. 1.) .ction against an auctioneer for refusing to sign a memorandum of tract of sale. At an auction sale, where the catalogue recited that ch lot will be offered subject to a reserve price,” a lot of property "Parts of the statement of facts and of the opinion are omitted. '“Imagine the following case: A, a deaf man, said to B, ‘Will you buy watch for $25? B replied: ‘I will.’ A did not hear and asked him to te out the answer. B then wrote, ‘No, I will not.’ Or suppose this case: 166 Cases ON THE LAW oF CONTRACTS was knocked down to the plaintiff for £85, but the auctioneer then dis- covered or recollected that the reserve in regard to it was £200 and con- sequently withdrew the lot and refused to sign a memorandum or to accept a deposit from the plaintiff. On appeal from a judgment for defendant. , Cotuins, M. R.5® * * * The sale took place under conditions of which the second is that each lot would be offered subject to a reserve price, and the fact lies at the root of the discussion, that every bid is made subject to that condition. What, then, is the meaning in such case of the fall of the hammer? Under the authorities that have been cited it appears that it amounts to an acceptance of the offer of the bidder, but that offer was, as I have said, conditional on the reserve price being reached, and a conditional offer cannot be treated as a general and unconditional ‘one. The condition cannot be lost sight of, and a conditional acceptance by the auctioneer of the conditional offer by the bidder cannot amount to a Jones had a phonograph on his desk. Upon leaving his office, he spoke into it an offer to sell his horse to Brown for $500. Brown coming in soon after, received the offer from the phonograph and spoke into it an acceptance. Upon leaving the office he changed his mind, and meeting Jones on the street before the latter knew what had taken place, said: ‘I don’t care to buy your horse, and I withdraw the acceptance which I spoke into your phonograph.’ Or sup- pose, after Brown has spoken his acceptance into the machine, he changes his mind and smashes the machine. “There would seem to be a contract in all three cases, and this appears to be the legitimate conclusion to be drawn from most of the decisions. “Tf one sends to a man on the opposite side of the river a letter containing a proposal calling for a counter promise, and says, ‘signify your acceptance by lighting a fire,’ and the offeree does so in such a manner as unequivocally to indicate an intention to accept, surely a contract arises. This would be so even though a fog prevents the fire from being seen.” Ashley on Contracts, pp. 37-88. But Professor Ashley was in favor of finding contracts from aly overt acts evidencing intention, but of protecting the other party by requiring compliance with conditions precedent as to notice, non-interference with ac- ceptance, etc. In the phonograph smashing case, for instance, he finds a violation of a condition precedent that the acceptance shall not be interfered with by the acceptor and concludes: “Thus, although the original offeror would be bound in contract, he would not have to perform his part because of the non-happening of a condition precedent. Whether he could hold the acceptor without performing himself, depends entirely upon the character of the contract. In any case it could certainly be enforced by him according to its terms.” Id., p. 39. On the fog illustration, compare Bal v. Van Staden, 20 So. African Law J. 407, where an attempt was made by an offeree to accept by mail an offer by mail when he knew that the letter of acceptance could not go through 01 time because of war conditions which blocked the mails and it was held that the contract was not completed by the mailing, though ordinarily it would have been. 59 The statement of facts is abbreviated and the opinions of Cozens-Hardy, L, J., and Fletcher-Moulton, L. J., are omitted. Tur OFFER AND THE ACCEPTANCE oF A SIMPLE ConTRAOT 167 ding contract to sell, unless some custom is proved that it shall be treated, and of that there was no evidence. No authority has been id to shew that the fall of the hammer could do away with a condition ressly stipulated for the conditions of the sale. * * * Appeal dismissed. EBEN D. JORDAN v. ELIZABETH DOBBINS. ipreme Judicial Court of Massachusetts, 1877. 122 Mass. 168, 23 Am. St. Rep. 305.) Yontract upon the following guaranty: “For value received, the re- pt whereof is hereby acknowledged, the undersigned does hereby guar- ‘yy to Jordan, Marsh & Co. the prompt payment by George H. Moore Jordan, Marsh & Co., at maturity, of all sums of money and debts ich he may hereafter owe Jordan, Marsh & Co., for merchandise, whicli yy may from time to time sell to him, whether such debts be on book count, by note, draft or otherwise, and also any and all renewals of any th debt. The undersigned shall not be compelled to pay on this guar- y a sum exceeding $1000, but this guaranty shall be a continuing aranty, and apply to and be available to said Jordan, Marsh & Co., for sales of merchandise they may make to said George E. Moore until itten notice shall have been given by the undersigned to said Jordan, irsh & Co. and received by them, that it shall not apply to future pur- ises. Notice of the acceptance of this guaranty and of sale under the ne, and demand upon said George E. Moore for payment, and notice me of non-payment, is hereby waived. In witness whereof I, the dersigned, have hereunto set my hand and seal this twenty-eighth day February, A. D. 1873. William Dobbins. (Seal.)” Annexed to the slaration was an account of goods sold to Moore. The case was submitted to the Superior Court, and, after judgment ' the plaintiffs, to this court, on appeal, on an agreed statement of © its in substance as follows: The plaintiffs are partners under the firm name of Jordan, Marsh Co., and the defendant is the duly appointed administratrix of the ate of William Dobbins. William Dobbins, on February 28th, 1873, executed and delivered to » plaintiffs the above written contract of guaranty. The plaintiffs reafter, relying on this contract, sold to said Moore the goods men- ned in the account annexed to the declaration, at the times and for : prices given in said account, all of the goods having been sold and ivered to Moore between January 16th and May 28th, 1874. All the counts claimed were due from Moore, and payment was duly demanded him and of the defendant before the date of the writ. Other goods 168 Casrs on THE LAW or CoNnTRACTS had been sold by the plaintiffs to Moore between the date of the guaranty and the first date mentioned in the account, but these had been paid for. William Dobbins died on August 6th, 1873, and the defendant was appointed administratrix of his estate on September 2d, 1873. The plaintiffs had’ no notice of his death until after the last of the goods men- tioned in the account had been sold to Moore. If upon these facts the defendant was liable, judgment was to be en- tered for the plaintiffs for the amount claimed; otherwise judgment for the defendant. Morton, J. An agreement to guarantee the payment by another of goods to be sold in the future, not founded upon any present consideration passing to the guarantor, is a contract of a peculiar character. Until it is acted upon, it imposes no obligation’ and creates no liability of the guarantor. After it is acted upon, the sale of the goods upon the credit of the guaranty is the only consideration for the conditional promise of the guarantor to pay for them. The agreement which the guarantor makes with the person receiving the guaranty is not that I now become liable to you for anything, but that if you sell goods to a third person, I will then become liable to pay for them if such third person does not. It is of the nature of an authority to sell goods upon the credit of the guarantor, rather than of a contract which cannot be rescinded except by mutual consent. Thus such a guaranty is revocable by the guarantor at any time before it is acted upon. In Offord v. Davis, 12 C. B. (N. 8.) 748, the guaranty was of the due payment for the space of twelve months of bills to be discounted, and the court held that the guarantor might revoke it at any time within the twelve months, and that the plaintiff could not recover for bills discounted after such revocation. The ground of the decision was that the defendant’s promise by itself created no obligation, but was in the nature of a proposal which might be revoked at any time before it was acted on.80 60 Offord v. Davies (1862), cited supra, was an action upon a guarantee ad- dressed to the plaintiff, and signed by the defendants, as follows: “We, the undersigned, in consideration of your discounting, at our request, bills of exchange for Messrs. Davies & Co., of Newton, Montgomeryshire, drapers, hereby jointly and severally guaranty for the space of twelve calendar months the due payment of all such bills of exchange, to the extent of £600. And we further jointly and severally undertake to make good any loss or ex- penses you may sustain or incur in consequence of advancing Messrs. Davies & Co. such moneys.” Erle, C. J., for the court said: “The demurrer [to the plea] raises the question whether the defendants had a right to revoke the promise. We aré of opinion that they had, and that consequently the plea is good. “This promise by itself creates no obligation. It is in effect conditioned to be binding if the plaintiff acts upon it, either to the benefit of the defendants, THE OFFER AND THE ACCEPTANCE oF A SIMPLE ConTRACT 169 Such being the nature of a guaranty, we are of opinion that the death of the guarantor operates as a revocation of it, and that the person hold- ing it cannot recover against his executor or administrator for goods sold after the death. Death terminates the power of the deceased to act, and revokes any authority or license he may have given, if it has not been executed or acted upon. His estate is held upon any contract upon which a liability exists at the time of his death, although it may depend upon future contingencies. But it is not held for a liability which is created after his death, by the exercise of a power or authority which he might at any time revoke. Applying these principles to the case at bar, it follows that the defend- ant is entitled to judgment. ‘The guaranty is carefully drawn, but it is .in its nature nothing more than a simple guaranty for a proposed sale of goods. The provision, that it shall eontinue until written notice is given by the guarantor that it shall not apply to future purchases, affects the mode in which the guarantor might exercise his right to revoke it, but it cannot prevent its revocation. by his death: The fact that the instru- ment is under seal cannot change its nature or construction. No liabil- ity existed under it against the guarantor at the time of his death, but the goods for which the plaintiffs seek to recover were all sold afterward. We are not impressed by the plaintifi’s argument that it is inequi- table to throw the loss upon them. It is no hardship to require traders, whose business itis to deal in goods, to exercise diligence so far as to ascer- or to the detriment of himself. But, until the condition has been at least in part fulfilled, the defendants have the power of revoking it. In the case of a simple guarantee for a proposed loan, the right of revocation before the proposal has been acted on did not appear to be disputed. Then, are the rights of the parties affected either by the promise being expressed to be for twelve months, or by the fact that some discounts had been made before that now in question, and repaid? We think not. “The promise to repay for twelve months creates no additional liability on the guarantor, but, on the contrary, fixes a limit in time beyond which his liability cannot extend. And, with respect to other discounts, which had been repaid, we consider each discount as a separate transaction, creating a liability on the defendant till it is repaid, and, after repayment, leaving the promise to have the same operation that it had before any discount was made, and no more.” See Grob v. Gross, 83 N. J. L. 480 (1912). If, however, the guaranty is not an offer of a series of contracts and revocable so far as not already accepted, but is an offer of one bilateral contract, accept- ance makes it irrevocable. See Lascelles v. Clark, 204 Mass. 362 (1910). So if it is an offer of one unilateral contract. In Lloyd’s v. Harper, 16 Ch. D. 290, at 319-820 (1880) Lush, L. J., speaks of (1) the unilateral contract guarantee where the doing of the act, as employing the person whose fidelity is guaranteed, or granting the lease to the lessee, the performance of whose covenants is guaranteed, completes the contract, and (2) the guarantee that is divisible in nature, accepted from time to time and revocable at any time in so far as not accepted, as where it is given to secure the balance of a running account at a banker’s or a balance of a running account for goods supplied. 170 CASES ON THE LAW OF CONTRACTS tain whether a person upon whose credit they are selling is living. The decision in Bradbury v. Morgan, 1 H. & C. 249, upon which the plaintiffs rely, was rested upon reasoning which appears to us to be unsatisfactory and inconsistent with the opinion of the same court a year before, in Westhead v. Sproson, 6 H. & N. 728, and with the decision in Offord v. Davies, ubi supra, at the argument of which Bradbury v. Morgan was cited; and it has not since been treated as settling the law of Eng- 61 While the common law rule is that the death of the offeror or that of the offeree will terminate the offer, those who favor the objective rather than the subjective test of a contract, which is the up-to-date view, believe that not until notice of the death should the offer terminate. See Herman Oliphant, The Duration and Termination of an Offer, 18 Mich, L. Rev. 201. As the writer cited said of the case of the death of the offeror (Id. p. 210): “The courts say , that the reason the offer is terminated, by the death of the offerer is obvious, A contract cannot be made with a dead man. If an actual concurrence of wills is necessary for the formation of a contract, this is true, since in our law the persona of the deceased is not continued. But no concurrence of wills is necessary. The offerer by his offer aroused a reasonable expectation in the mind of the offeree upon which, by hypothesis, he has reasonably acted. As between the gratuitous takers of the offerer’s property and the offeree, it is perfectly clear which should suffer the consequences of the casualty of the offerer’s death.” In a footnote he added: “It is believed that one adopting a subjective analysis would be troubled to find grounds for holding a contract to have been formed by an acceptance subsequent to death when the offerer. had expressly stated that his death was not to terminate the offer.” Insanity occurring after an offer presents even more difficulty. Subsequent known insanity of the offeror, and similarly of the offeree, would of course terminate the offer. In Beach v. The First Methodist Episcopal Church, 96 Ill. 177 (1880), the action was brought for the balance of a subscription prom- ised for the erection of a church. The subscriber became, and was adjudged, insane before the church acted on the faith of the subscription, and Dickey, C. J., for the court, said: “The subscription made by Dr. Beach was, in its nature, a mere offer to pay that amount of money to the church upon the condition therein expressed. “There is nothing in the record tending to show that the church, in this case, took any action, upon the faith of this subscription, until after Dr. Beach was adjudged insane, or that the church paid money or incurred any liability. His insanity, by operation of law, was a revocation of the offer.. In Pratt, Ad- ministratrix, etc., v. The Trustees of the Baptist Society of Elgin, 93 Ill. 475, this court said, in relation to such a subscription: ‘The promise, in such case, stands as a mere offer, and may, by necessary implication, be revoked at any time before it is acted upon. It is the expending of money, etc., or incurring of legal liability on the faith of a promise, which gives the right of action, and without which there is no right of action. Until acted upon, there is no mutuality, and, being only an offer, and susceptible of revocation at any time before being acted upon, it follows that the death of the promisor, before the offer is actéd upon, is a revocation of the offer. * * * The continuance of an offer is in the nature of its constant repetition, which, of course, necessarily requires some one capable of making a repetition. Obviously this can no more be done by a dead man than a contract can, in the first instance, be made by 4 dead man.’ “The ground upon which the court rested its judgment in the Pratt Case was THE OFFER AND THE ACCEPTANCE OF A SIMPLE CoNTRACT 171 land. Harris v. Fawcett, L. R. 15 Eq. 311, and L. R. 8 Ch. 866. The reasons of the similar decision in Bank of South Carolina v. Knotts, 10 Rich. 548, are open to the same objections. Judgment for the defendant. CHARLES A. BISHOP v. FRANK H. EATON. (Supreme Judicial Court of Massachusetts, 1894. 161 Mass. 496, 37 N. E. 665.) Contract, on a guaranty. Writ dated February 2d, 1892. Trial in the Superior Court without a jury, before Braley, J., who found the fol- lowing facts: : The plaintiff in 1886 was a resident of Sycamore in the State of Illinois, and was to some extent connected in business with Harry H. Eaton, a brother of the defendant. In December, 1886, the defendant in a letter to the plaintiff said, “If Harry needs more money, let him have it, or assist him to get it,-and I will see that it is paid.” On January 7th, 1887, Harry Eaton gave his promissory note for two hundred dollars to one Stark, payable in one year. The plaintiff signed the note as surety, relying on the letter of the defendant, and looked to the defendant solely for reimbursement, if called upon to pay the note. Shortly afterward the plaintiff wrote to the defendant a letter stating that the note had been given and its amount, and deposited the letter in the mail at Sycamore, postage prepaid, and properly addressed the want of capacity on the part of the promisor to continue his promise or offer. The insanity of Dr. Beach rendered him, in law, as incapable of making a contract or of continuing or repeating an offer to the church as if he had been actually dead.” Where the insanity is not known, the solution under the cases depends on whether an insane person’s contract is valid, if fair to him, voidable, or void. That it is voidable by the insane person seems to be the more common American doctrine, but there is considerable to be said for the English law as sum- marized by Lopes, L. J., in The Imperial Loan Company v. Stone, [1892] 1 Q. B., 599, 602-603, as follows: “A contract made by a person of unsound mind is not voidable at that person’s option if the other party to the con- tract believed at the time he made the contract that the person with whom he was dealing was of sound mind. In order to avoid a fair contract on the ground of insanity, the mental incapacity of the one must be known to the other of the contracting parties. A defendant who seeks to avoid a contract on the ground of his insanity must plead and prove not merely his incapacity, but also the plaintiff's knowledge of that fact, and unless he proves these two things he cannot succeed.” For an English criticism of the doctrine of Imperial Loan Co. v. Stone, see W. H. G. Cook, Mental Deficiency and the English Law of Contract, 21 Col. L. Rev. 424. On capacity to contract as affected by mental conditions, see 3 L. R. A. (N. 8S.) 174, note. See also W. J. Leofric Ambrose, Contracts of Insane Per- sons, 27 Law Quar. Rev. 313. 172 Cases on THE LAw oF CoNnTRACTS to the defendant at his home in Nova Scotia. The letter, according to the testimony of the defendant, was never received by him. At the maturity of the note the time for its payment was extended for a year, but whether with the knowledge or consent of the defendant was in dis- pute. In August, 1889, in an interview between them, the plaintiff asked the defendant to take up the note still outstanding, and pay it, to which the defendant replied: “Try to get Harry to pay it. If he don’t, I will. It shall not cost you anything.” On October Ist, 1891, the plaintiff paid the note, and thereafter made no effort to collect it from Harry Eaton, the maker. The defendant tes- tified that he had no notice of the payment of the note by the plaintiff until December 22d, 1891. * * * The judge * * * ruled, as matter of law upon the findings of fact, that the plaintiff was entitled to recover, and ordered judgment for him; and the defendant alleged exceptions. Knowtton, J.622 * * * The defendant requested many rulings in re- gard to the law applicable to contracts of guaranty, most of which it becomes necessary to consider. The language relied on was an offer to guarantee, which the plaintiff might or might not accept. Without acceptance of it there was no contract, because the offer was conditional and there was no consideration for the promise. But this was not a proposition which was to become a contract only upon the giving of a promise for the promise, and it was not necessary that the plaintiff should accept it in words, or promise to do anything before acting upon it. It was an offer which was to become effective as a contract upon the doing of the act referred to. It was an offer to be bound in consideration of an act to be done, and in such a case the doing of the act constitutes the ac- ceptance of the offer and furnishes the consideration. Ordinarily there is no occasion to notify the offerer of the acceptance of such an offer, for the doing of the act is a sufficient acceptance, and the promisor knows that he is bound when he sees that action has been taken on the faith of his offer. But if the act is of such a kind that knowledge of it will not quickly come to the promisor, the promisee is bound to give him notice of his acceptance within a reasonable time after doing that which constitutes the acceptance. In such a case it is implied in the offer that, to complete the contract, notice shall be given with due diligence, so that the promisor-may know that a contract has been made. But where the , promise is in consideration of an act to be done, it becomes binding upon the doing of the act so far that the promisee cannot be affected by 4 subsequent withdrawal of it, if within a reasonable time afterward. he notifies the promisor. In accordance with these principles, it has been held in cases like the present, where the guarantor would not know of 62 The statement of facts is slightly abbreviated and part of the opinion is omitted. THE OFFER AND THE ACCEPTANCE or A StmMpLR ContTRACT F735 himself, from the nature of the transaction, whether the offer has been accepted or not, that he is not bound without notice of the acceptance, seasonably given after the performance which constitutes the considera- tion. Babcock v. Bryant, 12 Pick, 133; Whiting v. Stacy, 15 Gray 270; Schlessinger v. Dickinson, 5 Allen 4”. , In the present case the plaintiff seasonably mailed a letter to the defendant, informing him of what he had done in compliance with the defendant’s request, but the defendant testified that. he never received it, and there is no finding that it ever reached him. The judge ruled, as matter of law, that upon the facts found, the plaintiff was entitled to recover, and the question is thus presented whether the defendant was bound by the acceptance when the letter was properly mailed, although he never received it. When an offer of guaranty of this kind is made, the implication is that notice of the act which constitutes an acceptance of it shall be given in a reasonable way. What kind of a notice is required depends. upon the nature of the transaction, the situation of the parties, and the in- ferences fairly to be drawn from their previous dealings, if any, in regard to the matter. If they are so situated that communication by letter is naturally to be expected, then the deposit of a letter in the mail is all that is necessary. If that is done which is fairly to be contemplated from their relations to the subject-matter and from their course of dealing, the rights of the parties are fixed, and a failure actually to receive the notice will not affect the obligation of the guarantor. The plaintiff in the case now before us resided in Illinois, and the defendant in Nova Scotia. The offer was made by letter, and the defend- ant must have contemplated that information in regard to the plaintiff's acceptance or rejection of it would be by letter. It would be a harsh rule which would subject the plaintiff to the risk of the defendant’s failure to receive the letter giving notice of his action on the faith of the offer. We are of opinion that the plaintiff, after assisting Harry to get the money, did all that he was required to do when he seasonably sent the defendant the letter by mail informing him of what had been done. How far such considerations are applicable to the case of an ordinary contract made by letter, about which some of the early decisions are conflicting, we need not now consider. The plaintiff was not called upon under his contract to attempt to collect the money from the maker of the note, and it is no defense that he did not promptly notify the defendant of the maker’s default, at least in the absence of evidence that the defendant was injured by the delay. This rule in cases like the present was established in Massachusetts in Vinal v. Richardson, 13 Allen 521, after much consideration, and it is well founded in principle and strongly supported by authority. We find one error in the rulings which require us to grant a new trial. It appears from the bill of exceptions that when the note became due the 174 Cases on THE Law oF ConTRACTS time for the payment of it was extended without the consent of the defendant. The defendant is thereby discharged from his liability, unless he subsequently assented to the extension and ratified it. Chace v. Brooks, 5 Cush. 43; Carkin v. Savory, 14 Gray 528. The court should therefore have ruled substantially in accordance with the defendant’s eighth request, instead of finding for the plaintiff, as matter of law, on the facts reported. Whether the judge would have found a ratification on the evidence if he had considered it, we have no means of knowing. Exceptions sustained,®8 BIGGERS et al. v. OWEN et al. (Supreme Court of Georgia, 1887. 79 Ga. 658, 5 S. E. 193.) Buanprorp, J. McMichael and Owens brought their action of assump- sit against B. A. Biggers, P. J. Biggers, Jr., and T. J. Pearce (the plain- tiff in error here) in the City Court of Columbus, to recover a reward of $500, which they alleged had been offered by the defendants. The offer of reward was printed as an advertisement in a newspaper in Columbus, as follows :— “We will pay $500, the above reward, for the delivery to the sheriff of Muscogee County of the party or parties, with evidence to convict, who administered the poison in the meal which proved fatal to J. W. Biggers and J. F. Burgess and wife on the 11th of November.” Signed B. A. Biggers, P. J. Biggers, Jr., T. J. Pearce. Upon the trial of the case, the jury rendered a verdict in favor of the plaintiffs for the amount of the reward, $500. It appeared from the evidence that when this reward was offered, the plaintiff arrested a certain woman, and delivered her to the sheriff of Muscogee county; that a committing trial was had before a justice of the- peace and the woman discharged for the want of sufficient evidence to commit. The reward was then withdrawn; but McMichael testifies that after it was withdrawn, Pearce told him to go on, that he would pay 683 In Black, Starr & Frost v. Grabow, 216 Mass. 516, 518 (1914), Rugg, C. J., said: “Although it may be that there is no universal doctrine in this common- wealth that “acceptance of an offer must be communicated in order to make a valid simple contract” (Lennox v. Murphy, 171 Mass. 370, 373, 50 N. BE. 644), yet it is true that where a guaranty is in the nature of an offer and not pur- suant to some previous understanding or arrangement, and no consideration is acknowledged in the instrument and none moves directly to the guarantor, and the circumstances of the parties and the transaction are not such as to indicate that knowledge of acceptance quickly will come to the guarantor, notice of acceptance must be given within a reasonable time in order that the guarantor may be held.” See authorities in 16 L. R. A. (N. S.) 353, note. THE OFFER AND THE ACCEPTANCE OF A SIMPLE CoNnTRACT 175 him what his services were worth. After this, a warrant was sued out for the same woman by Mr. Pearce. McMichael, being a bailiff in the court, executed the warrant and arrested her. She was indicted for the poison-- ing, was tried and convicted. The judge in the court below charged the jury that if this reward was offered, and the plaintiffs thereupon furnished evidence going to show that this woman was guilty of the crime, they were entitled to recover for the amount of the reward. The court was requested to charge that if, after this reward was offered, it was with- drawn before the plaintiffs performed the services contemplated by the reward, then no recovery could be had, under the declaration in this case. The court refused to give this in charge as requested, but charged to the contrary. , We think the court erred in declining to charge as requested, and in charging as he did. An offer of reward is nothing more than a propo- sition; it is an offer to the public; and until some one complies with the terms or conditions of that offer, it may be withdrawn. This is well-settled law, as to which there can be no dispute, and counsel in this case did not contend otherwise. When this offer of reward was with- drawn, and Pearce afterwards told McMichael to go on with the. case, that he would pay him for his services, Pearce did not thereby become liable to pay him the amount of this reward, but only to pay him for the value of his services. And this is not an action upon a quantum meruit to recover the value of such services; but is an action to recover specifically the amount of this reward, $500. There was no evidence introduced in the court below to show what the value of the services were, and the record does not distinctly show what services were performed. The court having erred in failing to charge as requested, and in charg- ing the jury as above set out, we consider it unnecessary to say more about the case; and we therefore reverse the judgment. Judgment reversed.*4 64“Suppose for example, the following case: ' “A desires to have his safe moved from his old office to a new one. He asks B to do this act, and says he will pay him $25. When the safe has been carried to the door of the new building, A appears and tells B that he with- draws his offer, directing him to leave the safe there. Nevertheless B proceeds and completes the moving. Under such circumstances how can a contract be found, or how can A be held to any liability? “Or suppose another case: ; “A merchant is~anxious to have a cart-load of goods placed upon an out- going steamer, and there is barely time to accomplish this. He asks a cart- man to take the goods to the steamer and offers $25 for the act. The cartman loads the goods, and proceeds towards the wharf. On the road, another mer- chant hails him and offers $100 for the immediate cartage of his goods. The cartman thereupon places the first merchant’s goods in a safe place and pro- ceeds to carry the second load. As the cartman has never obligated himself to take the first load, he cannot be held liable for failure to perform, and the first merchant suffers his loss without remedy. 176 . Cases on THE LAW oF CONTRACTS BRACKENBURY et al. v. HODGKIN et al. (Supreme Judicial Court of Maine, 1917. 116 Me. 399, 102 Atl. 106.) Suit by Joseph A. Brackenbury and another against Sarah D. P. Hodg- kin and Walter C. Hodgkin. From a decree for plaintiffs, defendants appeal. Appeal dismissed, and decree affirmed as to Walter. C. Hodgkin. Cornisu, C. J.65 The defendant Mrs. Sarah D. P. Hodgkin on the 8th day of February, 1915, was the owner of certain real estate—her home farm, situated in the outskirts of Lewiston. She was a widow and was living alone. She was the mother of six adult children, five sons, one of whom, Walter, is the codefendant, and one daughter, who is the coplaintiff. The plaintiffs were then residing in Independence, Mo. Many letters had passed between mother and daughter concerning the daughter and her husband returning to the old home and taking care of the mother, and finally on February 8, 1915, the mother sent a letter to the daughter and her husband which is the foundation of this bill in equity. In this “In each of these cases it is assumed as a fact that the offer calls for an act. But as in the safe case the offer is revoked before the consideration is furnished, that is, before the act requested is completed, and as in the cartage case the offeree ceases performance, there can be.no contract in either”. Ashley on Con- tracts, pp. 78-80. See Clarence D. Ashley, Offers Calling For a Consideration Other Than a Counter Promise, 23 Harv. L. Rev. 159. Compare 1 Williston on Contracts, §§ 60 and 60a. See also Henry W. Bal- lantine, Acceptance of Offers for Unilateral Contracts by Partial Performance of Service Requested, 5 Minn. L. Rev. 94, and the articles mentioned in the next paragraph. “The recognition of merely objective test implied-in-fact contracts throws the light of understanding on many otherwise dark decisions, even if it does not lead to sympathetic appreciation of them. It may even supply the proper solu- tion of the troublesome problem of what shall be the effect of an attempted. revocation of an offer of unilateral contract where the notice of revocation comes after the offeree has started to accept and while he is still continuing to perform the acts of acceptance. See Williston’s Wald’s Pollock on Contracts, 34, note 39; McGovney, ‘Irrevocable Offers,’ 27 Harv. L. Rev. 644, 654-663; Wormser, ‘The True Conception of Unilateral Contracts,’ 26 Yale L, J. 136; Corbin, ‘Offer and Acceptance and Some of the Resulting Legal Relations,’ 26 Yale L. J. 169, 195-196. The case of an attempted revocation of an offer to an indefinite number of persons by advertisement in the newspapers is, perhaps, one which must be handled, as Sir Frederick Pollock says it was in Shuey v. United States, 92 U. S. 73 (1875) by judicial legislation (Williston’s Wald’s Pollock on Contracts, 23), but the case of an offer to a known person or to known persons might well be disposed of, without violation of principle, by permitting the offer of unilateral contract to be revoked prior to substantially complete performance of the acts called for and yet preventing real hardship to the offeree, in cases where an adequate quasi-contractual obligation cannot be found, by enforcing an implied-in-fact contract to compensate the offeree for what he has done for the offeror at the latter’s request.” George P. Costigan, Jr., Implied in Fact Contracts and Mutual Assent, 33 Harv. ‘L. Rev. 376, 399, 2. 65 Parts of the opinion are omitted. - THE OFFER AND THE ACCEPTANCE OF A SIMPLE ConTRACT 177 letter she made a definite proposal, the substance of which was that if the Brackenburys would move to Lewiston, and maintain and care for Mrs. Hodgkin. on the home place during her life, and pay the moving expenses, they were to have the use and income of the premises, together with the use of the household goods, with certain exceptions, Mrs. Hodgkin to have what rooms she might need. The letter closed, by way of post- script, with the words, “you to have the place when I have passed away.” Relying upon this offer, which was neither withdrawn nor modified, and in acceptance thereof, the plaintiffs moved from Missouri to Maine late in April, 1915, went upon the premises described and entered into the performance of the contract. Trouble developed after a few weeks, and the relations between the parties grew most disagreeable. The mother brought two suits against her son-in-law on trifling matters, and finally ordered the plaintiffs from the place, but they refused to leave. Then on November 7, 1916, she executed and delivered to her son, Walter C. Hodg- kin, a deed of the premises, reserving a life estate in herself. Walter, however, was not a bona fide purchaser for value without notice, but took the deed with full knowledge of the agreement between the parties and for the sole purpose of evicting the plaintiffs. On the very day the deed was executed he served a notice to quit upon Mr. Brackenbury, as pre- liminary to an action of forcible entry and detainer which was brought on November 13, 1916. This bill in equity was brought by the plaintiffs to secure a reconveyance of the farm from Walter to his mother, to restrain and enjoin: Walter from further prosecuting his action of forcible entry and: detainer, and to obtain an adjudication that the mother holds the legal title impressed with a trust in favor of the plaintiffs in accordance with their contract. The sitting justice made an elaborate and carefully considered finding of facts and signed a decree, sustaining the bill with costs against Walter C. Hodgkin, and granting the relief prayed for. The case is before the law court on the defendants’ appeal from this decree. Four main issues are raised. 1. As to the completion and existence of a valid contract. A legal and binding contract is clearly proven. The offer on the part of the mother was in writing, and its terms cannot successfully be dis- puted. There was no need that it be accepted in words, nor that a counter promise on the part-of the plaintiffs be made. The offer was the basis, not of a bilateral contract, requiring a reciprocal promise, a promise for a promise, but of a unilateral contract requiring an act for a promise. “In the latter case the only acceptance of the offer that is necessary is the performance of the act. In other words, the promise becomes binding when the act is performed.” 6 R. C. L. 60%. This is elementary law. The plaintiffs here accepted the offer by moving from Missouri to the mother’ farm in Lewiston and entering upon ‘the performance of the specified acts, and they have cqntinued performance since that time so 178 Cases on THE Law oF CONTRACTS far as they have been permitted by the mother to do so. The existence of a completed and valid contract is clear. * * * The plaintiffs are entitled to the remedy here sought, and the entry must be: Appeal dismissed. Decree of sitting justice affirmed, with costs against Walter C. Hodgkin.® SHUEY v. UNITED STATES. (Supreme Court of the United States, 1875. 92 U. S. 73, 23 L. Ed. 697.) Appeal from the Court of Claims. Henry B. Ste. Marie filed his petition in the Court of Claims to recover the sum of $15,000, being the balance alleged to be due him of the reward of $25,000 offered by the Secretary of War, on*April 20th, 1865, for the apprehension of John H. Surratt, one of Booth’s alleged accomplices in the murder of President Lincoln. The court below found the facts as follows: 66 Professor Corbin has suggested in 27 Yale L. J. 384-385, that the court in the principal case probably viewed the defendant’s offer as “I promise to convey my land to you in return for your moving to Maine and on condition that you support me during my life’ and on that assumption agrees with it. But was that the court’s theory? “The contract at the date of its making was unilateral, a mere offer [to pay 30 days after the completion by plaintiff of a double track street railway to a certain point for which plaintiff would have to secure a franchise]: that if subsequently accepted and acted upon by the other party to it would ripen into a binding enforceable obligation. When the respondent purchased and paid upwards of $1,500 for a franchise it had acted upon the contract, and it would be manifestly unjust thereafter to permit the offer that had been made to be withdrawn. The promised consideration had then been partly performed, and the contract had taken on a bilateral character. * * * The notice of withdrawal from the contract was ineffectual. * * * Again, it came too late, after the obligations of the parties had become fixed. * * * The con- sideration for appellants’ agreement was fully performed when the road was completed.” Gray, C., in Los Angeles Traction Co. v. Wilshire, 135 Cal. 654, 658 (1902). “It is true as a general proposition that a party making an offer of a reward may withdraw it before it is accepted. But persons offering rewards must be held to the exercise of good faith and cannot arbitrarily withdraw their offers for the purpose of defeating payment, when to do so would result in the per- petration of a fraud upon those who in good faith attempted to perform the service for which the reward was offered.” Barnes, J., in Zwolanek v. Baker Mfg. Co., 150 Wis. 517, 525 (1912). In that case the plaintiff had done all the work required of him in the time specified and only needed to remain in the defendant’s employ to January 1 to meet all the terms of the unilateral con- tract offer of reward. The defendant discharged him on Dec. 30 and the evidence would have supported a finding by the jury that the sole object of the discharge of plaintiff was to prevent him from receiving the reward. See also the circulation prize contest case, Wachtel v. National Alfalfa Journal Co., (Ia.) 176 N. W. 801 (1920). THE OFFER AND THE ACCEPTANCE OF A SIMPLE ContTRACT 179. 1. On April 20th, 1865, the Secretary of War issued, and caused to be published in the public newspapers and otherwise, a proclamation, whereby he announced that there would be paid by the War Department “for the apprehension of John H. Surratt, one of Booth’s accomplices,” $25,000 reward, and also that “liberal rewards will be paid for any in- formation that shall conduce to the arrest of either of the above-named criminals or their accomplices ;” and such proclamation was not limited in terms to any specific period, and it was signed “Edward M. Stanton, Secretary of War.” On November 24th, 1865, the President caused to be published his order revoking the reward offered for the arrest of John H. Surratt. 13 Stat. 778. 2. In April, 1866, John H. Surratt was a zouave in the military service of the Papal Government, and the claimant was also a zouave in the same service. During that month he communicated to Mr. King, the American Minister at Rome, the fact that he had discovered and identified Surratt, who had confessed to him his participation in the plot against the life of President Lincoln. The claimant also subsequently communicated further information to the same effect, and kept watch, at the request of the American Minister, over Surratt. Thereupon certain diplomatic correspondence passed between the Government of the United States and the Papal Government relative to the arrest and extradition of Surratt; and on November 6th, 1866, the Papal Government, at the request of the United States, ordered the arrest of Surratt, and that he be brought to Rome, he then being at Veroli. Under this order of the Papal Government, Surratt was arrested; but, at the moment of leaving prison at Veroli, he escaped from the guard having him in custody, and, crossing the frontier of the Papal territory, embarked at Naples, and escaped to Alexandria in Egypt. Immediately after his escape, and both before and after his embarkation at Naples, the American Minister at Rome, being informed of the escape by the Papal Government, took measures to trace and rearrest him, which was done in Alexandria. From that place he was subsequently conveyed by the American Government to the United States; but the American Minister, having previously pro- cured the discharge of the claimant from the Papal military service, sent him forward to Alexandria to identify Surratt. At the time of the first interview between the claimant and the American Minister, and at all subsequent times until the final capture of Surratt, they were ignorant of the fact that the reward offered by the Secretary of War for his arrest had been revoked by the President. The discovery and arrest of Surratt were due entirely to'the disclosures made by the claimant to the American Minister at Rome; but the arrest was not made by the claimant, either at Veroli, or subsequently at Alexandria. 3. There has been paid to the claimant by the defendants, under the Act of July 27th, 1868 (15 Stat. 234 § 3), the sum of $10,000. Such 180 Casts on THE LAw oF CONTRACTS payment was made by a draft on the Treasury payable to the order of the claimant, which draft was by him duly indorsed. The court found as a matter of law that the claimant’s service, as set forth in the foregoing findings, did not constitute an arrest of Surratt within the meaning of the proclamation, but was merely the giving of information which conduced to the arrest. For such information the remuneration allowed to him under the Act of Congress was a full satis- faction, and discharges the defendants from all liability. The petition was dismissed accordingly, whereupon an appeal was taken to this court. Ste. Marie having died pendente lite, his executor was substituted in his stead. Strone, J. We agree with the Court of Claims, that the service rendered by the plaintiffs testator was, not the apprehension of John H. Surratt, for which the War Department* had offered a reward of $25,000, but giving information that conduced to the arrest. ‘These are quite distinct things, though one may have been a consequence of the other. The proclamation of the Secretary of War, treated them as differ- ent; and, while a reward of $25,000 was offered for the apprehension, the of- fer for information was only a “liberal reward.” ‘The findings of the Court of Claims also exhibit a clear distinction between making the arrest and giving the information that led to it. It is found as a fact, that the arrest was not made by the claimant, though the discovery and arrest were due entirely to the disclosures made by him. The plain meaning of this is, that Surratt’s apprehension was a consequence of the disclosures made. But the consequence of a man’s act are not his acts. Between the consequence and the disclosure that leads to it there may be, and in this case there were, intermediate agencies. Other persons than the claimant made the arrest—persons who were not his agents, and who them- selves were entitled to the proffered reward for his arrest, if any persons were. We think, therefore, that at most the claimant was entitled to the “liberal reward” promised for information conducing to the arrest; and that reward he has received.§? 67 While it is clear that to earn a reward one must do the precise thing called for, it is frequently a matter of some difficulty to determine just. what is called for. Interpretations vary widely. In Juniata County v. McDonald, 122 Pa. St. 115 (1888), for instance, where the reward was for the capture and delivery of a criminal to jail, the court said: “A mere reading of this paper settles the whole controversy. The reward was not offered for information as to the prisoner’s whereabouts, but for his capture and delivery. How, then, could one be entitled to that reward who neither captured nor delivered him? Admitting, then, that the plaintiff gave the sheriff accurate information as to where the culprit could be found, and that he went with him and acted as one of his posse, yet on that officer fell the duty of arrest and the plaintiff was relieved of all responsibility.” In Smith v. State, 38 Nev. 477 (1915), on the other hand, an offer for the THE OFFER AND THE ACCEPTANCE or A StmMpuE Contract 181 But, if this were not so, the judgment given by the Court of Claims is correct. The offer of a reward for the apprehension of Surratt was revoked on November 24th, 1865; and notice of the revocation was published. . It is not to be doubted that the offer was revocable at any time before it was accepted, and before anything had been done in reliance upon it. There was no contract until its terms were complied with. Like any other offer of a contract, it might, therefore, be withdrawn before rights had accrued under it; and it was withdrawn through the same channel in which it was made.68 The same notoriety was given to the revocation ‘that was given to the offer; and the findings of fact do not show that any information was given by the claimant, or that he did anything to entitle him to the reward offered, until five months after the offer had been withdrawn. True, it is found that then, and at all times until the arrest was actually made, he was ignorant of the withdrawal; but that is an immaterial fact. The offer of the reward not having been made to him directly, but by means of a published proclamation, he should have known that it could be revoked in the manner in which it was made. : Judgment affirmed. arrest and conviction of the persons who committed a certain murder was deemed earned by members of a posse who killed the Indians guilty of the crime. 68 See Sullivan v. Phillips, 178 Ind. 164 (1912). “In other words, the proposal is treated as subject to a tacit condition that it may be revoked by an announcement made by the same means. This may be a convenient rule and may perhaps be supported as a fair inference of fact from the habits of the newspaper-reading part of mankind; yet it seems a rather strong piece of judicial legislation.” Pollock on Contracts, 8 ed., p. 23. “Suppose A makes an offer to B, saying that it is to remain open for two weeks, but is to end at once if A’s factory is destroyed by fire within the two weeks. Suppose the factory burns within the period limited and A thereafter, accepts, not knowing that it has burned. No contract arises, not because the offer has been revoked, but because it has lapsed upon the happening of this contingency. The contingency qualified the expectation. When one reads an offer of a reward in a newspaper, the expectation aroused is similarly qualified. It is a matter of common experience that, after offers of this kind have been made in this way the offerers publish their change of mind in the same man- ner. ‘As a fair inference of fact from the habits of the newspaper reading part of mankind,’ it can be said that unless the expectation aroused by an offer of a reward so communicated is thus limited and qualified, it is not a rea- sonable expectation [Author’s note: For the same reason, the contingency has not happened unless the second publication is substantially as widespread as was the publication of the reward]. The second publication does not need to be relied upon as a revocation. The expectation is contingent and this pub- lication is the contingency.” Herman Oliphant, The Duration and Termination of an Offer, 18 Mich. L. Rev. 201, 206. 69“A person may, doubtless, publicly offer a reward by oral statement as well as by hand bill, poster or newspaper. The latter mode has the advantage of being likely to make the offer more generally known, but it ‘is no more 182 Cases ON THE LAw oF CoNTRACTS FORTUNE SYMMES v. JOHN B. FRAZIER. (Supreme Judicial Court of Massachusetts, 1810. 6 Mass. 344, 4 Am. Dec. 142.) This was an action of assumpsit, with divers counts, to recover the sum of two hundred dollars, or-a part thereof, as a compensation for finding, and causing to be restored, a large sum of money in bank bills, which the defendant had lost from his pocket. A trial was had upon the general issue, at the last November term, before Parker, J., from whose report it appears that the defendant, having lost from his pocket a large number of bank bills, contained in a paper wrapper, amounting to more than fifteen hundred dollars, published an advertisement in the Boston Gazette, in which he described, as nearly as he could the money lost, and offered a reward of two hundred dollars to any person who should find and restore the same. The plaintiff having seen the advertisement, and having observed an unusual number of bank bills in the possession of a man whom * * * In Tennessee the court say that the revenue test is to be applied only where there is doubt from the language of the statute itself whether or not the legislature intended to prohibit the exercise of the privilege without a license, and that under a statute providing that the business of a real estate broker shall not be pursued without a license it was held that an unlicensed broker could not recover his com- mission. Stevenson v. Ewing, 87 Tenn. 46, 9 8. W. 230. If the statute in question was enacted for revenue purposes only, instead of being prohibitory, the plaintiff might properly recover. But we are satisfied that such was not the intention of the legislature. The statute being by implication prohibitory by reason of the penalty attached, the plaintiff is precluded from recovering. Basing his action upon a clear violation of the statute, he cannot successfully invoke the aid of the court. Miller v. Post, 1 Allen (Mass.) 434, Exceptions [of defendant] sustained.53 GRIFFITH v. WELLS. (Supreme Court of New York. July, 1846. 3 Denio, 226.) Error to Oneida, C. P. Griffith sued Wells before a justice of the peace in December, 1848, and declared in assumpsit for two half gallons of whisky and two glasses of beer, sold and delivered to the defendant, of the value of three shillings and.six pence. The plaintiff, who was a grocer, proved his declaration. The defence was, that the plaintiff sold the liquor without having a license to sell spirituous liquors. The justice gave judgment for the plaintiff for 44 cents damages, besides costs. On certiorari, the C. P. reversed the judgment, on the ground that the plaintiff did not show a license to sell spirituous liquors. The plaintiff brings error. 53 On effect of failure to procure license for business on validity of contract therein, see 16 L. R. A. 428, note; 12 L. R. A. (N. 8.) 613, note. On effect of contract by teacher without license or certificate of qualification, see 42 L. R. A. (N. S.) 412, note. Op right of one not admitted to practice, or un- licensed, to recover compensation for legal services, see 4 A. L. R, 1087, note, 1204 CasES ON THE LAW OF CONTRACTS Bronson, C. J. Our excise law does not, in terms, prohibit the sale of strong or spirituous liquors without a license, nor declare the act liberal; but only inflicts a penalty upon the offender. 2 Rev. St. 680, §§ 15, 16. From this it is argued, that although the seller without a license incurs a penalty, the contract of sale is valid, and may be en- forced by action. But it was laid down long ago, that ‘‘where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful; for it cannot be intended that a statute would inflict a penalty for a lawful act.’’ Bartlett v. Viner, Skin. 322. In the report of the same case in Carthew (page 252), Holt, C. J., said: ‘‘A penalty implies a prohibition, though there are no prohibitory words in the statute.’’ Although this was but a dictum, the doctrine has been fully approved. De Begnis v. Armistead, 10 Bing. 107; Foster v. Tay- lor, 3 Nev. & M. 244, 5 Barn. & Adol. 887; Cope v. Rowlands, 2 Mees. & W. 149; Mitchell v. Smith, 1 Bin. 110, 4 Dall. 269; Leidenbender v. Charles, 4 Serg. & R. 159, per Tilghman, C. J.; Bank v. Merrick, 14 Mass. 322. When a license to carry on a particular trade is required for the sole purpose of raising revenue, and the statute only inflicts a penalty by way of securing payment of the license money, it may be that a sale without a license would be valid. Johnson v. Hudson, 11 East, 180; Brown v. Duncan, 10 Barn. & C. 93; Chit. Cont. (Hid. 1842) 419, 697. But if the statute looks beyond the question of revenue, and has in view the protection of the public health or morals, or the pre- vention of frauds by the seller, then, though there be nothing but a penalty, a contract which infringes the statute cannot be supported. Law v. Hodgson, 2 Camp. 147; Brown v. Duncan, 10 Barn. & C. 93; Foster v. Taylor, 3 Nev. & M. 244, 5 Barn. & Adol. 887; Little v. Poole, 9 Barn. & C. 192; Tyson v. Thomas, McClel. & Y. 119; Wheeler v. Russel, 17 Mass. 258; Bensley v. Bignold, 5 Barn. & Ald. 335; Drury v. Defontaine, 1 Taunt. 186, per Mansfield, C. J.; Cope v. Rowlands, 2 Mees. & W. 149; Houston v. Mills, 1 Moody & R. 325. Now I think it quite clear, that in the enactment of our excise law the legislature looked beyond the mere question of revenue, and intended to prevent some of the evils which are so likely to flow from the traffic in spirituous liquors. If revenue alone had been the object, licenses would have been allowed indiscriminately to all. But the statute forbids a license to any one, whether tavern-keeper or grocer, who is not of good moral char- acter; and he must moreover give bond, with sureties, that his house or grocery shall not become disorderly. Sections 6, 7,13. These regu- lations were evidently intended to protect the public, in some degree, against the consequences which might be expected to follow from allow- ing all persons, at their pleasure, to deal in strong liquors. And although the statute only inflicts a penalty for selling without a license, the contract is illegal, and no action will lie to enforce it. The ‘justice was wrong; and his judgment has been properly reversed by the common pleas. Judgment affirmed. ILLEGAL ConTRACTS 1205 JOHN BISBEE v. MARY McALLEN. (Supreme Court of Minnesota, 1888. 39 Minn. 148, 39.N. W. 299.) Action for goods sold and delivered. The defendant pleaded that unsealed weights and measures were used. The reply alleged that no sealed weights or measures were provided in the county of sale, that de- fendant bought with full knowledge of that fact and that all the goods sold were of the full weight and measure charged therefor. A demur- rer to the reply was sustained and the plaintiff appealed. VANDERBURGH, J.t The question presented for consideration in this ease is raised upon the sufficiency of the second defence set up in the answer, where it appears that the goods alleged to have been sold to the defendant, and for the price of which this action is brought, were sold by weight and measurement, and that such weight and measure- ment were unlawfully ascertained and fixed by certain unsealed meas- ures, scales, and weights, which had never been proved, tested, or sealed, as required by the statute. Under Gen. St. 1878, ¢. 21, § 11, a sale of goods, wares, and merchandise by any scale-beam, steelyard, weight, or measure, not proved and sealed in accordance with the pro- visions of that chapter, is made a misdemeanor, and subjects the person making such sale to a penalty of not less than five nor more than one hundred dollars. The provision for a penalty in this section implies a prohibition of such sales. That is to say, if goods are sold by weight or measure, the law absolutely requires that ‘the scales or measures used should be approved by the sealer of weights and measures for the county, as the statute provides. : It stands admitted upon the record, then, in this case, that the sale in question here, as made, was prohibited, and in violation of the statute. The weighing or measuring is not a collateral matter, but is directly involved in the act of selling and the contract of sale. It regulates the quantity to be delivered and the amount to be paid. And where the statute has in view the prevention of fraud by the seller, then, though there be nothing but a penalty, a contract which infringes the statute cannot be upheld. Griffith v. Wells, 3 Denio, 226, and cases; Lewis v. Welch, 14 N. H. 294. Here the intent of the statute is clearly to prevent sales by unproved and unsealed scales or meas- ures, and its object is undoubtedly to protect the public from fraud or imposition by the use of false or inaccurate balances and measurements. It covers all cases of sales by weight or measure, and this case is clear- ly within it. The doctrine appears to be too well settled to require extended discussion. Brackett v. Hoyt, 29 N. H. 264; Smith v. Arnold, 106 Mass. 269; Woods v. Armstrong, 54 Ala. 150 (25 Am. Rep. 671, notes and cases) ; Ingersoll v. Randall, 14 Minn. 304 (400). In some cases a remedy has been suggested and recognized outside the prohibit- +The statement of the pleadings is abbreviated. 1206 CASES ON THE LAW oF CONTRACTS ed contract. Pratt v. Short, 79 N. Y. 487, 445. But no such ques- tion is involved in this case. In respect to defences of this kind, we adopt the language of the court in Lewis v. Welch, supra: ‘‘The objec- tion that the contract is illegal as between the parties is never very creditable to him who makes it. But it is not out of favor to him that the objection is sustained, but from regard to the law. The advantage he derived from it is altogether accidental.’? The supposed hardships of particular cases must yield to the general purposes of the act, and the modification of the law, if any shall be found necessary, must be by the legislature. Order affirmed.5* 64 “Frequently a statute imposes a penalty on the doing of an act without either prohibiting it or expressly declaring it illegal or void. In cases of this kind the decisions of the courts are not in harmony. By some courts it is held that an agreement founded on or for the doing of such penalized act is void (9 Cyc. 476, and note 2); in accordance with the view of Lord Holt in an old case: “Every contract made for or about any matter or thing which is prohibited and made unlawful by any statute is a void contract, though the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, though there are no prohibiting words in the statute.’ Bartlett v. Vinor, Carth. 251, 252. “Other courts have held that if, for example, the penalty is imposed for the protection of the revenue, it may be presumed that the legislature only desired to make it expensive to the parties in proportion as it is unprofitable to the revenue. Others have regarded the question as one of legislative intent, and declared the proper rule to be that the courts will look to the language of the statute, the subject-matter of it, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment; and if from all these it is manifest that it was not intended to imply a prohibition orto render the prohibited act void, the courts will so hold and construe the statute accordingly. Wheeler v. Hawkins, 116 Ind. 515, 19 N. E. 470; Dillon v. Allen, 46 Iowa, 299, 26 Am. Rep. 145; Lindsey v. Rutherford, 17 B. Mon. (Ky.) 245; Coombs v. Emery, 14 Me. 404; Bowditch v. New England Mut. L. Ins. Co., 141 Mass. 292, 4 N. E. 798, 55 Am. Rep. 474; Lewis v. Welch, 14 N. H. 294; Ruckman v. Bergholz, 37 N. J. Law, 437; Pratt v. Short, 79 N. Y. 487, 35 Am. Rep. 531; Holt v. Green, 73 Pa. 198, 13 Am, Rep. 737; Aiken v. Blaisdell, 41 Vt. 655; Niemeyer v. Wright, 75 Va! 239, 40 Am. Rep. 720; Miller v. Ammon, 145 U. S. 421, 12 Sup. Ct. 884, 36 L. Ed. 759; St. Louis Nat, Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; Barton v. Muir, L. R. 6 P. C. 134. “As a general rule, a contract founded on an act forbidden by a statute un- der a penalty is void, although it be not expressly declared to be so; but it does not necessarily follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it. The question is in a great measure one of legislative intent, and its determination depends, as in other cases, on the construction of the statute. Niemeyer vy. Wright, 75 Va. 239, 40 Am. Rep. 720. Such was the conclusion of another court of high authority. Harris v. Runnels, 12 How. 79, 18 L. Ed. 901, which court notes a distinction between statutes to raise revenue and those which are made for the protection of the public from moral evils, and those, which it is known by experience, society must be guarded from by preventive legislation. The InuegaL ConTRACTS 1207 MILLWARD v. LITTLEWOOD, (Court of Exchequer, 1850. 5 Ex. 775.) Assumpsit. Declaration on mutual promises to marry, the plain- tiff, an unmarried woman, alleging a subsequent discovery that defend- court, following Baron Parke’s opinion in Cope v. Rowlands, 2 M. & W. 149, says: e “‘A statute, containing a prohibition and a penalty, makes the act which it punishes unlawful, and the same may be implied from a penalty without a prohibition; but it does not follows that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it. When the statute is silent, and contains nothing from which the contrary can be prop- erly inferred, a contract in contravention of it is void. It is not necessary, however,’that the reverse of that should be expressed in terms to exempt a contract from the rule. The exemption may be inferred from those rules of interpretation, to which, from the nature of legislation, all of it is liable when subjected to judicial scrutiny. That legislators do not think the rule one of universal obligation, or that, upon grounds of public policy, it should always be applied, is very certain. * * * It must be obvious, from such diversities of legislation, that statutes forbidding or enjoining things to be done, with penalties accordingly, should. always be fully examined, before courts shouid refuse to give aid to enforce contracts which are said to be in contravention of them.’ “This court has lately applied the rule we have just stated, and with refer- ence to a similar question, arising out of the construction of a town ordinance requiring sewer connections to be made, in Hines v. Norcott, 176 N. C. 1238, 96 S. E. 899, where it was said: “The case of Courtney v. Parker, 173 N. C. 479 [92 S. E. 324], does not conflict with our decision, and is not an authority in support of the defendant’s contention. There the defendant had done the very thing which was, in express terms or by the clearest implication, forbidden by the statute, and which it was unlawful to do, and every time he made a sale in the same manner, he did the same thing which the statute was intended to prohibit, and which it declared should be unlawful and a misdemeanor, punishable by fine and imprisonment. In other words, the statute declared that he should conduct his business in a certain way, and not otherwise, and that he should not conduct it at all “unless” he complied .with the provisions of the statute. He did not pursue the prescribed method, but the one denounced, and his act was therefore held to be illegal and his contract tainted by it. That is not our case. There is nothing in the lease transaction which is immoral per se, and therefore it is our right to search out the intention of the council and the meaning of the ordinance, in the language of the latter, and discover, if we can, what was its purpose, and not destroy contracts, with perhaps dis- astrous results, unless we find that to have been the real meaning and object in view. Courtney v. Parker, supra, and cases cited therein. The ordinance does not, in terms or by implication, forbid the sale or leasing of premises having no sewer connections, but it is restricted to the injunction that in cer- tain instances the owner should make such connections under a penalty for his failure to do so. There is no inhibition in this contract against the making of such connections, and the owner is perfectly free to make them at any time. There is not even a reference to the matter, one way or another.’” Walker, Js in Price v. Edwards, 178 N. C. 493, 497-499 (1919). ‘ See UhImann y. Kin Daw, 97 Ore. 681, 193 Pac. 435.(1920),,a decision under a 1208 CASES ON THE LAW OF CONTRACTS ant was a married man. At the trial the plaintiff had a verdict and defendant moved to arrest the judgment. Auprrson, B.55 It is unnecessary to decide whether a promise by a man to marry a woman after his wife’s death is good, because here it is found as a fact that the plaintiff had no knowledge that the defendant was married. In my opinion the difficulty arises in respect of the promise alleged being a promise to marry within an indefinite time. What was decided by the recent case in the Court of Common Pleas, [Wild v. Harris, 7 C. B. 999,] I think, was rightly decided. Parke, B. * * * The promise by the defendant to marry the plaintiff implies, on his part, that he is then capable of marrying, and he has broken that promise at the time of making it. The considera- tion to support the promise is, that the plaintiff, at the request of the defendant, engaged to marry him within a reasonable time, and there- fore she remained unmarried; and that is a sufficient consideration to bind the defendant. And if she discovered, on the day after the de- fendant’s promise, that he was a married man, I should nevertheless say that the consideration would be sufficient. Rule refused.58 statute requiring persons transacting business under an assumed name or desig- nation to file a certificate with the county clerk, setting forth both the assumed name or designation and the true names and addresses of the persons. The statute provided that no person or persons carrying on business as aforesaid, should maintain an action in any of the courts of the state without alleging and proving the filing of the certificate and that failure to file such certificate should be “prima facie evidence of fraud in receiving credit.” The penalty clause read: “Any person violating any of the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding $100.” The opinion of the court, which was concerned with the effect of the statute on contracts by parties violating the statute, ends: “Our conclusion is that failure to file the certificate affects only the qualifica- tion of the person to sue, and that upon filing a certificate the disqualification is removed, and a suit or action may be maintained on a contract made before or after such filing.” 55 The statement of the pleadings is abbreviated, and the opinion of Pollock, C. B., and part of the opinion of Parke, B., are omitted. 56 ‘Where the impossibility is known to the promisor, but not known to the promisee, he must be taken to promise absolutely; as where a married man promises to marry a woman, who was then unaware of his being married {citing Wild v. Harris, 7 C. B. 999; Milward v. Littlewood, 5 Exch. 775].” Leake on Contracts, 5 Ed., 488, 484. : In Spiers v. Hunt, [1908] 1 K. B. 720, 723, Phillimore, J., suggests that Milward v. Littlewood, supra, rests “upon the ground of estoppel or warranty of capacity.” “Cases have arisen where a married man has deceived a woman into be- lieving that he was unmarried, in which the courts have held that in a suit for damages the defendant is estopped to deny that he was unmarried. This is upon the theory of fraud; that the duty was upon him to know whether he was married or not and. not to deceive the other contracting party. * * * ILLEGAL ContTRaAcTs 1209 ROYS v. JOHNSON er au. (Supreme Judicial Court of Massachusetts, 1856. 7 Gray, 162.) Mercatr, J.” It is agreed by the parties that the plaintiff per- formed for the defendants the services for which he now seeks to recover payment and that they have not paid him. It is for them, therefore, to show that he is not entitled to recover. This, in our opinion, is not shown by the statement of facts submitted to us. It appears, indeed, from that statement, that the defendants, without a license, set up theatrical exhibitions, in which they employed the plain- tiff as an actor; and it follows, of course, that they thereby violated the law, and subjected themselves to punishment. But it does not appear that the plaintiff knew that they had no license. Unless he knew that fact, he is in no legal fault; and where a defendant is the only person who has violated the law, he cannot be allowed to take advantage of his own wrong, to defeat the rights of a plaintiff who is innocent. In the cases cited by the defendants’ counsel, where defences were sustained because the claims were void for illegality, the parties suing knew, or were bound to know, that they or the parties sued were violat- ing or undertaking to violate the law. And this distinguishes all those eases, as well in law as in common justice, from the case at bar. * * * In the present case, we treat the plaintiff as not knowing that the defendant had no license, because the statement of facts does not show that he knew it. No case is cited in which the courts have permitted the married person to recover.” Cornish, J., in Rich v. Fulton, (Neb.), 177 N. W. 175, 176 (1920). (1920). See ‘ite: v. Dalton, 119 Miss. 672, 81 So. 488 (1919), where the judge quotes “a minor poet”; Waddell v. Wallace, 32 Okla. 140 (1912); Carter v. Rinker, 174 Fed. 882 (1909). : See, however, Pollock v. Sullivan, 53 Vt. 507 (1881), holding that an action of tort for deceit will lie and implying that assumpsit should not. See also Edward W. Hope, Ignorance of Impossibility as Affecting Consideration, 32 Harv. L. Rev. 679. Where a married man, known by the woman to be such, agrees to marry her after he gets a divorce from his wife, then even though the divorce suit is pending at the time, the agreement is illegal. Noice v. Brown, 38 N. J. L. 228 (1876), 39 N. J. L. 183 (1876). See, also, Paddock v. Robinson, 63 Ill. 99 (1872); Olson v. Saxton, 86 Ore. 670 (1917); Wilson v. Carnley, [1908] 1 K. B. 729, But if a divorce has been granted and remarriage for a year or other speci- fied time is forbidden, then even though it is forbidden by statute and not merely by court decree, the agreement, if it is one to marry after the forbidden period ends, is held to be legal. Mitchell v. Clem, 295 Ill. 150 (1920); Buelna v. Ryan, 139 Cal. 630 (1903).. Compare Brown v. Odill, 104 Tenn. 250 (1899). On validity of agreement to marry when one of the parties is already mar- ried, see 1 B, R. C. 917, note; 52 L. R. A. 660, note; L. R. A. 1918 B, 68, note; 14 Ann. Cas. 162, note. 57 Part of the opinion is omitted. 1210 Cases ON THE LAw or ConrTrRaActs It is ignorance of a fact, and not of the law, that saves the plaintiff’s case. He undoubtedly knew, or was bound to know, that unlicensed theatrical exhibitions were unlawful; but he was not bound to know that the defendants had no license and were doing unlawful acts. Judgment for the plaintiff.©8 JAMES H. LURTON, Puaintirr in Error v. WILLIAM GILLIAM anp JAMES C. CHALLEN, Derenpants In Error. (Supreme Court of Illinois, 1839. 2 Il. qa Scam.) 577, 33. Am. Dec. 430.) Appeal by defendant below from a judgment for plaintiffs. The action was for goods sold as per the following memorandum : “P.M. Brown & James Lurton To 214 Yrds. Fine Cloth, $12........ Fee aiet waeee. $28.00 Trimmings for Coat................ iQewaa anes 6.00 $34.00 “Tf Mr. Douglass is aecea to Congress, P. M. Brown is to pay for the cloth; if Mr.: Biers is elected, James Horie has it to pay.’’ Mr. Stuart was elected. Suirn, J.59 * * * From the facts disclosed by the bill of ex- ceptions, it appears that the contract for the cloth, although a con- tingent one as to the ultimate liability of the one or the other of the parties, was to be absolute; as to the party who should lose the bet. The purchase was made and the credit given, after the consummation of the bet. : It does not appear that the defendants in error were in any way parties to the bet, or encouraged it; and we do not perceive that their contract for the sale and delivery of the cloth, was tainted with a participation in the original agreement between the parties. Their mere knowledge of it could not certainly connect them with it; and having parted with their property under. the arrangement, common honesty surely requires that the party at whose instance it was de- livered, conformably to his agreement, should be held answerable for the value of the merchandise delivered. Money loaned to be used in 68“A statute may declare a contract to be void, and still but one of the parties be guilty of its violation. Enactments of this character are often made for the purpose of protecting one class of men from the oppression and im- positions of another class of men; and in such cases the really guilty party is never allowed any relief under the statute or permitted to set up the statute as a defense to relief sought by the other party.” Treat, J., in Ferguson v. Sutphen, 8 Il). 547, 573 (1846). 59 The statement of facts is abbreviated and parts of the opinion are omitted. ILLEGAL Contracts 1211 gaming, could. heretofore have been recovered back at common law, but it is now prohibited by the statute against gaming, It is not now necessary to go into the various reasons given for the decisions which have prevailed in courts, relative to gaming contract, because this contract cannot be considered contra bonos mores, or against sound policy. * * * Judgment affirmed. TYLER v. CARLISLE. (Supreme Judicial Court of Maine, 1887. 79 Me. 210, 9 Atl. 356, 1 Am. St. Rep. 301.) Peters, C. J. The plaintiff claims to recover a sum of money loaned by him while the defendant was engaged in playing at cards. The ruling at the trial was that, if the plaintiff lent the money with an express understanding, intention, and purpose that it was to be used to gamble with, and it was so used, the debt so created cannot be recov- ered; but otherwise if the plaintiff had merely knowledge that the money was to be so used. Upon authority and principle the ruling was correct. Any different doctrine would, in most instances, be im- practicable and unjust. It does not follow that a lender has a guilty purpose merely because he knows or believes that the borrower has. There may be a visible line between the motives of the two. If it were not so, men would have great responsibilities for the motives and acts of others. A person may loan money to his friend,—to the man,—and not to his purpose. He may at the same time disapprove his purpose. He may not be willing to deny his friend, however much disapproving his acts. In order to find the lender in fault, he must himself have an intention that the money shall be illegally used. There must be a combination of intention between lender and borrower,—a union of purposes. The lender must in some manner be a confederate or par- ticipator in the borrower’s act,—be himself implicated in it. He must loan his money for the express purpose of promoting the illegal design of the borrower, not intend merely to serve or accommodate the man. 60 See Winchester v. Nutter, 52 N. H. 507 (1872), where the plaintiff sued the “captains” of opposing sides in a squirrel hunt for twenty-four suppers furnished them. The plaintiff had presided at the meeting at which it was arranged that the losing side should pay for the dinners of the winning side, yet was allowed to recover since the arrangement was that the two captains were to engage the suppers and be responsible to the plaintiff for the whole of them and afterwards adjust the matter with the men so that each man on the side that got beat should pay for his own supper and for that of one man on the side that beat. The plaintiff was not a party to the bet, but as chair- man of the meeting, knew all about it. 1212 CASES ON THE Law oF CONTRACTS In support of this view many cases might be adduced. .A few prom- inent ones will suffice. Greene v. Collins, 3 Cliff. 494, Fed. Cas. No. 5,755; Gaylor v. Soragen, 32 Vt. 110; Hill v. Spear, 50 N. H. 253; Peck v. Briggs, 3 Denio, 107; McIntyre v. Parks, 3 Mete. (Mass.) 207; Banchor v. Mansel, 47 Me. 58. See Franklin Co. v. Lewiston Sav. Bank, 68 Me. 47. Nor was the branch of the ruling wrong that plaintiff, even though a participator, could recover his money back if it had not been actually used for illegal purposes. In minor offenses, the locus penitentiew con- tinues until the money has been actually converted to the illegal use. The law encourages a repudiation of the illegal contract, even by a guilty participator, as long as it remains an executory contract, or the illegal purpose has not been put in operation. The lender can cease his own criminal design, and reclaim his money. ‘‘The reason is,’’ says Wharton, ‘‘the plaintiff’s claim is not to enforce, but to repudiate, an illegal contract.’’ Whart. Cont. § 354, and cases there cited. The object of the law is to protect the public,—not the parties. ‘‘It best comports with public policy to arrest the illegal transaction before it is consummated,’’ says the court in Stacy v. Foss, 19 Me. 335. See White v. Bank, 22 Pick 181. The rule allowing a recovery back does not apply where the lender knows that some infamous crime is to be committed with the means which he furnishes. It applies only where the minor offenses are involved. Exceptions overruled.™ PEARCE anp ANOTHER v. BROOKS. (Court of Exchequer Chamber, 1866. L. R., 1 Exch. 213.) Declaration stating an agreement by which the plaintiffs agreed to supply defendant with a new miniature brougham on hire, till the 610On right to recover back money loaned for the purpose of being used in an illegal transaction, or with knowledge of borrower’s intention so to use it, see L. R. A. 1918 C, 247, note. Local statutes should be consulted. “A,, a resident of this state, loans money to B., who gives a mortgage upon land situated in this state as security for the loan; but at A’s request the mortgage and note are made to run to C., who is a nonresident, and this is done for the purpose of defrauding the state out of the taxes upon the mort- gage. A. takes an assignment from C. of the note and mortgage, but does not place the assignment on record until foreclosure is sought. Upon B.’s default, A. commences foreclosure proceedings, and B. defends upon the ground that the contract was and is void as against public policy. Upon these facts the Nevada and Kansas courts have refused to foreclose the mortgage. Drexler v. Tyrrell, 15 Nev. 114; Sheldon v. Pruessner, 52 Kan. 579, 35 Pac. 201, 22 L. R. A. 709. But the decided weight of authority is against the holding of these courts. Crowns v. Forest Land Co., 99 Wis. 108, 74 N. W. 546; Nichols v. Weed Sewing ILLEGAL ConTRACTS 1213 purchase money should be paid by instalments in a period which was not to exceed twelve months; the defendant to have the option to pur- chase as aforesaid, and to pay 501. down; and in ease the brougham should be returned before a second instalment was paid, a forfeiture of fifteen guineas to be paid in addition to the 501. and also any damage, except fair wear. Averment, that the defendant returned the brougham before a second instalment was paid, and that it was dam- aged. Breach, nonpayment of fifteen, guineas, or the amount of the damage. Money counts. Plea 3, to the first count, that at the time of making the supposed agreement the defendant was to the knowledge of the plaintiffs a pros- titute, and that the supposed agreement was made for the supply of a brougham to be used by her as such prostitute, and to assist her in carrying on her said immoral vocation, as the plaintiffs when they made the said agreement well knew, and in the expectation by the plaintiffs that the defendant would pay the plaintiffs the moneys to be paid by the said agreement out of her receipts as such prostitute. Issue. The case was tried before Bramwell, B., at Guildhall, at the sittings after Michaelmas Term, 1865. It then appeared that the plaintiffs were coach-builders in partnership, and evidence was given which satisfied the jury that one of the partners knew that the defendant was a prostitute; but there was no direct evidence that either of the plain- tiffs knew that the brougham was intended to be used for the purpose of enabling the defendant to prosecute her trade of prostitution; and there was no evidence that the plaintiffs expected to be paid out of the wages of prostitution. The learned judge ruled that the allegation in the plea as to the mode of payment was immaterial, and he put to the jury the following ques- tions: 1. Did the defendant hire the brougham for the purpose of her prostitution? 2. If she did, did the plaintiffs know the purpose for which it was hired? The jury found that the carriage was used by the defendant as part of her display, to attract men; and that the plain- tiffs knew it was supplied to be used for that purpose. They gave nothing for the alleged damage. On this finding the learned judge directed a verdict for the defend- ant, and gave the plaintiffs leave to move to enter a verdict for them for the fifteen guineas penalty. M. Chambers, Q. C., in Hilary Term, obtained a ruled accordingly, Machine Co., 27 Hun, 200, s. c. 97 N. Y. 650; Callicott v. Allen, 31 Ind. App. 561, 67 N. E. 196; Jones on Mortgages, § 619, and note; Stilwell v. Corwin, 55 Ind. 488, 23 Am. Rep. 672. We think the rule is quite well settled that courts will not hold a contract void as against public policy, unless the contract itself requires that something be done which adversely affects the public welfare, or is forbidden by law, or the consideration is illegal or im- moral. Callicott v. Allen, above.” Holloway, J., in Murray v. White, 42 Mont. 423, 487-488 (1911). 1214 CasrEs oN THE LAw or CONTRACTS on the ground that there was no evidence that the plaintiffs knew the purpose for which the brougham was to be used; and that if there was, the allegation in the plea that the plaintiffs expected to be paid out of the receipts of the defendant’s prostitution was a material allegation, and had not-been proved. Bowry v. Bennet, 1 Camp. 348. [Pouuock, C. B., referred to Cannan v. Bryce, 3 B. & A. 179.] Digby, Seymour, Q. C., and Beresford, showed cause. No direct evidence could be given of the plaintiffs’ knowledge that the defendant was about to use the carriage for the purpose of prostitution; but the fact that a person known to be a prostitute hires an ornamental broug- ham is sufficient ground for the finding of the jury. [BramMweELu, B. At the trial I was at first disposed to think that there was no evidence on this point, and I put it to the jury, that, in some sense, everything which was supplied to a prostitute is supplied to her to enable her to carry on her trade, as, for instance, shoes sold to a street-walker ; and that the things supplied must be not merely such as would be necessary or useful for ordinary purposes, and might be also applied to an immoral one; but they must be such as would under the circumstances not be required, except with that view. The jury, by the mode in which they answered the question, showed that they appre- ciated the distinction; and on reflection I think they were entitled to draw the inference which they did. They were entitled to bring their knowledge of the world to bear upon the facts proved. The inference that a prostitute (who swore that she could not read writing required an ornamental brougham for the purpose of her calling, was as natural a one as that a medical man would want a brougham for the purpose of visiting his patients; and the knowledge of the defendant’s condition being brought home to the plaintiffs, the jury were entitled to ascribe to them also the knowledge of her purpose. ] Upon the second point, the case of Bowry v. Bennett, 1 Camp. 348, falls short of proving that the plaintiff must intend to be paid out of the proceeds of the illegal act. The report states that the evidence of the plaintiffs’ knowledge of the defendant’s way of life was ‘‘very slight ;?? and Lord Ellenborough appears to have referred to the inten- tion as to payment, not as a legal test, but as a matter of evidence with reference to the particular circumstances of the case. The goods sup- plied there were clothes; without other circumstances there would be nothing illegal in selling clothes to a known prostitute; but if it were shown that the seller intended to be paid out of her illegal earnings, the otherwise innocent contract would be vitiated. Neither is Lloyd v. Johnson, 1 B. & P. 340, cited in the note to the last case, an authority for the plaintiffs, for there part of the contract would have been inno- cent, and all that the court says is, that it cannot ‘‘take into considera- tion which of the articles were used by the defendant to an improper ILLEGAL ConTRACTS 1215 purpose, and which were not;’’ they had no materials for doing so. The present case rather resembles the case of Crisp v. Churchill, cited in Lloyd v. Johnson, 1 B. & P. 340, where the plaintiff was not allowed to recover for the use of lodgings let for the purpose of prostitution. . Appleton v. Campbell, 2 C. & P. 347, is to the same effect. M. Chambers, Q. C., and J. O. Griffiths, in support of the rule. As to the first point, the expressions of Buller, J., in Lloyd v. Johnson, 1 B. & P. at p. 341, are strongly in the plaintiffs’ favor, especially his remarks on the case of the lodgings: ‘‘I suppose the lodgings were hired for the express purpose of enabling two persons to meet there.’’? But in this case it is impossible to say that there was any express purpose of prostitution ; the defendant might have used the brougham for any pur- pose she chose, as to take drives, to go to the theatre, or to shop. Even if there were evidence, the jury have not found the purpose with sufficient distinctness. But secondly, the last allegation in the plea is material; the plaintiffs must intend to be paid out of the proceeds of the immoral act. The words of Lord Ellenborough in Bowry v. Bennett, 1 Camp. 348, are very plain; the plaintiff must ‘‘expect to be paid from the profits of the defendant’s prostitution.’’ . [Bramwell, B. At the trial I refused to leave this question to the jury, but it has since occurred to me that the matter was doubtful. The purpose of the seller in selling is, that he may obtain the profit, not that the buyer shall put the thing sold to any particular use; it is for the buyer to determine how he shall use it. Suppose, however, a person were to buy a pistol, saying to the seller that he means with it to shoot a man and rob him; is the act of the seller illegal, or is it further neces- sary that he should stipulate to be paid out of the proceeds of the rob- bery? If the looking to the proceeds is necessary to make the transac- tion illegal, is it not also necessary that it should be part of the contract that he shall be so paid ?] Suppose a cab to be called by a prostitute, and the driver directed to take her to some known place of ill-fame, could it. be said that he could not claim payment? (Bramwell, B. If he could, this absurdity would follow, that if a man and a prostitute engaged a cab for that purpose, and if, to meet your argument, the driver reckoned on payment, as to the woman, out of the proceeds of her prostitution, the woman would not be liable, but the man would, although they engaged in the same transaction and for the same purpose. ] If the contract is void for this reason, the plaintiffs were entitled to resume possession, and to bring trover for the carriage; a test, there- fore, of the question will be, whether in such an action, if the jury found the same verdict as they have found here, on the same evidence, the plaintiffs would be entitled to recover. 1216 CasES ON THE Law oF CONTRACTS [Martin, B. I think they would; and that if the carriage had not been returned in this case, the plaintiffs would, on our discharging this rule, be entitled to determine the contract on the ground of want of reciprocity, and to claim the return of the article. ] Potiock, C. B.6 We are all of the opinion that this rule must be dis- charged. I do not think it is necessary to enter into the subject at large after what has fallen from the bench in the course of the argu- ment, further than to say that since the case of Cannan v. Bryce, 3 B. & A. 179, cited by Lord Abinger in delivering the judgment of this court in the case of M’Kinnell v. Robinson, 3 M. & W. at p. 441, and followed by the case in which it was so cited, I have always considered it as settled law that any person who contributes to the performance of an illegal act by supplying a thing with the knowledge that it is going to be used for that purpose, cannot. recover the price of the thing so supplied. If, to create that incapacity, it was ever considered neces- sary that the price should be bargained or expected to be paid out of the fruits of the illegal act (which I do not stop to examine), that propo- sition has been overruled by the cases I have referred to, and has now ceased to be law. Nor can any distinction be made between an illegal and an imnioral purpose; the rule which is applicable to the matter is, Ex turpi causa non oritur actio, and whether it is an immoral or an illegal purpose in which the plaintiff has participated, it comes equally within the terms of that maxim, and the effect is the same; no cause of action can arise out of either the one or the other. The rule of law was well settled in Cannan v. Bryce, 3 B. & A. 179; that was a case which at the time it was decided, I, in common with many other lawyers in Westminster Hall, was at first disposed to regard with surprise. But the learned judge (then Sir Charles Abbott) who decided it, though not distinguished as an advocate, nor at first eminent as a judge, was one than whom few have adorned the bench with clearer views, or more accurate minds, or have produced more beneficial results in the law. The judgment in that case was, I believe, emphatically his judgment; it was assented to by all the members of the Court of King’s Bench, and is now the law of the land. If, therefore, this article was furnished to the defendant for the purpose of enabling her to make a display favorable to her immoral purposes, the plaintiffs can derive no cause of action from the bargain. I cannot go with Mr. Chambers in thinking that everything must be found by a jury in such a case with that accu- racy from which ordinary decency would recoil. For criminal law it is sometimes necessary that details of a revolting character should be found distinctly and minutely, but for civil purposes this is not necessary. If evidence is given which is sufficient to satisfy the jury of the fact of the 62 The opinions of Bramwell, B., Martin, B., and Pigott, B., and some later remarks of Pollock, C. B., are omitted. ILLEGAL ConTrRActs 1217 immoral purpose, and of the plaintiffs’ knowledge of it, and that the article was required and furnished to facilitate that object, it is suffi- cient, although the facts are not expressed with such plainness as would offend the sense of decency. I agree with my brother Bramwell that the verdict was right, and that the rule must be discharged. Rule discharged.®8 68In Upfill v. Wright, 1083 L. T. (N. S.) 834 (1910), the doctrine was ex- tended to deny a recovery for rent to one whose agent, knowing that the defendant was the mistress of a certain man who frequently visited her at the flat and would indirectly pay the rent, had relet the flat to her. In the United States the courts are divided in opinion as to whether a land- lord who leases premises knowing that the lessee will use them to run, or will sublet them to one who will use them to run, a house of prostitution, should be allowed to recover the rent. See 19 L. R. A. (N. S.) 662, note; 39 L. R. A. (N. 8S.) 1104, note. In Ashford v. Mace, 103 Ark. 114 (1912), recovery was allowed where the landlord was indifferent as to the use. The court said that keeping a bawdy house was not a heinous felony “such as treason, murder, rape, etc.” But against recovery, see Dougherty v. Seymour, 16 Colo. 289 (1891); Mitchell v. Campbell, 111 Miss. 806 (1916); Hunstock v. Palmer, 4 Tex. Civ. App. 459, 23 S. W. 294 (1893). See Ralston v. Broady, 20 Ga. 449 (1856). See also Levy & Co. v. Davis, 115 Va. 814 (1914), where the sellers of furniture to one who was to use it in her business of running a bawdy house’ were denied a recovery because the contract was in and of a business denounced by statute as a crime; and Standard Furniture Co. v. Van Alstine, 22 Wash. 670 (1900), where there was a conditional sale of fur- niture and house furnishing goods to a prostitute, knowing that she intended to put them to an immoral use and the seller was not allowed to recover them when the buyer defaulted in payments. The court in the case just cited thought that in a conditional sale the seller necessarily participated in or aided the illegal design of the vendee of which he had knowledge. See also Cc. M. & E. G. Ham v. Wilson (Miss.), 86 So. 298 (1920). Cf. Coburn v. Coburn (Tex. Civ. App.), 211 S. W. 248 (1919). As to sale of goods to keeper or inmate of house of ill fame, see L. R. A. 1917 B, 1168, note. In Michael v. Bacon, 49 Mo. 474 (1872), the plaintiff was allowed to recover for papering and fitting up a house which he knew was to be used for gambling. On insurance on bawdy house or furniture therein, see 18 L. R. A. (N. 8.) 214, note; L. R. A. 1917 B, 257, note. In Dougherty v. Seymour, supra, it was held that the fact that the written lease is silent as to the purposes for which the premises are to be used does not stand in the way of a denial of recovery to the landlord. In Wilhite v. Roberts, 4 Dana (Ky.), 172, 175 (1836), where the action was debt on a penal bond and defendant pleaded the champerty and maintenance statute, there being no stipulation or recital in the bond evidencing a violation of the statute, Ewing, J., for the court, said: “Though it be a general rule that nothing can be averred and proved against the stipulations of a written contract, this rule does not apply where the contract is illegal, or against the positive prohibition of a penal statute. * * * “No instrument is so sacred, when tinctured with illegailty or fraud, as to raise it above the scrutiny of parol testimony. And indeed it would be highly impolitic that it should; for if this rule should prevail as applicable to illegal and vicious contracts, it would be an easy matter to place all contracts, however illegal or vicious, above the reach of the law. It would only be necessary for the parties, as is alleged in the case before the court, to have a secret, illegal 1218 Cases ON THE LAw OF CONTRACTS CHESTER H. GRAVES anp OrHErs v. WALTER B. JOHNSON. (Supreme Judicial Court of Massachusetts, 1892, and 1901. 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834, 832 Am. St. Rep. 446, and 179 Mass. 53, 60 N. HE. 383, 88 Am. St. Rep. 355. January 26, 1892.—May 6, 1892. Hotmes, J. This is an action for the price of intoxicating liquors. It is found that they were sold and delivered in Massachusetts by the plaintiffs to the defendant, a Maine hotel keeper, with a view to their being resold by the defendant in Maine, against the laws of that state. These are all the material facts reported; and these findings we must assume to have been warranted, as the evidence is not reported, so that no question of the power of Maine to prohibit the sales is open. The only question is whether the facts as stated show a bar to this action. The question is to be decided on principles which we presume would prevail generally in the administration of the common law in this coun- try. Not only should it be decided in the same way in which we should expect a Maine court to decide upon a Maine contract presenting a simi- lar question, but it should be decided as we think that a Maine court ought to decide this very case if the action were brought there. It is noticeable, and it has been observed by Sir F. Pollock, that some of the English cases which have gone farthest in asserting the right to disre- gard the revenue laws of a country other than that where the contract is made and is to be performed, have had reference to the English reve- nue laws. Holman v. Johnson, 1 Cowp. 341; Pollock, Con. (5th Ed.) 308. See also M’Intyre v. Parks, 3 Met. 207. The assertion of that right, however, no doubt was in the interest of English commerce (Pellecat v. Angell, 2 Cr., M. & R. 311, 313), and has not escaped criticism (Story, Confl. Laws, §§ 257, 264, note, 3 Kent Com. 265, 266, and Wharton, Confl. Laws, § 484), although there may be a question how far the actual decisions go beyond what would have been held in the case of an English contract affecting only English laws. See Hodgson v. Temple, 5 Taunt. 181; Brown v. Duncan, 10 B. & C. 93, 98, 99; Harris v. Runnels, 12 How. 79, 83, 84. Of course it would be possible for an independent state to enforce all contracts made and to be performed within its territory, without regard to how much they might contravene the policy of its neighbors’ laws. But in fact no state pursues such a course of barbarous isolation. As a general proposition, it is admitted that an agreement to break the laws of a foreign country would be invalid. Pollock, Con. (5th Ed.) 308. The courts are agreed on the invalidity of a sale when the con- understanding and to introduce into a written contract, fair upon its face, stipulations that are legal, but highly penal, as a means to enforce a com- pliance with the terms of the secret illegal bargain. The arm of the law is not so short as to permit such evasions.” See 16 Ann. Cas. 388, note; Ann. Cas. 1917 D, 426, note. ILLEGAL Contracts 1219 tract contemplates a design on the part of the purchaser to resell con- trary to the laws of a neighboring state, and requires an act on the part of the seller in furtherance of the scheme. Waymell v. Reed, 5 T. R. 599; Gaylord v. Soragen, 32 Vt. 110; Fisher v. Lord, 63 N. H. 514; Hull v. Ruggles, 56 N. Y. 424, 429. On the other hand, plainly, it would not be enough to prevent a recovery of the price that the seller had reason to believe that the buyer intended to resell the goods in violation of law; he must have known the intention in fact. Finch v. Mansfield, 97 Mass. 89, 92; Adams v. Coulliard, 102 Mass. 167, 173. As in the case of torts, a man has a right to expect lawful conduct from others. In order to charge him with the consequences of the act of an intervening wrongdoer, you must show that he actually contemplated the act. Hayes v. Hyde Park, 153 Mass, 514, 515, 516. Between these two extremes a line is to be drawn. But as the point where it should fall is to be determined by the intimacy of the connec- tion between the bargain and the breach of the law in the particular ease, the bargain having no general and necessary tendency to induce such a breach, it is not surprising that courts should have drawn the line in'slightly different places. It has been thought not enough to in- validate a sale, that the seller merely knows that the buyer intends to resell, in violation even of the domestic law. Tracy v. Talmage, 4 Kernan, 162; Hodgson v. Temple, 5 Taunt. 181. So of the law of an- other state. M’Intyre v. Parks, 3 Met. 207; Sortwell v. Hughes, 1 Curt. C. C. 244; Green v. Collins, 3 Cliff. 494; Hill v. Spear, 50 N. H. 253. (Dater v. Earl, 3 Gray, 482, is a decision on New York law.) But there are strong intimations in the later Massachusetts cases that the law on the last point is the other way. Finch v. Mansfield, 97 Mass. 89, 92; Suit v. Woodhall, 113 Mass. 391, 395. And the English decisions have gone great lengths in the case of knowledge of intent to break the domestic law. Pearce v. Brooks, L. R. 1 Ex. 213; Taylor v. Chester, L. R. 4 Q. B. 309, 311. However this may be, it is decided that when a sale of intoxicating liquor in another state has just so much greater proximity to a breach of the Massachusetts law as is implied in the statement that it was made with a view to such a breach, it is void. Webster v. Munger, 8 Gray 584; Oreutt v. Nelson, 1 Gray, 536, 551; Hubbell v. Flint, 13 Gray, 277, 279; Adams v. Coulliard, 102 Mass. 167, 172, 173. Even in Green v. Collins and Hill v. Spear, the decision in Webster v. Munger seems to be approved. See also Langton v. Hughes, 1 M. & 8S. 593; M’Kin- nell vy. Robinson, 3 M. & W. 434, 441; White v. Butt, 3 Cush. 448. If the sale would not have been made but for the seller’s desire to in- duce an unlawful sale in Maine, it would be an unlawful sale on the principles explained in Hayes v. Hyde Park, 153 Mass. 514, and Tasker v. Stanley, 153 Mass. 148. The overt act of selling, which otherwise would be too remote from the apprehended result, an unlawful sale by 1220 CASES ON THE LAW OF CONTRACTS some one else, would be connected with it, and taken out of the pro- tection of the law by the fact that that result was actually intended. We do not understand the judge to have gone so far as we have just supposed. We assume that the sale would have taken place, whatever the buyer had been expected to do with the goods. But we understand the judge to have found that the seller expected and desired the buyer to sell unlawfully in Maine, and intended to facilitate his doing so, and that he was known by the buyer to have that intent. The question is whether the sale is saved by the fact that the intent mentioned was not the controlling inducement to it. As the connection between the act in question, the sale here, and the illegal result, the sale in Maine—the tendency of the act to produce the result—is only through the later action of another man, the degree of connection or tendency may vary by delicate shades. If the buyer knows that the sale is made only for the purpose of facilitating his illegal conduct, the connection is at the strongest. If the sale is made with the desire to help him to his end, although primarily made for money, the seller cannot complain if the illegal consequence is attributed to him. If the buyer knows that the seller, while aware of his intent, is indifferent to it, or disapproves of it, it may be doubtful whether the connection is sufficient. Compare Com- monwealth v. Churchill, 136 Mass. 148, 150. It appears to us not unrea- sonable to draw the line as it was drawn in Webster v. Munger, and to say that, when the illegal intent of the buyer is not only known to the seller, but encouraged by the sale as just explained, the sale is void. The accomplice is none the less an accomplice because he is paid for his act. See Commonwealth v. Harrington, 3 Pick. 26. The ground of the decision in Webster v. Munger is, that contracts like the present are void. If the contract had been valid, it would have been enforced. Dater v. Earl, 3 Gray, 482; M’Intyre v. Parks, 3 Met. 207. As we have said or implied already, no distinction can be admit- ted based on the fact that the law to be violated in that case was the lex fori. For if such a distinction is ever sound, and again if the same prin- ciples are not always to be applied, whether the law to be violated is that of the state of the contract or of another state (see Tracy v. Tal- mage, 4 Kernan, 162, 213), at least the right to contract with a view to a breach of the laws of another state of this Union ought not to be recognized as against a statute passed to carry out fundamental be- liefs about right and wrong, shared by a large part of our own citi- zens. Territt v. Bartlett, 21 Vt. 184, 188, 189. In the opinion of a majority of the court, this case is governed by Webster v. Munger, and we believe that it would have been decided as we decide it, if the action had been brought in Maine instead of here. Banchor v. Mansel, 47 Maine, 58. Exceptions sustained. ILLEGAL ContTRActTs 1221 March 13, 1901.—May 22, 1901. Houmess, C. J.t This is the second time that this case comes before this court. 156 Mass. 211. It is a suit for the price of intoxicating liquors sold here. At the first trial it was found that they were sold with a view to their being resold by the defendant in Maine against the laws of that state; and on that state of facts it was held that the action would not lie. At the second trial it was found that the plaintiff’s agent supposed, rightly, that the defendant intended to resell the liquors in Maine unlawfully, but that the plaintiffs and their agent were and were known by the defendant to be indifferent to what he did with the goods, and to have no other motive or purpose than to sell them in Massachu- setts in the usual course of business. Seemingly the plaintiffs did not act in aid of the defendant’s intent beyond selling him the goods. The judge refused to rule that the plaintiffs’ knowledge of the defendant’s ‘intent would prevent their recovery, and the case is here again on exceptions. The principles involved are stated and some of the cases are collect- ed in the former decision. All that it is necessary for us to say now is that in our opinion a sale otherwise lawful is not connected with subse- quent unlawful conduct by the mere fact that the seller correctly divines the buyer’s unlawful intent, closely enough to make the sale unlawful. It will be observed that the finding puts the plaintiffs’ knowledge of the defendant’s intent no higher than an uncommunicated inference as to what the defendant was likely to do. Of course the defendant was free to ‘change his mind, and there was no communicated desire of the plain- tiffs to co-operate with the defendant’s present intent, such as was sup- posed in the former decision, but on the contrary an understood in- difference to everything beyond an ordinary sale in Massachusetts. It may be that, as in the case of attempts (Commonwealth v. Peaslee, 177 Mass. 267; Commonwealth v. Kennedy, 170 Mass. 18, 22), the line of proximity will vary somewhat according to the gravity of the evil ap- prehended, Steele v. Curle, 4 Dana, 381, 385-388, Hanauer v. Doane, 12 Wall. 342, 446, Bickel v. Sheets, 24 Ind. 1, 4, and in different courts with regard to the same or similar matters. Compare Hubbard v. Moore, 24 La. Ann. 591; Michael v. Bacon, 49 Mo. 474, with Pearce v. Brooks, L. R. 1 Ex. 213. But the decisions tend more and more to agree that the connection with the unlawful act in cases like the pres- ent is too remote. M’Intyre v. Parks, 3 Met. 207; Sortwell v. Hughes, 1 Curt. C. C. 244, 247; Green v. Collins, 3 Cliff. 494; Hill v. Spear, 50 N. H. 253; Tracy v. Talmage, 4 Kernan, 162; Distilling Co. v. Nutt, 34 Kan. 724, 729; Webber v. Donnelly, 33 Mich. 469; Tuttle v. Holland, 48 Vt. 542; Braunn v. Keally, 146 Pa. St. 519, 524; Wal- lace v. Lark, 12 8. C. 576, 578; Rose v. Mitchell, 6 Col. 102; Jameson v. Gregory, 4 Met. (Ky.) 363, 370; Bickel v. Sheets, Hubbard v. Moore, and Michael v. Bacon, ubi supra. + The statement of facts in 179 Mass. 58, is omitted. 1222 Cases on THE Law or ContRAcTS Although a different rule was assumed in Suit v. Woodhall, 113 Mass. 391, it will be seen that it equally was assumed by the instructions given at the trial, and that the exceptions and the point decided in that case concerned only the imputation to the plaintiffs of their agent’s knowledge. M’Intyre v. Parks never has been overruled. Dater v. Earl, 8 Gray, 482; Webster v. Munger, 8 Gray, 584, 587; Adams v. Coulliard, 102 Mass. 167, 172; Milliken v. Pratt, 125 Mass. 374, 376. Exceptions to the admission of letters of the plaintiff’s agent to them for the purpose of showing what they knew are not argued. Exceptions overruled.®4 64See 15 L. R. A. 834, note; 32 Am. St. Rep. 450, note. In Corbin et al. v. Houlehan, 100 Me. 246 (1905), where the sellers of in- toxicating liquors, bought as the sellers knew, to be sold illegally in Maine, were suing for the unpaid balance of the purchase price, it appeared that the sellers aided the defendant in avoiding the seizure of the liquors by marking the goods, in accordance with a direction of the purchaser contained in the order, in the name of a person other than the purchaser, which name was adopted by him for this purpose, and it was known by the plaintiffs’ agent that the name in which the liquors were to be shipped was fictitious, and adopted by the defendant for the purpose of avoiding their seizure, Wiswell, C. Jy, Saidt “Independently of any statute, according to this well-settled principle, the courts of a state would not enforce a contract in behalf of a vendor to re- cover the purchase price of goods sold by him to a vendee, if the vendor not only had knowledge of the illegal purpose of the purchaser to sell them in violation of the laws of the state to which they were to be transported, but, as well, did some act in furtherance of this illegal purpose. A person should not and would not be allowed to resort to the courts of a state to enforce a contract which he had made for the purpose of violating or evading the laws of that state, or of aiding another to violate, even if the contract was recog- nized as valid by the laws of the state where it was actually entered into. There has been much discussion in the decided cases as to whether mere knowledge upon the part of a vendor of the illegal intention of the vendee with respect to the use of the goods purchased is sufficient to prevent him from obtaining a remedy in the courts of the state whose laws the vendee intended to violate by an illegal use of the goods purchased, or whether it was necessary, in order to prevent him from being entitled to a remedy in such courts, that he should have participated in the illegal purpose by aiding and facilitating the purchaser in some way. For a very full discussion of this question, see Hill v. Spear, 50 N. H. 253, 9 Am. Rep. 205, wherein the court, after a very full review of many authorities upon the question, decided that it was not sufficient that a vendor living in another state, who there sold and delivered intoxicating liquors to a vendee, who resold them in the state of New Hampshire in violation of the laws of that state, had reasonable cause to believe, and did believe, that they were purchased by the vendee with the intention of there reselling them contrary to law, to prevent a recovery of the purchase price in the latter state. See also, Webster v. Munger, 8 Gray (Mass.) 587. But all courts, so far as we are aware, agree that when the vendor not only had knowledge of the illegal use to which the vendee intended to put the goods purchased, but also, in making such sale, did some act in further- ance of this illegal purpose, then he cannot resort to the courts of the state which were intended to be violated to enforce the collection of the purchase ILLEGAL Contracts 1223 CHURCH et au. v. PROCTOR. (United States Circuit Court of Appeals, First Circuit, 1895. 66 Fed. 240, 138 C. C. A. 426.) This was an action by Joseph O. Proctor, Jr., against Daniel T. Church and others, to recover damages for breach of a contract. On the trial in the circuit court, the jury gave a verdict for the plaintiff. Defend- ants bring error. AupricH, J.{ At the time the parties entered into the contract in- volved in this controversy, Proctor, the plaintiff below, was engaged in a general fishing business at Gloucester, in the State of Massachusetts, and in preparing and placing on the general market different kinds of fish, and especially in splitting and slivering a fish called ‘‘menhaden,”’ and placing the same upon the market; and the defendants, at Tiverton, price for the goods sold for this illegal purpose” (pp. 252-253). In Hocking Valley Ry. Co. v. Barbour, 179 N. Y. S. 810, 813 (1920), Smith, J., said: “It is not necessary here to hold that one purchasing goods known to have been contracted to another makes a contract tainted with illegality. Where, however, the contract, as in the case at bar, is to give a bond for the very purpose of inducing the vendor to violate his contract known to have been made, a different question is involved, and the contract comes within the condemnation of the law as one made directly for an illegal purpose, and therefore tainted with illegality. Armstrong v. Toler, 11 Wheat. 258, 6 L. Ed. 468; Rhoades v. Malta Vita Pure Food Co., 149 Mich. 235, 112 N. W. 940; Posner v. Jackson, 223 N. Y. 325, 119 N. E. 573.” In Hanauer v. Doane, 12 Wall. (U. S.) 342, 346-347 (1871), Bradley, J., said: “With whatever impunity a man may lend money or sell goods to another who he knows intends to devote them to a use that is only malum prohibitum, or of inferior criminality, he cannot do it without turpitude, when he knows or has every reason to believe that such money or goods are to be used for the perpetration of a heinous crime, and that they were procured for that purpose. In the words of Chief Justice Eyre, in Lightfoot v. Tenant, 1 Bos. & P., 551, 556, ‘The man who sells arsenic to one who, he knows, intends to poison his wife with it, will not be allowed to maintain an action on his con- tract. The consideration of the contract, in itself good, is there tainted with turpitude which destroys the whole merit of it. * * * No man ought to furnish another with the means of transgressing the law, knowing that he intended to make that use of them.’ On this declaration, Judge Story re- marks: ‘The wholesome morality and enlarged policy of this passage makes it almost irresistible to the judgment; and, indeed, the reasoning seems Positively unanswerable.’ Story, Conf. L., Sec. 253. Can a man furnish an- other with the means of committing murder, or any abominable crime, know- ing that the purchaser procures them and intends to use them for that pur- pose, and then pretend that he is not a participator in the guilt? Can he wrap himself up in his own selfishness and heartless indifference and say, ‘What business is that of mine? Am I the keeper of another man’s conscience?’ No one can hesitate to say that such a man voluntarily aids in the perpetration of the offense and, morally speaking, is almost, if not quite, as guilty as the principal offender.” + Parts of the opinion are omitted. 1224 CASES ON THE LAW OF CONTRACTS in the state of Rhode Island, were engaged in the business of catching and supplying menhaden, and possessed superior facilities for so doing. On the 3rd day of August, 1888, at Tiverton, the parties entered into an agreement. * * * By the terms of the contract expressed in writing, Church & Co. in effect agreed to deliver and Proctor in effect agreed to receive, such quantities of menhaden as might be reasonably required in his business, to be delivered and received during the period and at the place and price designated in the contract. * * * The meaning was that one of the parties should receive such quantities as his business re- quired, and the obligation of the other party was to answer such require- ments, but in no event to exceed their catch, as their undertaking was subject to the contingencies ordinarily incident to an enterprise of the character of that in which Church & Co. were engaged. * * * So much as to the face of the contract and its meaning as interpreted with reference to the subject-matter generally, but it is said by Church & Co., that looking further to the subject-matter as disclosed by the record, the contract is altogether void, for the reason that it is against public policy. The ground of this objection, stated generally, is that Proctor, taking advantage of the scarcity of mackerel in 1888, conceived the idea of putting upon the markets generally the menhaden, as a food fish, split and salted, packed in barrels, tubs, pails, and other packages, and variously branded with misleading and deceptive marks and charac- ters, as, for instance, ‘‘ Alaska Mackerel, for Family Use.’’ Proceeding upon the theory that the facts, if shown, would disclose a contract which would not be upheld, Church & Co. offered evidence to show the char- acter of the marks and brands placed upon the casks and barrels con- taining the fish, and upon Proctor’s objection, this evidence was excluded, subject to exception. At the conclusion of all the evidence in the case, the defendants moved for a verdict ‘‘on the ground that it appeared from the plaintiff’s testimony that the purpose for which he intended to use and did use the fish which were the subject-matter of the contract sued upon was illegal, and against public policy, as bemg a fraud and an imposition on the public, and * * * illegal, in being in violation of chapter 114 of the Public Statutes of Rhode Island.’’ The court below refused to direct the verdict, and the defendants excepted. The record does not clearly show that Proctor’s deceptive and unwar- rantable purpose existed during the entire period covered by the contract, and for this reason the court below could not have properly directed a verdict upon the ground stated in the motion. We think, however, that Church & Co., under the line of defence disclosed, were entitled to show fully the purpose of Proctor at the time of the contract, the use which he made of the fish furnished, and-the manner in which they were placed upon the market, and that the court erred in excluding evidence as to the marks and brands upon the casks and barrels. The evidence excluded was competent and material upon the issue raised by the defence, and would tend to show that the public was being deceived and cheated ILLEGAL ContTRACTS 1225 through false and misleading brands and characters used for the pur-: pose of advancing the sale of a product beyond that which would result from its true merit. The point is made that the Rhode Island statute does not apply, for the reason that the evidence shows that the fish in question were desig- nated as ‘‘salted fish,’’ while the statute has reference to ‘‘pickled fish.’’ This is a distinction which the trade might make, but which, perhaps, the jury would not be required to make, or which, if made, might have been overcome by the jury in view of evidence that the fish were put up for the trade in barrels and casks arid in closed .packages of various forms. All pickled fish in the ordinary fish business are salted, although all salted fish are not pickled. In view of all the evidence, we cannot say that the jury would not have been warranted in finding that the witnesses in using the term ‘‘salted fish’’ intended to describe the fish in question as pickled. The purpose of the evidence, as to the manner of placing the fish upon the market, was a double one, first, to show that statute of Rhode Island was violated, and, second, to show a scheme which involved a fraud on the consumers of fish as an article of food. As bearing upon the general question whether Proctor’s purpose and manner of doing business was such as to render the contract void as against public policy, we think the Rhode Island statute might properly be urged, and that it was material to know whether Proctor’s manner of doing business conformed to the statute, or whether it was in plain violation of a statute intended to protect the public generally against fraud and imposition. Chapter 114 of the Public Statutes of Rhode Island, which was in force in 1888, provides, among other things, that ‘‘easks for menhaden and herrings shall be of the capacity to hold twenty- eight gallons,’ and ‘‘every cask before being packed or repacked for exportation shall be first searched, examined, and approved by a packer, and shall, when so packed or repacked for exportation, be branded legibly on one head with the kind of fish it contains and the weight thereof, or the capacity of the cask with the first letter of the Christian and the . whole of the surname of the packer, the name of the town, and the words Rhode Island, in letters not less than three-fourths of an inch long, to denote that the same is merchantable and in good order for exporta- tion.’’ It is further provided, through section 8 of the same statute, that ‘‘every person who shall offer for sale in or attempt to export from the state any pickled fish which have not been approved by a sworn packer, or in casks which are not branded as aforesaid, shall forfeit fifty dollars for each offense.’’ It is manifest that this statute regulating the packing of fish in Rhode Island was intended for the protection of the public generally, not Rhode Island consumers alone, but consumers gen- erally. It was to prevent fraud upon the public, and public policy re- quires that no action shall be successfully maintained in favor of those who pack and ship food fish in open violation of the wholesome provisions of this statute. It is conceded that the plaintiff below not only did not 1226 Cases ON THE LAW oF CONTRACTS conform to the statute, but that the packages were falsely marked. The maxim, ‘‘Ex dolo malo non orttwr actio,’’ fairly and forcibly applies to such a situation. If, upon a jury trial, the fact should be established that the packages prepared and shipped by Proctor were pickled fish, within the meaning of the Rhode Island statute, then for such time as he was actually engaged, or had the purpose to engage, in packing and shipping pickled fish, without conforming to the provisions of the stat- ute, he would not be entitled to maintain his action for damages resulting from non-delivery of the subject-matter intended to be used in violation of the statute law. Bank v. Owens, 2 Pet. 527, 539; Miller v. Ammon, 145 U. S. 421, 12 Sup. Ct. 884; Forster v. Taylor, 5 Barn. & Adol. 887; Eaton v. Keegan, 114 Mass. 434; Pol. Cont. 322; Curtis v. Leavitt, 15 N. Y. 9; Benj. Sales, § 654. Looking at the transaction aside from the local statute, and inde- pendent of the question whether the packages contained pickled or salted fish, the authorities conform to a wholesome and sound rule of public policy that no cause of action shall arise in behalf of a person engaged in a business which is illegal, or which is a fraud and imposition upon the public, and the law will not uphold or enforce a contract, or aid a party, where the purpose is to cheat and deceive the public generally. We feel bound to recognize the modern public policy indicated by the various statutes, as sustained by judicial authority, designed for the protection of the public, and which, in the interest of health and fair dealing, undertake to regulate traffic in food products. The point is taken that the purpose of Proctor to place this product (innocent of itself) upon the market in an improper manner was not known to Church & Co. at the time of the alleged breach, and that, therefore, the objec- tion is not open to the defence. This is not an answer. The defence of public policy does not proceed so much upon the idea of relief to the defendant as protection to the public, by withholding legal remedy from a party contemplating or practising imposition. It would be a strange rule of law which would extend relief to a particeps criminis, and with- hold relief from an innocent party who seeks to avail himself of its protection when the imposition is discovered. Cowan v. Milbourn, L. R.., 2 Exch. 230; Spotswood v. Barrow, 5 Exch. 110; Holman v. Johnson, Cowp. 341. The wholesome and salutary maxim, ‘‘Ex turpi causa non oritur actio,’’ has been so far enlarged that it may now be said that the law will not afford a remedy to a wrongdoer in a scheme to deceive and defraud the public, and this modern doctrine does not depend upon the consideration, or the innocence, or lack of innocence, of the party who seeks to interpose the objection. It becomes a defence, and may ’be inter- posed whenever the fraud is discovered. It must be observed, however, that it would not always be enough to avoid a contract for a sale of articles innocent of themselves that the party who acquired them, or sought to acquire them, occasionally used them unlawfully. In order that this doctrine should operate in avoidance of a contract, except where the illegality involves life, or offences of the higher grade, it must appear ILLEGAL ContTRACTS 1227 that the party acquiring the product intended to use it unlawfully when the contract was made, or when possession was sought, or that he was engaged in a general scheme involving illegality, or the general purpose was to use the product in a deceptive and fraudulent manner. The record shows that the ‘‘plaintiff testified that under the arrangement contem- plated by him, and the contract made with the defendants, the fish were to be landed at Still’s Wharf, at Tiverton, in the State of Rhode Island, and immediately there split and salted, and packed up in barrels, tubs, pails, and other packages, and marked and branded and shipped to fill these orders to various parts of the country, and that all the fish that were actually received by him under this contract with the defendants, and otherwise during the season of 1888, at Tiverton, R. I., were so packed and marked there on the spot,’’ and shipped from that point. It also shows that the barrels, casks, and packages were variously branded ‘‘ Alaska Mackerel,’’ ‘‘Russian Mackerel,’’ ‘‘California Mack- erel,’’ ‘‘Family White Fish,’’ and ‘‘Fat Family Silversides.’’ It is ob- vious that the real object of marking the packages thus was to make the product ‘‘appear to be what it was not, and thus induce unwary pur- chasers,’’—Plumley v. Massachusetts, 155 U. 8S. 461, 15 Sup. Ct. 154,— who could not scrutinize the contents, to buy. it as mackerel. Humanity is entitled to know what it buys and consumes. Govern- ment is instituted and maintained, and law is administered, for the protection of the people; and justice influenced by enlightened public policy, and controlled by legal principles, requires that contracts shall not be upheld and enforced for the benefit of a wrongdoer, where the subject-matter thereof is designed to be used in furtherance of a busi- ness enterprise which contemplates imposition upon the general public through false, misleading, and deceptive brands and labels, placed upon sealed packages of food products in a manner calculated to deceive, and forward the sale of such articles for what they are not. Looking at the record as a whole, however, it does not clearly and distinctly appear when the plaintiff below entered upon such scheme or business, and for this reason we cannot say there was error in the refusal of the court to direct. a verdict for the defendants. If upon any subsequent trial this issue should be raised, and evidence adduced in support thereof, we think the jury should be instructed that no damages can be recovered, and no action maintained, covering any period in which the plaintiff below contemplated, or was actually engaged, in placing upon tlie mar- ket the fish described in the contract, under false, deceptive, and mis- leading brands, designed to attract and induce trade. During the time he entertained such purpose (Cowan v. Milbourn, L. R., 2 Exch. 230, 236; Materne v. Horwitz, 101 N. Y. 469, 5 N. E. 331), or was actually engaged in such business, the law will not help him.® The verdict should 65 Compare United States v. Dietrich, 126 Fed. 671, 674 (1904), where, in dis- cussing a contract with the United States, lawful when made but which became unlawful by statute as soon as the other party became a Senator of the United 1228 CASES ON THE LAW OF CONTRACTS be set aside for the reasons stated, and it becomes unnecessary to con- sider the other questions raised by the plaintiffs in error. Judgment of the circuit court reversed; new trial ordered. SIMON KULLMAN er At., Responpents, v. JACOB GREENEBAUM ET AL., APPELLANTS. ; (Supreme Court of California, 1891. 92 Cal. 403, 28 Pac. 674, 27 Am. St. Rep. 150.) The action was brought to recover the sum of eighteen thousand dollars for the conversion by the defendants of mining stocks belong- ing to the plaintiffs valued at that sum, which the defendants refused to deliver to the plaintiffs upon demand made upon them on the second day of December, 1886. The complaint alleges that thereafter, on the tenth of December, 1886, they were fraudulently induced to sign a pretended composition of the creditors of the defendants, which was fraudulent and void as to them by reason of secret preferences of other creditors, of which the plaintiffs were ignorant, and which they rescinded upon discovery of the fraudulent preferences. The plain- tiffs recovered judgment for the whole amount claimed as the value of the stocks. Order denying a new trial. Defendant appealed. McFaruanp, J.* The main question in this case is about the validity of a composition deed, by which the respondents and the other creditors of appellants agreed to receive pro rata the proceeds of the sale of appellants’ assets, and thereupon to release them from all claims and demands. Respondents contend that said agreement is invalid, because a fraudulent preference was given to certain of the creditors who signed it, and the court below so found. The court found, as facts, that some of the creditors at first refused to sign the agreement, and that, to in- duce them to sign, ‘‘some of the relatives and friends of the defendants did pay such creditors the full amount of their several demands, with the knowledge, but without the direction of the defendants, and not out of the assets of the said defendants, nor under any promise or expecta- tion of repayment, and thereby did make a preference of such creditors, and induced them to sign the said composition; and that such creditors did receive a larger proportion or sum than secured by said agreement; of all of which facts the plaintiffs at the time of signing such com- States, Van Devanter, J., said: “It is well established by the English courts and by the courts of this country, federal and state, that where performance of a contract or agreement, lawful in its inception, becomes unlawful by reason of any subsequent event, the contract or agreement is thereby dissolved or ter- minated, in so far as it remains executory, and both parties are excused from its further performance.” On the effect on a legal contract of a statute subse- quently making it illegal, see also 120 Am. St. Rep. 468, note; 10 Ann. Cas. 1024, note. * Part of the opinion is omitted. IntEaan Contracts 1229 position were ignorant, and upon the discovery thereof notified the defendants,’’ ete. We think that the ruling of the court below was right, and in line with the current of authorities. The general rule is-correctly laid down in Story’s Equity Jurisprudence, § 378; and we stated it quite fully in the recent case of O’Brien v. Greenebaum, ante, [92 Cal.] p. 104. It is strenuously argued jy counsel for appellants that the principle does not apply here, for the reasons that the payments to the preferred creditors were not made by the debtors or their agents; and particularly that the payments were not made out of the debtors’ assets,—that is, out of the actual and disposable property which they then had. It is to be noticed, however, that the appellants knew of these secret payments to preferred creditors; and as the utmost good faith is required in such transactions, the appellants can hardly be said to be innocent of the imposition practised upon respondents. But beyond all that, the rule does not, by any means, rest solely upon the participation of the debtor in the fraud, and the diminution of the actual assets. In a composition agreement each creditor is a party as to each other creditor, as well as to the debtor. ‘‘Creditors sign upon the consideration that others sign upon the same terms; and if they are deceived, they are misled into an act to which they might not otherwise have assented.’’ (See Story’s Eq. Jur., § 379, and notes.) Solinger v. Earle, 82 N. Y., 393, was a case where a brother-in-law (as in the case at bar) had given his note to in- duce a creditor to sign a composition deed; and in the opinion of the court in that case there is aptly expressed the views which are deter- minative of the point in question against appellants in the case at bar. The court says: ‘‘The agreement between the plaintiff and the defend- ants, to secure to the latter payment of a part of their debt in excess of the ratable proportion payable under the composition, was a fraud upon other creditors. The fact that the agreement to pay. such excess was not made by the debtor, but by a third person, does not divest the transaction of its fraudulent character. A composition agreement is an agreement as well between the creditors themselves as between the cred- itors and their debtor. Each creditor agrees to receive the sum fixed by the agreement in full of his debt. The signing of the agreement by one creditor is often an inducement to the others to unite in it.% If the composition provides for a pro rata payment to all the creditors, a secret agreement, by which a friend of the debtor undertakes to pay to one of the creditors more than his pro rata share, to induce him to unite in the composition, is as much a fraud upon the other creditors as if the agreement was directly between the debtor and such creditor. It violates the principles of equity and the mutual confidence as between 66 “A composition agreement is an exception to the rule that payment of part of a liquidated and due debt is not satisfaction for the whole. It is excepted because there is a consideration to each creditor for his agreement to accept less than his claim in full paymient. The composition is regarded as an agree- ment, not merely between the debtor and each creditor, but also between the 1230 CASES ON THE LAW OF CONTRACTS creditors upon which the agreement is based, and diminishes the motive of the creditor who is a party to the secret agreement to act. in view of the common interest in making the composition. Fair dealing and com- mon honesty condemn such a transaction.””> * * * Judgment and order affirmed.® NATHAN F. HUCKINS v. IRA HUNT. (Supreme Judicial Court of Massachusetts, 1885. 138 Mass. 366.) Contract in two counts. The first count was upon a negotiable promissory note for $217.50, given to the plaintiff by the defendant; the second count was for a like amount, upon an account annexed; for goods sold and delivered by the plaintiff to the defendant before the making of the note. The case was submitted to the superior court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion. Morton, C. J. The plaintiff does not contend that he is entitled to recover upon the note upon which his first count is founded. The note was given in consideration, and upon the secret agreement, that the plaintiff should execute a deed of composition entered into between the defendant and his creditors, which purported to treat all the creditors equally. The decisions are numerous and uniform that such a note is void. Harvey v. Hunt, 119 Mass. 279, and cases cited. But he contends that he is entitled to recover the balance of his ac- count, for which the note was given, in the same manner as if he had not executed the composition deed. In other words, his claim is that the law will regard the rights of the parties as if the compo- sition deed and the corrupt agreement by which it was accompanied had never been made. We do not understand this to be the law. If-two persons make an illegal contract, being in pari delicto, so long as it remains executory, the law will not aid either party to enforce it; but, so far as it is executed, the law will not lend its aid to either party to relieve him several creditors. The engagement of each creditor to accept less than his claim is the consideration to each of the others for his like engagement. Each creditor signing has a right to assume that each one is to receive the benefit stipulated in-the agreement; that it sets forth truly the terms of composition as to all the parties. Any separate agreement by which one of the creditors secures to himself benefits not conferred on the others, and which agreement is not disclosed to them before they sign the composition, is a fraud upon them.” Gilfillan, C. J., in Newell v. Higgins, 55 Minn. 82, 84-85 (1893). 67 But if the debtor does not know that some one is giving one creditor something extra unknown to the other creditors, the other creditors cannot set aside the composition as fraudulent. Martin v. Adams, 30 N. Y. Supp. 523 (1894). ILLEGAL ContTRACTS ~ 12381 from the consequences of the illegal contract, or to rescind it. Myers v. Meinrath, 101 Mass. 366. Houston v. Buffinton, 105 Mass, 399; Cranson v. Goss, 107 Mass. 489. In the case at bar, the plaintiff executed the composition deed and received the amount provided for therein in full satisfaction and payment of his account. This operated as an extinguishment of his debt. The agreement with the defendant that he would pay the full amount of the debt in the future was illegal, and avoided the com- position deed as to the other creditors. Partridge v. Messer, 14 Gray (Mass.) 180. But the plaintiff was bound by it, and ‘cannot set up his own illegality to relieve himself from its consequences. His debt has been discharged and extinguished, and the law leaves the parties in the position in which they have placed themselves, and will not furnish a remedy to either, to undo what has been done. Mallaieu v. Hodgson, 16 Q. B. 689. Judgment for the defendant.®8 68In Frost v. Gage, 8 Allen (Mass.) 560 (1862), a creditor who was a son of the debtor and who had promised his share under the assignment as a fraudu- lent preference to another creditor who was assignee for the benefit of creditors, all the creditors having released the debtor at the assignee’s solicitation on the assignment being made by the debtor, was denied a recovery of his share under the assignment. Bigelow, C. J., for the court, said that while the defend- ant if he had not been assignee in possession of the assets could not have recovered on the agreement with plaintiff, the latter for a like reason “ought not to be allowed to recover. The fraud in which he participated, and by which he aided in inducing creditors to become parties to the release of their debtor, taints the whole transaction as to him, and deprives him of the right of main- taining an action to enforce in a court of law that part of the agreement of com- position to which the secret agreement did not immediately relate. It may be Suggested that the application of this rule leads in the present case to the result of leaving in the hands of the defendant, who was equally guilty with the plaintiff, the fruits of the fraud. But this is often the consequence of allowing a party to plead in defense the illegality of a transaction on which a cause of action is founded” (p. 563). : But in some states only the fraudulent preference is void, the composition standing and the fraudulent creditor being allowed to recover upon it, and only when the preference actually is paid to the creditor does it become voidable at the election of the other creditors. In Glens Falls Nat. Bank v. Van Nostrand, 85 N. Y. Supp. 50, 51-2 (1903), Spencer, J., said: “The taking of a secret preference by a creditor joining in a composition agreement does not nullify the composition. The debtor and the preferred creditor both remain bound by its terms. Nonpreferred creditors may rescind if the secret agreement for preference has been executed, but so long as such agreement remains executory it is unenforceable because of its illegality and cannot be employed for any purpose. This is, in substance, the decision of the Court of Appeals in the case of Hanover Nat. Bank v. Blake, 142 N. ¥. 404, and must be regarded as the settled law of the land.” In 103 App. Div. 598 the judgment was “unanimously affirmed” without opinion. See accord Barflett v. Blaine, 83 Ill. 25 (1876). See also Lobdell v. State Bank of Nauvoo, 180 Ill. 56, 58-59 (1899); White v. Kuntz, 107 N. Y. 518 (1887). CHAPTER IX. CONTRACTS WITHIN THE STATUTE OF FRAUDS.! Srections 4 AND 17 or AN Act For PREVENTION OF FRAUDS AND Persuriss, St. 29, Car. II, C. 3 (1677). IV. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June [1677] no action shali be brought[1] whereby to charge any executor or administrator upov any special promise, to answer damages out of his own estate; (2) or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person; (3) or to charge any person upon any agreement made upon consideration of marriage; (4) or upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them; (5) or upon any agreement that is not to be performed within the space of one year from the making there- of; (6) unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed 10On the authorship and general interpretation of the statute of frauds, see Crawford D. Hening, The Original Drafts of the Statute of Frauds and Their Authors, 61 U. of P. Law Rev. 283; George P. Costigan, Jr., Has There Been Judicial Legislation in the Interpretation and Application of the “Upon Con- sideration of Marriage” and Other Contract Clauses of the Statute of Frauds? 14 Ill. L. Rev. 1. “When the law requires a thing to be recorded, or in writing, or under seal, or attested, these, often, are not requirements of the law of evidence. They are matters of form required, in some cases, as necessary to the constitution of a thing, as in the case of wills and deeds; in some, that the matter may be available as the ground of an action, as in the case of things included in ss. 4 and 17 of the Statute of Frauds. In any case they belong to the sub- stantive law of particular subjects; and when testimony or facts offered in evidence are rejected as not conforming to these or the like requirements, it is the substantive law of the case that excludes them. [Note 1: When a judge says, ‘I found my judgment on one of the most useful rules in the law, namely, that when parties have put their contract into writing, that writing determines what the bargain is’ (Martin, B., in Langton v. Higgins, 4 H. & N. 402)—he is not stating a rule of evidence. As to the statute of frauds, see Bedell v. Tracy, 65 Vt. 494. As to the requirement of a seal, see Blewitt v. Boorum, 142 N. Y. 357].” Thayer, Preliminary Treatise on Evidence, 890-391 and note 1. In James v. Smith, [1891] 1 Ch. 384, 386, Kekewich, J., said: “It is no part of my judicial duty to say whether on the whole the statute of frauds has been a beneficial or mischievous statute, as to which I am, of course, aware there have been many opinions. It is quite easy for the advocates on one side or the other to argue in any case from the separate points of view which they hold.” 1232 Contracts WirHIN THE Staturz or FRaups 1233 by the party to be charged therewith, or some other person thereunto by him lawfully authorized. XVII. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth of June no contract for the sale of any goods, wares and merchandizes, for the price of ten pounds sterling® or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized. Tue Statute or FRravups’ Sections or THE AMERICAN UNIFORM Saues Act. Sec. 3. Subject to the provisions of this act and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal) or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties. Sec. 4. (1) A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars? or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and. actually re- ceive the same, or give something in earnest to bind the contract or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. (2) The provisions of this section apply to every such contract or sale notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured, or provided, or fit, or ready for delivery, or some act may be requisite for the making or completing ‘thereof, or rendering the same fit for delivery ; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business, the provisions of this section shall not apply. (3) There is an acceptance of good within the meaning of this section when the buyer, either be- fore or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods. SMITH v. CARROLL. (Supreme Court of Pennsylvania, 1886. 112 Pa. St. 390, 9 Atl. 24.) Assumpsit to recover the amount of a certain legacy. The defendant, executor under the will, promised to pay the legacy although the en- tire personal estate was insufficient to pay the debts of decedent. Judg- ment for plaintiff. Defendant took a writ of error. ' 2The states usually adopted $50.00 as the amount, but some fixed a lower and some a higher amount even before the Uniform Sales Act was adopted. 8The states adopting this act do not all adopt this sum. It varies from $50.00 to $2,500. Local statutes should be consulted. 1234 CASES ON THE LAW OF CONTRACTS Green, J.4. We think the radical difficulty in this case is that it is an action against one who is an executor, to hold him personally liable upon a verbal promise to pay a legacy. Since our act of April 26, 1855, (Purd. 724, pl. 4,) the decisions appear to be uniform that such a prom- ise confers no right of action against the executor individually. * * * In the following cases it was held that the existence of assets, when coupled with a verbal promise only, was not sufficient to impose an in- dividual liability. In Okeson’s Appeal, 59 Pa. St. 101, Sharswood, J., said: “The cases appear to hold that, on a promise by an executor or administrator to pay a legacy or. distribute share in consideration of assets, the consideration and promise: must be co-extensive. Rann v. Hughes, 7 Term R. 350, note; Pratt v. Humphrey, 22 Conn. 317. How. ever that may be, it is clear that the executor cannot be made liable de bonis propriis on an oral promise on the mere consideration of assets. That would be to charge him upon a promise to answer damages out of his own .estate, and therefore within the act of April 26, 1855, (P. L. 308.) It has been accordingly held in Hay v. Green, 12 Cush. 282, that a verbal promise by an administrator to pay a distributive share in the estate of a decedent was within the statute of frauds, though there were assets; and in Philpot v. Briant, 4 Bing. 717, a promise, by the executor of an acceptor of a bill of exchange, to pay out of his own estate in consideration of forbearance, is held to be void if not in writing.’’ In Burt v. Herron, 66 Pa. St. 404, we said: “‘To charge the executors, upon their own promise, with proof of assets, the action must have been against them personally, and their promise in writing, by the act of April 26, 1855.’’ Whether, therefore, there were assets in the hands of the defendant in this case or not, his verbal promise to pay the plaintiff her legacy im- posed no personal liability upon him, and no right of action was thereby conferred. * * * Judgment reversed.® 4 The statement of facts is abbreviated and parts of the opinion are omitted. 5 But in Mackin v. Dwyer, 205 Mass. 472 (1910), where the defendant besides being executor was specific devisee and where the promise to pay the general legacy to the plaintiff, though there was insufficient personalty, was made on condition that plaintiff would refrain from making a contest of the will, Morton, J., for the court said: “We do not think that the promise comes within the statute. The defendant was, as he contends, executor by virtue of his appointment by the testator when the promise was made (Rand v. Hubbard, 4 Met. 252, 256), but the promise was for his own benefit and was an original and not a collateral under- taking on his part. By reason of the plaintiff’s forbearance to contest the will he secured the undisputed confirmation of his title to the real estate which was specifically devised to him, and the plaintiff gave up and lost the oppor- tunity to contest the allowance of the will. To permit the defendant to set Contracts WITHIN. THE SraTuTE or FRavps 1235 A. B. SMITH LUMBER CO. v. PORTIS BROTHERS. (Supreme Court of Arkansas, 1919. 140 Ark. 356, 215 S. W. 590.) Suit by Portis Bros, against the A. B. Smith Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed. Humpureys, J.6 * * * The question is: Was there any legal evidence to support the finding of the coutt that the undertaking was original? The record disclosed that appellant was a lumber company, and that appellees were merchants; that E. C. Eaker, representing ap- pellant, bought a lot of piling from Charles McRiley; that as a part of the purchase price, he paid McRiley’s mercantile account to appellees with a draft on appellant company; that he requested appellee to con- tinue the credit to McRiley as before, as he had made arrangements to buy McRiley’s output of piling; that appellee refused to do so without security; that Eaker then,told him to let McRiley have goods to the amount of $400 every two weeks and he would pay for them. Charles McRiley gave testimony to the same effect. There was therefore suffi- cient legal evidence in the record to support the finding of the court that the undertaking on the part of appellant was original. No error appearing in the record, the judgment is affirmed.” up the state of frauds under such circumstances would be to allow him to perpetrate a fraud by means of it. Nelson v. Boynton, 3 Met. 396; Alger v. Scoville, 1 Gray, 391; Browne, St. Frauds (5th ed.), § 212. Moreover the promise of an executor, to come within the statute, must be to pay out of his own estate a debt or obligation primarily due from the estate of the de- ceased. In the present case the estate of the deceased did not owe and never has owed the plaintiff anything on account of the legacy, for the reason that it was a general one and there were no assets with which to pay it, the personal property being exhausted by the payment of debts and the expenses of administration, last sickness and funeral and of the specific legacies. There was therefore no debt due from the estate to which the defendant’s promise as executor could apply, and for this reason also the promise was not within the statute.” : See also Bellows v. Sowles, 57 Vt. 164 (1884). 6 Part of the opinion is omitted. 7Certain elementary truths about promises to answer for the debt, default or miscarriage of another are: (1) There must be a debt or other liability to answer for coexistent with the duty to answer. If, therefore, a novation is accomplished through the new promise, the new promise is not within the statute. Frohardt v. Duff, 156 Ia. 144 (1912); Booth v. Eighmie, 60 N. Y. 238 (1875); Griffin v. Cunningham, 183 Mass. 505 (1903). “A promise to pay the debt of a third person is not within the statute where it is agreed between the parties, the creditor, debtor and promisor, that the debt shall be extinguished and the creditor shall look only to the promisor for payment upon the new promise. In such case no other person remains liable for the debt but the promisor, and his undertaking is not collateral but original to pay his own debt, and not to answer for the debt of another. There is then what is known in the civil law as a delegation, and the creditor takes a new 1236 Cases ON THE LAw oF CONTRACTS DAVIS v. ABELL. (Court of Appeals of Kentucky, 1919. 185 Ky. 843, 216 S. W. 104.) Action by C. B. Davis against J. L. Abell, in which J. L. Abell made his answer a cross-petition against T. M. Davis and wife and a coun- terclaim against plaintiff. From the judgment rendered, plaintiff ap- peals and defendant J. L. Abell cross-appeals. Affirmed in part on the original appeal, and reversed in part on cross-appeal. Sampson, J.2 In 1911 four men, B. C. Davis, J. L. Abell, W. IL. Clark, and T. M. Davis, organized a partnership under the firm style of Smithland Tile Company for the purpose of engaging in the business of manufacturing and selling brick and tile in the town of Smithland. They were equal in the business. C. B. Davis and Abell were solvent debtor, who is called the delegated debtor.” Earl, C., in Meriden Britannia Co. v. Zingsen, 48 N. Y. 247, 250 (1872). ‘ See note in 126 Am. St. Rep. 487, on what, within the meaning of the statute of frauds is a contract to answer for or pay the debt of another. For the promise to be within the statute it must be collateral and not original, and to be collateral there must be a debt default or miscarriage to which it can be collateral. That may be a voidable contract obligation, like that of an infant in most jurisdictions. Dexter v. Blanchard, 11 Allen (Mass.) 365 (1865); Brown v. Farmers and Merchants Nat. Bank, 88 Tex. 265 (1895). On a guaranty of the contract of a person under disability, see 33 L. R. A. 359, note. ‘Whether the promise is original or collateral is often a question of fact. See 9 Ann. Cas. 895, note; Ann. Cas. 1915 B, 257, note; 126 Am. St. Rep. 487, note. To be collateral “it is always reducible to this form: ‘Deal with X and if he does not pay you, I will.” Huffcut’s 2nd Amer. Ed. of Anson on Con- tracts, p. 82. If the promisor says, “Deal with X and I will see you paid,” some courts treat the promise as original and some as collateral. It would seem to be one or the other as the facts of the case determine. See Pigott, B., in Mountstephen v. Lakeman, L. R. 7 Q. B. 196, 205 (1871). See Lakeman v. Mountstephen, L. R. 7, H. L. 17 (1874). See also, 5 B. R. C. 99, note. (2) The liability, as in the principal case, may be prospective. That is, the special promise will be within the statute even though it alone induced the creation of the principal debt. Moses v. Norton, 36 Me. 113 (1853); Matthews v. Milton, 4 Yerg. (Tenn.) 576 (1833). ° (3) Under “debt, default or miscarriages” are included tort liabilities and, indeed, all civil liabilities. Kirkham v. Marter, 2 B. & Ald. 613 (1819). (4) The promise to pay the debt is not within the statute if made to the debtor; for the promise to come under the statute must be one to pay the debt of another, and while “another” might have been construed to mean merely another than the promisor it has been construed to mean another than either the promisee or the promisor, and, therefore, the statute applies only to promises made to the person or persons to whom another is answerable. S. Landow & Co. v. Gurian (Conn.), 107 Atl. 517 (1919); Meyer v. Hartman, 72 Ill. 442 (1874); Goetz v. Foos, 14 Minn. 265 (1869); Staver Carriage Co. v. Jones, 32 Okla. 713 (1912); Eastwood v. Kenyon, 11 A. & HE, 438 (1840). That ig seemingly due to the notion that the mischief sought to be remedied by the statute was perjured claims by creditors that promises had been made to them. 8 Parts of the opinion are omitted. Contracts WITHIN THE StTaTUTE or FRAvps 1237 while T. M. Davis and Clark had little or no property. T. M. Davis was the son of C. B. Davis, and it appears from the evidence that the son was taken into the partnership at the instance and request of the father, and upon the assurance of the father that the son’s obliga- tion incurred by reason of the partnership, and on its account would be assumed and paid by the father. * * * Appellant’s chief contention is that C. B. Davis is not liable for that part of the partnership obligation which was primarily due from his son T. M. Davis, in the absence of a writing to that effect, and he seeks to avoid responsibility for this one-fourth of the debts on the ground that one is not bound for the debt or default of another, unless his un- dertaking be in writing and signed by the person to be charged, and he cites the statute of frauds. While this is ordinarily the rule, and the statute of frauds is applied in such case, it has no application here, because the indebtedness is that of the firm of which C. B. Davis was a member and as such liable for the entire indebtedness. In other words, the obligations of the firm were the obligations of C. B. Davis, and his promise to pay the debt of the firm was the promise to pay his own debt, and, this being true, it takes the case out of the statute of frauds. The promise of Davis made to the bank and other creditors, appears to be reasonably well established by the evidence and is binding, and it may be enforced, though not in writing and signed by the party to be charged. * * * Judgment affirmed in part on the original appeal, and reversed in part on the cross-appeal? WOLFF & HENRICKS v. KOPPEL. (Supreme Court of New York, 1848. 5 Hill 458.) Error to the New York C. P., where Koppel sued Wolff & Henricks to recover the price of certain goods alleged to have been sold by the latter as factors acting under a del credere commission. The agreement del credere was by parol; and one point made in the court below was “The debt of a partnership is the debt of each of its members, and a new promise by one or more of the partners, made after the dissolution of the firm, to pay a partnership debt, is not, within the meaning of the statute of frauds, a promise to pay the debt of another.” Fish, J., in Reid v. Wilson, 109 Ga. 424, 427 (1899). See Staver Carriage Co. v. Jones, 32 Okla. 713 (1912). “A corporation is, in law, a different person from any of its members. A Promise by a stockholder to pay a corporation debt is in every sense a promise to pay the debt of another.” Campbell, J., in Hanson v. Donkersley, 37 Mich. 184, 186 (1877). See Home Nat. Bank v. Estate of Waterman, 134 Ill. 461 (1890); Richardson Press v. Albright, 224 N. Y. 497 (1918). On an oral prom- ise by stockholder to pay debt of corporation as within the statute of frauds, see 8 A. L. R. 1198, note; Ann. Cas. 1912 B, 222, note; 3 B. R. C. 611, note. 1238 CASES ON THE LAW OF CONTRACTS that the defendant’s engagement, not being in writing, was void by the statute of frauds. The court held otherwise; and, after judgment in favor of the plaintiff, the defendants sued out a writ of error. Cowsn, J. It is objected that the contract of a factor, binding him in the terms implied by a del credere commission, is within the statute of frauds and should, therefore, be in writing. * * * But a guaranty, though by parol is not always within the statute. Perhaps, after all, it may not be strictly correct to call the contract of the factor a guaranty, in the ordinary sense of that word. The implied promise of the factor is merely that he will sell to per- sons in good credit at the time; and in order to charge him, negli- gence must be shown. He takes an additional commission, however, and adds to his obligation that he will make no sales unless to per- sons absolutely solvent; in legal effect, that he will be liable for the loss which his conduct may bring upon the plaintiff, without the onus of proving negligence. The merchant holds the goods, and will not part with them to the factor without this extraordinary stipu- lation, and a commission is paid to him for entering into it. What is this, after all, but another form of selling the goods? Its conse- quences are the same in substance. Instead of paying cash, the factor prefers to contract a debt or duty which obliges him to see the money paid. This debt or duty is his own, and arises from an ade- quate consideration. It is contingent, depending on the event of his failing to secure it through another—some future vendee, to whom the merchant is first to resort. Upon non-payment by the vendee, the debt falls absolutely on the factor. As remarked by Parker, Ch. J., in Swan v. Nesmith, 7 Pick. (Mass.) 220, the form of the action does not seem to be material in such case; that is to say, whether the merchant sue for goods sold, or on the special engagement. The latter is perhaps the settled form; but still the action is, in effect, to recover the factor’s own debt. In the late case of Johnson v. Gilbert, 4 Hill (N. Y.) 178, the defendant, in consideration of money paid for him by the plaintiff, assigned a chattel note and guaranteed its pay- ment. In such a case the declaration must be on the guaranty to pay the debt of another; but this is so in form merely. We held that the contract was to pay the defendant’s own debt; that it was not a contract to pay as the surety of another. All such contracts and many others are, in form, to pay the debt of another, and so literally within the statute, but without its intent. A promise by A to B, that the former will pay a debt due from the latter, is not within the mean- ing, though it is within the words. Conkley v. Hopkins, 17 Johns. (N. Y.) 113; Eastwood v. Kenyon, 11 Ad. & Ell. 438. So are a numerous class of cases, where the promise is made in consideration of the ered- itor relinquishing some lien, fund or security. Theobald, Pr. 10 Part of the opinion is omitted. Conrracts WITHIN THE SrTatTuTE or FRAups 1239 and Surety, 45, and cases cited. The merchant gives up his goods to be sold, and pays a premium. Is not this in truth as much and more than many of those cases require which go on the relinquish- ment of a security Suppose a factor agrees by parol to sell for cash, but gives a credit. His promise is virtually that he will pay the amount of the debt he thus makes. Yet who would say his prom- ise is within the statute? The amount of the argument for the de- fendant would seem to be, that an agent for making sales, or indeed, a collecting agent, cannot, by parol, undertake for extraordinary dili- gence, because he may thus have the debt of another thrown upon him. But the answer is, that all such contracts have an immediate respect to his own duty or obligation. The debt of another comes in- cidentally as a measure of damages. Judgment affirmed. CINCINNATI TRACTION CO. v. COLE. (United States Circuit Court of Appeals, Sixth Circuit, 1919. 258 Fed. 169, 169 C. C. A. 237.) Action by James O. Cole and others, as executors of Clinton Crane, partners as C. Crane & Co., against the Cincinnati Traction Company, There was a judgment for plaintiffs, and defendant brings error. Affirmed. CocuRan, J.12 * * * The trial was by jury, and the principal error assigned is the overruling of defendant’s motion for a directed verdict. * * * The motion was based upon two grounds. One was that the prom- ise, the basis of the action, was one to answer for the debt of another, and, not being in writing or evidenced thereby, was void under the Ohio statute of frauds (section 8621, General Code of Ohio),- which is in the usual form of such statutes. We proceed to consider this ground before stating the other. The promise was claimed to have been on or about November 9, 1909. If made at all, the conditions under which it was made were these: The Heffron Construction Company had then nearly completed 11This judgment was affirmed by the Court for the Correction of Errors, in Wolff & Henricks v. Koppel, 2 Denio (N. Y.) 368 (1845). That a del credere factor’s contract is not within the statute is conceded. Conturier v. Hastie, 8 Exch. 40 (1852). See Sutton & Co. v. Grey, [1894] 1 Q. B. 285. In 3 Williston on Contracts, § 484, the suggestion in the principal case that this is because the guaranty by the agent is a mere incident of the larger transaction is seemingly approved. But see Professor Hening’s explanation in note 13, post, this chapter. 12 Parts of the opinion are omitted. 1240 CASES ON THE LAW OF CONTRACTS a contract with defendant, made March 30th, previously, by which it was to do certain work on its premises for $15,561.75, of which $9,548.78 had been paid, upon monthly estimates, to an assignee of the Heffron Company, and possibly as much as $2,000 more had been earned, the larger part of which was retained percentage. That com- pany was indebted to plaintiffs in the sum of $2,949.20 for lumber used in that work. Plaintiffs had a right to take out a lien on defendant’s premises therefor, which would be unaffected by the assignment. or payments thereunder. Section 83834, General Code of Ohio. The defendant, by its contract, had the right to retain out of subsequent payments an amount sufficient to indemnify it against this lien, and, in case of deficiency, had recourse against the Heffron Company and a surety company to make it good. Plaintiff’s evidence tended to show that the making of the promise came about by their refusal to deliver more lumber needed to com- plete the contract, that it was made in consideration of their promise to continue delivering and not to take out a lien, and that it was to pay plaintiffs, at least conditionally (i. e., if the Heffron Company did not), both for the lumber previously delivered and that thereafter de- livered. Thereafter plaintiff delivered lumber which came to $524.71, making the whole amount due them $3,474.06, for the recovery of which the action was brought. * * * The plaintiff in error bases its contention that the promise sued on was within the statute and hence void, solely upon the fact that, so far as plaintiff’s evidence tended to establish the making thereof, it was only a conditional promise; i. e., a promise to pay if the Heffren Company did not. If this did not bring it within the statute, it does not contend that it was within it. The charge of the lower court to the jury presupposed that it was a question for them whether such was the character of the promise. They were told that, if such was its character, there could be no recovery, and that they could find for plaintiffs only in case they determined that the promise was an absolute one; i. e., ‘‘to pay—not if the Heffron Company did not pay, but pay anyhow.’’ They were further charged that the written assurance was not sufficient to take the promise out of the statute, for two reasons, to wit, want of authority on the part of the officer of defendant, who had given it, to give it, and the necessity of parol evidence to explain a reference in the letter from plaintiffs, to which it was an answer. The position of plaintiff in error, that the only promise which plain- tiff’s evidence tended to establish was a conditional promise, is diffi- cult to combat. The sole witness thereto testified, on cross-examina- tion, that the ‘‘precise language’’ used was, ‘‘we will pay this account if Heffron Construction Company does not,’’ and that the language was in substance, ‘‘We will see that this account is paid if the Heffron Construction Company does not pay it.’”? His testimony on direct examination is not inconsistent with such having been the language Contracts WITHIN THE STaTUTE oF Fraups 1241 used, and all other pertinent evidence, apart, perhaps, from the ab- solute assurance referred to, tended to make out a conditional prom- ise; and we will dispose of the case on the assumption that such was the character of the promise. The plaintiff in error is now so cock- sure that, this being so, the promise was within the statute and it was entitled to a directed verdict, that we eliminate every other consid- eration bearing on its being so entitled on this ground, in order that we may meet it where it has chosen to rest its case. Possibly it was not always of this view, i. e., not until after the lower court had charged that, if such was the character of the promise, there could be no recovery. This may account for its not having requested the per- emptory instruction until after the jury had been charged. The plaintiff in error’s contention amounts to this: that every con- ditional promise to pay the debt of a third person is within the stat- ute. Is this so? To answer this question it is necessary to interpret the statute. A statute may be viewed as a symbol. A symbol has been defined to be ‘‘a soul in a body.’’ Rather, perhaps, it should be put that it is a body with a soul. Its phraseology is its body, and its thought is its soul. Sometimes the thought of a statute and its phrase- ology do not coincide. Where such is the case, it is its thought, and not its phraseology, which is the statute. The sole description of what is covered by the statute here is ‘‘a special promise to answer for the debt, default, or miscarriage of another person.’"!2 We take 13 Do the words “any special promise” in debt, default or miscarriage clause of section 4 of the statute mean anything different from the words “contract” and “agreement?” It is generally assumed in the cases and text books that they do not, but in an article in 57 U. of P. Law Rev. 611, entitled, A New and Old Reading on the Fourth Section of the Statute of Frauds, Professor Crawford D. Hening insists that they do. He declares that “special promise” means “special assumpsit” (Id., 615), and was used in contradistinction to debt and account. The statute was not meant to prevent the creation of debts without writing, but was meant to prevent the enforcement of oral special promises to answer for the debts of others. Analyzing the situations to which the guaranty clause of the statute may be applied into (A), promises made when the debt of the other person is con- tracted and (B), promises made afterwards to pay a pre-existing debt, he resolves them as follows: In situation (A), if by the oral transaction the defendant became a debtor, the statute had no application, but if he became a special promisor to answer for the credit given to another, i. e., for the debt of another, the statute applied. In situation (B), where there is a substitution of debtors—a novation—there is a new debt and not a special promise and the statute does not apply. Where there is a debt created against the new party who comes in, even if the old debtor still remains a debtor and is to haye his debt paid by the discharge by payment of the newcomer’s debt, the same thing, says Professor Hening, should be true. He says: “In other words, I submit that in the English law of contracts at 1242 CasEs ON THE LAW oF CONTRACTS it that it is the thought of the statute that it is only a conditional prom- ise to pay the debt of a third person—i. e., to pay it if he does not— that is covered by the statute; for it is only such a promise that is a promise to answer for the debt of another within its meaning. It fol- lows that an absolute promise to pay a debt of a third person is not within the statute. Gibbs v. Blanchard, 15 Mich. 292; National Bank v. State Bank, 93 Iowa, 650, 61 N. W. 1065, 57 Am. St. Rep. 284; Lakeman v. Mount Stephen, L. R. 7 Eng. & Ir. App. 17. In Wald’s Pollock on Contracts (3d Ed. by Williston) p. 170, it is said: ‘‘A promise to be primarily liable, or to be liable at all events, the date of the statute, there were three species of simple contractual liability, as later set forth in Buller’s Nisi Prius, p. 126: “(1) Accountability, dependent upon a bailment. “(2) Debt, dependent upon quid pro quo, which might arise upon sale or loan or on some act done on request. (3) Assumpsit or special promise dependent upon consideration. “I shall endeavor to show that the practical distinction between these three species of contract was the reason why the English Parliament endeavoring, in 1677, to suppress the perjurous falsification of parol guaranties denounced parol special promises or assumpsits, but left untouched parol debts, and parol accountabilities; and finally it is proposed to show that the distinction thus made by the British Parliament s d still be preserved between these three species of contract in order to Zpply the statute today to the effective suppres- sion of perjury” (p. 615). i A perusal of the article is recommended, but one special argument in it should be noted here. In determining whether the new party becomes a debtor the old law, of course, must be regarded. “Before the statute [of frauds] forbearance {to sue plaintiff's debtor or forbearance] in any form whatever {would not give rise to a debt but] was only a consideration. Before the statute forbearance to sue was never known to create a debt” (p. 617). “English courts have ever since 1677 consistently treated cases of forbearance as cases within the statute” (p. 618). “But unfortunately, some American decisions, wholly at variance with the above line of English cases, adopt as a criterion a question of fact requiring due process of judicial telepathy for its determina- tion—whether. the defendant’s main or only his subordinate purpose was to pay the debt of another; and whether his main or only his subordinate purpose was to subserve some purpose of his own” (p. 621). In a note it is added that many of the cases laying down this main purpose test “will. be found on scrutiny to be cases of bailments or receiverships to account” (p. 621, n). Professor Hening thus justifies the del credere agency cases as without the intent of the statute and what the English judges call the property cases, namely, the cases holding “that the surrender of property to the defendant on which the plaintiff has a lien in exchange for the defendant’s promise to pay the thus secured debt of a third person is not a special promise to answer for the debt of another within the statute” (p. 632) he explains as either cases where the defendant under the arrangement became’ a debtor or where he became a bailee to sell and account and so his promise was without the intent of the statute. « See also Charles K. Burdick, Suretyship and the Statute of Frauds, 20 Col. L. Rev. 153; John Delaire Falconbridge, Guarantees and the Statute of Frauds, 68 U. of Pa. L. Rev. 1, 137. Contracts WITHIN THE STaTuTE oF FRAUDS 1248 whether any third person is or shall become liable or not, is not within the statute, and need not be in writing.’’ But it does not follow that, because a conditional promise only is within the statute, every such promise is within it, or, to go back to the phraseology of the statute, that because a promise to answer for the debt of another person only is within the statute that every prom- ise to do so is within it. Whether every such promise is within it depends on its thought; for, as stated, the thought of the statute, and it alone, is the statute. A close observation of its phraseology takes note of the fact that it says nothing whatever as to the person to whom the promise is made. Seemingly, therefore, a promise of the character called for, made to any person, is within it. But, indisputably, such is not the case. Amongst the differences as to what is within the stat- ute there is none here. Jn the’ case of Eastwood v. Kenyon, 11 A. & E. 488, it was held that a promise for a sufficient consideration made to the debtor to pay his debt is'‘not within the statute. Lord Denman said : ‘‘The statute applies only to promises made to the person to whom another is answerable.’’ Wald’s Pollock on Contracts (3d Ed. by Williston) p. 170, puts it that a promise is not within the statute ‘‘unless it is made to the prin- cipal creditor.’ The case of Eastwood v. Kenyon, decided in 1840, is the first case in which this question seems to have arisen. The position was not argued out. It was taken per saltwm. The only possible ground upon which it can be based is that a promise which is not made to the per- son to whom the third person is answerable—i. e., to the creditor—is not within the thought of the statute. That such a promise is not within its thought suggests that possibly there may be other promises to answer for the debt of a third person which are not within its thought, and hence not covered by the statute. And so we find. The clause of the statute of frauds involved here is the second clause of the orig- inal statute of Charles IJ. The first clause thereof provides that no action shall be brought ‘‘whereby to charge any executor or adminis- trator upon any special promise to answer damages out of his own estate.’’ These two. clauses are found in juxtaposition in the same sec- tion of the Ohio statute, but in the reverse order. This first clause expressly limits the promise covered by it to a promise to answer out of the promisor’s own estate. This suggests that it is the thought of the second clause that the promise covered by it is a promise to an- swer out of the promisor’s own estate, and that therefore it does not cover a promise to answer out of the debtor’s estate which may be in the promisor’s hands. It is so held, and as to this, too, there is no dif- ference of opinion. Throop on Verbal Agreements, § 13, says: ‘And there is a class of cases under the second clause, not appearing to depend upon its wording, which bears a very close resemblance with 1244 CASES ON THE LAW OF CONTRACTS respect to the principle which governs them, and the facts calling for its application to a corresponding class under the first clause. We refer _ to those where the promise to pay the debt of another is held to be good without writing, because the promisor held a fund proceeding from the debtor and applicable to the fulfillment of the promise, in contemplation of which the promise was made. The similarity in the situation of the promisor under such circumstances, and that of an executor or admin- istrator having sufficient assets to pay the debt of the decedent, and who, in consideration thereof verbally undertakes to pay it, is very striking. And the principle upon which each description of promise has been held to be without the statute is substantially the same. For while the first clause expressly provides that it shall be applicable only to a promise by the executor or administrator to answer damages out of his own estate, the second manifestly has the same meaning with respect to a liability incurred by one person to answer for the debt, default, or mis- carriage of another.’’ ‘ The authorities are numerous to the effect that a promise to answer for the debt of a third person out of such person’s funds, in the prom- isor’s hands, is not within the statute. We cite only the authorita- tive case of Eastbrook v. Gebhart, 32 Ohio St. 415. The third para- graph of the syllabus, which gives the law of the case, is in these words: ‘*E contracts with S to build a house, and S contracts with G to fur- nish. labor and materials. G refuses to furnish such labor and materials except upon promise, made to him by E that he himself will pay the bill out of the funds coming to 8S. Held to be a contract not within the statute of frauds, so as to make a writing necessary.”’ The Supreme Court said: ‘““The first part of the charge relates to the nature of the alleged promise made by Estabrook. The court told the jury plainly that, if this promise was merely to answer for Showalter’s debt, there could be no recovery for want of writing; but if there was a new contract be- tween Gebhart and Estabrook, by which, to induce Gebhart to furnish the labor and material, Estabrook undertook to pay, out of the funds which would be coming to Showalter, that Gebhart furnished the * * * material relying on this promise, which he would not otherwise have done, and that Showalter was irresponsible and assented to this arrange- ment, then the contract might be enforced.’’ But this does not exhaust all the possibilities of a promise to answer for the debt of another, not being within the thought of the statute, ‘and hence not within it. We have already noted that the statute says nothing whatever as to the person to whom the promise is made. It is equally silent as to the person by whom it is made. Seemingly, therefore, a promise of the character called for, made by any person, is within the statute. But is this so? Our observation of the statute has brought to our attention that its phraseology is indefinite in three particulars, to wit, as to the person to whom it is made, as to the ConTRACTS WITHIN THE SraturE or FRavups 1245 estate out of which the promisor is to answer for the debt, and as to the person by whom the promise is made. We have found that, though the statute is indefinite in phraseology in the first two partic- ulars, it is definite in its thought as to each of them. In view of this, one would naturally expect it to be definite, also, in thought in the third particular, thus making it definite in thought all around. And the means of making it is at hand, just as it ig at hand in the other two particulars. In the first particular, it consists in the radical differ- ence between the creditor and any other person; and in the second, in such difference between the promisor’s own estate and that of the debtor. So in the third particular it consists in the radical difference between a promisor who has no personal concern in the debt of the third person, and one who has such concern therein. Possibly, if one is duly sympathetic, he will sense that it is the thought of the statute that it is a promise made by a person who has no personal concern in the debt, and none other, which is covered by it, just as it was sensed that it was its thought that it was a promise made to the creditor, and none other, which is so covered. And it seems fitting that, if it is only a promise made to the creditor to answer for the debt out of the prom- isor’s own estate that is within the thought of the statute, that it is only such a promise made by one who has no personal concern in the debt that is within its thought. Why should one who has no personal concern in the debt and one who has be placed on the same footing? The object in view in the enactment of the original statute of frauds is thus stated therein: ‘For the prevention of many fraudulent practices which are com- monly endeavored to be upheld by perjury and subornation of per- juries.”’ ' The interest prompting a legislature to protect from perjury is not the same in the case of one who has a personal concern in the debt as in that of one who has no such concern therein. Where the promisor has a personal concern in the debt, the making of the promise is not dependent solely on the testimony of witnesses. The fact of having such concern is a corroborating circumstance in support of testimony tending to show the making of the promise. It renders its making more likely. These circumstances tend to lead one to take the position, independ- ent of authority, that it is only a promise made by one who has no per- sonal concern in the debt that is within the thought of the statute and hence within the statute itself. When we come to tradition, we find numerous decisions, some of which are authoritative as to us, in which the promise involved has been held not to be covered by the statute, which can be, and which, in our judgment, should be, placed on this ground. The personal concern of the promisor in the debt may be either in its creation or in its payment. It is in its creation, if it is made before or at the time of the creation of the debt. It is in 1246 CASES ON THE LAW OF CONTRACTS its payment, if made after the creation thereof. The decisions which are authoritative as to us were in cases where the personal concern of the promisor was in the creation of the debt.. They are Emerson v. Slater, 22 How. 28, 16 L. Ed. 360; Davis v. Patrick, 141 U. 8. 479, 12 Sup. Ct. 58, 35 L. Ed. 826; Crawford v. Edison, 45 Ohio St. 239, 13 N. E. 80. * * * ‘We know no authoritative case where the promise was made after the creation of the debt and the personal concern of the promisor was in its payment. But numerous cases of this character can be cited, the decision in which that the promise was not within the statute can and should be placed on the ground that, as the promisor had personal concern in the payment of the debt the promise was not within the thought of the statute. We cite but two, to wit, the early case of Williams v. Leper, 3 Burrow, 1886, and that of Landis v. Royer, 59 Pa. 95. The promise sued on in Williams v. Leper was made to a landlord, who was about to distrain the goods of the tenant for arrears of rent, by one to whom the tenant had conveyed his goods for the benefit of his creditors. That sued on in Landis v. Royer was made to a mate- rialman, who supplied lumber to a contractor in erecting a house for the promisor, and who had a right to take out a mechanic’s lien on the building. Judge Sharswood said: “It was the debt of the defendant’s own building, the payment of which could legally be enforced against it; though it may not have been personally his debt, his property was answerable for it, and his engage- ment to pay was in relief of his property.”’ Judge Campbell, in the course of his opinion in Corkins v. Collins, 16 Mich. 478, thus put the matter: ‘“When, by the release of the property from a lien, the party promis- ing to pay the debt is enabled to apply it to his own benefit, so that the release inures to his own advantage, it is quite easy to see that a promise to pay the debt in order to obtain the release may be properly regarded as made on his own behalf, and not on behalf of the original debtor, and any, possible advantage to the latter is merely incidental, and is not the thing bargained for. That promise is therefore in no proper sense a promise to answer for anything but the promisor’s own responsibility, and need not be in writing.” In eases of this kind the promisor is personally concerned in the payment of the debt, for thereby his property is relieved of it. Pos- sibly there is stronger reason for saying that the promise’ in cases of this kind is not within the statute than that in cases of the other kind. The ground upon which this may be so is this: According to the phraseology of the statute, the only promise which is within it is one to answer for the debt of another person. This means that the debt shall be solely and exclusively the debt of the third person, and. not that of the promisor. Where the creditor has a lien, or the right to Contracts WITHIN THE StaTuTE or FRravps 1247 take out a lien, on the property of the promisor to secure the debt, it may be said that in a sense it is not solely and exclusively the debt of the third person, but is also the debt of the promisor. This is SO, in that the property of the promisor is obligated to the payment of the debt. If this reasoning is sound, then it can be said that the ground upon which such a promise is not within the statute is that it is not eovered by its phraseology. This, however, cannot be said of the promise in cases of the other kind. But in reality, notwithstanding the ereditor has such lien, or the right to take it out, the debt is solely and exclusively the debt of the third person. In no real sense is it the debt of the promisor. The ground, therefore, upon which to place it that the promise is not within the statute, is that which we have set forth, The statute, according to its thought, covers only a promise to answer for the debt of a third person by one who has no personal concern in the debt. It does not cover a promise by one who has a personal concern therein; and in such a case the promisor has such concern. His property is obligated for it, and by its payment will be relieved of the obligation. If, then, such is the true ground thereof, it follows that in any case where the promisor has a personal concern in the debt, whatever may be the basis thereof, the promise is not within the thought of the statute, and hence not within the statute. The decisions in cases of this kind, therefore, that the promise is not within the statute, indirectly uphold the position that the promise in cases of the other kind are not within it. We have stated that these decisions can and should be placed on the ground that the statute only covers a promise made by a person who had no personal concern in the creation or payment of the debt, as the case may be, the promises involved therein not being so made, but by one who had such concern, not that they were actually placed on this ground. Indeed it cannot be said that the courts who rendered them were clearly conscious that the decisions could be justified on the reasoning which we have put forth. From the quotations made it .will be seen that the ground expressed is that the leading object of the promisors is to subserve some pecuniary or business purpose of the promisor. Some- times the ground is stated to be that a new consideration or benefit has moved to the promisor; and the fact of personal concern has a tendency to support the contention that the promise was absolute, and not a conditional one, and hence not within the statute on this ground. The decisions themselves have been much criticized, though it is recognized that what they stand for is established law. It has been urged that such promises come within the terms or language of the statute, that to exclude them is judicial legislation and that the rule which they establish is anomalous. It has been suggested that, if the 1248 Cases ON THE LAW oF CONTRACTS promisor is to be liable at all, it should not be on the promise, but in quasi contract for the benefit received. The decisions have also been a source of error in the reasoning on which they have been based, in that it has sometimes been thought that they were authority for the position that, in every case where a consideration moves to the promisor, the promise is within the statute, which is not the case. (We would submit that the position that it is the thought of the statute that only a promise by a person who has no personal concern in the creation or payment of the debt to which it relates is within it is reasonable.’ It cannot be said that a promise by a person who has such concern therein ig within the terms or lan- guage of the statute. The statute is silent as to the person by whom the promise is made. It is no more within the terms or language there- of than a promise to answer otherwise than out of the promisor’s own estate, or than a promise to answer to the debtor or one other than the creditor. The position, therefore, reads no exception into the statute. It is simply one of three limitations on its scope, which one is constrained to put when one passes through its unlimited phrase- ology to its thought and looks at that phraseology from the other side. And there is nothing in this position that is calculated to lead one into error.{ Of course, some limitation must be put upon the words ‘personal concern.’’ The concern must be such as that which existed in the cases cited and others like unto them; i. e., immediate and pecuniary. If, then, the views here advanced are sound, a full expression of the thought of the statute as to the character of the promise covered by it would be somewhat like this: It is a promise to answer for the debt of another (i. e., to pay if he does not), made to the creditor by one who has no personal concern in the debt, the answering therefor to be out of his own estate,. Wald’s Pollock on Contracts (8d Ed. by Williston) p. 169, charac- terizes the contract to which the statute relates as ‘‘a contract of surety- ship or guaranty.’’ Ames, in his Lectures on Legal History, p. 95, characterizes it as ‘‘guaranty.’? And such is what we take to be the ordinary conception of a contract of suretyship or guaranty. In order, then, to bring a promise within the statute, it is not sufficient that it is a promise to answer for the debt of another; i. e., to pay his debt if he does not. \The promise must also be to the creditor by one who has no personal concern in the debt, and to pay same out of his own estate. Though it may be a conditional promise, if it is not to the creditor, or not by one who has no personal concern in the debt, or is not to pay it out of the promisor’s own estate, it is just as much not within the statute as it would have been, had it been, not a con- ditional, but an absolute, promise. We come now to apply the legal positions thus advanced to the case in hand. The defendant had a personal concern in the creation of Contracts WITHIN THE STaTUTE oF FRAUDS 1249 so much of the debt as was created after the making of the promise, and in so much thereof as had been theretofore created. It had such concern in the creation of the former portion, for it would result from plaintiffs’ continuing to deliver lumber, and thereby the completion of the work which the Heffron Company had contracted to do would be furthered. It. had such concern in the payment of the latter por- tion, for thereby its property would be relieved of the lien which plain- tiff had a right to take out. Such being the case, the defendant’s prom- ise, whatever may have been its character, was not within the statute. But this is not the only ground upon which it can be said that the promise was not within the statute. To say the least, it was open for the jury to find that the promise was to answer for the debt, not out of its own estate, but out of the Heffron Company’s funds. There yet remained to be paid it under the contract over $6,000, of which over $2,000 had been already earned. By the company’s contract with defendant it had the right to apply subsequent payments to this in- debtedness, and under the contract, and the bond given simultaneously therewith, defendant had recourse against it and the surety company for any deficiency. It must be held, therefore, that this ground of the motion for a peremptory instruction is not well taken. * * * Finding none of the assignments well taken, the judgment of the lower court is affirmed. ALDRICH v. AMES. (Supreme Judicial Court of Massachusetts, 1857. 9 Gray 76.) Suaw, C. J.15 * * * The case in substance, is, that the plain- tiff, at the request of the defendant, and for a valuable consideration, became bail for John A. Crehore, upon which the defendant promised the plaintiff to indemnify and save him harmless. The ground of defense is, that this was an alleged promise of the defendant to pay the debt of another, and therefore that the action cannot be maintained without an agreement in writing, because it is within the statute of frauds. The court are of opinion that this ground is wholly untenable. This 18 a promise by the defendant to another, to pay his debt, or, in other words, to save him from the performance of an obligation which might result in a debt. But it is a promise to the debtor to pay his debt, and thereby to relieve him from the payment of it himself, which is not within the statute of frauds. 140n promise to pay debt of another in consideration of relinquishment of lien by promisee as within the statute of frauds, see Ann. Cas. 1913 D, 319, note, 15 Part of the opinion is omitted. 1250 CASES ON THE LAW OF CONTRACTS The theory of the statute of frauds is this; that when a third party promises the creditor to pay him a debt due to him from a person named, the effect of such a promise is to become a surety or guarantor only, and shall be manifested by written evidence. The prom- ise in such case is to the creditor, not to the debtor. For instance, if A, a debtor, owes a debt to B, and C promises B, the creditor, to pay it, that is a promise to the creditor to pay the debt of A. But in the same case, should C, on good consideration, promise A, the debtor, to pay the debt to B and indemnify A from the payment, although one of the results is to pay the debt to B, yet it is not a promise to the creditor to pay the debt of another, but a promise to the debtor to pay his debt. This rule appears to us to be well settled as the true construction of the statute, well confirmed by authorities. Eastwood v. Kenyon, 11 Ad. & El. 488, and 3 P. & Dav. 276; Harrison v. Sawtel, 10 Johns. (N. Y.) 242; Chapin wv. Merrill, 4 Wend. (N. Y.) 657; Chapin v. Lapham, 20 Pick. (Mass.) 467; Alger v. Scoville, 1 Gray (Mass.) 395. Exceptions [by defendant] overruled. JOHN HARTLEY, Derenpant in Error, v. CORNELIUS SANFORD, PLAINTIFF IN ERROR. (Court of Errors and Appeals of New Jersey, 1901. 66 N. J. L. 627, 50 Atl. 454, 55 L. R. A. 206.) Action by John Hartley against Cornelius Sandford. Judgment for plaintiff (48 Atl. 1009), and defendant brings error. Reversed. Drxon, J.16 The material facts in this case, as disclosed by.the record, are that the defendant’s son was indebted to M., who desired additional security; that thereupon the defendant applied to the plaintiff to be- come surety for the son, and promised him that, if he was compelled to pay the debt, he (the defendant) would reimburse him; that accord- ingly the plaintiff became surety for the son, and subsequently was obliged to pay the debt. This suit was brought upon the promise, which was oral only. It appears that at the trial in the Passaic cir- cuit the jury were instructed to find for the plaintiff if they were satisfied the promise had been made, but the question as to the legal sufficiency of the promise was reserved and certified to the supreme court, which afterwards advised the circuit that the promise was valid, and thereupon judgment was entered on the verdict. * * * The advice of the supreme court was based upon its opinion that under the adjudications in this state the promise of one person to in- 16 Parts of the opinion are omitted. Contracts WITHIN THE STATUTE or FRAvpS 1251 demnify another for becoming surety of a third is not within the statute. The cases cited in that opinion to support this view are Apgar’s Adm’rs v. Hiler, 24 N. J. Law, 812; Cortelyou v. Hoagland, 40 N. J. Eq. 1; and Warren v. Abbett (N. J. Sup.) 46 Atl. 575. Of these, the only one of controlling authority here is that of Apgar’s Adm’rs v. Hiler, which is a decision of this court. That decision does not sustain the broad proposition for which it was cited. This court there held merely that, between two persons who had signed the same promissory note as sureties for another signer, the oral promise of one surety to indemnify the other was valid. This promise was deemed outside of the statute, because by signing the note the promisor had himself become a debtor, and so his promise to indemnify was to answer for his own debt. In Cortelyou v. Hoagland several stock- holders and directors of a corporation had promised to indemnify another stockholder and director for indorsing a corporate note, and Warren v. Abbett was of similar character. In the Cortelyou Case the chancellor rested his decision on Apgar’s Adm’rs v. Hiler, which, as above stated, was essentially different and on Thompson v. Coleman, 4.N. J. Law, 216, which was a promise to indemnify a constable for selling under execution goods claimed by an outside party,—a case where the promisee had no redress except on thé promise, and there- fore clearly outside of the statute. If the decisions in Cortelyou v. Hoagland and Warren v. Abbett are to be supported on prior New Jersey adjudications, such support must be found in the doctrine that where the consideration of a promise to answer for the debt, default, or miscarriage of another is a substantial benefit moving to the prom- isor, then the statute does not apply. This rule was recognized in Kutzmeyer v. Ennis, 27 N. J. Law, 371, and Cowenhoven v. Howell, 36 N. J. Law, 323. To support those decisions on this rule, it must be held that the payment of a corporate debt is substantially bene- ficial to the stockholders or directors of the corporation,—a proposi- tion which seems to be denied in other tribunals. Browne, St. Frauds, §164. In the promise now under consideration there was no such element, and no case has been found in our reports involving the pres- ent question. We should therefore decide the matter on principle, or as nearly so as related adjudication will permit. Looked at as res nova, it seems indisputable that the defendant’s promise was within the statute. It was to respond to the plaintiff in case the defendant’s son should make default in the obligation which he would come under to the plaintiff as soon as the plaintiff became surety for him,—an obligation either to pay the debt for which the plaintiff was to be surety, or to reimburse the plaintiff if he paid it. In this statement of the nature of the promise there is, I think, every element which seems necessary to bring a case within the purview of the statute. The parties, in giving and accepting the promise, contem- plated (1) an obligation by a third person to the promisee; (2) that 1252 CASES ON THE LAW OF CONTRACTS this obligation should be the foundation of the promise, i. e., that the obligation of the son to the promisee should attach simultaneously with the suretyship of the plaintiff, and thereupon should arise the obligation of the promisor for the fulfillment of the son’s obligation; and (3) that the obligation of the promisor should be collateral to that of the son, ‘i.e, if the latter should perform his obligation, the promisor would be discharged, while, if the promisor was required to perform his obligation, that of the son would not be discharged, but only shifted from the promisee to the promisor. An examination of the cases will show that not many of them are in conflict with this view, when they are free from differentiating circum- stances. In the leading case of Thomas v. Cook, 8 Barn. & C. 728, such a circumstance appears in the fact that the promisor was himself a signer of the bond against which he promised to indemnify the promi- see, and thus the promise was, in a reasonable sense, to answer for that which, as to the promisee, was the promisor’s own debt. On this dif- ference may be explained the decisions in Jones v. Letcher, 138 B. Mon. 868; Horn v. Bray, 51 Ind. 555, 19 Am. Rep. 742; Barry v. Ransom, 12 N. Y. 462; Sanders v. Gillespi, 59 N. Y. 250; Ferrell v. Maxwell, 28 Ohio St. 383, 22 Am. Rep. 393; and others,—resting on the rule applied in Apgar’s Adm’rs v. Hiler, 24 N. J. Law, 812. The remark of Bayley, J., in Thomas v. Cook, that a promise to indemnify was not within either the words or the policy of the statute, has caused much of the confusion existing on this subject, but is more than counterbalanced by the obser- vations of Lord Denman in Green v. Cresswell, 10 Adol. & E. 453, and Pollock, C. B., in Cripps v. Hartnoll, 4 Best & 8. 414, to the effect that a promise to indemnify may be also an undertaking to answer for the debt or default of another; and that when it is it comes within the operation of the statute. Another circumstance taking cases out of the simple class with which we are now concerned is that mentioned in Kutz- meyer v. Ennis, 27 N. J. Law, 371, 376, viz., the existence of a new consideration beneficial to the promisor, or, as it is sometimes expressed, moving to the promisor. Such cases are Smith v. Sayward, 5 Greenl. 504; Lucas v. Chamberlain, 8 B. Mon. 276; Mills v. Brown, 11 Iowa, 314; Reed v. Holcomb, 31 Conn. 360; Smith v. Delaney, 64 Conn. 264, 29 Atl. 496, 42 Am. St. Rep. 181; Potter v. Brown, 35 Mich. 274; Com- stock v. Norton, 36 Mich. 277; Harrison v. Sawtel, 10 Johns, 242, 6 Am. Dec. 337; Sanders v. Gillespie, 59 N. Y. 250; Tighe v. Morrison, 116 N. Y. 263, 22 N. E. 164, 5 L. R. A. 617. Cases of still another character are sometimes cited in support of the statement that contracts to indemnify are outside of the statute, such as Cripps v. Hartnoll, 4 Best & 8. 414; Reader v. Kingham, 13 C. B. (N. 8.) 344; Anderson v. Spence, 72 Ind. 315, 37 Am. Rep. 162; Keesling v. Frazier, 119 Ind. 185, 21 N. E. 552; Beaman’s Adm’rs v. Russell, 20 Vt. 205, 49 Am. Dec. 775. But these judgments rest on the same idea as Thompson v. Coleman, 4 N. J. Law, 216,—that there existed no other liability to the Contracts WITHIN tHE StatutE or FRaups 1253 promisee than that of the promisor, and so manifestly the statute was not applicable. On the other hand, there is sufficient judicial authority for the proposition that an undertaking to indemnify a person for becoming surety for another is, in'the absence of any modifying fact, a promise within the statute. Green v. Cresswell, 10 Adol. & E. 453; Simpson v. Nance, 1 Speer, 4; Brown v. Adams, 1 Stew. 51, 18 Am. Dec. 36; Kelsey v. Hibbs, 13 Ohio St. 340; Clement’s Appeal, 52 Conn. 464; Bissig v. Britton, 59 Mo. 204, 21 Ai, Rep. 379; Nugent v. Wolfe, 111 Pa. 471, 4 Atl. 15, 56 Am. Rep. 291; ; Draughan v. Bunting, 31 N. C. 10; Hurt v. Ford (Mo.) 44 8. W. 998. and May v. Williams, 61 Miss. 126, 48 Am. Rep. 80,—were decided on this basis. In the case last mentioned, Porter, J., stated the true rules very clearly and concisely.” 17In May v. Williams, cited in the text, supra, the question was whether an oral promise to indemnify one who became surety on a bail bond for another at the request of the promisor was within the debt, default, etc., clause of the statute. Cooper, J., said: “It cannot be said that the promise to indemnify the surety is made to him as debtor and not as creditor. It is true that both the principal and surety are bound to the fourth person, the state; but the contract of the promisor is not to discharge that obligation. He assumes no duty or debt to the state, nor does he agree with the promisee to pay to the state the debt which may become due to it if default shall be made by the principal in the bond. It is only when the promisee has changed his relationship of debtor to the state and assumed that of creditor to his principal by paying to the state the penalty for which both he and his principal were bound that a right arises to go against the guarantor on his contract. It is to one who is under a conditional and contingent liability that the promise is made; but it is to him as creditor, and not as debtor, that a right of action arises on it. Nor do we think it suffi- cient to take the case from the operation of the statute that the liability of the principal arises by implication rather than by express contract. The statute makes no distinction between a debt due on an implied and one due by express contract. It is the existence of the debt against the principal and not the manner in which it originates that makes voidable a parol promise by another to become responsible for its payment. Nor are we able to perceive that the contract of the promisee is anterior to that of the principal in the bond. Until the surety assumes responsibility by executing the bond, the agreement of the promisor to indemnify is only a proposition which may be withdrawn by him or declined by the promisee. It is only when the preposi- tion is acted on by the promisee that the contract becomes absolute; but at the very instant that it thus becomes a contract there also springs up an implied contract of the principal to do and perform the same act, viz.: to indemnify the surety against loss. It arises at the same moment, exists to the same extent, is supported by the same consideration, broken at the same instant, and is dis- charged by the same act, whether it be done by the principal in the bond or by the promisee in the contract to indemnify. It is the debt of the principal, and, being his debt, no third person can be bound for its payment unless the con- tract be evidence by writing. This, we think, is the fair import of the statute, and it ought not to be refined or frittered away.” In Alabama even the promise of one surety to hold his co-surety harmless is held to be within the statute. Posten v. Clem, 201 Ala. 529 (1918), Anderson, C. J., speaking of the rule as “wholesome and salutary as closing the door to 1254 CASES ON THE LAW oF CONTRACTS No doubt, there are opposing cases which cannot be explained on any distinguishing circumstances. Such seem to be Chapin v. Merrill, 4 Wend. 657; Jones v. Bacon (N. Y.) 40 N. E. 216; Dunn v. West, 5 B. Mon. 376; Vogel v. Melms, 31 Wis. 306, 11 Am. Rep. 608; and Wildes v. Dudlow, L. R. 19 Eq. 198. But some of these cases merely follow Thomas v. Cook, ubt supra, without noticing the distinction which later discussion has justified, while others appear to have been induced by the injustice of a refusal to enforce a promise on the strength of which the promisee incurred his liability, rather than by a ready pur- pose to execute the will of the legislature. * * * Our conclusion is that the promise proved at the trial was insuffi- cient to sustain the action, that the judgment for the plaintiff should be reversed, and that, in accordance with the reservation at the trial, a verdict and judgment should be entered in favor of the defendant. Judgment reversed.' confusion, fraud and perjury by not permitting co-sureties on notes, bonds and other instruments to promote contests between themselves through oral prom- Ises and agreements as to their indemnity and liability” (78 So. at p. 884). But see Ferrell v. Maxwell, 28 Oh. St. 383 (1876) contra, although Ohio holds promises to indemnify in general to be within the statute. Kelsey v. Higgs, 13 Oh. St. 340 (1862). See also, contra, Rose v. Wollenberg, 31 Ore. 269 (1897). On such contracts between sureties as regards the statute of frauds, see 39 L. R. A. 378, note; 1 A. L. R. 383, note. 18 There is much confusion in the cases as to contracts of indemnity and the statute of frauds, partly due to faulty analysis and partly to a difference in attitude on the part of courts toward the statute. Some so-called indemnities are clearly within the statute, for it is not the words used but the real nature of the promise and the intent of the legislature that must determine the result. A promise to indemnify one who advances money to a third person by way of loan to that person is clearly within the statute. Benninghoff v. Robbins, 54 Mont., 66 (1917). So is a contract to indemnify an employer from loss through the dishonesty of a servant. Com. v. Hinson, 143 Ky. 428 (1911). But see Quinn-Shepherdson Co. v. United States Fidelity and Guaranty Co., 142 Minn. 428 (1919). In these cases there are three parties, C, the (prospective) creditor, D, the (prospective) debtor, and S, the surety promisor, who is to perform if D does not and who makes his promise to C, the creditor. Logically this situation falls within the statute, and also, by all presumptions of legis- lative: intent, the statute is a defense. The trio in this relation may be thus diagramed in triangular form: Figure No. 1. The broken line represents D’s obligation first to exonerate, and then, if exon- eration has not taken place, to indemnify S. But when we come to the situation dealt with in Aldrich v. Ames, reported, ante, and in the principal case of Hartley v. Sandford, there is more complica- tion, for a fourth party, I, the so-called indemnifier of the surety, appears. There are still C, the (prospective) creditor, D, the (prospective) debtor, and Contracts WirHIn THE Starure or FRavups 1255 AMES v. FOSTER er au, (Supreme Judicial Court of Massachusetts, 1871. 106 Mass. 400, 8 Am. Rep. 343.) Morton, J. The only question involved in this case arises under that clause of the statute of frauds which provides: that no action S, the man who goes on the bond as surety promisor; but if the bond is given in a civil suit (or if it is given in a criminal action and if the prisoner is in the given jurisdiction obligated to indemnify his bail), another trio may materialize as a result of I’s promise to save S harmless and to indemnify him if he will go on the bond. The materialization will take place if S, the surety, has to pay C, the obligee original creditor, for forthwith D, the prinicipal debtor will become obligated to reimburse S, the surety, and I, the indemnifier, will be bound to pay S only if D does not pay S. Logically the promise of I, after D fails to reimburse S, is that of a surety for D to S. See the following double triangle diagram: Figure No. 2. The broken lines represent as before the obligations first to exonerate and then to indemnify. D in each triangle is the principal debtor. He becomes such in the second triangle only because he fails to pay as debtor in the first, and § has to pay. But logic does not settle the matter. There still remains the question of legislative intent. Even with reference to the single trio situation, which logically is within the statute whether the promise of the surety is to the creditor or to the debtor, we disregard logic and through a forced construction of the word “another” say that the promise is not within the statute if made to the debtor instead of the creditor. That is on the theory that Parliament intended, and our American legislatures have intended, to remedy the mischief of perjured claims of suretyship only when made by creditors. And that, too, though in many American jurisdictions the creditor, as beneficiary of the promise to the debtor that the promisor will pay the debt to the creditor, may recover against the promisor on the oral promise, despite a plea of the statute of frauds, although he could not have recovered on the promise if it had been made to himself and the statute had been pleaded. See Wood v. Moriarity, reported ante, p. 639. See also Eddy v. Roberts, 17 Ill. 505 (1856), where the defendant for a consideration promised the creditor to pay the debtor’s debt to the creditor, where, for a different consideration, he promised the debtor to pay it, and where, though the creditor was denied a remedy on the promise to him, he was allowed to recover as beneficiary of the defendant’s promise to the debtor despite a plea of the statute of frauds. See 12 Ann. Cas. 1101, note, where the cases are collected. If logic may give way to legislative intent so strikingly in the single trio situation, still more possible, and even more plausible, is the argument that Parliament was legislating for only the single trio situation, and that the double trio situation, as illustrated in the prin- cipal case of Hartley v. Sandford, was not meant to be affected by the statute. 1256 CASES ON THE LAW OF CONTRACTS shall be brought ‘‘to charge a person upon a special promise to an- swer for the debt, default or misdoings of another, unless the prom- ise, or some memorandum or note thereof, is in writing, and signed by the party to be charged, or his agent.’’ Gen. Sts., c. 105, § 1, el. 2. The plaintiffs in the original action claim to hold the deferidant upon the ground of an express promise to pay the amount of a debt due the plaintiffs by the owners of the steamer N. P. Banks, for wood and coal furnished prior to October 1, 1868. At this time, McKay & Aldus, of Boston, owned three-fourths of the steamer, and the other fourth was owned by parties in New York. In De- cember, 1868, McKay & Aldus went into bankruptcy, having previ- ously mortgaged their interest to the defendant Ames. In the spring of 1869 the plaintiffs heard that the steamer was to be carried to New York to be sold, and they threatened to attach her, and there- upon Ames promised to pay the bill if they would not attach her. It is to be observed that Ames was not originally liable upon the bill, being merely a mortgagee. Howard v. Odell, 1 Allen (Mass.) 85. The plaintiffs do not claim that they had a lien upon the vessel. They had no right to attach the interest of McKay & Aldus, who were in bankruptcy. The only legal consideration, therefore, of the defendant’s promise, was the forbearance of the plaintiffs to attach the interest of the New York owners. Upon this state of facts, the learned judge who presided at the trial instructed the jury that ‘‘if, for the benefit and at the request of Ames, the said Foster gave up or surrendered some advantage which he had; as a means of collecting his debt or the like, and in consideration thereof Ames prom- ised to pay this bill, he would be liable, although the promise was not in writing.’’ We do not think that these instructions, applied to the facts of this case, were correct or sufficient. As we have seen, the only consideration of the defendant’s promise was that the plain- tiffs forbore to attach the interest of the New York owners; and we are of opinion that the jury should have been instructed that such . promise was within the statute of frauds. The defendant’s promise was, in its primary and essential char- acter, a promise to guarantee the debt of another. Its object was, to secure the payment of the old debt, which was not extinguished. The defendant’s liability was collateral and contingent, would exist as long as the original debt existed, and would be extinguished when- ever the original debtors should pay that debt. It was not in any sense his debt; the original party remained liable; and there is an On such a theory, the majority cases can be supported and yet the logic of the minority cases be conceded. The double trio situation, on this theory, is not within the mischief aimed at by the statute. On the application of the statute of frauds to a promise to indemnify, see 6 Ann. Cas. 671, note; Ann. Cas. 1912 A, note; Ann. Cas. 1915 A, 867, note; 42 Am. St. Rep. 187, note; 1 A. L. R. 383, note. Contracts WITHIN THE STATUTE oF FRAUDS 1257 entire absence of any liability on the part of the defendant or his property, except such as arises from his express promise. Forth v. Stanton, 1 Saund. (6th ed.) 211, note. When all these elements con- cur, we know of no case in this commonwealth which sanctions the doctrine that such promise loses its character as collateral, and be- comes an original promise, because there is a consideration which is beneficial to the promisor. In Alger v. Scoville, 1 Gray (Mass.) 391, 396, Shaw, C. J., says that ‘‘it has been held that when the leading and obvious object of the promisor was to induce the promisee to forego some lien, inter- est, benefit or advantage held by him, and to transfer that interest, or confer that or some equivalent benefit on the promisor, although the effect may be to discharge neither from an obligation, still it is a new, independent and original contract between the parties, and is not within the statute of frauds required to be in writing.’’ In Curtis v. Brown, 5 Cush. (Mass.) 488, Shaw, C. J., states that “it is no sufficient ground to prevent the operation of the statute of frauds, that the plaintiff has relinquished an advantage, or given up a lien, in consequence of the defendant’s promise, if that advantage has not also directly enured to the benefit of the defendant, so as in effect to make it a purchase by the defendant of the plaintiff. The cases in which it has been held otherwise are those where the plaintiff in consideration of the promise, has relinquished some lien, benefit or advantage for securing or recovering his debt, and where by means of such relinquishment the same interest or advantage has enured to the benefit of the defendant. In such cases, although the result is that the payment of the debt of the third person is effected, it is so incidentally and indirectly, and the substance of the contract is the purchase, by the defendant of the plaintiff, of the lien, right or benefit in question.’’ It is equally true that it is no sufficient ground for taking the case out of the statute, that the defendant has received some benefit from the consideration of his promise. If this were so, then every promise to guarantee the debt of another, made upon a pecuniary considera- tion paid by the promisee to the promisor, would be taken out of the statute. In all cases, the question is, whether the promise is in substance a promise to pay the debt of another, or whether it is a prom- ise by the promisor to pay his own debt, the extent of which is measured by the amount due by another. We think the authorities in this state have gone no further than to decide that a case is not within the statute, where, upon the whole trans- action, the fair inference is, that the leading object or purpose and the effect of the transaction was the purchase or acquisition by the promisor from the promisee of some property, lien or benefit which he did not before possess, but which enured to him by reason of his promise, so that the debt for which he is liable may fairly be deemed to be a debt of his own, contracted in such purchase or acquisition. Nelson v. Boyn- 1258 CASES ON THE LAW OF CONTRACTS ton, 3 Met. (Mass.) 396; Fish v. Thomas, 5 Gray (Mass.) 45; Burr v. Wilcox, 138 Allen (Mass.) 269; Furbish v. Goodnow, 98 Mass. 296; Browne on St. of Frauds (8d ed.), § 214, c. d. Applying this test to the facts of this case, it is clear that the promise of the defendant Ames was within the statute. It is true, or probable, that he indirectly received some benefit from the forbearance of the plaintiffs to attach the interest of the New York owners, but the pur- pose or effect of the transaction was not to transfer to him any lien or advantage. He acquired no rights which he did not before possess, and it is impossible to regard the promise as an original promise founded upon the consideration of a purchase by him. We are of opinion, there- fore, that the jury should have been instructed in accordance with the request of the defendant Ames, that the plaintiff upon the facts found was not entitled to recover. Exceptions sustained.'9 HARBURG INDIA RUBBER COMB COMPANY v. MARTIN. (Court of Appeal. [1902] 1 K. B. 778.) Appeal from a decision of Mathew, J. The plaintiffs, a foreign company carrying on business in Germany, were judgment creditors of an English company called the Crowdus Accumulator Syndicate, Limited, of which the defendant was a director and in which he held a large number of shares. He had also financed the syndicate. The plaintiffs had issued a writ of fi. fa. upon the judgment, which the sheriff had failed to execute, because he could not effect an entry. The defendant then had an interview with a Mr. Winter, the plaintiffs’ agent in England, at which he verbally promised Winter that he would indorse two bills of exchange, each for half the amount of the debt, and payable respectively at three and six months. On the faith of this promise Winter withdrew the writ. The action was brought for breach of the defendant’s promise. At the trial Mathew, J., gave judgment for the plaintiffs, holding that s. 4 of the Statute of Frauds did not apply. In the course of his judgment the learned judge said: ‘‘ What is the result of the evidence? At the time when the defendant came to Mr. Winter the plaintiffs were in a position to take possession of the goods of the syndicate; they were in a position analogous to that of persons having possession of the goods, and their legal position is recognized 19See Carleton v. Floyd, Rounds & Co., 192 Mass. 204 (1906), deemed by the court not to be distinguished in principle from Ames v. Foster. See also Richardson Press v. Albright, 224 N. Y. 497 (1918). See note 9, ante, this chapter. Contracts WiTHin THE StarurTE or FRavups 1259 in Williams v. Leper (1766), 3 Burr. 1887 and in Edwards v. Kelly (1817), 6 M. & S. 204. Those cases have been discussed with approval, and very sensible and reasonable cases they are, and in their facts they closely approach the present case. They are discussed in the notes to Forth v. Stanton, 1 Williams’ Saund. 209 a. What was the object of the arrangement here? The object was to protect the goods of the syn- dicate; it was not to pay the debt of another. It is pretty clear that what the defendant suggested was that he should have time to sell all which belonged to the company. If, in fact, the object of the contract was to protect the goods, that would be sufficient to take the case out of the statute. ‘But there is another point still more clearly in favor of the plain- tiffs, namely, that the promise was given for the purpose of obtaining a direct personal advantage for the defendant himself. He had invested a large sum in the syndicate, and would lose every farthing of it unless time were given for the syndicate to get on its legs. With that object —and I should gather it was the sole object he had in view—he made the promise. That again is a ground for saying that the case is not within the statute of frauds, as is clear from Sutton & Co. v. Grey, [1894] 1 Q. B. 285. “Under these circumstances it seems to me clear that the statute of frauds does not apply, and my judgment must be for the plaintiffs.’’ The defendant appealed. VaucHan Winuiams, L, J.2° The material facts of this case are very short. The plaintiffs had supplied goods to a company called the Crowdus Accumulator Syndicate. The syndicate did not pay what was due from them for the goods, and the plaintiffs recovered judgment against them, and placed a writ of fi. fa. in the hands of the sheriff to realize the amount of their judgment. The sheriff found that the works of the syndicate had been stopped and their place of business closed, and he did not take possession. After this there was a meeting between the defendant and Mr. Winter, the plaintiffs’ agent. A conversation took place at that meeting, and the jury have found that Mr. Winter’s account of it is accurate. To put the result of the conversation shortly, the defendant then verbally promised Mr, Winter that he would in- dorse some bills for the amount of the judgment debt. It is said that amounted to an oral promise to give a guarantee of the judgment debt owing by the syndicate to the plaintiffs. It is said on behalf of the defendant that this was a promise by him by word of mouth to make himself answerable for the debt of the syndi- cate. It is said on behalf of the plaintiffs that this was not a promise to make himself answerable for the debt of another—that is, the syndi- cate—but that it was a contract of indemnity, by which, I suppose, is meant a new contract in the nature of an original obligation. 20 Parts of the opinions are omitted. 1260 ‘ CASES ON THE LAW OF CONTRACTS The question which we have to decide is whether this bargain is ‘‘a promise to answer for the debt of another’’ within s. 4 of the statute of frauds. Mathew, J., has held that it is not. I am sorry to say that I cannot agree with that conclusion. It seems to me that this contract was as plainly as possible a promise by the defendant to make himself answerable for the debt of the syndicate. Our attention has been called to a great number of cases in which the court has treated various transactions as being outside s. 4. Most of the earlier cases were what I may call ‘‘property cases.’’ They were cases in which either the person who made the promise had property which he wished to relieve from liability, or there was property which he wished to acquire. It is not necessary for me to go through those cases, but I cannot agree that the present case comes within any of that class. The defendant’s promise was not, as it seems to me, either a new con- tract of purchase, or a new contract for the release of any property which either was his or in which he had an interest. Our attention was next called to the exception which has been estab- lished by what I may call the “‘del credere cases,’’ beginning with Cou- turier v. Hastie, 8 Exch. 40, and coming down to Sutton & Co. v. Grey [1894], 1 Q. B. 285. It has been said, and I think truly, that these cases are of a different species from the property cases. I say of a dif- ferent species, not of a different genus, because I think there is a wider genus, which can be plainly and simply defined, within which both of these species fall. So far as I can see, the authorities have left us with a general rule, which I will attempt to define presently, and each of these two classes of cases falls within that general rule. In each of them, I think, the form of the promise given by the promisor has never been held to be conclusive of the matter. He may, or he may not, promise in terms to answer for the debt of another; but, whether he does so or not, it is the substance, not the form, which is regarded. Before leaving these instances I wish to mention one other class, which I do not treat as an exception from s, 4, but which, I think, does not come within the section at all. I mean the cases which have been spoken of as ‘‘indemnity cases.’’ Of course in one sense all guarantees, whether they come within s. 4 or not, are contracts of indemnity. But the difference between those indemnities which come within the section and those which do not is very shortly thus expressed in the notes to Forth v. Stanton, Williams’ Notes to Saunders, ed. 1871, vol. i. p. 234: ‘These cases establish that the statute applies only to promises made to the person to whom another is already or is to become answerable.’’ That, to my mind, is an accurate definition of a guarantee or indemnity which comes within s. 4 of the statute, as distinguished from an original liability which is not within the section, and which has no reference to the debt of another, but creates a new liability which is undertaken by the promisor, and has been called in the course of the argument a con- tract of indemnity. * * * Contracts WITHIN THE STATUTE OF FRAUDS 1261 In my judgment, the circumstances of the present case show plainly that there was a guarantee of the payment of a debt for which the syndi- cate was primarily liable, and not an original promise by the defendant to keep the plaintiffs indemnified. In my judgment, a contract of in- demnity does not come within s. 4, but I think there is nothing to justify us in holding that in the present case the contract is a contract of in- demnity. In my opinion, it is a contract of guarantee—‘‘a promise to answer for the debt of another.’’ IT will now go back to those cases which, so far as the words of.the con- tract are concerned, might come within s. 4, but which have been held not to come within it because of the object of the contract. Whether you look at the ‘‘property cases’’ or at the ‘‘del credere cases,’’ it seems to me that in each of them the conclusion arrived at really was that the contract in question did not fall within the section because of the object of the contract. In each of tliose cases there was in truth a main contract—a larger contract—and the obligation to pay the debt of an- other was merely an incident of the larger contract. As I understand those cases, it is not a question of motive—it is a question of object. You must find what it was that the parties were in fact dealing about. What was the subject-matter of the contract? If the subject-matter of the contract was the purchase of property—the relief of property from a liability, the getting rid of incumbrances, the securing greater diligence in the performance of the duty of a factor, or the intro- duction of business into a stockbroker’s office—in all those cases there was a larger matter which was the object of the contract. That being the object of the contract, the mere fact that as an incident to it— not as the immediate object, but indirectly—the debt of another to a third person will be paid, does not bring the case within the section. This definition or rule for ascertaining the kind of cases outside the section covers both ‘‘property cases’’ and ‘‘del credere cases.”’ Can we then in the present case find any larger contract? I can- not. It seems to me plain upon the evidence that the only matter which was present to the mind of the defendant, and was presented by him to Mr. Winter, was this: ‘‘ Will you forbear for a time? Will you give the syndicate, which I believe has a future before it, an opportunity of turning round? I believe that if it has that opportunity, it will do well and will be able to pay you. And to induce you thus to forbear I will give you bills which shall secure the payment at specified periods of the judgment debt, in case the syndicate does not pay you itself.’’ That, I think, is the true effect of the conversation, and it seems to me that was the whole of the contract, and there was neither a purchase nor a del credere arrangement, nor anything else beyond that bargain. And the mere fact that the defendant had, as he seems to have done, financed the syndicate to a large extent, and that that was his motive for thus coming forward and bargaining for forbearance, cannot make any dif- ference in the object of the contract. That might have been the motive 1262 CASES ON THE LAW OF CONTRACTS which induced him to make himself answerable for the debt of the syndicate, but it was not the object of the contract. The object was simply to obtain the forbearance of the creditors in respect of the debt. It was suggested that the true definition of cases which do not come within s. 4 should be, not those in which the obligation to pay the debt of another is an incident of a larger contract, but those in which the main object is to secure the promisor’s own personal inter- est. But, I think, if such a definition were adopted, there would be nothing left to come within s, 4, because in every case there must be a consideration for which the promisor bargains to come to him from the promisee. That is as true of mere forbearance as of anything else. If the contract is that the promisor will be answerable for the debt due to the promisee if he will forbear, if the main object is to obtain that forbearance, and the promisor wishes to obtain it, that would be suffi- cient to take the case out of the statute. In my opinion so to hold would be simply to repeals. 4. * * * In my opinion the judgment of Mathew, J., should be reversed, and the appeal allowed. * * * Stiruine, L. J. * * * In my opinion the decision in Guild & Co. v. Conrad, [1894] 2 Q. B. 885, does not apply. It is, I think, im- possible to arrive [here] at the conclusion at which the learned judges arrived in that case, namely, that the defendant’s contract was to pay the debt whether the syndicate, of which he was a director, could or could not pay it. In Guild & Co. v. Conrad, it was found that the contract was not to pay if the foreign firm did not pay, because there was no expectation at that time that the foreign firm would be able to pay, but the contract was to provide funds to enable the plaintiffs to meet certain acceptances. In the present case it seems to me that the -transaction in contemplation was to give time to the syndicate in the expectation that in the interval they would be placed in funds by which they would be enabled to pay all their debts. The important element corresponding to that which existed in Guild & Co. v. Conrad, namely, the absence of any expectation that the syndicate would ever, be able to pay, is here wanting.?} 21In Guild & Co. v. Conrad, [1894] 2 Q. B. 885, the defendant orally prom- ised the plaintiff that if the plaintiff would accept certain bills for a firm in Demerara in which the defendant’s son was a partner the defendant would “find funds to enable the plaintiff to meet these acceptances.” At the time that defendant made the oral promise there was no. expectation that the Demerara firm would be able to pay. The defendant was held liable on the promise despite a plea of the statute of frauds, and Lindley, L. J., said: “The nature of the promise is all-important, because, if it was a promise to pay if the Demerara firm did not pay, then it is void under the statute of frauds as not being in writing. But if, on the other hand, it was a promise to put the plaintiff in funds in any event, then it is not such a promise as is within the statute of frauds.” The defendant’s promise, as one to pay in any event, was Contracts WITHIN THE StTaTUTE or FRAUDS 1263 That being so, we have to consider whether the contract was ‘‘to answer for the debt, default, or miscarriage of another person’’ within the meaning of s. 4 of the statute of frauds. Undoubtedly the deci- sions run fine in these cases * * * I come then to Couturier v. Hastie, 8 Ex. 40, in which it was held that a contract by a del credere agent was not within the statute. From the judgment of Bowen, L. J., in Sutton & Co. v. Grey, 69 L. T. (N. 8.) 354, at p. 355, it is clear that he regarded Couturier v. Hastie as going to the very verge of the law, and he referred to the observations upon it made by Page Wood V.-C. in Wickham v. Wickham, (1855) 2 K. & J. 478, at p. 487. In Sutton & Co. v. Grey, [1894] 1 Q. B. 285, there was a contract between a firm of brokers and the defendant of which the terms were that he should introduce clients to them, and that the plaintiffs should transact business on the Stock Exchange for the clients thus introduced, and that, as between the plaintiffs and the defendant, he should have half the commission earned by the plain- tiffs in respect of any transactions by them for any clients introduced by him, and he should pay to the plaintiffs half of any loss which might be incurred by them in respect of those transactions. The plain- tiffs claimed to recover from the defendant half the loss which they had incurred in Stock Exchange transactions which they had entered into on behalf of a person who had been introduced to them by the defendant, and it was held that, the defendant having an interest in the transactions equally with the plaintiffs, the principle of Couturier yv. Hastie applied. * * * But, as it seems to me, * * * the word ‘‘interest’’ means some species of interest which the law recognizes. In the present case the defendant had no such interest in the property which was about to be seized by the sheriff. He was a director of the syndicate who had, no doubt, a deep interest, in the popular sense of the word, in its proceed- ings. He held a large number of shares: I believe he was the largest shareholder in the syndicate. He had also financed the syndicate, but he had nothing in the nature of a charge on their property; he was at the utmost a general creditor of the syndicate. It has been contended that we ought to read the words ‘“‘interest in the transaction’’ in a wide sense, and as importing a ‘‘business inter- est’? in the syndicate—that kind of interest which a creditor and a shareholder of a company has in its prospects. To do this would, I think, go a long way to repeal s. 4 of the statute of frauds, and to extend the doctrine of Couturier v. Hastie very much further than I am prepared to extend it. ‘ also referred to as a promise to indemnify. It would seem to be more properly designated as an original promise. For an argument against taking out of the statute such promises to pay irrespective of the liability of the original debtor, see 1 Williston on Contracts, § 456. 1264 CASES ON THE LAW OF CONTRACTS For these reasons I think that the appeal ought to be allowed, and the judgment of Mathew, J., reversed. Cozens-Harpy, L. J. * * * Primé facie the contract falls within s. 4 of the statute, unless it can be brought within some recognized or some logical exception. One great peculiarity is this, that neither the plaintiffs nor the defendant had possession of or had any interest in the goods of the syndicate. But it has been forcibly and most ably argued that the case is brought within the recognized exceptions from the section, because the defendant, though he had no legal right to or interest in the goods, yet had in a business sense an interest in them. It has been argued that we ought to look at the object of the promise which the defendant made, and that if we can come to the conclusion that his object in giving the promise was to secure a benefit for him- self, and not to secure forbearance for the syndicate, then we ought to hold that the case is not within the statute at all. I cannot agree with that argument. It seems to me to involve a confusion between object and motive. I cannot doubt that the object of the promise which was made by the defendant was to secure the forbearance of the plaintiffs, for three months and six months, in enforcing the debt due from the syndicate. If that be so, the authorities do not, as it seems to me, in any way support Mr. Russell’s contention. They have been divided conven- iently into three classes. The first consists of what have been called ‘‘the property cases.’’ I do not think they can be dealt with more accurately, and certainly not more shortlv. than they were by Williams, J., in his judgment in Fitzgerald v. Dressler, 7 C. B. (N. 8.) at p. 394, where he said: ‘‘At the time the promise was made the defendant was sub- stantially the owner of the linseed in question, which was subject to the lien of the original vendors for the contract price. The effect of the promise was neither more nor less than this, to get rid of the incum- brance, or, in other words, to buy off the plaintiffs’ lien. That being so, it seems to me that the authorities clearly establish that such a case is not within the statute.’ And he referred to Williams v. Leper, 3 Burr. 1887; Castling v. Aubert, 2 East. 325; and Anstey v. Marsden, (1804) 1B. &P. (N. RB.) 124. Then stress has been laid on what have been called ‘‘the document cases.’’? Those cases seem to me to stand on an entirely different foot- ing. If I go to a banker or to another person who holds documents as security for a debt, and I ask him to hand over the documents to me on payment of the debt, that is simply a purchase of the security. Al- though in this way I have become answerable for the debt of another, that is not the main object of the contract. The third class consists of those cases which have been called ‘‘the del credere cases.’? When they are fairly regarded, they seem to me to amount only to this: that a contract, e. g., for the employment of a Contracts WITHIN THE StaTuTE or FRaups 1265 del credere agent, need not be in writing, although it incidentally in- volves the answering for a debt of another person. In other words, if the court can find that there is a main contract, the object of which is not to answer for the debt of another, that contract is not within s. 4, even though incidentally it may result in a liability to answer for the debt of another. For these reasons I agree with the Lords Justices, and think that the appeal ought to be allowed. Appeal allowed. MARY E. BAILEY, Apretuant, v. JOSEPH N. MARSHALL. (Supreme Court of Pennsylvania, 1896. 174 Pa. St. 602, 34 Atl. 326.) Dean, J. Whether the debt in controversy be that of him who has assumed to pay it, or of another, is in most cases a question of fact. There can be no precise legal definition of liability under the act of 26th of April, 1885, P. L. 308, which will determine, in all eases, per- haps in but very few, the answerability of him who promises to pay. The act says: ‘‘No action shall be brought whereby to charge * * * the defendant upon any special promise to answer for the debt or default of another unless the agreement * * * shall be in writ- ing.’’ This is clearly meant to relieve an alleged guarantor or surety ; it was never intended to relieve him who had a personal beneficial in- terest in the assumption. There cannot be a better construction of this statute than in Nugent v. Wolfe, 111 Pa. 471, where we held, the present chief justice rendering the opinion, that: ‘‘It is difficult, if not im- possible, to formulate a rule, by which to determine, in every case, whether a promise relating to the debt or lability of a third person is or is not within the statute; but as a general rule, when the leading object of the promise or agreement is to become guarantor, or surety to the promisee for a debt, for which a third party is and continues to be primarily liable, the agreement, whether made before or after or at the time with the promise of the principal, is within the statute, and not binding unless evidenced by writing. On the other hand, when the leading object of the promisor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay, or discharge the debt of another, his promise is not within the statute.”’ Applying these principles to the facts in the case before us, to what conclusion do they impel us? In September, 1892, Mary E. Bailey held a note against Davis Pennock in sum of $1,000, with power of attorney to confess judgment. At this time, Marshall, the defend- ant, entered a judgment against Pennock for $5,000, issued execution, and levied on all the real and personal property of Pennock; the amount actually due and payable on his $5,000 judgment did not ex- 1266 CASES ON THE LAW OF CONTRACTS ceed, as appeared afterwards from his own statement, $200. The plain- tiff was standing there with her judgment ready for entry, on which she could immediately issue execution, seize and bid upon the prop- erty; just at this juncture, Marshall, knowing her rights, sent for her and said: ‘‘I will stand by thee and see thee is paid every cent if thee says nothing and does nothing.’’ She accepted his proposition, neither entered her judgment nor took any steps to collect. The sheriff’s sale went on, and Marshall bought the larger part of the real and personal property, and was credited on his purchase with the amount of his own judgment. : We notice by the testimony that Marshall denies the statement of Mrs. Bailey; we express no opinion as to the credibility of the wit- nesses; the question is, if the jury believed Mrs. Bailey’s testimony, would the court have been warranted in granting the compulsory non- suit on the ground that the promise was to answer for the debt or de- fault of another? What was the leading object of Marshall in making the promise by which he lured her to inaction? Clearly, it was not to pay Pennock’s debt, nor Mrs. Bailey’s claim. His sole purpose was to silence her as an antagonistic bidder at the sheriff’s sale; this was no benefit to Pennock, the debtor; it was an advantage to Marshall, and he reaped the full fruits of it; she was silenced by his promise, and he got the property at his own figure. His leading object was to subserve his own interest; in fact, he had no other object; having accomplished it, he is now called upon to answer, not for Pennock’s debt, but for his own, and if Mrs. Bailey be believed, he ought to pay. The decree of the court below entering compulsory nonsuit is reversed, and procedendo awarded?” 22 “It is frequently said that where the main purpose and object of the prom- isor is not to answer for the debt of another, but to subserve some pecuniary or business purpose of his own, the promise is not within the statute and need not be in writing. * * * But this general rule was undoubtedly deduced from cases where property was placed in the hands of the promisor, as a fund out of which the promisee was to be paid. Williams v. Leper, 3 Burr. 1886 (1766) ; Edward v. Kelley, 6 Maule & S. 208 (1817). The promise was a promise to account and not the special promise or assumpsit contemplated by the statute. The courts, however, have gradually come to speak of this as a ‘new and beneficial consideration moving toward the promisor’ and ‘enuring to his benefit,’ and so sufficient consideration to take his promise without the statute. They have not kept the fundamental distinction clearly in mind between cases where the promise was to account, with a transfer of property, and a special promise or special assumpsit with sufficient consideration to support a simple contract. “As a consequence much confusion has arisen under this section of the statute, and while a majority of cases decided under the theory that ‘the lead- ing purpose and object of the promisor must be to promote some interest of his own’ are cases where property has been transferred and so analogous to Williams v. Leper, supra, [citations], still the generality of expressions used is such that the rule has been extended to cases which do not bear the least resemblance to those on which the rule is based [citations]. * * * In Penn- Contracts WITHIN THE StTaTuTE or FRaups 1267 MACHINIST v. GREEN. (Supreme Court of New Hampshire, 1920. 109 Atl. 45.) Action by Abraham Machinist against Abraham Green, resulting in verdict for plaintiff, and defendant excepts. Exceptions overruled. Action for the breach of an oral contract. Trial by the court, and verdict of $200 for the plaintiff, The defendant excepted to the court’s refusal to order a nonsuit and a directed verdict in his favor, upon the ground that the oral contract was a promise to answer for another’s debt and within the statute of frauds. PuumMer, J. The plaintiff agreed to loan one Garber $1,200 to enable him to purchase of one Plodzik 230 cords of wood. The defend- ant was a creditor of Plodzik in the sum of $2,500, and was actively interested in collecting it and pressing Plodzik to pay it, and when he learned of the contract between Garber and Plodzik, he made a demand upon Plodzik to have the $1,200 paid to him. The first payment in the sum of $500 for wood delivered was by the plaintiff’s check pay- able at Garber’s request to Plodzik’s order, and by him indorsed and delivered to the defendant. When all but 30 of the 230 cords of wood had been delivered, Plodzik and the defendant went to the plaintiff, and Plodzik requested him to pay the balance of $700 to the defendant. The plaintiff did not obtain Garber’s consent to this payment, but paid the $700 to the defendant, partly in reliance on the representations of Plodzik and the defendant that all of the 280 cords of wood were de- livered, and partly in consideration of the defendant’s agreement and undertaking that if they were not, they would be, and that he would be responsible for any shortage. The defendant did not know, or even suppose, that the full amount of wood had not been delivered. Garber refused to pay the plaintiff $1,200, but retained $300 until the shortage should be made good, and has never paid it. The defendant’s promise to the plaintiff was made as incidental to and in connection with his efforts to collect his claim against Plodzik. It is the defendant’s contention that his promise to be responsible for any shortage of wood was a promise to answer for the debt of an- other, and therefore within the statute of frauds. P. 8. ¢. 215, § 2. This position cannot be sustained. The defendant’s purpose in making the promise was to induce the plaintiff to pay to him the full balance due upon the wood contract. He was seeking in this manner to collect a sylvania this ‘new and beneficial consideration’ is not required; but the leading purpose and object of the promisor must be to subserve some interest of his own.” 59 U. of Pa. L. Rev. 577. On whether an oral promise to pay another’s existing debt, made in order to secure a benefit to the promisor, without releasing the original debtor, is within the statute of frauds, see 22 L. R. A. (N. S.) 1077, note; 40 L. R. A. (N. S.) 242, note. 1268 CASES ON THE LAW OF CONTRACTS portion of a debt due him from Plodzik. This was his ‘sole object, and to effectuate that purpose he promised the plaintiff, in effect, to indem- nify him in case he should suffer loss by reason of the transaction. The promise of the defendant was not made by him for the benefit of an- other, but for his own benefit. In determining whether an agreement is within the statute of frauds, ‘‘the distinction is between a promise the object of which is to promote the interest of another and one in which the object is to promote the in- terest of the party making the promise .The former is within the operation of the statute, the latter is unaffected by it.’’ 1 Reed, St. Fr. c. 3, § 70; Calkins v. Chandler, 36 Mich. 324, 24 Am. Rep. 593; Wills v. Cutler, 61 N. H. 405, 409; Janvrin v. Powers, 79 N. H. 44, 104 Atl. 252. Moreover, the oral agreement of the defendant was an original promise, given to the plaintiff, who relied upon it to his injury. It was not a collateral undertaking to answer for the debt or default of another, but was the personal obligation of the defendant to be re- sponsible for any loss that the plaintiff might sustain by complying with the defendant’s request. The consideration for the defendant’s promise was the payment of the money to him by the plaintiff, and had no connection with the orig- inal transaction. It was an independet valid agreement, entered into by the parties to this action, and was not within the statute of frauds. Allen v. Thompson, 10 N. H. 32; Robinson v. Gilman, 43 N. H. 485; Britton v. Augier, 48 N. H. 420; Provenchee v., Piper, 68 N. H. 31, 36 Atl. 552. ; Exceptions overruled. PHILPOT v. WALCOT. (Court of Common Pleas, 1682. 1 Freeman 541.) Assumpsit upon mutual promises of marriage. The question was, whether it, being without ‘writing, were not within the Statute of Frauds and Perjuries? Wyndham was of opinion, that it was not within the words nor meaning of the statute; because this promise is for the marriage itself, and not made in consideration of marriage for some collateral matter. But the other three judges were against him, that it was within the words, the meaning and the mischief of the statute, and as much a catching promise as any that the Act intended to prevent. Jud’ pro def’ Hil. 38, 34, Car. 2, Rot. 536.%8 23 This case was later overruled. In Harrison v. Cage, as reported in 1 Ld. Raym. 386, 387-8, it is stated: “Note, it was ruled in this case at Norfolk Summer Assizes last past by Ward Lord Chief Baron, that this promise had no need to be in writing by the Statute of Frauds, 29 Car. 2, c. 3, 5. 4. And Contracts WirHin THE STaTuTE or FRavups 1269 WELD v. WELD zr at, (Supreme Court of Kansas, 1905. 71 Kan. 622, 81 Pac. 183, 114 Am. St. Rep. 517.) Action by Augustus Weld against Judith R. Weld and John W. Kidder. Judgment for defendants. Plaintiff brings error. Affirmed. Burcu, J. Judith R. Kidder executed and delivered to Augustus Weld her promissory note for a sum of money, and secured its pay- ment by a mortgage upon her real estate. Subsequently she married him, in consideration of his parol agreement that the marriage should operate as a satisfaction of the note. Still later he brought an action against her to recover on the note and to foreclose the mortgage. She pleaded payment, and upon a trial the jury returned a general verdict in her favor, and made answers to special questions as follows: ‘Question No. 1. Did the plaintiff and the defendant. Judith R. Weld (then Judith R. Kidder), before they were married, and after the note in suit had been given, enter into a parol contract or agree- ment whereby it was mutually agreed between them that, in consid- eration the said Judith would thereafter marry the plaintiff, the note in suit should upon such marriage be by the said parties mutually regarded as paid or satisfied? Ans. Yes. ‘*Question No. 2. If you answer the proceeding question ‘yes,’ then did the defendant Judith R. Weld, in pursuance of such alleged con- tract, and as a performance thereof on her part, marry the plaintiff? Ans. Yes.’’ Judgment was rendered for the defendant for costs. It is now urged that the evidence supporting the plea of payment was inadmissible, be- cause the contract, being oral, is within the statute of frauds, and mar- riage is not a sufficient part performance to remove the bar, and that the evidence admitted was not sufficient to sustain the verdict. It is true the statute of frauds provides that no action shall be brought to charge any person upon any agreement made upon consid- eration of marriage, unless the agreement upon which the action is brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him or her lawfully authorized. Gen. St. 1901, § 3174. Mr. Northey said at the bar, that the statute intended only agreements to pay marriage portions, and that it had often been ruled so by Holt, Chief Justice. Quod Holt non negavit.” See also Cork v. Baker, 1 Stra. 34. In many of the American statutes of frauds there is in the “upon considera- tion of marriage” clause, an express exception from the writing requirement of mutual promise to marry: Stimson’s “American Statute Law,” I, p. 460. But even in the absence of such express exception, such oral promises are deemed not to be within the statute of frauds. See Clark v. Pendleton, 20 Conn. 495 (1850); Short v. Stotts, 58 Ind. 29 (1877); Withers v -Richardson, 5 T. B. Mon. (Ky.) 94 (1827);. Wilbur v. Johnson, 58 Mo. 600 (1875); Cf. Morgan y. Yarborough, 5 La. Ann. 316 (1850). 1270 CASES ON THE LAW OF CONTRACTS It is likewise true that authorities may be found to the effect that generally marriage is not a sufficient part performance to avoid the effect of the statute. But there is no question of part performance in this case. The contract was fully executed when the defendant mar- ried the plaintiff. Nothing further was to be done by either party to satisfy her obligation. The agreement was not that the plaintiff would after marriage deliver money or property or securities to the defend- ant in consideration of the marriage, or that he would after marriage execute and deliver to her legal documents affecting her property rights. It simply was that the debt should be paid when they were married. Some of the evidence on behalf of the defendant as given by differ- ent witnesses is as follows: ‘‘They were out in the yard, and they came into the house, and he put his hand on her shoulder and said: ‘Well, Anna, you needn’t worry about the debt; after we are married the debt will be paid.’ About three weeks after they were married they came back to our house. She and I were preparing something for dinner. We were in the dining room, and he was outside pitching a tent. He came into the room. He slapped her on the shoulder, and he said to me: ‘Anna need not worry no more about the debt; her mort- gage is paid.” We were talking, he and I and his wife, about the in- debtedness on the place. My recollection is now that he told her that there was no indebtedness on the place. Right then I said to him that to protect Anna, his wife, he ought to cancel the mortgage. He said that would be the first thing to do when they got home.’’ The statute of frauds does not render void the verbal contracts to which it refers. They are valid for all purposes except that of suit. Stout v. Ennis, 28 Kan. 713. .The parties may, if they desire, perform them, and, when performed, the statute has no application to them. 29 A. & E. Eneyel. of L., 829, 941. The plaintiff argues the case as if the contract were that he should enter of record a satisfaction of the mortgage. Such, however, was not the tenor of the agreement, and that duty followed, upon demand being made, whenever the debt was paid. Gen. St. 1901, § 4224. Since the parol evidence introduced established a contract fully performed, it was competent. The evidence might perhaps have been made the basis of different conclusions as to the existence of the contract relied upon as a defense to the action. It was therefore properly submitted to the jury for interpretation. The jury has performed its duty in that respect, and the trial judge has approved the result. Hence this court will not interfere. Other assignments of error all converge in the proposition first dis- cussed above, and need not be separately considered. The judgment of the district court is affirmed.?* 24 Occasionally, as in the principal case, marriage, usually when coupled with other things, is deemed full performance and takes the contract out of the statute both at law and in equity. See Supreme Lodge of Knights of Pythias Contracts WITHIN THE STaruTE or FRaups 1271 ROSENSTEIN v. GOTTFRIED. (Supreme Court of Minnesota, 1920. 145 Minn. 243, 176 N. ‘W. 844.) Action by L. S. Rosenstein against Ellen Gottfried, Verdict for plaintiff, and, from a judgment for defendant notwithstanding the verdict, plaintiff appeals. Affirmed. v. Ferrell, 88 Kans. 491 (1910); Harlan v. Moore, 132 Mo. 483 (1895); Dygert y. Remerschnider, 32 N. Y. 629 (1865); Adams v. Swift, 155 N. Y. Supp. 873 (1915); Flowers v. Kent, Brayton (Vt.) 238 (1817); Child v. Pearl, 48 Vt. 224 (1870). Cf. Blackwell v. Blackwell, 196 Mass. 186 (1907). In Remington v. Remington, (Colo.), 193 Pac. 550 (1920), an oral contract made before marriage, whereby husband and wife, each of whom had been previously married and had living children, arranged to preserve to themselves the right to dispose of their property and to protect their heirs or the beneficiaries under their wills in their property rights as against any claim which might arise because of the marriage relation was held not to be void under the statute of frauds as promises made in consideration of marriage. The contract was reduced to writing and signed after marriage, and Teller, J., for the court, said: “It is true that in the recital it is stated that the parties, in considera- tion of marriage, made the agreement; but the agreement itself shows that it was not so made. Contracts in consideration of marriage provide for the moving of some benefit to one of the parties as an inducement for marrying. There is no such case here presented. The facts show that these parties were arranging to preserve to themselves respectively the right to dis- pose of the property held before marriage, and to protect their respective heirs, or the beneficiaries under their wills, in their property rights,,as against any claim which might arise because of the marriage relation. The words ‘in consideration thereof’? are not to be construed as indicating that either party was induced to marry the other by reason of these covenants. Indeed, the covenants conflict with such an idea. The parties were agreeing that they would secure nothing from each other through the marriage relation. It is clear that the words ‘in consideration thereof’ were used to show a situation which would have been properly described by saying that the parties had made the oral agreement in contemplation of marriage. “Furthermore, it is wholly immaterial, in the view we take of this question, what was the agreement made before marriage. The contract in question, reduced to writing and signed by the parties, is made upon a consideration of mutual promises, and in it each releases to the other all right in or control over the other’s property, and likewise waives all right to claim the same under any law of descent. ‘Whatever may be the rule in those states having special statutes limiting the rights of parties during coverture, or in states following the common law, there is no reason why in this state, where woman has been relieved of her disabilities and specifically authorized to contract with any and every one, she cannot make a binding contract during coverture, pro- vided it is free from taint of fraud or duress.” The distinction between contracts in contemplation of marriage and contracts upon or in consideration of marriage is established. Some antenuptial con- tracts made in contemplation of marriage have been held to be supported by consideration other than the marriage and, therefore, not to be within the statute. Jorden v. Money, 5 H. L. Cas. 185 (1854); Riley v. Riley, 25 Conn. 154 (1856); Rainbolt v. East, Admr., 56 Ind. 588 (1877); Bader v. Hiscox, (Ia.), 174 N. W. 565 (1919); Steen v. Kirkpatrick, 84 Miss. 63 (1904); Nowack v. 1272 CASES ON THE LAW oF CONTRACTS Hauuam, J. Plaintiff is in the business of buying and wrecking old buildings. Defendant was the owner of a lot on which was situated a two-story, twelve-room, frame dwelling, on a stone foundation. Plain- tiff claims that defendant told him she wanted to dispose of the build- ing for wrecking, that he looked it over and offered her $110.00 for all the material in the building, plaintiff to tear down the building and take material away. Plaintiff gave this further testimony: ‘‘T then asked her if they had any insurance on the building? She told me there was $2,800. I says, ‘Now you must carry that insurance Berger, 133 Mo. 24 (1895); Larsen v. Johnson, 78 Wis, 300 (1890). But see Mallory’s Adm’rs v. Mallory’s Admr., 92 Ky. 316 (1891); Dienst v. Dienst, 175 Mich. 724 (1918). Mutual promises to marry not being within the statute, two kinds of prom- ises in consideration of marriage are generally deemed to be, namely, (1) prom- ises to make marriage settlements, and (2) mutual promises to marry with a promise also by one party to convey or devise property to the other. The first kind clearly fall within the statute, but the second kind might easily have been treated as the same as mutual promises to marry. They have not been, how- ever, and, as in general marriage is not regarded as part performance to take the case out of the statute, a writing is essential to recovery on them in the ab- sence of proof of fraudulent intent. If the promisor made the promise with no intent to perform, then whether the contract is an oral antenuptial marriage settlement one or is an engagement contract with a property stipulation as part of it, most courts will give relief. See Peek v. Peek, 77 Cal. 106 (1888); Green v. Green, 34 Kans. 740 (1886). Cf. Jenkins v. Eldridge, 3 Story 181 (1844); Petty v. Petty, 4 B. Mon. (Ky.) 215 (1843); Tepper v. N. Y. Life Ins. Co., 151 N. Y. Supp. 1049 (1915). But see Hackney v. Hackney, 8 Humph. (Tenn.) 452 (1847). In Green v. Green, 34 Kans. 740, 745, Horton, C. J., said ‘that the court acted “upon the well established doctrine that fraud takes any case out of the statute of frauds.” In Glass v. Hulbert, 102 Mass. 24, 39 (1869), Wells, J., announced the following dictum: ‘In such cases the marriage, although not regarded as a part performance of the agreement for a marriage settlement, is such an irretrievable change of situation, that, if procured by artifice, upon the faith that the settlement had been, or the assurance that it would be, executed, the other party is held to make good the agreement, and not per- mitted to defeat it by pleading the statute.” And in Colorado and Missouri there has been an inclination to regard marriage as part performance because of its irrevocable nature and of the feeling that the promisee is defrauded by the refusal to perform even if the promise was made with good intent. Moore v. Allen, 26 Colo. 197 (1899); Allen v. Moore, 30 Colo. 307 (1902); Nowack v. Berger, 133 Mo. 24 (1895). In other jurisdictions it is only where what con- stitutes part performance in the case of contracts for the sale of land has taken place that chancery will enforce the contract for real property marriage settle- ment despite its upon consideration of marriage feature. See Ungley v. Ungley, L. R. 4 Ch. D. 73 (1876); Surcome v. Pinniger, 3 DeG. M. & G. 571 (1853); Sharman v. Sharman, 67 L. T. (N. S.) 8384 (1892); Neale v. Neales, 9 Wall. 1 (1869); Dugan v. Gittings, 3 Gill (Md.) 1388 (1845). For an argument that marriage should be deemed part performance in the case of those mutual promises to marry which also contain a promise by one party to settle property on the other, see 14 Ill. L. Rev. 1, 19-27. On when a promise is made in consideration of marriage within the statute of frauds, see 10 A. L. R. 321, note. Contracts WITHIN THE STATUTE OF Fravps 1273 until we get ready to wreck it, we won’t be able to get at it right away ’—we had other jobs ahead of it, and she agreed to carry the insur- ance for me. She asked me then: ‘Well, how about the premiums I am paying on this? I am paying that out of my money.’’ I says, ‘Well, in case of any loss, why then we’ll divide with you fifty-fifty, you are to give us 50 per cent. of what you collect.’ That was satisfactory to her. * * * SoT gave her a $5.00 bill. * * * I rode down to my office, made a report to the bookkeeper that I had bought the build- ing.”’ Next day the building burned. Defendant collected $1,603.25 insur- ance, Plaintiff sues for half the amount after deducting the purchase price. The jury found for plaintiff. The court gave judgment for defendant notwithstanding the verdict. Plaintiff’s first contention is that the agreement, ‘‘rightly construed,”’ did not provide for a sale, but was an agreement to perform personal service, in wrecking a building, to be paid for in the material which composed the building, and that since the value of the material exceeded the value of the service, plaintiff was to give back the change in cash. It seems to us that the transaction was not a contract for services but of sale of the building, or of the material in it. Plaintiff contends that if the agreement is to be construed a sale, it was a sale of fixtures to be removed and was valid though verbal. In other words that it was not a sale of an interest in land, which must, under the statute of frauds, G. S. 1913, § 7002, be evidenced by a writ- ing, but a sale of personal property, governed by the statute of frauds | applicable thereto, Laws of 1917, c. 465, §4 (Gen. St. Supp. 1917, § 6015—4), and since part payment was made, no writing was required. The trial court, on the trial, treated the transaction as a sale of personal property, and instructed the jury that if plaintiff’s version of the transaction was true and the $5.00 was paid they should find for plain- tiff, On further consideration the court was of the opinion that it was a sale of an interest in land and void because not in writing. We agree with the conclusion of the trial court. There is much confusion in the decisions as to when a sale of things attached to land, but which are to be removed, is to be considered a sale of land, and when a sale of personal property. It is quite generally held that a contract to sell things affixed, but which the seller is to detach and pass title after separation, is an execu- tory contract to sell personal propérty. Wilson v. Fuller, 58 Minn. 149, 59 N. W. 988; 1 Benjamin on Sales, § 133. Some decisions hold that a contract may partake of that nature, if the parties so intend, even though the buyer is to make the separation, and that the fact that the vendee is to make the separation is important only as bearing upon the intent of the parties as to when title is to pass. Wetkopsky v. New Haven Gas Light Co., 88 Conn. 1, 90 Atl. 30, Ann, Cas. 1916 D, 968.7 26 See In re Bloor’s Estate (Wash.), 197 Pac. 614 (1921). 1274 “Cases oN THE Law or CONTRACTS Where the negotiation contemplates an immediate transfer of title, there is, as to natural products, such as trees and grasses, a line of well- considered decisions, holding that if the thing sold is to be immediately, or within a reasonable time, severed from the soil, and is not to be left to attain additional strength or increase from the land, the sale is one of personal property and not of an interest in land. Chaflin v. Car- penter, 4 Metce. (Mass.) 580, 38 Am. Dec. 381; Banton v. Shorey, 77 Me, 48; Leonard v. Medford, 85 Md. 666, 37 Atl. 365, 37 L. R. A. 449; Marshall v. Green, L. R. 1 C. P. D. 35.6 On the other hand, there are well-considered decisions holding that, inasmuch as such natural products are part of the land, a sale which contemplates the transfer of a present estate or interest is necessarily a sale of an interest in land. Bent v. Hoxie, 90 Wis. 625, 64 N. W. 426; Green v. Armstrong, 1 Denio 550; Stuart v. Pennis, 91 Va. 688, 22 S. KE. 509. This court is committed to this doctrine. Herrick v. Newell, 49 Minn. 198, 51 N. W. 819; Kirkeby v. Erickson, 90 Minn. 299, 96 N. W. 705, 101 Am. St. Rep. 411; Kileen v. Kennedy, 90 Minn. 414, 97 N. W. 126; La Plant v. Loveland, 142 Minn. 89, 170 N. W. 920. 26 The usual distinction as to crops is between fructus naturales and fructus industriales, the former being treated as land and the latter as goods, for ‘statute of frauds purposes. As to trees, “the conflict among the American cases on the subject cannot be wholly reconciled. In Massachusetts, Maine, Maryland, Kentucky and Connecticut sales of growing trees, to be presently cut and removed by the vendee, are held not to be within the operation of the fourth section of the statute of frauds. * * * The courts of most of the American states, how- ever, that have considered the question, hold expressly that a sale of growing or standing timber is a contract concerning an interest in lands, and within the fourth section of the statute of frauds. * * * “In all its other relations to the affairs of men, growing timber is regarded as an integral part of the land upon which it stands; it is not subject to levy and sale upon execution as chattel property; it descends with the land to the heir, and passes to the vendor with the soil. Jones v. Timmons, 21 Ohio St. 596. Coal, petroleum, building stone, and many other substances constituting integral parts of the land, have become articles of commerce, and easily de tached and removed, and,. when detached and removed, become personal prop- erty, as well as fallen timber; but no case is found in which it is suggested that sales of such substances, with a view to their immediate removal, would not be within the statute. Sales of growing timber are as likely to become the subjects of fraud and perjury as are the other integral parts of the land, and the question whether such sale is a sale of an interest in or concerning lands should depend not upon the intention of the parties, but upon the legal character of the subject of the contract, which, in the case of growing timber, is that of realty. This rule has the additional merit of being clear, simple, and of easy application,—qualities entitled to substantial weight in choosing between conflicting principles.” Bradbury, J., in Hirth v. Graham, 50 Oh. St. 57, 64-65 (1893). See also, Gibson v. Stalnaker (W. Va.), 106 S. BE. 243 (1921). On the sale of growing trees as a sale of an interest in land within the statute of frauds, see 9 Ann. Cas. 192, note; 18 Ann. Cas. 971, note; Ann. Cas. 1916 A, 243, note; 19 L. R. A. 721, note; 13 L. R. A. (N. 8S.) 278, note; 128 Am. St. Rep. 875, note. Contracts WITHIN THE StaTUTE or FRAupDS 1275 In the Kirkeby case, but not in the others cited, it was also said that the part of the agreement which gave the vendee the right to enter upon and occupy the vendor’s land for the purpose of cutting and removing the grass confers an interest in land. We hesitate to reaffirm this rea- soning. The right to enter seems more properly a mere license, effec- tual until revoked. Herrick v. Newell, 49 Minn. 198, 200, 51 N. W. 819; Volk v. Olsen, 54 Mise. Rep. 227, 104 N. Y. Supp. 415; Whitmarsh v. Walker, 1 Mete. (Mass.) 313.27 But we approve the conulé reached, on the ground that the standing grass was real estate, and the sale of it the sale of an interest in land. There is a difference in principle between trade fixtures of a tenant and either natural products or buildings. Trade fixtures are for most purposes personal property.*8 Some decisions hold generally, in transac- tions between seller and buyer, that ‘‘in applying the statute of frauds, buildings are not classed with forest trees, but with growing crops, nursery trees and fixtures attached to realty.’’ Long v. White, 42 Ohio St. 59. Some hold there can be no difference in principle, between fixtures attached to the building, and the building itself if it is to be sev- ered or torn down and removed. Wetkopsky v. New Haven Gas Light Co., 88 Conn. 1, 90 Atl. 80, Ann. Cas. 1916 D, 968. Some authorities, holding contracts for sale of buildings to be contracts for sale of person- alty, limit their reference to houses to be immediately removed. Wet- kopsky v. New Haven Gas Light Co., 88 Conn. 1, 90 Atl. 30, Ann. Cas. 1916 D, 968; Tyler on Fixtures, p. 729. We are not prepared to say there may not be some difference between buildings and natural products, though we might find it difficult to construe the statute as permitting an oral sale of the owner’s house but requiring a writing on the sale of a shade tree. We are not prepared to say that there can be no difference between buildings and fixtures ' 27“A license is a permission or authority to enter the land and do certain acts or series of acts, the parties not intending to convey any interest in the land; and it is well settled that such a license need not be in writing, under the statute of frauds. Thus a license to enter land and to cut timber, or to gather the growing crops, is valid though not in writing. Whitmarsh v. Walker, 1 Met. 313.” Morton, C. J., in Johnson v. Wilkinson, 139 Mass. 3 (1885). Bay of Berwyn v. Berglund, 255 Ill. 498 (1912); Newton v. Long, 107 Miss. 349 (1914). 28 As ‘to trade fixtures, see Lee v. Gaskell, 1 I. B. D. 700 (1876); Moody & Jemison v. Aiken, 50 Tex. 65 (1878); South Baltimore Co. v. Muhlbach, 69 Md. 395 (1888). It seems clear, as Professor Williston has contended for years, that while affixed they are real property with a right on the part of the tenant to sever and make them personalty; that a sale by the tenant to the landlord is merely a surrender of the right to sever; and that a contract sale by the tenant to third parties is a contract to transfer the title to them on severance, i.e, as goods, so is a contract to sell goods. Williston on Sales, § 65; 3 Willis- ton on Contracts, § 519. But as Professor Williston there admits: “This dis- tinction has not yet been sufficiently observed by the cases.” 1276 CasES ON THE LAW OF CONTRACTS attached to them, as for example between a large building of steel, concrete, brick or stone, and hooks on a wall, but whether there are or not, we are of the opinion that there is but one safe or satisfactory rule to apply to such a building as is here involved, namely, a large and substantial two-story frame dwelling built on a permanent stone foundation, not to be immediately removed, and that is to hold that a sale or a contract of sale giving to the buyer a present interest and a right of removal is a sale of an interest in land, which under our statute must be in writing. This we think is in accord with the weight of the authority. Hogsett v. Ellis, 17 Mich. 351; Meyers v. Schemp, 67 IIL. 469; Volk v. Olsen, 54 Mise. Rep. 227, 104 N. Y. Supp. 415; White v. Foster, 102 Mass. 375, 378; Dudley v. Foote, 63 N. H. 57, 56 Am. Rep. 489; Rogers v. Cox, 96 Ind. 157, 49 Am. Rep. 152; Johnston v. Mortgage & Trust Co., 129 Ala. 515, 521, 30 South, 15, 87 Am. St. Rep. 75; Hutchins v. Masterson, 46 Tex. 551, 555, 26 Am. Rep, 286; Lavery v. Pursell, 39 L. R. Ch. Div. 508; Williston on Sales § 66. We hold that since there was no writing there was no binding con- tract and plaintiff has no property rights in the building or in the in- surance money. Judgment affirmed.?9 HARRIET McCULLOUGH v. JANET FINLEY. (Supreme Court of Kansas, 1904. 69 Kans. 705, 17 Pac. 696.) Burcu, J. James McClaren died in 1869, leaving a will devising to his widow a life-estate in the land in controversy, consisting of an eighty-acre tract, with remainder in fee to his daughters, the plaintiff and the defendant. On March 16, 1874, these sisters orally agreed to divide the land, the plaintiff taking the south forty acres and the defendant the north forty acres, and on the same day the widow con- veyed her interest in the respective tracts to her daughters by sep- arate deeds. The husband of the defendant was also named as grantee in the deed to the defendant of her share of the land. The defendant took possession of her part of the land, and has at all times since been in the actual possession of it, claiming to be the owner; has made lasting and valuable improvements upon it; has paid all taxes assessed against it, and has received all the rents and profits accruing from it since 1874. The plaintiff lived on or near the tract deeded to her for a few years and then sold it, keeping the proceeds as if the land had been her own. She has known since 1874 that her sister claimed the 28 On contract for the sale of a building as a contract for the sale of realty within the statute of frauds, see Ann. Cas. 1916 D, 970, note. On what amounts to a contract for the sale of land within the meaning of the statute, see 102 Am. St. Rep. 230, note, ConTRACTS WITHIN THE STATUTE oF FRAUDS 1277 exclusive right to the north forty, and throughout the years made no claim upon it of any kind until she commenced this suit, in February, 1902. The devisee of the life-estate died in 1888. The plaintiff now denies that her verbal agreement and her conduct and the conduct of her sister in reliance upon the agreement are sufficient to exclude her from title to, and possession of, the land. | The courts have little forbearance toward claims so destitute of moral and conscientious quality. The statute of frauds was enacted to prevent, and not to foster, injustice, and the rule is settled in this state that pos- session, the payment of taxes, and permanent improvement under a parol agreement, with knowledge and acquiescence, remove the contract from the operation of the statute. Holmden v. Janes, 42 Kan. 758, 21 Pace. 591; Newkirk v. Marshall, 35 id. 77, 10 Pac. 571; Holcomb v. Dowell, 15 id. 378.89 Upon the same principle a parol partition acted 30“The authorities in this country as to what acts of part performance will be sufficient, in the view of a court of equity, to take an oral contract for the sale or lease of lands out of the statute are not altogether harmonious, and this court has not been disposed to carry the doctrine of part performance quite to the extent to which it has been carried by the decisions of some of the courts. Certain acts of part performance, however, have uniformly been held sufficient. Thus, we have held in many cases, that taking possession of the land with the consent of the vendor, paying the purchase money, and making lasting and valuable improvements, are sufficient acts of part perform- ance to justify the specific performance of an oral contract of purchase. Thorton v. Heirs of Henry, 2 Scam. 218; Updike v. Armstrong, 3 id. 564; Stevens v. Wheeler, 25 Ill. 300; Blunt v. Tomlin, 27 id. 98; Mason v. Bair, 33 id. 194; Fleming v. Carter, 70 id. 286; Laird v. Allen, 82 id. 43; McNamara v. Garrity, 106 id. 384; Gorham v. Dodge, 122 id. 528. In other cases it is held that taking possession and paying the purchase money is sufficient. Fitzsim- mons vy. Allen’s Admr., 39 Ill. 440; Temple v. Johnson, 71 id. 13; Ferbrache v. Ferbrache, 110 id. 210; Ramsey v. Liston, 25 id. 114; Shirley v. Spencer, 4 Gilm. (Ill.) 583. In other cases it is held that taking possession and making valuable improvements is sufficient part performance. Keys v. Test, 33 Il. 316; Kurtz v. Hibner, 55 id. 514; Wood v. Thornly, 58 id. 464; Langston v. Bates, 84 id. 524; Kaufman v. Cook, 114 id. 11; Bohanan v. Bohanan, 96 id. 591; Bright v. Bright, 41 id. 97; Padfield v. Padfield, 92 id. 198.” Bailey, J., in Morrison v. Herrick, 130 Ill. 631, 640, 641 (1889). “He [the appellant] invokes the rule that acts relied on as part performance must be referable to and done in pursuance of the contract, and seems to assume that this includes only acts which were stipulated to be done in the contract itself, and as a part thereof. We do not understand this to be the law. While the phrase ‘part performance’ is commonly used as a short and convenient statement of the general ground upon which verbal agreements regarding real estate are enforced, yet the whole doctrine rests upon the principle of fraud, and proceeds upon the idea that the party has so changed his situation, on the faith of the oral agreement, that it would be a fraud upon him to permit the other party to defeat the agreement by setting up the statute. Hence the term ‘part performance’ falls far short of expressing the whole doctrine and theory of courts of equity in this matter. The change of situation necessary to create this equitable estoppel must, of course, have been made in reliance upon, and in pursuance of, the oral agreement, and so con- 1278 Cases ON THE Law or ConTRACTS upon in this case will not be disturbed. Crimmins v. Morrisey, 36 Kan. 447, 13 Pac. 748; Duffey v. Rafferty, 15 id. 9,13; 21 A. & E. Encycl. of L., 2d ed., 1187 ef seq. It is said that the defendant’s possession must be referred to the deed from her mother as life-tenant and that she could not hold adversely to her cotenant of the fee. This proposition ignores the agreement between the parties under which the land was divided between them, and under which the plaintiff surrendered all right to the defendant’s portion. The cotenanecy of the fee was then at an end. The plaintiff no longer held any estate in remainder in the defendant’s part of the land, and the defendant was at perfect liberty to take title to the life-interest in her own portion and held the entire estate adversely to the plaintiff. At the time the agreement to divide the land was made, the defendant lacked a month of being of age. The contract, however, was voidable only and became binding when the defendant failed to disaffirm within a reasonable time after attaining majority. (Gen Stat. 1901, Sec. 4183.) The case of Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 73 Am. St. Rep. 334, has no application because the partition in this case was between owners of the fee, and not between life-tenants on one side and remainder-men on the other. The findings of fact are assailed as unsupported by the evidence. In a few unimportant particulars the court may have embodied in its find- ings some facts which the record only suggests, but every fact essential to a judgment in favor of the defendant was abundantly sustained. The facts relied on as an estoppel to the plaintiff’s recovery were suf- ficiently pleaded, and the judgment of the district court is Affirmed.3+ nected with the performance of the contract that, from the nature of the case, the defendant should understand it was done in reliance upon his agreement. The acts done must be related to and connected with the contract, and the defendant’s performance of it. * * * But this change of situation is not confined to doing what the contract stipulated,—that is, ‘part performance,’ strictly so called.” Mitchell, J., in Brown v. Hoag, 35 Minn. 373 (1886). In a few American jurisdictions, courts of equity refuse to read a part per- formance exception into the statute. “This court has repeatedly decided that a bill to enforce a parol contract for the sale of land cannot be maintained in this state, and that part performance will not take a parol sale of lands out of the statute of frauds. The statute contains no exceptions in regard to such contracts, and it is not for us to create exceptions where none exist in the statute.” Peyton, J., in McGuire v. Stevens, 42 Miss. 724, 732 (1869). “In four states the doctrine of part performance is wholly rejected. These states are Kentucky, Mississippi, North Carolina and Tennessee. But in at least two of those states the vendee under the oral contract may enforce in equity a lien for the purchase-money paid and for the value of his improvements, after accounting for rents and profits.” 36 Cyc. 648. 31“‘According to the English authorities and also the decisions in some states, a partition by agreement must, to be valid under the statute of frauds, be in writing. In perhaps a majority of the states, however, a parol partition is upheld when followed by possession by the various tenants of the portions Contracts WITHIN THE STaTUTE or FRAvDS 1279 JOHN H. DOUGHERTY v. HERALD CATLETT., (Supreme Court of Illinois, 1889, 129 Ill. 431, 21 N. B. 932.) Baey, J.t The only questions presented by this appeal are those arising upon the plea of the statute of frauds. It appears from the declaration that, prior to the date of the contract upon which the suit is brought, the plaintiff and defendant entered into an agreement in writing, by which the defendant, in consideration of a certain sum of money then paid to him by the plaintiff, and of certain other payments thereafter to be made, agreed to convey to the plaintiff certain lands in Vermilion county; that the plaintiff thereupon entered into possession of said lands; that while so in possession he sold an undivided half of the lands to one McCabe, the defendant conveying said undivided half to McCabe at the plaintiff’s request; that after such conveyance was made and while the plaintiff was still in possession of the remaining un- divided half, the plaintiff and defendant entered into a verbal agree- ment whereby the plaintiff agreed to sell and surrender to the defendant said undivided half still in his possession, the defendant agreeing, in consideration thereof, to pay the plaintiff the sum of $3,500; that the plaintiff thereupon surrendered to the defendant the possession of said undivided half of said premises, and that the defendant retained the same in his possession, and afterwards sold and conveyed it to a third person, with the plaintiff’s knowledge, for the sum of $4,000. The suit is brought to recover of the defendant the consideration of said verbal agreement, The second section of the statute of frauds of which the defendant seeks by his plea to avail himself is as follows: ‘‘No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum allotted to them,—a view which is based on different ground by different courts. Thus it is stated that such a partition is valid in the case of a ten- ancy in common because it involves merely a severance of the. possession between the various owners, and not a transfer of title, as this is already severed. Sometimes it is stated that a partition will be presumed from the exclusive possession by one tenant of a part of the premises for a considerable length of time. Occasionally the state statute of frauds, applying in terms only to a sale of lands, was held not to include a partition. And sometimes the theory appears to be that one taking part in such a parol partition is estopped to deny. its validity as against one who has received his share and erected improvements thereon. A parol partition, followed by the taking of possession of their allotted part by the various cotenants, has been upheld in courts exercising equitable powers on the ground that the partition is in effect an agreement for the mutual transfer of the various interests, and that the taking of possession constitutes such part performance as takes the case out of the statute and authorizes a decree for specific performance.” 1 Tiffany on Real Property, 2 Ed., pp. 700-702. {t The statement of facts is omitted. 1280 CASES ON THE LAW OF CONTRACTS or note thereof shall be in writing and signed by the party to be charged therewith, or some other person thereunto lawfully authorized in writ- ing signed by such party.”’ The execution by the defendant to the plaintiff of the written con- tract of sale alleged in the declaration vested in the plaintiff an equitable interest in the lands therein described, and there can be no doubt that such interest was an interest in or concerning lands within the meaning of said statute. That the statute of frauds embraces equitable as well as legal interests in land is well settled. Browne on Statute of Frauds, § 229. As said by Mr. Justice Story in Smith v. Burnham, 3 Sumner 4385, ‘‘A contract for the conveyance of lands is a contract respecting an interest in lands. It creates an equitable estate in the vendee in the very lands, and makes the vendor a trustee for him. A contract for the sale of an equitable estate in lands, whether it be under a contract for the conveyance by a third party, or otherwise, is clearly a sale of an interest in lands, within the statute of frauds.’’ See also Richards v. Richards, 9 Gray (Mass.) 313; Hughes v. Moore, 7 Cranch (U. 8.) 176; Simms v. Killian, 12 Ired. (N. Car.) 252; Dial v. Crain, 10 Tex. 444; Catlett v. Dougherty, 21 Ill. App. 116; Jevne v. Osgood, 57 Ill. 340. The plaintiff contends that the acts performed by him under his oral contract to sell and surrender his interest‘in said lands to the defendant constitute such a performance as should take the case out of the statute. The only act of performance alleged in the declaration is the delivery of possession of the premises sold to the defendant. There is no allegation of any cancellation or surrender of the defendant’s contract to convey the lands to the plaintiff on payment of the purchase money, nor is the cancellation of said contract averred, either directly or inferentially. It will therefore be presumed that said contract is still held by the plain- tiff as a valid and subsisting legal obligation against the defendant. The averments of the declaration, therefore, as we interpret them, show a partial and not a complete performance. The doctrine of part performance is a doctrine of equity and does not prevail at law. Mr. Browne, in his Treatise on the Statute of Frauds § 451, says: ‘‘It is settled by a long series of authorities, that a part execution of a verbal contract within the statute of frauds has no effect at law to take the case out of its provisions,’’ and in support of this statement a large number of cases are cited in a note. To same effect see 2 Reed on the Statute of Frauds, § 548, and authorities cited in note. The same rule has been frequently announced by this court. Warner v. Hale, 65 Ill. 395; Wheeler v. Frankenthal, 78 id. 124; Creighten v. Sanders, 89 id. 543. The plaintiff’s contention is, that the facts averred in the declaration amount to a rescission of the defendant’s contract to convey, and that such rescission, coupled with a delivery of possession, should be held to be tantamount to a complete performance. The difficulty with this view is that no rescission is averred, either directly or inferentially. The Contracts WITHIN THE StTaTuTE oF FRAvps 1281 only averment is that the plaintiff had surrendered the possession to the defendant who already had the legal title, and that the defendant subse- quently conveyed the land, with the plaintiff’s knowledge, to a third person. A surrender of possession did not necessarily involve a rescis- sion of the defendant’s contract, since such surrender of possession may be entirely consistent with an intention on his part to retain the defend- ant’s contract with a view of subsequently enforcing it against him. The pleading must be construed most strongly against the pleader and as the declaration contains no averment of a rescission or of any facts from which a rescission must be necessarily implied, it must be pre- sumed that none was made or intended. If the plaintiff relied on the theory of a rescission he should have averred it, and not having done so, he cannot recover upon a theory not supported by his declaration. We are unable to see that any special force is to be given, in this con- nection, to the averment that the defendant had conveyed the land to a third person with the plaintiff’s knowledge. It might perhaps have been different if such conveyance had been made with the plaintift’s consent and approbation. The legal effect of the conveyance, so long as it does not appear to have been made with the plaintiff’s consent, is merely to place it out of the defendant’s power to perform his contract to convey the land to the plaintiff, but it has no tendency to work a rescission or cancellation of the contract, or to absolve the defendant from his liability thereon, and this is in no way affected by the mere - knowledge of the plaintiff that the conveyance was being made. We are of the opinion that the demurrer to the defendant’s plea was properly overruled. The judgment of the appellate court will therefore be affirmed. Judgment affirmed.®2 GRAESER v. GORDON Et At. (Supreme Court of Iowa, 1920. 179 N. W. 852.) Action for services rendered resulted in judgment as prayed. The defendants appeal. Affirmed. Lapp, J.83 The petition alleges that defendants employed plaintiff to obtain an easement over ‘‘the south thirty feet of Holcomb Avenue, West, across outlot A, lying between Home Park addition and the east bank of the Des Moines river, now included in the city of Des Moines, 32 That an oral rescission is invalid under the statute because of the equitable interest in the land in the vendee under the written contract, see Barrett v. Durbin, 106 Ark. 332 (1913); Sanborn v. Murphy, 86 Tex. 437 (1894). But see Eley v. Jones, 101 Kans, 572 (1917). On rescission’ of written contract within the statute of frauds by oral agree- ment, see 9 B. R. C. 443, note; 14 Ann. Cas. 729, note. 33 Part of the opinion is omitted. 1282 CASES ON THE LAW OF CONTRACTS lowa,’’ to be used in. conveying: ice from the river to icehouses, and that for services so rendered defendants promised to pay plaintiff the sum of $300; that plaintiff procured the said easement for defendants on conditions approved by them, and demanded judgment accordingly. De- fendants interposed a general denial, and pleaded that the contract, if any, was ‘‘for the creation, transfer, and conveyance of an interest in real estate,’’ and that the contract was not.in writing, and may not be proven orally. * * * Gordon admits in his affidavit ‘‘that defend- ants agreed with plaintiff that they would pay him $300 if he would secure for them from the city access to said river across said strip of ground for any and all purposes whatsoever, and especially for obtain- ing sand and gravel,’’ but denies any agreement in his testimony, while plaintiff says he undertook to obtain only a right of way for the ice. In either event the contract might have been found to have been for serv- ices, and not for the creation or transfer of an interest in land. An agreement to procure a conveyance is not within the statute of frauds. Bannon v. Bean, 9 Iowa 395; Cooley v. Osborne, 50 Iowa 526.34 The jury might well have found the contract to have been for services such as were rendered, and not for the purchase of an easement. See Miller v. Davis, 175 N. W. 11. Affirmed.*5 JULIUS SPEYER y. JOSEPH DESJARDINS er at. (Supreme Court of Illinois, 1892. 144 Ill. 641, 32 N. E. 283, 36 Am. St. Rep. 473.) Baker, J36 * * * The theory of the bill is that there is a part- 84It is a question of fact whether service is contracted for or an interest in land is being bought from the so-called agent. In Cooley v. Osborne an agree- ment by mortgagees to foreclose the mortgage and convey to another the land so acquired was held not within the statute. Bannon v. Bean, where the agree- ment was to procure a conveyance of lands by another, may be supported, while Cooley v. Osborne may not. 35 ‘‘The lessees, by the written instrument, agreed to drill and operate for oil, and of what they would thus produce from the wells and thereby severed from the realty, they were to yield and pay to the lessor one-sixth. Hence, when the parties entered into the parol contract as found by the lower court, {namely, that if the lessees, who had given notice of intention to surrender the lease would continue to drill and operate the lands for oil the royalty payable should be one-eighth of the oil produced and saved instead of the one-sixth provided. in the leasé, with certain increases in royalty in events which did not happen] they were not contracting for an interest in or con- cerning real estate, but for a division of personal property in proportions different from those named in the written lease. The royalty is an incident to the written instrument as a means of compensation to the lessor for the grant and privileges therein conveyed.” Price, J.. in Nonamaker v. Amos, 73 Oh. St. 163, 171 (1905). 36 The statement of facts and parts of the opinion are omitted. Contracts WITHIN THE StatuTE or FrRavups 1283 nership between appellant and Desjardins, and that the lots and the buildings erected thereon are partnership property; and the claim of appellant is that the statute of frauds has no application to such a case. It is well settled that an oral contract by two or more persons to pur- chase real estate for their joint benefit is within the statute. But it has been a mooted question whether a partnership can be created by parol for the purpose of buying and selling lands for profit. There is a very considerable conflict in the cases upon that question, but the decided weight of authority seems to have answered it in the affirmative. That an agreement for a partnership, for the purpose of dealing and trading in lands for profit, is not within the statute, and that the fact of the existence of the partnership, and the extent of each party’s interest, may be shown by parol is now quite generally accepted as the established doctrine. Dale v. Hamilton, 5 Hare 369; Essex v. Esséx, 20 Beav. 449; Holman v. McCrary, 51 Ind. 358; Richards v. Grinnell, 63 Iowa 44; Chester v. Dickerson, 54 N. Y. 1; Black v. Black, 15 Ga. 449; Fall River Whaling Co. v. Borden, 10 Cush. (Mass.) 458; Bunnel v. Tainter, 4 Conn. 568; Pennybacker v. Leary, 65 Iowa 220; Gibbons v. Bell, 45 Tex. 417; Perronett v. Pyme, 34 N. J. Eq. 26. * * * The cases we have cited, and many others, proceed upon the theory that the real estate of a partnership is treated and administered in equity, as between partners and for all the purposes of the partnership, as personal property and partnership assets. From its status in equity, of being stock in trade and partnership assets, it is readily deducible that it is immaterial whether the legal title to the partnership land is in all the partners, or in one, or in some number less than the whole; that it is not material whether the partnership was already established and engaged in its business when the land was acquired and brought into the partnership stock, or whether the partnership was established and the land acquired and put in contemporaneously, or whether the part- nership was established for the express and special purpose of dealing in and making profit out of the very land itself which is in question; and that the facts of the existence of the partnership, and that the lands were acquired and used for partnership purposes, being shown by parol, it is immaterial whether such partnership was formed by written articles or by parol. Browne’s Stat. Frauds, § 261a. The doctrine of the cases we have cited, so far as it involves the pro- visions of the statute of frauds, seems to proceed upon the ground of a trust implied from the relation of co-partnership. The matter here at issue is a close question and beset with difficulties whichever view is taken. It seems difficult to demonstrate, to a certainty, that the doctrine above stated should prevail and take partnership agreements and partnership property out of the statute, and equally difficult to satisfactorily demonstrate that such agreements are within the statute, as held in Smith v. Burnham, 3 Sum. (U. 8.) 437; Bird 1284 CASES ON THE LAW OF CONTRACTS v. Morrison, 12 Wis. 138, and other cases.87 Upon the whole, we are inclined to follow the view which seems to obtain in England and in most of the states of the Union, that partnership agreements and part- nership lands, as between the partners and for all partnership purposes, are not within the statute. The bill in the case at bar shows that the parties-agreed to purchase the five lots and erect buildings thereon, each party contributing one- half of the money necessary for the enterprise, the lots and buildings then to be sold, and the profit or loss arising from the enterprise to be divided equally between them. This was manifestly a partnership agreement. The bill then shows that the parties purchased the lots ‘‘in pursuance of the agreement,’’ and that, at the same time and as a part of the same transaction, money was raised by placing mortgages on the lots and the purchase price of the lots paid with such money. Whose money, then, was it that was applied in payment of the lots? It is admitted that, by the terms of the partnership agreement, all liabilities that the partners, or either of them, should create in furtherance of the enterprise, were to be, as between the partners, treated and con- sidered as joint liabilities to be met and shared by them in equal shares. This would seem to stamp the money that was received on the mort- gages and paid on the lots as partnership money. Since, then, the money, by force of the agreement, was partnership money it follows that, when $3,750 of it was, at the time of the purchase, paid as the purchase money of the lots, a resulting trust at once arose by operation of law, out of the transaction, in favor of the partnership. See Wallace v. Carpenter, 85 Ill. 590. 37See also Langley v. Sanborn, 1385 Wis. 178 (1908); Huntington v. Bur- deau, 149 Wis. 263 (1912). So in Michigan it has been said, that “A partnership agreement to buy and sell lands generally. falls within the statute of frauds. Nester v. Sullivan, 147 Mich. 498, 111 N. W. 85, 1033, 9 L. R. A. (N. S.) 1106. And this is likewise true when but one transaction is involved, and where it may be treated as a joint adventure only. Tuttle v. Bristol, 142 Mich. 148, 105 N. W. 145.” Fel- lows, J., in Morrison v. Meister (Mich.), 180 N. W. 395, 396 (1920). But a contract between real estate men to divide commissions is different. “We do not regard the contract as constituting a partnership agreement. It was no more nor less than an agreement between real estate agents to divide and share commissions in certain proportions accruing from the sale of a specific parcel of real estate—an arrangement very common among real estate agents. To hold that this agreement constituted a partnership between the parties would be to say that every agreement between real estate agents for a division of commissions in the event of a sale of a specific parcel of real estate constituted such real estate agents partners—a proposition which we apprehend is without support in reason or authority. Neither did it involve any interest in real estate within the meaning of sections 2302 or 2304, Stats. It created no estate or interest in, nor any trust or power over or concerning, lands, nor was it a contract for the sale of any lands or any interest in land; so that, whether or not it was a partnership agreement, it was not affected by the statute of frauds.” Owen, J., in Etscheid v. Thiefenthaler (Wis.), 177 N. W. 887, 888 (1920). Contracts WITHIN THE StTaTUTE or FRAUDS 1285 Our conclusion, therefore, is that, without regard to the question whether or not the partnership agreement mentioned in the bill of com- plaint was in writing, a proper case for the interposition of a court of chancery was stated in the bill, and it was error to sustain the demurrer and dismiss said bill. The decree is reversed, and the cause is remanded with directions to overrule the demurrer. Decree reversed.38 STANDIFER er au. v. COMBS gsr at. (Court of Appeals of Kentucky, 1919. 184 Ky. 708, 212 S. ‘W. 921.) Cuarke, J.3° Leslie Standifer filed this action in equity to quiet his title to 150 acres of land lying on First creek in Perry county, Ky., 38In Goldstein v. Nathan, 158 Ill. 641, 64 (1895), Phillips, J., said: “There is a wide distinction, however, in an agreement for one to become interested in the profits of certain land already purchased and owned by another, and an agreement to share in the benefits to be derived from lands to be thereafter acquired. Where lands are purchased by a partnership and paid for with the moneys thereof, or acquired as partnership property in the usual course of business of such partnership, a court of equity may treat such real estate as partnership funds, and, as a consequence, as personal property. This rule grows out of the nature of the partnership relation, and is rendered necessary for the purpose of doing justice between the parties, or between the firm and others doing business and having dealings therewith. (Black v. Black, 15 Ga. 445.) In this case, the land was not purchased by appellant in the name of appellee and the purchase money furnished by appellant. It is not a case of a purchase of lands paid for out of partnership funds and a deed taken to appellee. No partnership funds existed. There was therefore no resulting trust in appellant, and whatever interest he is alleged by the bill to have acquired was by virtue of his contract. The lot was owned by appellee at the time of the contract and paid for by his money, and any interest in the land or the proceeds growing out of the alleged contract cannot be severed and made to apply to the profits as distinct from the land itself. If the appellant acquired an interest in appellee’s lot by virtue of his contract, it attached upon the contract being made. If such interest attached and the land had not been sold, the appellant would have been entitled to his moiety therein. Had appellee died before sale, and appellant had an interest in the lot, he would have the right to sell and wind up the partnership affairs. It is only by having acquired an interest in the lot that he could have acquired an in- terest in the proceeds of the sale. We hold, that where two separate owners of real estate, purchased by their separate funds, enter into a co-partnership with reference to a sale thereof, by a parol contract, such contract is within the statute of frauds. McCormick’s Appeal, 57 Pa. St. 54; Vose v. Strong, 144 Ill. 108; Smith v. Burnham, 3 Sum. (U. 8S.) 435.” On partnership agreements for the purchase and sale of lands as within the statute of frauds, see 16 L. R. A. 745, note; 4 L. R. A. (N. S.) 427, note; 33 L.R. A. (N. 8S.) 883, note; L. R. A. 1915 A, 521, note; Ann. Cas. 1913 E, 567, note, 39 Part of the opinion is omitted. 1286 CASES ON THE LAW OF CONTRACTS alleging both title to and possession of same as was necessary he should do to maintain the action. Section 11, Kentucky Statutes. * * * There is no evidence whatever of an actual adverse possession by plaintiff of any part of the land in controversy for any continuous pe- riod, but an attempt was made to prove the establishment of an agreed division line between his and Elhanon Combs’ lands, and this proof, it is argued by his counsel, is sufficient to establish both his title to and possession of the land up to the division line, including the land in con- troversy, under authority of Turner v. Bowens, 180 Ky. 755, 203 8. W. 749; Le Moyne v. Hays, 145 Ky. 415, 140 8. W. 552; Rice v. Blair, 161 Ky. 280, 170 S. W. 657; Warden v. Addington, 131 Ky. 296, 115 S. W. 241; and Garvin v. Threlkeld, 173 Ky. 262, 190 8. W. 1092. These cases are but a few of the many from this court wherein an agreed division line which had been established, marked, and acquiesced in for a considerable length of time by the parties has been upheld, but, as was pointed out in the recent case of Bordes v. Leece, 183 Ky. 146, 208 S. W. 780: ‘‘The result of such an agreement must not be the mere transfer of the lands owned by one party to the other, as this is in contravention of the statute against frauds. The principle upon which such an agree- ment is upheld and enforced is that the mere establishment of the true dividing line is not a sale or transfer of land by one party to an- other, and hence not an agreement within the statute of frauds, requir- ing it to be in writing and signed by the parties to be bound, but is an ascertainment and demarcation of the lands already owned by the par- ties, and is enforced in the interest of putting an end to controversies.’’ And as said in Garvin v. Threlkeld, supra: ‘*While the validity of parol agreements to settle disputed boundar- ies was long resisted on the ground that, in effect, they passed the title to real property without the solemnities required by the statute, it is now settled that, where the dividing line is uncertain and there is a bona fide dispute as to its location, and the parties agree on the divid- ing line and execute the agreement by marking the line or building a fence thereon, such an agreement is not prohibited by the statute of frauds, nor is it within the meaning of the provisions of the law that regulate the manner of conveying real estate. The reason for the rule is that the parties do not undertake to acquire and to pass the title to real estate, as must be done by written contract or conveyance. They simply by agreement fix and determine the situation and location of the thing that they already own; the purpose being simply by some- thing agreed on to identify their several holdings and to make certain that which they regarded as uncertain.’’ Plaintiff utterly failed to bring his claim within the rule of these cases, because not only was the evidence in our judgment insufficient upon the question of any agreement upon a division line and its recogni- tion as such by the parties, but there is no evidence whatever of a bona Contracts WITHIN THE Statute or Fraups 1287 fide or any kind of a dispute as to the ownership of this land when it is claimed the asserted division line was agreed upon. Plaintiff neither exhibited nor claimed any title or pretense of title to any of the land now seemingly for the first time in dispute, except a denied parol pur- chase from Elhanon Combs which he did not plead, and which, if made, was clearly within the statute of frauds and unenforceable. The only acts of ownership of possession he attempted to prove was an occasional cutting of timber on the land. It is therefore apparent plaintiff failed to prove either title to or possession of the land, and the chancellor did not err in dismissing the petition. Wherefore the judgment is affirmed.*® JOHN DOYLE v. JOHN DIXON. (Supreme Judicial Court of Massachusetts, 1867. 97 Mass. 208, 93 Am. Dec. 80.) Contract for a breach of an agreement by the defendant as part of the sale of his grocery business at Chicopee. The defendant requested the judge to rule that the plaintiff could not recover upon an oral agreement not to go into the grocery business in 40 “Where the dividing line is uncertain, and there is a bona fide dispute as to its location between adjoining landowners, who agree on the dividing line ‘and execute the agreement by marking the line or building a fence thereon, * * * such an agreement, followed by possession with reference to the boundary so fixed, is conclusive on the parties, although the possession may not have been for the full statutory period, it being sufficient to show that the dividing line was actually established, and thereafter recognized or ac- quiesced in by the parties for a considerable time. Garvin v. Threlkeld, 173 Ky. 262, 190 S. W. 1092.” Clay, C., in Holbrooks v. Wright, 187 Ky. 732, 220 S. W. 524, 527 (1920). See “Payne v. McBride, 96 Ark. 168, 131 S. W. 463, Ann. Cas. 1912B, 661, and other cases decided by this court, holding in effect that, the owners of adjoining lands being in dispute as to the dividing line, their oral agreement as to the boundary establishes the line, which, when followed by possession with reference thereto, is conclusive upon them. “The agreements in cases of this kind do not operate as a conveyance, so as to pass title from one to another, but they proceed upon the theory that the true boundary line is in dispute, and that the agreement serves to fix the true line to which the title of each extends, The parties thereafter hold up to the line as they did before by virtue of their respective deeds. The theory is that the parties have simply by agreement settled the location of their boundary lines, which was in doubt, instead of having the court settle it for them. So when they orally agree upon the line, and the agreement is accom- panied by possession to the agreed line, such agreement will be valid and bind- ing.” Hart, J., in Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348, 349 (1920). On oral agreements as to boundary line as within the statute of frauds, see 8 Ann. Cas. 83, note; 16 Ann. Cas. 150, note; Ann. Cas. 1912 B, 662, note; 102 Am. St, Rep. 246, note. Cf. 110 Am. St. Rep. 677, note. 1288 CASES ON THE LAW OF CONTRACTS Chicopee within five years, because such agreement was not.to be per- formed within one year from the making thereof and was within the statute of frauds; but the judge ruled the contrary. The defendant alleged exceptions. . Gray, J. It is well settled that an oral agreement which accord- ing to the expression and contemplation of the parties may or may not be fully performed within a year is not within that clause of the statute of frauds which requires any ‘‘agreement not to be performed within one year from the making thereof’’ to be in writing in order to maintain an action. An agreement therefore which will be completely performed according to its terms and intention if either party should die within the year is not within the statute. Thus in Peters v. Westborough, 19 Pick. 364, it was held that an agreement to support a child until a certain age at which the child would not arrive for several years was not within the statute, because it depended upon the contingency of the child’s life, and, if the child should die within one year, would be fully performed. On the other hand, if the agreement cannot be com- pletely performed within a year, the fact that it may be terminated, or further performance excused or rendered impossible, by the death of the promisee or of another person within a year, is not sufficient to take it out of the statute. It was therefore held in Hill v. Hooper, 1 Gray, 131, that an agreement to employ a boy for five years and to pay his father certain sums at stated periods during that time was within the statute; for although by the death of the boy the services which were the consideration of the promise would cease, and the promise therefore be determined, it would certainly not be completely performed. So if the death of the promisor within the year would merely prevent full performance of the agreement, it is within the statute; but if his death would leave the agreement completely performed and its purpose fully carried out, it is not. It has accordingly been repeatedly held by this court that an agreement not hereafter to carry on a certain business at a particular place was not within the statute, because, being only a personal engagement to forbear doing certain acts, not stipulating for anything beyond the promisor’s life, and imposing no duties upon his legal representatives, it would ‘be fully performed if he died with- in the year. Lyon v. King, 11 Met. 411; Worthy v. Jones, 11 Gray, 168. An agreement not to engage in a certain kind of business at a particular place for a specified number of years is within the same principle; for whether a man agrees not to do a thing for his life, or never to do it, or only not to do it for a certain number of years, it is in either form an agreement by which he does not promise that any- thing shall be done after his death, and the performance of which is therefore completed with his life. An agreement to do a thing for a certain time may perhaps bind the promisor’s representatives, and at 41 The statement of facts and part of the opinion are omitted. Contracts WITHIN THE STATUTE oF Fraups 1289 any rate is not performed if he dies within that time. But a mere agree- ment that he will himself refrain from doing a certain thing is fully performed if he keeps it so long as he is capable of doing or refraining. The agreement of the defendant not to go into business again at Chico- pee for five years was therefore not within the statute of frauds. * * * Exceptions overruled.42 42 See Hill v. Jamieson, 16 Ind. 125 (1861); Foster v. McO’Blenis, 18 Mo. 88 (1853); Erwin v. Hayden (Tex. Civ. App.), 43 S. W. 610 (1897). The question is whether by dying the promisor would at once go out of business for five years and longer. If he would, then the fact that he might die within the year would keep the contract from coming under the “not to be performed within a year” provision of the statute. But some courts refuse to regard death’ as so time destroying. See Gottschalk v. Witter, 25 Oh. St. 76 (1874); McGirr v. Campbell, 75 N. Y. Supp. 571 (1902). The principal case seems to accord with common sense. The leading American case on contracts not to be performed within a year is Warner v. Texas & Pacific Ry. Co., 164 U. S. 418 (1896). That case lays down the rule that if the contract may be performed within the year it does not fall within the statute, even though the parties contemplated a longer life for it. That is the general American view. “On the first proposition, neither the contract alleged nor the one proven by specific terms nor by necessary implication extended its performance beyond a year. Where this is the case, it does not matter that the parties may have thought or held the opinion that work under the contract might be extended beyond that period. It will not thereby be rendered void under the statute. Reckley v. Zenn, 74 W. Va. 43, 81 S. BE. 565; McClanahan v. Coal & Mining Co., 74 W. Va. 548, 82 S. E. 752; Kimmins v. Oldham, 27 W. Va. 258. A con- tract is not brought within the terms of the statute because it was not expected to be performed within a year, if it is one that under all the circumstances admits of performance within a year. Warren, etc., Mfg. Co. v. Holbrook, 118 N. Y. 586, 23 N. E. 908, 16 Am. St. Rep. 788, and note; Dant v. Head, 90 Ky. 255,13 S. W. 1073, 29 Am. St. Rep. 369, and note.” Miller, P., in Rua v. Bowyer Smokeless Coal Co. (W. Va.), 99 S. E. 218, 216 (1919). “As early as the case of Peter v. Compton, Skin. 353, [1693] the great major- ity of the judges declared that where the agreement was to be performed upon a contingent, and it does not appear within the agreement that it is to be per- formed after the year, there a note in writing is not necessary, for the con- tingent might happen within a year; but where it appears by the whole tenor of the agreement that it is to be performed after a year, there a note is neces- sary; otherwise, not. This has been the generally-accepted rule since that case was decided. Parol agreements to do something for an indefinite period which may be terminated within a year are valid. To be within the statute, it must be such an agreement as does not admit of performance, according to its language and intention, within a year from the time it is made. “The following contracts by parol have been held to be enforceable and not within the statute of frauds: To pay upon the death of a third person. To pay upon the termination of a suit. To pay on the day of the promisor’s mar- riage, * * * To marry upon restoration to health.. To pay out of one’s estate after death. To pay during life of promisee. To pay during coverture.” Van Syckel, J., in Eiseman v. Schneider, 60 N. J. L. 291, 292-293 (1897). A conflict of opinion has developed as to the kind of contract where the parties contemplate more than a year’s performance but provide for shortening 1290 CASES ON THE LAW oF CONTRACTS BIRD v. BILBY. (Kansas City Court of Appeals, Missouri, 1919. 202 Mo. App. 212, 215 S. W. 909.) Suit by Maud Bird against R. I. Bilby. Judgment for plaintiff, and defendant appeals. Affirmed. it on notice. An example is a contract for two years’ service, but the contract to be terminable by either party during the period on three months’ notice. The question is whether such a contract is performable within the year as distinguished from destroyable. That such a contract is within the statute, see Dobson v. Collis, 1 H. & N. 81 (1856); Hanau v. Ehrlich, [1912] A. C. 89 (a decision of the House of Lords affirming [1911] 2 K. B. 1056); Meyer v. Roberts, 46 Ark. 80 (1885); Harris v. Porter, 2 Harr. (Del.) 27 (1835); Wilson v. Ray, 13 Ind. 1 (1859); Biest v. VerSteeg Shoe Co., 94 Mo. App. 137, 70 S. W. 1081; ‘Wagniere v. Dunnell, 29 R. I. 580 (1909). That: such a contract is not within the statute, see Roberts v. Rockbottom Co., 7 Metc. (Mass.) 46 (1843); Blake v. Voigt, 134 N. Y. 69 (1893). Cf. Weatherford, etc., Co., v. Wood; 88 Tex. 191 (1895). “If the contract permits its destruction by the parties, that destruction is merely carrying out the terms of the agreement and nothing more.” Smith, J., in Johnston v. Bowersock, 62 Kans. 148, 160 (1900). Even in Hanau v. Ehr- lich, supra, where the question was whether a contract of employment for two years determinable on six months’ notice by either party during that period was or was not an agreement not to be performed within a year, Earl Lore- burn, L. C., admitted that “If you are to look at the words of this statute with- out any previous guidance at all, to my mind either construction contended for is possible as a matter of language and pure interpretation of the meaning of language,” ([{1912] A. C. 39, 41). Lord Atkinson thought “the language of this statute is ambiguous,” ((1912] A. C. 39, 42) and Lord Alverstone said that he could “quite see that if there were an absolutely clear slate it might be possible to construe the statute somewhat differently” (id.) but all the judges agreed that the interpretation of the language in Dobson v. Collis, supra, [1 H. & N. 81] in 1856, followed frequently since at nisi prius, should be reaffirmed. On contract not to be performed within one year but terminable at option of parties as within the statute of frauds, see 17 Ann. Cas. 207, note; Ann. Cas. 1912 B, 731, note. On whether a contract which depends upon contingency for performance within a year is within the statute of frauds, see 4 Ann. Cas. 174, note; Ann. Cas. 1916 BE, 1186, note; 128 Am. St. Rep. 599, note. ; It is, of course, perfectly clear that impossibility of performance demon- strated within the year, as by the death within the year of one contracting to serve more than a year, would not constitute performance within the year to take the case out of the statute. A question has arisen whether a contract to work for another for a year beginning tomorrow morning can be performed within a year. As the contract will be completed at the end of the day a year from today, it can be and will be performed within the year if parts of the day are not regarded. Some courts so hold. Smith v. Gold Coast Limited, [1903] 1 K. B. 285, 538; Dickson v. Frisbee, 52 Ala. 165 (1875). Others hold the contract within the statute, Bil- lington v. Cahill, 4 N. Y. Supp. 660 (1889). See Raymond v. Phipps, 215 Mass. 559 (1913). Compare the question when a person becomes 21 or 25. Is it the day before his birthday? In re Shurey, [1918] 1 Ch. 263, says yes, and the American cases generally seem to be in accord. On validity within statute of frauds of a contract for a year’s employment Contracts WITHIN THE StaruTE or FRavups 1291 TRIMBLE, J.4* This is a suit for damages for breach of an oral con- tract. Plaintiff’s husband, William Bird, was foreman on one of defend- ant’s ranches, and on September 27, 1910, was engaged in the digging of a ditch thereon. While so doing, the sides of the ditch caved in and killed him. He left his widow, the plaintiff and several minor children, the youngest of whom was six months old. Plaintiff intended and was about to bring a suit for damages against defendant on the ground that her husband’s death was caused by defendant’s negligence. Defend- ant, knowing this, went to plaintiff some two weeks after her husband’s death and proposed to her a settlement, offering and agreeing that, if she would not bring a suit or cause him any trouble, he would pay her $20 per month until her youngest child became 18 years of age, a period of 1744 years. He told her such an arrangement would be all right and it would be better for her to get the money in installments this way than to have all the money paid into her hands at once. After making certain that he would ‘‘always’’ pay it to her, that is, that he would pay during the aforesaid time whether the child lived or died, she ac- cepted the offer, and they separated with the clear understanding and agreement that she would not bring her contemplated suit and he would pay her $20 monthly throughout the time above mentioned, a period of 210 months. Defendant at once. began paying her the monthly sums of $20, and continued to do so down to and including the month of February, 1914, a period of 41 months. In the meantime she had married her deceased husband’s brother and moved to Minnesota, and defendant sent her the. monthly checks for $20 while there and-also for a time after their re- turn from that state. Her husband finally went back to Minnesota, and, when she got ready to follow him, defendant refused to continue mak- ing the payments, unless, so she says, she would leave her husband, whom defendant considered worthless. The defendant concedes that he paid her monthly payments down to February, 1914, but denies that there was any agreement between them or settlement of her cause of action, insisting that the payments he made were in the nature of a voluntary ‘‘pension’’ paid by-him to help her because she was in need. He also concedes that he refused to continue the payments if she went back to her husband. At the close of plaintiff’s case and at the close of all the evidence, defendant demurred, but was overruled. The jury found a verdict for plaintiff, upon which judgment was rendered, and defendant has ap- pealed. The main contention is over the question whether the alleged agree- ment, upon which plaintiff grounds her suit, is within or without that clause of the statute of frauds forbidding an action upon any oral agree- to commence in the future, see 5 Ann. Cas. 330, note; 138 Am. St. Rep. 611, note. 43 Parts of the opinion are omitted. 1292 CasEs ON THE Law or ConTRACTS ment ‘‘that is not to be performed within one year from the making thereof.’’ Section 2783, R. S. 1909. An oral contract which neither party can perform within the year is within the statute; and, even though full performance has been made by the complaining party after the expiration of said year, no action can be maintained on the contract. Defendant insists that the contract herein is of this character. He says plaintiff’s agreement not to sue for the death of her husband could be fully performed only by refraining from suit throughout the full period of the general statute of limita- tions, which of course, is more than a year, and that therefore the con- tract is one which neither party: could perform within the year. But plaintiff’s cause of action for the death of her husband arose under sec- tions 5426 and 5427, c. 38, R. S. 1909, and was therefore governed by the limitation contained in that chapter, which gives the widow, in case there are minor children, only six months in which to sue, and in no event could a suit be maintained by any one unless brought within a year after the cause of action accrued. Section 5429. Hence the con- tract in this case clearly contemplated that plaintiff’s part thereof would be performed within the year from the date of such contract, which was two weeks subsequent to the date of her husband’s death, and this last date was when her cause of action accrued. Manifestly, therefore, the contract herein is one which contemplated that the plaintiff should per- form within the year and which the plaintiff did perform in full before the expiration of that time. Under these circumstances, the question arises: Does full perform- ance by the plaintiff within the year take the case out of the statute and allow her to maintain the suit? This is a question on which the courts of the different jurisdictions do not entirely agree. The great majority of them, however, uphold the doctrine that in such case the statute does not apply. 29 Am. & Eng. Ency. of Law (2d Ed.) 835; 20 Cye. 291. Such is the English rule, and is the one followed by most of the Ameri- can states. See cases cited in support of the text in the above authori- ties, a few of which are: Donnelan v. Read, 3 B. & Add. 899, 110 Eng- lish Reports, 330; Johnson v. Watson, 1 Ga. 348; MacDonald v. 44In Reeve v. Jennings, [1910] 2 K. B. 522, the plaintiff Reeve, a dairyman, brought suit for an injunction against the defendant Jennings, a former employee of the plaintiff, to restrain him from committing breaches of his agreement of service by engaging on his own account in the business of a dairyman. The agreement of service was oral, was made on April 11th, 1908, and was to the effect that the defendant should serve plaintiff at an increased salary stated, but otherwise on the same terms and conditions as those con- tained in a written agreement of service which the parties had made at the time of a former employment. That previous agreement provided for plain- tiff’s employment of defendant in plaintiff's trade or business of a dairyman at a stated wage per week for a time not stated, but to be “until this agree- ment is determined as-hereunder provided” and with the clause ‘“‘This agree- ment may be determined by either party giving the other one week’s notice Contracts WITHIN THE StaruTE or Fravps 1293 Crosby, 192 Ill. 283, 61 N. E. 505; Curtis v. Sage, 35 Ill. 22; Haugh v. Blythe’s Ex’rs, 20 Ind. 24; Saum v. Saum, 49 Iowa, 704; Ellicott v. Turner, 4 Md. 476; McClellan v. Sanford, 26 Wis. 595; Washburn v. Dosch, 68 Wis. 486, 32 N. W. 551, 60 Am. Rep. 873; Dant v. Head, 90 Ky. 255, 13 8. W. 1078, 29 Am. St. Rep, 369; Berry v. Doremus, 30 N. J. Law, 399; Langan v. Iverson, 78 Minn. 299, 80 N. W. 1051. See, also, City of Tyler v. Southwestern R. Co., 99 Tex. 491, 91S. W. 1, 13 Ann. Cas. 911. Some courts seem to require that, after full performance within the year by one party, nothing more must remain to be done by the other party except the payment of money. Whether this applies only to cases wherein such other party might, upon performance, have paid the money within the year, and not to cases where the money could not have been so paid, does not always seem to have been made clear. It may be well to note that in the contract now under consideration plaintiff fully performed within the year and nothing remained for defendant to do except to continue that which he had been doing from the making of the contract, namely, the payment of the installments at the time and throughout the period called for in the contract. But without regard to whether the rulings of some of the courts apply to one or both of the situations above referred to, it is certain that the . great majority of them hold that where it is the intention of the parties that one of them should perform within the year, and such party has fully performed within that time, then the other party cannot escape even though he is not to perform, and cannot perform, within the year. A number of states, however, hold to the contrary doctrine, namely, that if the contract is not to be performed by one party within the year, recovery cannot be had against him by the other even though such other party has fully performed and has done so within the year. 29 Am. in writing to terminate on a Saturday,” and under that previous agreement the defendant agreed that he would serve plaintiff until the determination of the agreement and that within 36 months after quitting or being discharged from said service he would not engage in any way in the business of a dairy- man within a radius of four miles as the.crow flies from plaintiff's place of business. After serving plaintiff from April 11, 1908, to February 6, 1910, the defendant on the latter date left plaintiff’s employ and started in the business of dairyman on his own account within four miles of plaintiff's place of busi- ness. The sole question in the case was whether the statute of frauds was a defense to plaintiff’s suit. The provision of the statute invoked was that part of section 4 relating to agreements “not to be performed, within the space of one year from the making thereof.” The case was started in the county court and the county court judge held that the statute of frauds provision did not apply to the contract in question and gave judgment for the injunction asked. The defendant appealed and the King’s Bench Division held in his favor on the ground that while an agreement in its terms to be performed on one side within a year is not within the statute of frauds, the mere fact that the agree- ment is capable of being performed by one side within the year is not enough to keep the statute from applying, if it was not the intention of the parties that it should be performed within the year. For an English criticism of the decision, see A. E. Randall, Reeve v. Jennings, 17 Law. Quar. Rev. 80. 1294 Cases ON THE Law or ConTRACTS & Eng. Ency. of Law 836; Frary v. Sterling, 99 Mass. 461; Dietrich v. Hoefelmeir, 128 Mich. 145, 87 N. W. 111; Broadwell v. Getman, 2 Denio (N, Y.) 87; Lockwood v. Barnes, 3 Hill (N. Y.) 128, 38 Am. Dec. 620; Pierce v. Paine’s Estate, 28 Vt. 34. See, also, cases cited under Minority Rule in 18 Ann, Cas. 918. In Blanton v. Knox, 3 Mo. 842, the Supreme Court of our state held that as the plaintiff’s part of the contract was to be performed within the year, and was fully performed (by the delivery of a slave) within that time, the contract was taken out of the statute. The case of Pitcher v. Wilson, 5 Mo. 46, was where under the contract neither party could’ perform within the year, and, even though plaintiff had fully performed after the year, the court held he could not recover. Instead of overrul- ing the case of Blanton v. Knox, the latter case was distinguished from the former and the decision in the Blanton Case has been followed in a long line of decisions thereafter. Suggett’s Adm’r v. Cason’s-Adm’r, 26 Mo. 221; Self v. Cordell, 45 Mo. 345; Winters v. Cherry, 78 Mo. 344; Smock v. Smock, 37 Mo. App. 56; Mitchell v. Branham, 104 Mo. App. 480, 79 8S. W. 739; Bless v. Jenkins, 129 Mo. 647, 31S. W. 938; Marks v. Davis, 72 Mo. App. 557; Moore v. McHaney, 191 Mo. App. 686, 697, 178 S. 'W. 258; Denny v. Brown (Sup.) 193 8. W. 552. * * * It follows that the contract in the case at bar is not within the statute concerning contracts not to be performed within the year, and the learned trial court did right in refusing to hold that it was. * * * When plaintiff settled her original cause of action, it was forever ex- tinguished and could not be revived. Her rights thereafter rested alone upon the new agreement. Simmons v. Globe Printing Co., 209 S. W. 1380. The agreement settled the issue of defendant’s negligence in the original cause of action between them and neither could reopen and liti- gate that issue. The evidence offered by defendant in the attempt to show that he was not negligent and would not have been liable in dam- ages for the death of her husband was properly excluded. This disposes of all the points raised and presented in plaintiff’s brief, and, since they are not such as can be sustained, the judgment is af- firmed.5 OKIN v. SELIDOR. (Court of Errors and Appeals of New Jersey, 1909. 78 N. J. L. 54, 78 Atl. 770, 138 Am. St. Rep. 588.) Garrison, J. Action was brought by the appellee in the District Court to recover the sum expended in repairing a cement sidewalk that had 45 On validity within the statute of frauds of a contract which is capable of being performed by one party within one year and is so performed, see 13 Ann, Cas. 916, note. Conrracts WITHIN THE STATUTE oF FRAUDS 1295 - been badly laid by the appellant, who had agreed that the sidewalk should remain in good condition for five years. The making of this oral agree- ment was established to the satisfaction of the trial court. It was also proved without contradiction that within one year after the making of this agreement it was broken by the upheaval of the sidewalk and that the amount paid by the appellee in the repair of the sidewalk was $165, for which amount judgment was rendered. To reverse this judg- ment two sections of the statute of frauds are relied upon—first, that the agreement was one concerning an interest in land, and second, that it was not to be performed within one year from the making thereof. The first ground is entirely untenable. It requires no argument to show that under an agreement to lay a sidewalk the contractor takes no interest in the land and the circumstances relied upon in the present ease, viz., that the contractor accepted a lower price upon the condition that he might have the sand excavated in the course of the work, does not bring the agreement within the statute. This was a mere mode of payment, and the sand when excavated and applied to such payment was personal property and not land or any interest therein. The second ground cannot avail the appellant for the reason that although his agreement covers five years it was not one that was not to be performed within one year and within such period its performance was required. This section of the statute of frauds is cast in this negative form, hence it applies wherever by no contingency covered by the contract the promisor can within one year from the making of his agreement be required to perform it. That was not the case here. The agreement was not that after the first year the sidewalk should be in good condition for four more years, but that it should be in such condition during the first year as well. As to a breach occurring dur- ing the first year, this agreement was therefore not one that was not to be performed within one year. The fact that an action for breaches occurring after the first year would be barred by the statute does not enter into the present case in which the cause of action arose within the year. The state of the case shows that the appellee, who was a builder, sold the property after the sidewalk had been laid, warranting the con- dition of the property for one year. The purchaser, one Butman, imme- diately notified the appellee that the sidewalk was broken up and was authorized to employ and pay one Jackson to repair it. Butman did this, paying Jackson for his work $165, which he was reimbursed by the appellee, who then brought this suit. Jackson testified at the trial without contradiction that he repaired the sidewalk about eight months after its installation. The appellee’s action is not therefore barred by the statute. This result is in accord with the consensus of decisions under this section of the statute, which are collected in Cye. under the 1296 CASES ON THE LAw or ConTRACTS title ‘‘Statute of Frauds,’’ and in 29 Am. & Eng. Eneycl. L. 942, under the somewhat less obvious title of ‘‘ Verbal Agreements.”’ The judgment of the Second District Court of the city of Newark is affirmed.*¢ LYDIA DERBY v. GEORGE W. PHELPS. (Superior Court of Judicature of New Hampshire, 1822. 2 N. H. 515.) This was an action of assumpsit on a promise of marriage. At the trial here, under the general issue, and a plea of the statute of limita- tions, the plaintiff proposed to prove, that in A. D. 1811, the defend- ant, being about to commence the study of his profession, desired the plaintiff to receive his addresses as a suitor, and at the end of about five years, when he expected to be settled in business, to marry him; and that, in pursuance of this offer, his addresses were received, and continued till the defendant’s marriage with another lady, in A. D. 1820. This evidence was objected to, as within the statute of frauds; but having been admitted, a verdict was found for the plaintiff, subject to future consideration on the validity of the above objection. Woopsury, J.47 Our statute ‘‘to prevent frauds and perjuries,’’ provides, among other things, ‘‘that no action shall be brought where- by to charge any person upon an agreement made upon consideration of marriage, or upon any agreement, that is not to be performed within the space of one year from the time of making it, unless such prom- ise or agreement’’ ‘‘be in writing,’’ ete. 1N. H. Laws, 178. The defendant cannot avail himself of the first clause above cited; because, though once decided in Philpott v. Wallet, 3 Lev. 65, that a contract to marry must in all cases be in writing; yet, that decision has since been overruled in Cork v. Baker, 1 Sra. 34, and in Harri- son v. Cage and wife, 1 Ld. Ray. 386; Salk. 24; 5 Mod. 411; Bull. N. P. 280; 2 Eq. Ca. Ab. 248; Skin. 196. This clause of the statute is now held to reach not mutual promises to marry, but only promises for other things made in consideration of marriage. Bac. Ab. ‘‘Agreement,’’ C, 3. But under the other clause of the statute, we apprehend the objec- tion to the evidence must be adjudged fatal. This was an agreement, which by the terms of it was not to be performed till the expiration of about five years; and hence comes within the very teeth of the statute. Had the tenor of the agreement been, that the contract should be fulfilled on a certain event, which might or might not have happened 46 On agreements not to be performed within a year, see 138 Am. St. Rep. 590, note. 47 Part of the opinion is omitted. 2 Contracts WITHIN THE StTaTUTE or FRaups 1297 within a year, but which in fact did not happen till after a year, the agreement would not have been within the statute. 1 Salk. 280; Skin. 326; Stra. 34; Burr. 1278; 1 Bl. Rep. 353; 1 Ld. Ray. 317; Clot, Rep. 49; Holt, 326; 3 Salk. 9; 10 John Rep. 244. But such was not the ae of it. * * * New trial.*8 HIENTZ v. BURKHARD. (Supreme Court of Oregon, 1896. 29 Ore. 55, 48 Pac. 866, 31 L. R. A. 508, 54 Am. St. Rep. 777.) Action by A. R. Hientz & Co. against Joseph Burkhard. From a judgment of nonsuit, plaintiffs appeal. Reversed. 48 That mere engagements to marry not to be performed within a year are within the “not to be performed within a year” clause of the statute of frauds, see also Nichols v. Weaver, 7 Kans. 373 (1871); Ullman v. Meyer, 10 Fed. 241 (1882). But contra, see Brick v. Gunnar, 36 Hun. 52 (1885); Lewis v. Tap- man, 90 Md. 294 (1900). For cases of interest in which a decision of the point was avoided, see Clark v. Pendleton, 20 Conn. 495 (1850); Paris v. Strong, 51 Ind. 339 (1875); Blackburn v. Mann, 85 Ill. 222 (1877); McConahey v. Griffey, 82 Ia. 564 (1891); Lawrence v. Cooke, 56 Me. 187 (1868); Wilbur v. Johnson, 58 Mo. 600 (1875); Barge v. Haslam, 63 Neb. 296 (1901); Corduan v. McCloud, 87 N. J. L. 143 (1914); Clark v. Reese, 26 Tex. Civ. App. 619, 64 S. W. 783 (1901). In Ullman v. Meyer, 10 Fed. 241 (1882), the court discusses the effect of the express statutory exception of mutual promises to marry from the New York “in consideration of marriage” clause of the statute of frauds and con- cludes that “if it had been intended to exclude promises of marriage altogether from the operation of the statute, it could have been plainly evinced by in- serting the exception where it would naturally apply to all the classes of prom- ises required to be in writing” (p. 243) and that, since the intention to exclude such promises from the statute was not so evinced the exception contained in the “in consideration of marriage” clause must be limited to that clause. As was said by McCherry, C. J., in Lewis v. Tapman, supra, at p. 300: “The objects of a contract to marry are totally unlike the purposes to be accomplished by any other contract; the relation it has in view is wholly dis- tinct from the relation which any other contract could contemplate; the capac- ity of the parties to it to enter into it is far less restricted as to age than in any other agreement; it can only be made between a man and a woman; it has its origin in the natural law, and is the foundation of society. All these considerations indicate that the statute was not designed to embrace it. Why should a contract of this nature be placed in the same category with one for the sale of goods or the performance of labor and be made subject to the provisions of an enactment obviously intended to regulate suits on undertak- ings relating to the ordinary business and dealings in trade and commerce? Sir [Baron] Frederick Pollock observed in Hall v. Wright, E. B. & E. 793, ‘I think that a view of the law which puts a contract of marriage on the same footing as a bargain for a horse or a bale of hay is not in accordance with the general feeling of mankind and is supported by no authority.” On promise of marriage as within the statute of frauds’ provision as to contracts not to be performed within a year, see L. R. A., 1915 D, 1190, note. 1298 CASES ON THE LAW oF CONTRACTS Bran, C. J. This action was brought to recover damages for the breach of a contract to furnish the ironwork for defendant’s building, and comes here on an appeal from a judgment of nonsuit. For the purposes of this appeal, it is sufficient to say that the evidence tended to show that in August, 1894, the plaintiff and defendant entered into an oral contract, by the terms of which the plaintiff was to manu- facture, and furnish to the defendant, the ironwork for-a brick building about to be erected by him, according to certain plans and specifica- tions, for the sum of $2,825, but that defendant subsequently, and before any work was performed, wrongfully refused to allow plaintiff to proceed with the execution of its contract. The ironwork referred to was not to be of the kind manufactured by the plaintiff in the usual course of business, or for the trade, but of special designs and measure- ments, suitable only for use in the construction of defendant’s building. The court below ruled that the contract was ‘‘an agreement for the sale of personal property,’’ within the meaning of subdivision 5, § 785, of Hill’s Annotated Laws, and void because not in writing, and this ruling presents the only question to be determined on this appeal. To determine whether a given contract concerning personal prop- erty; which does not exist in specie at the time it is entered into, but must be manufactured and brought into being under the contract, comes within the statute of frauds, is not without difficulty, and the decisions are by no means reconcilable. The chief difficulty in all such cases is encountered in determining when the contract is substantially for the sale of personal property, to be executed in the future, and when for work and labor and material only. If the former, it is within the statute. If the latter, it is not. Thus far the authorities, except in the state of New York, are substantially agreed; but there have been numerous decisions, and much diversity: and even conflict of opinion, in relation to a proper rule by which to determine whether a contract. is in fact for the sale of personal property, and therefore within the statute, or for work and labor and material furnished, and so without the statute. There appear to be substantially three distinct views upon the statute, which, for convenience, are generally designated as the English, the New York, and the Massachusetts rules, as represented by the decisions of their respective courts. In England, after a long series of cases in which various tests have been suggested, the rule seems to have been settled in Lee v. Griffin, 1 Best & 8. 272, that ‘‘if the contract be such that, when carried out, it would result in the sale of a chattel, the party cannot sue for work and labor; but, if the result of the contract is that the party has done work and labor which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered.’’ In that case the action was brought by a dentist to recover £21 for two sets of artificial teeth made for the defendant’s testatrix. The court held the contract to be for the sale of chattels, and within the statute. But this decision seems to stand Contracts WITHIN THE STATUTE OF FRAUDS 1299 alone, and is in direct conflict with the previous decisions of the English courts. Towers v. Osborne, 1 Strange, 506; Clayton v. Andrews, 4 Burrows, 2101; Rondeau v. Wyatt, 2 H. Bl. 63; Cooper v. Elston, 7 Term R. 14; Groves v. Buck, 3 Maule & S. 178; Garbutt v. Watson, 5 Barn. & Ald. 613; Smith v. Surman, 9 Barn. & C. 574. It is said to have been the result of Lord Tenderden’s act, which expressly ex- tended the statute to all contracts of sale, nothwithstanding the goods ‘“‘may not at the time of such contract be actually made, procured or _produced or fit or ready for delivery, or some act may be required for the making or compelling thereof to render the same fit for de- livery.’ Meincke v. Falk, 55 Wis. 432, 13 N. W. 545; Benj. Sales (6th Ed.) 108. In this condition of the English authorities, we are not prepared to go to the full extent of Lee v. Griffin. It is an extreme case, and, unless the decision was made to conform to Lord Tender- den’s act, it antagonizes the opinions of some of the most eminent jurists of England, and is open to the objection that it practically permits the fraud which theoretically the statute seeks to prevent. To say that a contract of a dentist to manufacture and furnish a set of false teeth for his customer is ‘‘an agreement for the sale of per- sonal property,’’ within the meaning of the statute, is certainly giving it the widest possible operation, and has not found general recognition in this country, as a correct exposition of the doctrine, although the simplicity of the rule has commended it to many of the judges. In New York the rule prevails that a contract concerning personal property not existing in solido at the time of the contract, but-which the vendor is to manufacture or put in condition for delivery, such as the woodwork for a wagon, or wheat not yet threshed, or nails to be made from iron belonging to the manufacturer, and the like, is not within the statute. Crookshank v. Burrell, 18 Johns. 58; Downs v. Ross, 23 Wend. 270; Sewall v. Fitch, 8 Cow. 215; Parsons v. Loucks, 48 N. Y. 17; Cooke v. Millard, 65 N. Y. 352; Higgins v. Murray, 73 N. Y. 352. But this rule seems to be peculiar to that state. By the Massachusetts rule the test is not the existence or nonexistence of the commodity at the time of the contract, as in New York, or whether the contract will ultimately result in the transfer of the title of a chattel from the vendor to the vendee, as in England, but whether the article is such as the manufacturer ordinarily produces in the - course of business, and for the trade, or as the result of a special order, and for special purposes. If the former, it is regarded as a contract of sale, and within the statute. If the latter, it is held to be essentially a contract for labor and material, and therefore not within the statute. Thus, it is held that an agreement to build a carriage of a certain design is not within the statute (Mixer v. Howarth, 21 Pick. 205), but that a contract to buy a certain number of boxes of candles at a fixed price, which the vendor said he would thereafter finish and deliver, is a contract. of sale, to which the statute applies. Gard- 1300 CASES ON THE LAW or CONTRACTS ner v. Joy, 9 Metc. (Mass.) 177. The result of the decisions in that state has recently been stated thus: ‘‘A contract for the sale of articles then existing, or such as the vendor, in the ordinary course of his business, manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods, to which the statute applies. But, on the other hand, if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general market, the case is not within the statute.’’ Ames, J., in Goddard v. Binney, 115 Mass. 450. And this doctrine seems to be the one most widely adopted in this country. As to the latter part of the rule, relating to goods made on special orders, there is little if any conflict in the American cases. Baker, Sales, § 96; 2 Schouler, Pers. Prop. § 443; Brown, St. Frauds, § 308; 8 Am. & Eng. Enc. Law. 707; note to Flynn v. Dougherty, 14 Lawy. Rep. Ann. 230 (Cal.) 27 Pac. 1080; Meincke v. Falk, 55 Wis. 427, 13 N. W. 545; Finney v. Apgar, 31 N. J. Law. 266; Phipps v. McFarlane, 3 Minn. 109 (Gil. 61); Hight v. Ripley, 19 Me. 187; Cason v. Cheely, 6 Ga. 554; Abbott v. Gilchrist, 38 Me. 260. Until legislation shall assert itself more positively, the courts are put to their election as between these three rules, which, though each has its own merits, are not to be reconciled with one another. In the absence of a statute substantially the same as Lord Tenterden’s act, we are unwilling to go to the extent of the doctrine of Lee v. Griffin; and in this case it is unnecessary for us to give a preference to either the New York or Massachusetts rule, because the contract in question is valid under either. It would be excluded from the operation of the statute by the rule adopted in New York, because the subject-matter of the contract did not exists in solido, or at all, at the time it was made; and it is not within the statute under the Massachusetts rule and the generally accepted American doctrine, because the ironwork was to be manu- factured especially for the defendant, and upon his special order, according to a particular design, and was not such as the plaintiffs, in the ordinary course of their business, manufactured for the general trade. It follows that under either view the court below was in error in holding that the contract was void because not in writing. The judgment must therefore be reversed, and a new trial ordered.®? 49It has done so in the Uniform Sales Act. See provision at the beginning . of this chapter. New York, having adopted that statute, now has, in con- sequence, the Massachusetts rule. 50 On the application of the statute of frauds to contracts involving both the transfer of a chattel and the doing of work and labor, see 19 Ann. Cas, 1292, note; Ann. Cas., 1914 C, 584, note. “An interesting point is that decided a few months ago in The Prested Miners’ Gas Co. v. Garner, [1910] 2 K. B. 776 (54 S. J. 750), where the parties entered into an agreement for the sale of goods which was not to be per- formed within a year. There was nothing in writing but’ there had been part acceptance within sec. 4 of the Sale of Goods Act, 1893. The point was whether Contracts WITHIN THE StTaTuTE oF FRAups 1301 LUKE BALDWIN v. AARON D. WILLIAMS. (Supreme Judicial Court of Massachusetts, 1841. 3 Mete. 365.) Wuwe, J.52 This action [of assumpsit] is founded on an oral con- tract [whereby plaintiff agreed to indorse to defendant without re- course two notes of one Gardner payable to plaintiff and held by him, and defendant agreed to pay therefor some cash and two other notes] and the question is, whether it is a contract of sale within the statute of frauds. * * * The agreement of the defendant, as alleged in the declaration, was to pay for the plaintiff’s two notes $2,000 in cash, in addition to two other notes; and that this was a contract of sale is, we think, very clear. The other question is more doubtful. But the better opinion seems to us to be, that this is a contract within the true meaning of the statute of frauds. It is certainly within the mischief thereby intended to be prevented; and the words of the statute, ‘‘goods’’ and ‘‘mer- chandise,’’ are sufficiently comprehensive to include promissory notes of hand. The word ‘‘goods’’ is a word of large signification; and so is the word ‘‘merchandise.”’ ‘‘Merax est quicquid vendi potest.’’ In Tisdale v. Harris, 20 Pick. 9, it was decided that a contract for the sale of shares in a manufacturing corporation is a contract for the sale of goods or merchandise within the statute; and the reasons on which that decision was founded seem fully to authorize a similar decision as to promissory notes of hand. A different decision has recently been made in England in Humble v. Mitchell, 3 Perry & D. 141, 11 Adol. & E. 207. In that case it was decided that a contract for the sale of shares in a joint-stock banking company was not within the statute of frauds. But it seems to us that the reasoning in the case of Tisdale v. Harris is very cogent and satisfactory ; and it is supported by several other cases.°2 * * * ‘We think the present case cannot be distinguished in principle from Tisdale v. Harris; and upon the authority of that case, taking into consideration again the reasons and principles on which it was decided, the contract was governed by both statutes or whether the latter only applied. It was held that the agreement fell within both statutes. Consequently in the absence of writing no action could be brought notwithstanding that the provi- sions of the Sale of Goods Act were satisfied.” 31 Can. L. T. 750. 51 The statement of facts is omitted. 62“That contracts for the sale and delivery of shares of stock are subject to the mischief aimed at by the statute, must be admitted. We are of opin- ion that reason and the weight of authority favor the conclusion that shares of stock in an incorporated company, the shares having been issued, are goods within the meaning of the statute of frauds.” Ostrander, J., in Sprague v. Hosie, 155 Mich. 30, 34 (1908). See Spencer v. McGuffin (Ind.), 130 N. E. 407 (1921). The cases are collected in 7 Ann. Cas. 930, note; 18 Ann. Cas. 598, note; Ann. Cas., 1917 C, 991, note. 1302 CasEs ON THE LAw oF CONTRACTS we are of opinion that the contract in question is within the statute of frauds, and consequently that the motion to set aside the nonsuit must be overruled.58 LEA v. BARBER. (Warwick Assizes, 1794. 2 Anstruther, 425, n.) Coram MacDonatp, C. B. Action for breach of contract. The agree- ment was to take an assignment of certain leasehold premises, a brick- ground, at 10001. and to buy the stock, which was of much less value, consisting chiefly of half-made bricks, sheds, etc., at a valuation to be fixed by arbitrators. The arbitrators afterwards settled the price; but the defendant refused to complete the purchase. There being no memo- randum of the contract, it was admitted to be void as to the land; but the plaintiff’s counsel claimed to recover! as to the personal property: it was ruled, on the authority of Cooke v. Tombs, [2 Anst. 420] that the agreement, being in its nature entire, could not be severed; and being void as to the land, was void in toto. The plaintiff was nonsuited.™4 JOHN TOWNSEND v. EDWARD HARGRAVES. (Supreme Judicial Court of Massachusetts, 1875. 118 Mass. 325.) Coit, J.t’ The plaintiff relied on an oral contract of sale to the de fendant of a quantity of wool in bales then in Boston, and held in store by one Williams. The sale was by sample at the invoice weight for a given price per pound, and the bales were specifically designated and appropriated by the terms of the contract. 53 In Greenwood v. Law, 55 N. J. L. 168 (1892), in holding an oral contract to assign a mortgage within §6 of the New Jersey statute, which corresponded to §17 of the English, Van Syckel, J., said: “The words ‘goods, wares and merchandise’ in the sixth section, of the statute are equivalent to the term ‘personal property’ and are intended to include whatever is not embraced by the phrase ‘lands, tenements and hereditaments’ in the preceding section.” The American Uniform Sales Act expressly applies to “goods or choses in action.” See the provision ante, p. 1233. 54 But if the part within the statute has been performed, and the statute in the jurisdiction makes the contract not void, but only unenforceable, the statute seemingly ceases to be a defense. Stephenson v. Arnold, 89 Ind. 426 (1883); Negley v. Jeffers, 28 Oh. St. 90 (1875); Rosenberg v. Drooker, 229 Mass. 205 (1918). See Pearsall v. Henry, 153.Cal. 314, 326 (1908). On a similar problem in the law of trusts, where the courts divide, see 12 Mich. L. Rev. 524, n. 55. {+ Parts of the opinion are omitted. Conrracts WITHIN THE SvaruTEe or FRAupDS 1303 At the time of the great fire of November 9, 1872, a part of the wool had been sent to the railroad station in Boston, and was either there or at the defendant’s mill in Maine, or in transit to the mill, and a part remained and was burned in the storehouse of Williams, The de- fendant denies his liability for the wool burned. * * * The instructions given by the court applicable to this aspect of the ease were not excepted to, and are not reported. It is to be presumed that they were apt and sufficient, unless the specific instructions re- quested by the defendant should have been given in whole or in part ; and that is the remaining question. * * * In the second request.the judge was asked distinctly to rule that an acceptance of part of the wool would not operate upon the contract to render it valid retrospectively, or make the defendant liable to pay for that which had been destroyed by fire. This presents the question whether the date of the acceptance or the date of the agreement will be treated, as between the parties, as the time when the contract was made, and the risk of loss of the goods was cast on the buyer. * * * The decision of it depends upon the construction to be given to that part of the statute applicable to sales of personal property, which is incorporated in Gen. St. c. 105, § 5, and follows, with slight variation, the words of the seventeenth section of the English statute. The purpose of this celebrated enactment, as declared in the preamble and gathered from all its provisions, is to prevent fraud and falsehood, by requiring a party, who seeks to enforce an oral contract in court, to produce, as additional evidence, some written memorandum signed by the party sought to be charged, or proof of some act confirmatory of the contract relied on. It does not prohibit such contract. It does not de- clare that it shall be void or illegal, unless certain formalities are ob- served. If executed, the effect of its performance on the rights of the parties is not changed, and the consideration may be recovered. Stone v. Dennison, 13 Pick. 1; Basford v. Pearson, 9 Allen, 387; Nutting v. Dickinson, 8 Allen, 540. The memorandum required is the memorandum of only one of the parties. The alternative acts of the seventeenth sec- tion proceed from one only. They presuppose a contract, and are in affirmance or partial execution of it. They are not essential to its existence, need not be contemporaneous, and are not prescribed elements in its formation. It is declared in the fourth section that no action shall be brought upon the promises therein named, unless some memorandum of the agreement shall be in writing; and in the seventeenth that no con- tract for the sale of goods ‘‘shall be allowed to be good,”’ or, as in our statute, ‘‘shall be good and valid,’’ unless the buyer accepts and re- ceives part or gives earnest, or there is some memorandum signed by the parties to be charged, or, as in our statute, by the party to ‘be charged. It is true there is difference in phraseology in these sections ; but in view of the policy of the enactment, and the necessity of giving consistency to all its parts, this difference cannot be held to change the 1304 Cases ON THE Law oF CONTRACTS force and effect of the two sections. ‘‘ Allowed to be good’’ means good for the purpose of a recovery under it; and the clause in the last part of the latter section, which requires the memorandum to be signed by the party or parties to be charged, implies that the validity intended is that which will support.an action on the contract.5 * * * In carrying out its purpose, the statute only affects the modes of proof as to all contracts within it. If a memorandum or proof of any of the alternative requirements peculiar to the seventeenth section be fur- nished, if acceptance and actual receipt of part be shown, then the oral contract, as proved by the other evidence, is established with all the consequences which the common law attaches to it. If it be a completed contract according to common-law rules, then, as between the parties at least, the property vests in the purchaser, and a right to the price - in the seller, as soon as it is made, subject only to the seller’s lien and right of stoppage in transitu, Many points decided in the modern cases support by the strongest implication the construction here given. Thus, if one party has signed the memorandum, the contract can be enforced against him, though not against the other,—showing that the promise of the other is not wholly void, because it affords a good and valid consideration to support the promise which by reason of the memorandum may be enforced. Reuss v. Picksley, L. R. 1 Exch. 342. The memorandum is sufficient if it be only a letter written by the party to his own agent, or an entry or record in his own books, or even if it contain an express repudiation of the contract. And this because it is evidence of, but does not go to make, the contract. Gibson v. Hol- land, L. R. 1 C. P. 1; Buxton v. Rust. L. R. 7 Exch. 1, 279; Allen v. Bennet, 3 Taunt. 169; Tufts v. Mining Co., 14 Allen, 407; Argus Co. v. Albany, 55 N. Y. 495. * * * And, except that the statute provides that no action shall be brought, there would be no good reason to hold that a memorandum signed, 55 Some state statutes of frauds declare a contract not evidenced in writing void, and some of the courts accordingly deem a contract within the statute which does not comply with it to be void and not merely unenforceable. See Scott v. Bush, 26 Mich. 418 (1873); Pierce v. Clark, 71 Minn. 114 (1898); Laun v. Pacific Mut. Life Ins. Co., 131 ‘Wis. 555 (1907). In the case of contracts “void” often means voidable at the election of the party not in default. “The rule is that in a contract ‘void’ is to be read ‘void- able,’ if the result of reading it as ‘void’ would be to enable a party to avail him- self of his own wrong to defeat his contract. It may be stated either in the form that if one party is in default it is ‘void as against him’ or that if one party is in default it, is ‘voidable at the option of the other party.’ The two amount to the same thing. But the contract is not ‘void’ in favor of or ‘voidable at the option of’ the party in default. He cannot say that it is void, and has no option of avoiding it in his own wrong.” Lord Wrenbury in New Zealand Shipping Co., Ltd. v. Société Des Ateliers et Chautiers de France, [1919] 1 A.C.1,15. And in the case of the word void in a state statute of frauds, such a construction seems desirable. See Crane v. Powell, 189 N. Y. 379 (1893). Contracts WITHIN THE StaTuUTE oF Fraups 1305 or an act of acceptance proved, at any time before the trial would not be sufficient. Bill v. Bament, 9 Mees, & W. 36; Tisdale v. Harris, 20 Pick. 9. . In a recent case in the Queen’s Bench, a memorandum in writing made by the defendant, after the goods had been delivered to a carrier " and been totally lost at sea while in his hands, was held sufficient to take the case out of the statute, and no notice is taken of the fact that the goods were not in existence when the memorandum was furnished. Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140. * * * It follows that it would have béen erroneous to have given the in- structions requested. Upon the point closely allied, namely, what effect, if any, the defendant’s mistake or ignorance of a material fact, such as the destruction of the rest of the wool, would have on the alleged act of acceptance, we are not required by the terms of the request to pass. The third and last request was also properly refused for the rea- sons above given. If the property in the wool passed by the terms of the original agreement, and the contract was taken out of the statute by the subsequent acceptance and receipt, then, as we have seen, as be- tween the parties, the risk of loss was on the defendant at the time of the fire, and the plaintiff may recover the agreed price of the whole. Exceptions overruled. BALDEY anp ANOTHER v. PARKER. (Court of King’s Bench, 1823. 2 Barnewall & Cresswell, 37.) Assumpsit for goods sold and delivered. Plea, general issue. At the trial before Abbott, C. J., the following appeared to be the facts of the case. The plaintiffs are linen-drapers, and the defendant came to their shop and bargained for various articles. Separate price was agreed upon for each, and no one article was of the value of 10/. Some were measured in his presence, some he marked with a pencil, others he assisted in cutting from a larger bulk. He then desired an account of the whole to be sent to his house, and went away. A bill of parcels was accordingly made out and sent by a shopman. The amount of the goods was 701. The defendant looked at the account, and asked what discount ‘would be allowed for ready money, and was told 5/. per cent.; he replied that it was too little, and requested to see the person of whom he bought the goods (Baldey), as he could bargain with him respecting the discount, and said that he ought to be allowed 201. per cent. The goods were afterwards sent to the defendant’s house, and he refused to accept them. The Lord Chief Justice thought that this was a contract for goods of more than the value of 10/. within the meaning of the seventeenth section of the statute of frauds, and not within any of the exceptions there mentioned, and directed a nonsuit; but gave 1306 CASES ON THE Law or ConTRACTS the plaintiffs leave to move to enter a verdict in their favor for 701. A rule having accordingly been obtained for that purpose. Apsort, C. J.t * * * The first question is, whether this was one entire contract for the sale of all the goods. By holding that it was not, we should entirely defeat the object of the statute. For then per- - sons intending to buy many articles at one time, amounting in the whole to a large price, might withdraw the case from the operation of the statute by making a separate bargain for each article. Looking at the whole transaction, I am of opinion that the parties must be con- sidered to have made one entire contract for the whole of the articles. x * * . Hoxroyp, J. I am of the same opinion. The intention of the stat- ute was that certain requisites. should be observed in all contracts for the sale of goods for the price of 101. and upwards. This was all one transaction, though composed of different parts. At first it appears to have been a contract for goods of less value than 10I., but in the course of the dealing it grew to a contract for a much larger amount. At last therefore it was one entire contract within the meaning and mischief of the statute of frauds, it being the intention of that statute that where the contract, ejther at the commencement or at the con- clusion, amounted to or exceeded the value of 101. it should not ‘bind unless the requisites there mentioned were complied with. The danger of false testimony is quite as great where the bargain is ultimately of the value of 102. as if it had been originally of that amount. It must therefore be considered as one contract within the meaning’ of the act. * * #* There was neither note nor memorandum in writing; no part of the price was paid, nor was there any such change of possession as that contemplated by the statute. * * * Rule discharged.** YOUNG v. INGALSBE. (Court of Appeals of New York, 1913. 208 N. Y. 508, 102 N. E. 590.) Action by William E. Young against Grenville M. Ingalsbe, as execu- tor of Lyman H. Northup, deceased. From a judgment of the Appel- t+ The opinions of Bayley and Best, JJ., and parts of the opinions of Abbott, Cc. J., and Holroyd, J., are omitted. ' 56In Weeks v. Crie, 94 Me. 458, 464 (1900), the court said: “If the circum- stances are such as to lead to a reasonable supposition that the parties intended that the whole series of transactions should constitute one trade, they may be regarded as one entire contract; otherwise not.” See also New Richmond Roller Mills Co. v. Arnquist (Wis.), 174 N. W. 557 (1919). The rule was given an extreme application in Jenness v. Wendell, 51 N. H. 63 (1871). In Bundy Contracts WITHIN THE StaruTE or FRaups 1307 late Division (151 App. Div. 375, 135 N. Y. Supp. 939) modifying and affirming a judgment for defendant entered upon the report of a referee to hear and determine the action, plaintiff appeals. Affirmed. Couuin, J. The plaintiff claimed, as a creditor, a sum from the estate of Lyman H. Northup, deceased. The statute of limitations barred his ' recovery (except as to one item allowed by the judgment of the Appel- late Division), unless a transaction between the plaintiff and the de- ceased constituted a sale by the latter to the former of his interest in certain books and the crediting by the former of the price upon the in- debtedness, and prevented its application. The question for our deter- mination is: Did the transaction effect that result? The transaction as found by the referee was: The plaintiff and the deceased owned, with equal interests, a law library. The deceased was indebted to plaintiff and they, at a stated time, entered into an agree- ment, wholly unwritten, whereby the plaintiff purchased the interest. of the deceased, the purchase price to be applied by the plaintiff upon the indebtedness. Immediately after the time when the agreement was made, the plaintiff accepted of the interest and caused to be pasted upon the backs of the books leather labels with his name printed thereon, took possession, and assumed and still assumes ownership of the books, and gave the deceased credit for the sum of $77 on account of and pro rata on the several items of the indebtedness. The part of the statute of frauds revelant to the transaction is: ‘Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, prom- ise or undertaking: * * * (6) Is a contract for the sale of any goods, chattels or things in action for the price of fifty dollars or more, and the buyer does not accept and receive part of such goods, or the evidences, or some of them, of such things in action; nor at the time, pay any part of the purchase money.’’ Personal Property Law (Consol. Laws 1909, e. 41) § 31. The statute made void the verbal agreement in the present case unless there was, subsequent to and in pursuance of it, either the acceptance and receipt by the plaintiff of Northup’s interest or the payment by him, at the time the agreement was made, of the purchase price or a part thereof. The rule of the common law that a mere contract for the sale of goods, where nothing remains to be done by the seller before mak- ing delivery, transfers the right of property, although the price has not been paid nor the thing sold delivered to the purchaser (Olyphant v. Baker, 5 Denio, 379; Bissell v. Baleom, 39 N. Y. 275), is devitalized by the statute in the cases within its provisions. In those cases the stat- v. Voelker (Minn.), 175 N. W. 1000 (1920), where’ the arrangements were several weeks apart it was held for the jury to say whether_there was one transaction or two. 1308 CASES ON THE Law oF CONTRACTS ute renders essential to the proof of a valid contract of sale, not only evidence of the verbal contract, but also evidence of a receipt and accept- ance by the vendee of a part of the goods or of a payment at the time the oral agreement was made. The contract must be authenticated by a prescribed act of the parties in pursuance and part performance of it. The act may originate with the vendor or vendee; with the vendor if a delivery of part of the goods and their acceptance by the vendee is the ground for validating the contract; with the vendee if part payment is relied upon. In either case the participation and assent of both parties to it is necessary. The receipt of the goods by the vendee implies a de- livery by the vendor. Delivery and. receipt of the goods without ac- ceptance is insufficient, and payment implies a receipt and acceptance of the consideration by the party to whom it is made. Hawley: v. Keeler, 58 N. Y. 114; Pitney v. Glens Falls Ins. Co., 65 N. Y. 6, 26. While the statute does not interdict the establishment of the verbal con- tract by parol testimony, it guards against the misunderstanding, mis- conception, or perjury of the parties by requiring proof of the mutual confirmatory act evidencing intelligence and finality concerning it on the part of each. A writing, of course, evidences the contract as to both parties. Where it is omitted, but the vendee has paid part of the price or the vendor has delivered and the buyer has accepted a part of the goods upon the strength of the agreement, those acts furnish unequivocal evidence of the existence of a contract of some sort between them, although its terms and the performance of the attesting act must after all depend upon the recollection of witnesses. The design of the statute requires that neither party can create the evidence which shall prove the unwritten contract as against the other. Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316; Rodgers v. Phillips, 40 N. Y. 519; Hinch- man v. Lincoln, 124 U. 8S. 38, 8 Sup. Ct. 369, 31 L. Ed. 337. The facts found by the referee in this case do not establish the con- tract. Upon the part of the deceased there was merely the naked, verbal agreement. He'did not by any act or participation in any act subse- quent to it assent to or recognize or confirm it. Each act of the plaintiff was individual and independent, His possession of the books, if had at the time of the agreement, was not on the strength of or pursuant to it, but under another and prior arrangement; and, if acquired subsequent to the contract, was without a delivery and through his sole and ex- clusive act. Under either hypothesis the title of the deceased to the books did not pass to the plaintiff by virtue of a receipt and acceptance because he did. no act by which he relinquished his dominion or recog- nized and confirmed that of the plaintiff over them. Brand v. Focht, 1 Abb. Dec. 185; Marsh v. Rouse, 44 N. Y. 643; Stone v. Browning, 68 N. Y. 598; Rourke v. Bullens, 74 Mass. (8 Gray) 549. Manifestly the contract was not made valid by the credit given the deceased by the plaintiff and for two reasons: It was not made at the time of the agreement; the deceased was not in any way an actor in re- Contracts WITHIN THE StTatuTE or FRAUDS 1309 gard to it. Hunter v. Wetsell, 57 N. Y. 375, 15 Am. Rep. 508; Brabin v. Hyde, 82 N. Y. 519; Matthiessen & Weichers Refining Co. v. Mc- Mahon’s Adm’r, 38 N. J. Law, 536. The judgment should be affirmed, with costs. Judgment affirmed.§7 WALKER v. NUSSEY. (Court of Exchequer, 1847. 16 Meeson & Welsby, 302.) Debt for goods sold and delivered, and on an account stated. Pleas,— Ist, never indebted ; 2d, a set-off for goods sold and delivered, and on an account stated. Issues thereon. At the trial, before the undersheriff of Yorkshire, it appeared that, the defendant having sold goods to the plaintiff to the amount of 41. 14s. 11d., the defendant, on a subsequent occasion, bought of him a lot of leather, of two sorts by sample. It was then verbally agreed between them, that the 41. 14s. 11d. due to 57 For an unfavorable comment on Young v. Ingalsbe, see Francis M. Burdick, A Statute for Promoting Fraud, 16 Col. L. Rev. 273. Since New York has adopted the Uniform Sales Act, part of the statutory difficulty present in the principal case no longer exists in that state. “Many decisions from other jurisdictions holding that, where personal prop- erty is in possession of the buyer at the time of the sale, it is unnecessary for the owner to resume possession thereof in order that actual delivery may be made, are cited. Wilson v. Hotchkiss, 171 Cal. 617, 154 Pac. 1, L. R. A. 1016 F 389, Ann. Cas. 1917 B 570; Godkin v. Weber, 154 Mich. 207, 114 N. W. 924; 117 N. W. 628, 20 L. R. A. (N. S.) 498; Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104; Reinhart v. Gregg, 8 ‘Wash. 191, 35 Pac. 1075; Snider v. Thrall, 56 Wis. 674, 14 N. W. 814. These cases, however, hold that, where the property is in the possession of the buyer, his conduct touching the same must there- after be inconsistent with his previous possession as bailee or agent of the seller. Charlotte, etc., R. Co. v. Burwell, 56 Fla. 217, 48 South. 213; Young v. Ingalsbe, 208 N. Y. 503, 102 N. B. 590; Wilson v. Hotchkiss, supra; Silkman Lbr. Co. v. Hunholz, 1382 Wis. 610, 112 N. W. 1081, 11 L. R. A. (N. S.) 1186, 122 Am. St. Rep. 1008, 3 Ann. Cas. 718. Evidence showing acts of dominion and control thereover by the purchaser inconsistent with the facts upon which his prior possession was based would be sufficient for that purpose. ‘Wilson v. Hotchkiss, supra.” Slevins, J., in Deitrick v. Sinnott (Ia.), 179 N. W. 424, 426 (1920). “All cases admit that the term ‘actually receive’ found in the statute [the Uniform Sales Act] means the acquisition of possession by the. buyer, and whatever difficulties exist in regard to its meaning are largely due to the inherent difficulty of determining what is, in fact, possession.” Pattison, Je, in Castle v. Swift & Co., 132 Md. 631, 635 (1918). On acceptance and actual receipt to satisfy the statute of frauds when the goods are in possession of the purchaser at the time of agreement, see 11 L. R. A. (N. S.) 1186, note; 20 L. R. A. (N. 8.) 498, note; L. R. A. 1916 F, 393, note. On acceptance of goods to satisfy the statute, see 96 Am. St. Rep. 215, note, 1310 CASES ON THE Law or CONTRACTS the defendant should go in part payment by him to the plaintiff for the leather. Next day the plaintiff sent in the goods to the defendant, with this invoice :— ‘* Halifax, Oct. 14th, 1846. ‘Mr. William Nussey, bought of Thomas Walker. & s. d. Dressed hide bellies, 287 at 9d.................. 10 15 38 Insole, 376 at 64g... 0 ee ee eee eee 10 3 8 20 18 11 By your account against me................--02 eee 4 14 11” The defendant returned the goods within two days as inferior to sample, and wrote to the plaintiff to pay him the 41. 14s. 1ld. The plaintiff refused to receive the goods, and brought this action, stat- ing in his particulars of demand, that the action was brought to recover the sum of 16I. 4s., as the ‘‘balance of the following account’’ (setting out the above invoice). The undersheriff ruled, that there was nothing to show that the 41. 14s. 11d. had been given by the defendant in earnest, or part of pay- ment, under 29 Car. II. ¢. 3, s. 17, and left nothing to the jury, except on the point of acceptance of the goods by the defendant, directing them to find for him if they thought he returned the goods in a reason- able time, without taking to them. The jury found a verdict for the defendant on both issues. \ Pouiock, C. B48 * * * There was nothing but one contract,,, whereas the statute requires a contract, and, if it be not in writing, something besides. The question here is, whether what took place amounted to a giving of earnest or in part of payment at the time of the bargain, the goods bought by the defendant not having been then delivered to him by the plaintiff. Nothing turns on the effect of their subsequent delivery. Had these parties positively agreed to extinguish the debt of 41. odd, and receive the plaintiff’s goods pro tanto instead of it, the law might have been satisfied, without the ceremony of paying it to the defendant, and repaying it by him. But the actual contract did not amount to that, and there has been no part payment within the statute. Rule refused.® 58 The opinions of Parke, B., Alderson, B., and Platt, B., and part of the opinion of Pollock, C. B., are omitted. 59 But see Norton v. Davison, [1899] 1 Q. B. 401. See, however, Dow v. Worthen, 37 Vt. 108 (1864); Cotterell v. Stevens, 10 Wis. 422 (1860). On when §17 of the statute of frauds is satisfied by part payment, see 125 Am. St. Rep. 398, note, Contracts WITHIN THE StaTuTE or FRaups 1311 GAY v. SUNDQUIST. (Supreme Court of South Dakota, 1919. 42 S. Dak. 327, 175 N. W. 190.) Action by Thomas C. Gay against Ed Sundquist. From judgment for plaintiff, and an order denying defendant’s motion for a new trial, defendant appeals. Judgment and order reversed. Wuitine, J. Appellant assigns error in the trial court’s refusal to direct a verdict in his favor. The motion for directed verdict would assume the following facts to be supported by evidence: C., plaintiff, and §., defendant, entered into an oral agreement whereby S. sold to C. a bunch of lambs to be delivered in the future. Under the agree- ment, the purchase price would be far in excess of $50. At the time of such agreement, C. delivered to, and there was accepted by, S., C.’s check, both parties intending that the proceeds of such check should be applied in part payment of the puxychase price of the lambs. There was, however, no evidence to show that such check was delivered and received under an agreement that it was to be an absolute payment of a part of such purchase price. The check was never presented for payment, but, within a few days after the oral agreement, S. advised C. that he (S.) had destroyed the check. The sole question presented by the motion for directed verdict and before us for determination is whether the giving of such check to, and receipt of same by, S. took this oral agreement out of our statute of frauds. Such statute (section 857, Rev. Code 1919) provides that such an oral agreement is invalid unless, ‘‘The buyer, at the time of sale, pays a part of the price.’’ Few authorities are to be found that are directly in point. It seems, however, to be settled by an almost unbroken line of decisions that a check may constitute a sufficient payment to satisfy the statute. 25 R. C. L. 619; 20 Cyc. 252; Hessberg v. Welsh (Sup.) 147 N. Y. Supp. 44; Logan v.. Carroll, 72 Mo. App. 613; Groomer v. McMillan, 143 Mo. App. 612, 128 S. W. 285; McLure v. Sherman (C. C.) 70 Fed. 190. But while the law is as above stated, the courts almost universally hold that the mere giving of a check is not, in the absence of an express or implied agreement to that effect, a payment or discharge of the debt ; that from the mere fact that a creditor accepts a check from his debtor, there arises no presumption that he accepts the same in abso- lute payment; that the presumption is to the contrary; that the debt is not paid until the check is either paid or accepted at the bank on which it is drawn. In short, until proof to the contrary, a payment by check is presumed to be conditional. 21 R. C. L. 60; Nat. Bk. v. Railway Co., 44 Minn. 224, 46 N. W. 342, 9 L. R. A. 263, 20 Am. St. Rep. 566; Nat. Bk. v. McConnell, 103 Minn. 340, 114 N. W. 1129, 14 L. R. A. (N. 8.) 616, 123 Am. St. Rep. 336, 14 Ann. Cas. 396; Groomer v. MeMillan, supra; Hessberg v. Welsh, supra. That a payment by 1312 CASES ON THE Law or ConTRACTS check should not be held to be an absolute payment in the absence of proof of an agreement that it is given and received as such is per- fectly clear. The drawer can stop payment, at any time before ac- ceptance or payment by bank, by serving notice on the bank. This follows from the fact that a check does not assign any part of the funds that may be in the bank to the credit of the drawer; and the bank does not become liable to the payee, unless and until the bank accepts or certifies the check. Section 1891, Rev. Code 1919. Furthermore, the bank may, even without right, refuse to honor the check, thus leaving the drawer liable on the original debt. The above facts must be pre- sumed to be known to both parties to the check; and they are also presumed to know that it is within the power of one to make, and of the other to require, an absolute payment. The authorities, almost without exception, hold that, to take an oral contract out of the statute of frauds, the payment must be absolute. The case of McLure v. Sherman, supra, is sometimes referred to as supporting the proposition that the giving and receiving of a check in partial payment takes a contract out of the statute of frauds. An examination of the opinion in said case discloses that the court went no further than to hold that a check must be considered to possess a money value and might be a part payment on a contract. Logan v. Carroll is cited by respondent. In that case no question of absolute or conditional payment was raised —it was merely, held that, ‘‘if a check was accepted as payment, the statute of frauds was satisfied.’’ But the highest court of the same state, in Groomer v. McMillan, supra, in no uncertain language has declared that, to take the contract out of the statute, the payment must be absolute. In the Groomer Case the payment was by check. After announcing the legal propositions we have referred to above, the court said: “‘The statute requires that there shall be a payment on the price. And it must be remembered that this is a requirement of the law as a matter of public policy, and it can neither be waived nor evaded by the parties. If the creditor accepts something other than money, it must be agreed and understood that it is in absolute payment and dis- charge of the price. Otherwise the statute is of no force or. effect. A seller of personal property desiring to make a valid contract under the provision of the statute of frauds, with a buyer who has no money with him, might expressly agree with the latter to take his check in absolute discharge of that much of the purchase price. But if he did so, he would have to take the risk of getting the money, provided, of course, the buyer had funds and a right to draw the check at the time he delivered it. For if he had no right to draw it, that would be a fraud on the seller, and his agreement to accept it as a discharge of the debt would be avoided.’’ We commend the reasoning in this last case, the facts of which are on all fours with those of this case, but we refrain from quoting further. We cite in support of the proposition that the payment must Contracts WITHIN THE Srature or FRaups 1315 be absolute in order to take the oral contract out of the statute: Hesgs- berg v. Welsh (Sup.) 147 N. Y. Supp. 44; Leonard v, Roth, 164 Mich. 646, 180 N. W. 208; Johnson v. Morrison, 163 Mich. 322, 128 N. W. 243. The judgment and order appealed from are reversed.®° THE SALMON FALLS MANUFACTURING COMPANY, PLAINTIFF IN Error, v. WILLIAM W. GODDARD. (Supreme Court of the United States, 1852. 14 How. 446, 14 L. Ed. 493.) NELSON, J. This is a writ of error to the Circuit Court of the United States for the district of Massachusetts. The suit was brought by the plaintiffs in the court below to recover 60In Hunter v. Wetsell, 84 N. Y. 549 (1881), under a statute requiring part ‘ payment at the time of the contract, payment by a check good when drawn, the check being accepted as payment, was held to be payment at the time it was accepted. Finch, J., said: “It is admitted that the check was then given, and it cannot be successfully denied that it was both delivered and received as a payment upon the contract- price of the hops, but it is claimed that the check was not, in and of itself, payment, and having been drawn upon a bank, could not have been in fact paid until afterward, and so tiere was no payment ‘at the time’ to satisfy the requirements of the statute. It is quite true that a check, in and of itself, is not payment, but it may become so when accepted as such and in due course actually paid. While not money, it is a thing of value, and is money’s worth when drawn against an existing deposit which remains until the check is presented. We must assume that the check of the vendee in this case was good’ when drawn and was duly paid upon presentation in the usual and regu- lar way, for it appears in the possession of the drawers, and they practically assert the fact of its payment by their counter-claim in the action, by which they seek to recover back the money so paid. There was therefore an actual and real payment made by the vendees to the vendor upon the purchase-price of the hops. It is said, however, that the actual payment of the money, as distinguished from the delivery of the check, was not ‘at the time’ of the con- tract, but at some later period. We do not know accurately when the check was paid. It may have been the same day. It may have been within ‘a very few moments. It may not have been till the next day. We are not to presume, for the purpose of making the contract invalid, that it was held beyond the natural and ordinary time. In such event it is a very narrow construction to say that the payment was not made at the time of the contract. The pur- pose and object of the statute should not be forgotten. Its aim is to substitute some act for mere words, to compel the verbal contract to be accompanied by some fact not likely to be mistaken, and so avoid the dangers of treacherous memory or downright perjury. The delivery of the check was such an act. Indeed it would be an entirely reasonable and just construction to say that the delivery of the check and its presentment and payment constituted one continuous transaction, and should be taken as such without reference to the ordinary delay attendant upon turning the check into money. The statute does not mean rigorously, eo instanti. It does contemplate that the contract and the payment shall be at the same time, in the sense that they constitute parts of one and the same continuous transaction. ‘We think, therefore, there 1314 Cases on THE Law oF CONTRACTS the price of three hundred bales of brown, and of one hundred cases of blue drills, which they had previously sold to the defendant. The contract for the purchase was made with the house of Mason and Lawrence, agents of the plaintiffs, in Boston, on the 19th Sep- tember, 1850, and a memorandum of the same signed by the parties. A bill of parcels was made out under date of 30th September, stating the purchase of the goods by the defendant, carrying out prices and footing up the amount at $18,565.03; also the terms of payment— note at twelve months, payable to the treasurer of the plaintiffs. This was forwarded to the defendant on the 11th October, and in pursu- ance of an order from him, the three hundred bales were sent from their establishment at Salmon Falls by the railroad and arrived at the depot in Boston on the 30th October, of which notice was given to the defendant on the same day, and a delivery tendered. He re- quested that the goods should not be sent to his warehouse, or place of delivery, for the reason as subsequently stated by his clerk, there was no room for storage. The agents of the plaintiffs the next day renewed the tender of delivery by letter, adding that the goods re- mained at the depot at his risk, and subject to storage, to which no answer was returned. On the night of the 4th November, the rail- road depot was consumed by fire, and with it the three hundred bales of the goods in question. The price was to be paid by a note at twelve months, which the defendant refused to give, upon which re- fusal this action was brought. The court below, at the trial, held that the written memorandum, made at the time of entering into the contract between the agents of the plaintiffs and the defendant, was not sufficient to take the case out of the statute of frauds, and as there was no acceptance of the goods, the plaintiffs could not recover. As we differ with the learned judge who tried the cause, as to the sufficiency of the written memorandum, the question upon the stat- ute is the only one that it will be material to notice. The memoran- dum is as follows: “Sept. 19,—W. W. Goddard, 12 mos. 300 bales S. F. drills........... 0.0. ee cee eee 74 100 cases blue drills........... 0.0... eee eee 834 Credit to commence when ship sails: not after Dec. 1— delivered free of charge for truckage. The blues, if color satisfactory to purchasers. R, M, M. Ww. Ww. G@.”’ was a payment ‘at the time,’ within the meaning of the statute, and that the contract of sale was valid.” On a check as payment for the purpose of taking a contract out of the stat- ute of frauds, see L. R. A., 1918 B, 902, note. Contracts WITHIN THE STATUTE OF FRAUDS 1315 ‘The statute of Massachusetts on this subject is substantially the same as that of 29 Car. II. ¢. 3, §17, and declares that no contract for the sale of goods, etc., shall be valid, etc., ‘‘unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby, or by some person thereunto by him law- fully authorized.’’ The word ‘‘bargain,’’ in the statute, means the terms upon which the respective parties contract; and in the sale of goods, the terms of the bargain must be specified in the note or memorandum, and stated with reasonable certainty, so that they can be understood from the writ- ing itself, without having recourse to parol proof; for, unless the essen- tial terms of the sale can be ascertained from the writing itself, or by a reference contained in it to something else, the memorandum is not a compliance with the statute. This brief note of the contract, however, like all other mercantile contracts, is subject to explanation by reference to the usage and cus- tom of the trade, with a view to get at the true meaning of the par- ties, as each is presumed to have contracted in reference to them. And although specific and express provisions will control the usage, and exclude any such explanation, yet, if the terms are technical, or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade is admissible to explain the meaning. 2 Kent. C. 556, and n. 8; ibid. 260, and n.; Long on Sales, 197, Ed. 1839; 1 Gale & Davis, 52. Extraneous evidence is also admissible to show that a person whose name is affixed to the contract acted only as an agent, thereby enabling the principal either to sue or be sued in his own name; and this, though it purported on its face to have been made by the agent himself, and the principal not named. Higgins v. Senior, 8 M. & Wels. 834; Truman vy. Loder, 11 Ad. & Ell. 589. Lord Denham observed, in the latter case: ‘‘That parol evidence is always necessary to show that the party sued is the party making the contract, and bound by it; whether he does so in his own name, or in that of another, or in a feigned name, and whether the contract be signed by his own hand, or that of an agent, are in- quiries not different in their nature from the question, Who is the per- son who has just ordered goods in a shop? If he is sued for the price, and his identity made out, the contract is not varied by appearing to have been made by him in a name not his own.”’ So the signature of one of the parties is a sufficient signing to charge the firm. Soames v. Spencer, 1 D. & R. 32; Long on Sales, 58. It has also been held, in the case of a sold note which expressed “eighteen pockets of hops, at 100s.,’’ that parol evidence was admis- sible to show that the 100s. meant the price per ewt. Spicer v. Cooper, 1 Gale & D. 52; 5 Jurist, 1036. The memorandum in that case was as follows: ‘‘Sold to Waite ” 1316 CASES ON THE LAw oF CONTRACTS Spicer, of 8. Walden, 18 pos. Kent hops, as under July 23, 1840; 10 pos. Barlow East Kent, 1839; 8 pos. Springall Goodhurst Kent, 1839, 100s. Delivered, ; JOHN COOPER.”’ Evidence was admitted on the trial to prove that the 100s. was understood in the trade to refer to the price per cwt., and the ruling approved by the King’s Bench. Lord Denman put a case to the coun- sel in the argument to illustrate his view, that bears upon the case be- fore us. Suppose, he said, the contract had been for ten butts of beer, at one shilling, the ordinary price of a gallon—and intimated that the meaning could hardly be mistaken. Now, within the principles above stated, we are of opinion that the memorandum in question was a sufficient compliance with the statute. It was competent to show, by parol proof, that Mason signed for the firm of Mason and Lawrence, and that the house was acting as agents for the plaintiffs, a company engaged in manufacturing the goods which .were the subject of the sale; and also to show that the figures 714 and 834, set opposite the three hundred bales and one hundred eases of goods, meant seven and a quarter cents, and eight and three quarter cents per yard.®! The memorandum, therefore, contains the names of the sellers,® and of the buyer—the commodity and the price—also the time of credit 61 “Oral evidence may be received to show in what sense figures and abbre- viations may be used and their meaning may be stated as it was understood between the parties. In this case it was competent to prove by oral testimony what was meant by the parties in stating that the cotton was sold at 19 1/16 basis; this being a term peculiarly known to cotton men in the purchase and sale of cotton.” Higgins, J., in King Collie Co. v. Richards (Okla.), 184 Pac. 130, 131 (1919). “Under this statute we have held that the writing, when alone relied upon to relieve from the bar of the statute, must in itself contain all of the terms of the contract. While we have said that the writing need not be formal, and may contain implied conditions and may use trade terms or abbreviations requiring explanation, without subjecting it to the fault of incompleteness, yet it must be so far complete in itself, after effect is given to the implied con- ditions and the trade terms and abbreviations are explained, as to show the bargain made. Nut House v. Pacific Oil Mills, 102 Wash. 114, 172 Pac. 841;! Wright v. Seattle Grocery Co., 105 Wash. 383, 177 Pac. 318. * * * “Again it is the rule that where the contract is alleged to consist, as it is in this instance, of an offer on the one side and the acceptance of the offer on the other, the acceptance to constitute a binding contract must be as broad as the offer, any conditions attached to the offer being in the nature of new proposals, which themselves must be accepted to make a binding contract. Olympian-Tribune Pub. Co. v. Byrne, 28 ‘Wash. 79, 68 Pac. 335; Bringham v. American Bridge Co., 39 Wash. 3, 80 Pac. 788; Littell v. Saulsberry, 40 Wash. 550, 82 Pac. 909; Sillman v. Spokane Sav. & Loan Co., 103 Wash. 619, 175 Pac. 296.” Fullerton, J., in Coleman v. St. Paul & Tacoma Lumber Co. (Wash.), 188 Pac. 532, 535-6 (1920). 62 The memorandum must state the name or description of each party to the bargain, (McElroy v. Seery, 61 Md. 389 (1883); see 13 Ann. Cas. 313, note), and must show which is buyer and which is seller. Schwartz v. Vig- Contracts WITHIN THE StaruTE or Fravups 1B1? and conditions of the delivery; and, in the absence of any specified time or place of delivery, the law will supply the omission, namely, a reasonable time after the goods are called for, and usual place of business of the purchaser, or his customary place for the delivery of goods of this description. In respect to the giving of the note, which was to run during the period of the credit, it appears to be the uniform custom of the house of Mason and Lawrence to take notes for goods sold of this descrip- tion. The defendant was one of their customers, and knew this usage; and it is a presumption of law, therefore, that the purchase was made with reference to it, there being no stipulation to the contrary in the contract of the parties. We are also of opinion, even admitting that there might be some obscurity in the terms of the memorandum, and intrinsic difficulty in a proper understanding of them, that it would be competent, under the circumstances of the case, to refer to the bill of parcels delivered, for the purpose of explanation. We do not say that it would be a den, 182 N. Y. Supp. 907 (1920); Frank & Co. v. Eltringham, 65 Miss. 281 (1887). While the memorandum in Salmon Falls Manufacturing Co. v. Goddard indicates Goddard as the buyer and is signed by tne agent of the seller, where is the name of the seller? “Without considering all the objections that have been urged against the memorandum it is sufficient to say that it is fatally defective in not contain- ing the name of the purchaser or any designation of him whatever. In order to satisfy the statute the memorandum should not only have been signed by the defendant or her authorized agent, and have identified the property to be sold, but should also have contained the name of the other party to the con- tract, or should have described him with reasonable certainty. This was not done and the memorandum is therefore insufficient.” Morton, J., in Lewis v. Wood, 185 Mass. 321 .(1891). “The memorandum contains the names of both parties to the contract, but does not disclose which is seller and which is purchaser. * * * No doubt both names must appear. * * * In this state the rule has been pushed further, so that, even if signed by an agent the principal’s name must appear. Mentz v. Newwitter, 122 N. Y. 491. The extension of the rule, however, does not appear to hold in England.” Blackmar, J., in Tobias v. Lynch, 182 N. Y. Supp. 648, 644 (1920). “There can be no doubt that if a written contract is made in this form, ‘A. B. agrees to sell Blackacre to C. D. for £1,000,’ then E. F., the principal of A, B., can sue G. H., the principal of C. D., on that contract.” Sir George Jessel, M. R., in Commins v. Scott, L. R., 20. Ea. 11, 15-16 (1875). In Carr v. Lynch, [1900] 1 Ch. 613, the other party, not named, was deemed sufficiently described in the following memorandum: “Dear Sir: In considera- tion of your having this day paid me £50 I hereby agree to give you a further lease for 24 years of the Warden Arms to run immediately after the expira- tion of the now existing lease.” On the sufficiency within the statute of frauds of a memorandum of sale of lands disclosing that it is signed by one party for an undisclosed principal, see 12 Ann. Cas. 487, note. 1318 CASES ON THE Law oF CONTRACTS note in writing, of itself sufficient to bind the defendant within the statute; though it might be to bind the plaintiff. It was a bill of sale made out by the seller, and contained his understanding of the terms and meaning of the contract; and having been received by the buyer, and acquiesced in (for the order to have’ ‘the goods forwarded was given after it was received), the natural inference would seem to be, that the interpretation given was accord- ing to the understanding of both parties. It is not necessary to say that this would be the conclusion if the bill differed materially from thé written contract; that might present a different question; but we think it is so connected with, and naturally resulting from, the transac- tion, that it may be properly referred to for the purpose of explaining auy ambiguity or abbreviations, so common in these brief notes of. mer- cantile contracts. A printed bill of parcels, delivered by the seller, may be a sufficient memorandum within the statute to bind him, especially if subsequently recognized by a letter to the buyer. 2 B. & P. 238 D.; 3 Esp. 180. And, generally, the contract may be collected from several distinct papers taken together, as forming parts of an entire transaction, if they are connected by express reference from the one to the others. 3 Ad. & Ell. 355; 9 B. & Cr. 561; 2 ibid. 945; 3 Taunt. 169; 6 Cow. 445; 2 M. & Wels. 660; Long on Sales, 55, and cases. In the case before us, the bill of parcels is not only connected with the contract of sale, which has been signed by both parties, but was made out and delivered in the course of the fulfillment of it; has been acquiesced in by the buyer, and the goods ordered to be delivered after it was received. It is not a memorandum sufficient to bind him, because his name is not affixed to it by his authority ; but if he had subsequently recognized it by letter to the sellers, it might have been sufficient. 2 B. & P. 238; 2 M. & Wels. 653; 3 Taunt. 169. But although we admit, if it was necessary for the plaintiffs to rely upon the bill as the note or memorandum within the statute, they must have failed, we think it competent, within the principle of the cases on the subject, from its connection with and relation to the contract, to refer to it as explanatory of any obscurity or indefiniteness of its terms, for the purpose of removing the ambiguity. Take, for example, as an instance, the objection that the price is uncertain, the figures 714 and 834, opposite the 300 bales and 100 cases of drills, given without any mark to denote what is intended by them. © The bill of parcels carries out these figures as so many cents per yard, and the aggregate amount footed up; and after it is received by the defendant, and with a knowledge of this explanation, he ordered the goods to be forwarded. We cannot doubt but that the bill, under such circumstances, affords competent evidences of the meaning to be given to this part of the written memorandum. And so, in respect to any other indefinite or Contracts WITHIN THE StTaTuTE oF FRaups 1319. abbreviated item to be found in this brief note of a mercantile con- tract.: For these reasons, we are of opinion that the judgment of the court below must be reversed, and the proceedings remitted, with directions to award a venire de novo.®8 Curtis, J.¢ I have the misfortune to differ from the majority of my brethren in this case, and, as the question is one which enters into the daily business of merchants, and at the same time involves the construc- tion of a statute of the commonwealth of Massachusetts, I think it proper to state briefly the grounds on which I rest my opinion. The first question is, whether the writing of the 19th of September is a sufficient memorandum within the 3d section of the 74th chapter of the revised statutes of Massachusetts. * * * Does this writing show, upon its face, and without resorting to extraneous evidence, that W. W. Goddard was the purchaser of these goods? I think not. Certainly, it does not so state.in terms; nor ean I perceive how the fact can be collected from the paper, by any certain intendment. If it be assumed that the sale was made, and that Goddard was a party to the transaction, what is there, on the face of the paper, to show whether Goddard sold or bought? Extraneous evidence that he was the seller would be just as consistent with this writing as extraneous evidence that he was the purchaser. Suppose - the fact had been that Mason was the purchaser, and that the writing 63In Falletti v. Carrano, 92 Conn. 636 (1918), the memorandum of a sale of flour was: “Sold to James Faletti, 50 bbl. Daisy flour in 98 lot, at 8.90 to be taken from the car, terms, cash. Carrano & Nobile—N. F. R.” Roraback, J., for the court, said: “The defendants also insist that the place of delivery mentioned in the memorandum of sale, which states that it was ‘to be taken from the car’ is so indefinite that the contract fails to meet the requirement of the statute of frauds. In the absence of any explanation, the meaning of this term is hardly intelligible, but the judge of the court below was not at liberty to pro- nounce this writing void [as he did] until he had brought to his aid in its interpretation all the light afforded by the collateral facts and circumstances. This could have been done by parol. Kilday v. Schancupp, 91 Conn. 29, 32, 38; Shelinsky v. Foster, 87 Conn. 90, 97. Where an agreement in writing is expressed in technical or incomplete terms, parol evidence may be admissible to explain that which, taken alone, would be unintelligible, when such explana- tion is not inconsistent with the written terms of the instrument. Thus, if the language of the instrument is applicable to several persons, to several parcels of Jand, to several species of goods, to several monuments or boundaries, to several writings; or the terms be vague and general, or have divers mean- ings as ‘household furniture,’ ‘stock,’ ‘freight,’ ‘factory prices’ and the, like; in all these and the like cases, parol evidence is admissible of any extrinsic circumstatices, tending to show what person or persons, or what things, were intended by the party, or to ascertain the meaning in any other respect” (92 Conn. at pp. 639-640). ; ; 64The dissenting opinion of Daniel, J., and small parts of the dissenting opinion of Curtis, J., are omitted. 1320 CASES ON THE Law oF ContTRACTS might be explained by evidence of that fact; it would then be read that Goddard sold to Mason, on twelve months’ credit; and this evi- dence would be consistent with everything which the paper contains, because the paper is wholly silent as to the fact whether he was the seller or purchaser. In Bailey et al. v. Ogden, 3 Johns. 399, an action for not accepting sugars, the memorandum was: ‘14 December. __ - J. Ogden and Co. Bailey and Bogart. Brown, 1214, White, 1614. 60 and 90 days. Debenture part pay.’ Mr. Justice Kent, who ea the opinion of the court, enumerat- ing the objections to the memorandum, says, no person can ascertain from this memorandum which of the parties was seller and which buyer; and I think it would be difficult to show that the memorandum now in question is any more intelligible in reference to this fact. Indeed, I do not understand it is supposed that, in the absence of all extraneous evidence, it could be determined by the court, as mat- ter of law, upon an inspection of the paper alone, that Goddard was the purchaser of these goods. The real inquiry is, whether extrane- ous evidence of this fact is ddmissible. Now, it is true, the statute requires only some note, or memoran- .dum, in writing, of the bargain; but I consider it settled that this writing must show who is vendor and who is purchaser. In Cham- pion v. Plumer, 1 B. & P. New Rep. 252, the memorandum contained the name of the vendor, a description of the goods, and their price, and was signed by the vendee; yet, it was held that the vendee could not maintain an action thereon, because it did not appear, from the writing, that he yas vendee, though it was clearly proved by parol. * * * It seems to me that the fact that the defendant was the purchaser is to say the least, as necessary to be stated in the writing as any other fact, and that to allow it to be proved by parol, is to violate the intent of the statute, and encounter the very mischiefs which it was enacted to prevent. * * * I am aware that a latent ambiguity in a contract may be removed by extraneous evidence, according to the rules of the common law; and that such evidence is also admissible to show what, in point of fact, was the subject-matter called for by the terms of a contract. Bradlee v. Steam P. Co., 13 Pet. 98. So when an act has been done. by a person, and it is doubtful whether he acted in a private or official capacity, it is allowable to prove by parol that he was an agent and acted as such. But these cases fall far short of proving that when a. statute requires a contract to be in writing, you may prove by parol the fact that the defendant was purchaser, the writing being silent as to . Contracts WITHIN THE StatTuTE or FRaups 1321 that fact; or that a writing, which does not state who is vendor and who purchaser, does contain in itself the essentials of a contract of sale. It is one thing to construe what is written; it is a very different thing to supply a substantive fact not stated in the writing. It is one thing to determine the meaning and effect of a complete and valid written contract, and it is another thing to take a writing, which on its face imports no contract, and make it import one by parol evi- dence. It is one thing to show that a party, who appears by a writing to have made a contract, made it as an agent, and quite a different thing to prove by parol that he made a purchase when the writing is silent as to that fact. The duty and power of the court is a duty and power to give a construction to what is written, and not in any case to permit it to be added to by parol. Least of all when a statute has required the essential requisites of a contract of sale to be in writing, is it admissible, in my judgment, to allow the fact, that the defendant made a purchase, to be proved by parol. If this fact, which lies at the basis of the action and to which every other is but incidental, can be proved by evidence out of the writing signed by the defendant, the statute seems to me to be disregarded. It has been argued that the bill of parcels, sent to Goddard by Mason and Lawrence, and received by him; may be resorted to for the. purpose of showing he was the purchaser. But it is certainly the law of Massachusetts, where this contract was made, and the case tried, as I believe it is of most other states, and of England, that unless the memorandum which is signed contains a reference to some other paper, no paper, not signed by the party to be charged, can be connected with the memorandum, or used to supply any defect therein. This was held in Morton et al. v. Dean, 13 Met. 385, a case to which I shall have occasion more fully to refer hereafter. And in conformity therewith, Chancellor Kent lays down the rule, in 2 Com. 511, and refers to many authorities in support of it. I am not aware that any court has held otherwise. That this bill of parcels was of itself a sufficient memorandum under the statute, or that it was a paper signed by the defendant, or by any person by him thereunto lawfully authorized, I do not understand to be held by the majority of the court. Now the memorandum of the 19th September is either sufficient or insufficient, under the statute. If the former, there is no occasion to resort to the bill of parcels to show who was vendor and who pur- chaser; if the latter, it cannot, consistently with the statute, be made good by another paper not signed, and connected with it only by parol. To charge a party upon an insufficient memorandum, added to by another independent paper, not signed, would be to charge him when there was no sufficient memorandum signed by him, and therefore in direct conflict with the statute. It does not seem to me to be an 1322 CASES ON THE LAW OF CONTRACTS answer, to say that the bill of parcels was made out pursuant to the memorandum. If the signed memorandum itself does not contain the essentials of a contract of sale, and makes no reference to any other paper, in no legal sense is any other paper pursuant to it—nor can any othér paper be connected with it, save by parol evidence, which the statute forbids. In point of fact, it would be difficult to imagine any two independent papers more nearly connected than a memorandum made and signed by an auctioneer, and the written conditions read by him at the sale. Yet it is settled, that the latter cannot be referred to, unless expressly called for by the very terms of the signed memoran- dum. Upon what principle does a bill of parcels stand upon any better ground? The distinction, heretofore, has been between papers called for by the memorandum by express reference, and those not thus called for; this decision, for the first time, I believe, disregards that distinction, and allows an unsigned paper, not referred to, to be used in evidence to charge the purchaser. ‘ In my judgment, this memorandum was defective in not showing who was vendor and who purchaser, and oral evidence to supply this defect was not admissible. But if this difficulty could be overcome, or if it had appeared on the face of the paper that Goddard was the purchaser, still, in my judgment, there is no sufficient memorandum. I take it to be clearly settled, that if the court cannot ascertain from the paper itself, or from some other paper therein referred to, the essential terms of the sale, the writing does not take the case out of the statute. * * * The statute, then, requires the essential: terms of the sale to be in writing; the credit to be allowed to the purchaser is one of the terms of the sale. And if the memorandum shows that a credit was to be given, but does not fix its termination, it is fatally defective, for the court cannot ascertain; from the paper, when a right of action accrues to the ven- dee, and the contract shown by the paper is not capable of being de- scribed in a declaration. The rights of the parties, in an essential particular, are left undetermined by the paper. This paper shows there. was to be a credit of six months, and contains this clause— ‘Cr. to commence when ship sails: not after December 1.’’ According to this paper, when is this credit to commence? The answer is, when ship sails, if before December 1. What ship? The paper is silent. This is'an ‘action against Goddard for not delivering his note on twelve months’ credit, and it is an indispensable inquiry, on what day, according to the contract, the note should bear date. The plaintiffs must aver, in their declaration, what note Goddard was bound to de- liver, and the memorandum must enable the court to say that the de- scription of the notes in the declaration is correct. They attempt this by averring, in the declaration, that the contract was for a note pay- Contracts WitHIN. THE Stature or FrRaups 1323 able in twelve months from the sailing of a ship called ‘‘The Crusader,”’ and that this ship sailed on the sixth day of November. But the writ- ing does not refer to the ‘‘Crusader ;’’ and if oral evidence were admis- sible to prove that the parties referred to ‘‘The Crusader,’’ this essen- tial term of their contract is derived from parol proof, contrary to the requirement of the statute. It was upon this ground: the case of Mor- ton et al. v. Dean, [13 Mete. (Mass.) 385] and many other similar cases, have been decided. In that case, there was a memorandum signed by the auctioneer, as the agent of both parties, containing their names, as vendor and vendee, the price to be paid, and a sufficient description of the property. But it appeared that there were written or printed conditions read at the sale, but not referred to in the memorandum, containing the terms of credit, etc., and therefore that the memorandum did not fix all the essential parts of the bargain, and it was held insufficient. But, further; even if oral evidence were admissible to show that the parties had in view some particular vessel, and so to explain or render certain the memorandum, no such evidence was offered, and no. re- . quest to leave that question of fact to the jury was made. Mason, who made the contract with Goddard, was a witness, but he does not pre- tend the parties had any particular vessel in view, still less that they agreed on ‘‘The Crusader’’ as the vessel, the sailing of which was to be the commencement of the credit. I cannot perceive, therefore, how either of the counts in this declaration is supported by the evidence, or how a different verdict could have lawfully been rendered. * * * I am authorized to state that Mr. Justice Catron concurs in this opinion. Judgment reversed and cause remanded with directions to award a vemre facias de novo. LEWIS v. ELLIOTT BAY LOGGING CO. (Supreme Court of Washington, 1920. 191 Pac, 803.) Action by B. A. Lewis against the Elliott Bay Logging Company. Judgment for plaintiff, and defendant appeals. Reversed and re- manded, with directions to dismiss action. Main, J. The purpose of this action was to recover damages for failure to deliver logs which it is claimed the defendant had sold to the plaintiff, The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $241.66. The defendant timely made motions for judgment notwithstanding the ver- dict and for a new trial, both of which were overruled, and judgment was entered upon the verdict. The defendant appeals. The essential facts may be stated as follows: 132-4 CAsks ON THE LAW or CONTRACTS The appellant is a corporation organized under the laws of the state of Washington, engaged in the logging business at Dabob, Wash. The respondent is engaged in the business of buying and selling logs. On the 25th day of April, 1917, the respondent visited Dabob, and looked over a boom of logs owned by the appellant, consisting of about 300,000 feet, and had a conversation with the president of the appellant company with reference to purchasing these logs, together with sufficient. logs to be brought from the woods to constitute a raft. The logs at the time had not been rafted. Subsequently the 300,000 feet in the boom were rafted with other logs brought from the woods, and in the raft as made up there was approximately 470,000 feet. On’ the day following the conversation mentioned, one of the trustees of the appellant wrote respondent a letter, which contained the following: ‘Having been away from camp the day you was here and Mr. Leber sold fir to you for $7—10—13, * * * so therefore under the con- dition we let you have fir at $7—10——13 delivered in Everett or Seattle * * * ” After receipt of this letter, and on April 28, the respondent wrote appellant a letter, containing the following: “Your letter of the 26th inst. is received, in which you agree to let me have the raft of fir logs to be delivered in Seattle, by you at $7.00, $10.00, and $13.00, * * * and I will take the fir logs as per your offer at the above prices. * * * ” It should be noted that in appellant’s letter the subject-matter of the sale is referred to simply as ‘‘fir.’’ There is no mention of the quantity. In the respondent’s letter for the first time the subject- matter is referred to as. ‘‘a raft of fir logs.’’ As above stated, the logs were not delivered, and, since the price of logs had advanced, this action was brought for the purpose of recovering damages. The first question to be determined is whether the letters referred to constitute a sufficient memorandum to satisfy the statute of frauds. One of the essentials of a memorandum under the statute is that it shall designate the subject-matter of the contract. Considering, first, the letter signed by the appellant, there is no designation therein of the quantity, but the subject of the sale is re- ferred to simply as ‘‘fir.’? The rule as stated in 1 Mechem on Sales, § 487, is that— ‘‘The note or memorandum must also show what goods were sold and in what quantities. This rule requires that the goods shall be set out either by name or by such description as will enable them to be as- eertained without other recourse to parol evidence to identify the goods or apply the description of them.’’ Under this rule it is necessary that the note or memorandum show in ‘‘what quantities’ the goods are sold. In 25 R. C. L. 648, the rule is stated substantially the same as in Mechem, and is as follows: “‘In case of contracts for the sale of goods the memorandum must Contracts WITHIN THE STaTuTE oF FRAvps 1325 designate with reasonable certainty the subject-matter of the sale, and where the sale is of a quantity of a commodity the quantity must be stated with reasonable certainty as well as its kind.”’ This rule requires that the quantity be designated in the memorandum. The letter written by the appellant, which referred to the subject- matter of the sale as ‘‘fir,’’ did not sufficiently designate the quantity. The respondent, however, argues that the two letters should be con- sidered together. It is true that where the memorandum consists of telegrams or letters they may be construed together, providing they are sufficiently connected by reference. In the letter of the respondent the quantity of the subject-matter, namely, ‘‘a raft of fir logs,’’ is for the first time designated. Under the authorities above cited this was one of the essentials of the memorandum. The question then arises, the memorandum of the appellant which is sought to be charged not sufficiently describing the subject-matter, ean it be held upon the letter of the respondent which for the first time contains that essential term of the contract? Respondent cites a num- ber of cases upon this question, all of which have been carefully read and considered, but none of them would sustain a holding that the appellant could be charged upon a memorandum which it did not sign, and which designated the quantity, where the writing signed by the appellant did not sufficiently designate the subject-matter in that respect. They are cases where the party sought to be charged signed a@ memorandum which contained .all the essential terms of the con- tract, and which was simply accepted by the opposite party, or cases where the party sought to be charged had accepted the terms as they were written by the opposite party. They. are therefore not applicable to the facts in the case now before us. The respondent also cites a number of authorities to sustain his contention that the word ‘‘fir’’ as used in the letter of the appellant was a sufficient designation of the subject-matter, and that oral testi- money was admissible for the purpose of showing that that word referred to a raft of logs and the quantity thereof. In all the cases cited, with possibly one exception which will be specially noticed, the memorandum contained language which made the quantity reasonably certain. It cannot be said that simply the word ‘‘fir’’ bears any rela- tion to the quantity. We have not overlooked the rule that the situation of the parties and the surrounding circumstances at the time when the contract was made may be shown for the purpose of apply- ing the contract to the subject-matter, but this rule does not go to the extent of permitting an essential term of the memorandum to be shown by oral testimony. The case of Brewer v. Horst & Lachmund Co., 127 Cal. 643, 60 Pac. 418, 50 L. R. A. 240, is probably the most closely in point of any case cited by respondent, but that case, when carefully read, is distinguishable. There a telegram to a hop dealer by his agent, stating ‘‘bought thirteen at eleven five-eighths net you; confirm 1326 CASES ON THE Law or CONTRACTS i purchase by wire,’’ with the reply by the dealer to the effect that,.‘‘We confirm purchase eleven five-eight cents, like sample,’’ was held to constitute a sufficient memorandum, since it was shown by parol evi- dence that according to the custom of the hop business the words were understood by the parties to mean an agreement to purchase a certain quantity of hops, of a certain grade, for a certain price. There is no showing in the present case that the word ‘‘fir,’’ according to the custom of the business, had any particular meaning. The case of Wright v. Seattle Grocery Co., 105 Wash. 383, 177 Pac. 818, is cited and relied on by both parties, but that case does not discuss or determine the question here involved. There the memorandum designated the subject-matter as ‘‘1 car’’ of flour, and it was held that the parol evi- dence was admissible to explain what the term ‘‘1 car’’ of flour meant, and that the price agreed upon was in full for that quantity. There is nothing in that case which would sustain a holding that, where a memorandum does not sufficiently designate the subject-matter, in that it does not fix the quantity with reasonable certainty, this fact may be shown by oral evidence. The judgment will be reversed, and the cause remanded, with di- rections to the superior court to dismiss the action.® ‘-PEARLBERG.v. LEVISOHN et at. (Supreme Court, Appellate Term, Second Department, 1920. 112 Misc. 95, 182 N. Y. Supp. 615.) Action by Morris Pearlberg against Julius Levisohn and another, — copartners trading as Julius Levisohn & Son. Judgment for plain- tiff, and defendants appeal. Affirmed. Cropsey, J.°6 * * * The defendants are manufacturers of cloth- ing, and from them the plaintiff ordered some goods. The memorandum is made on a printed form taken from the order book of the defendants. At the head of it is the name of defendants’ firm, with the statement that they are manufacturers of clothing. The printed part of the form contains a place for the date, order number, name of purchaser, di- 65 See Burley-Winter Pottery Co. v. Onken Bros. & West Co. (Wyo.), 183 Pac. 747 (1919), where a written order for 1 car of “stoneware as per orders shown for same,” there being no other orders for stoneware offered in evidence, was held insufficient because the subject-matter of the contract was too in- definite. On the necessity that a memorandum within the statute of frauds shall con- tain the terms of sale, see 9 Ann. Cas. 1060, note. On the necessity of a writ- ten acceptance of a written offer to constitute a sufficient memorandum under the statute, see Ann. Cas., 1913 A, 1041, note. : 66 Parts of the opinion are omitted. ’ Contracts WITHIN THE StatuTE or FRaups 1327 rections for time and method of shipment, terms, etc., and below are columns showing the lot, style, and quantity of the different sized garments ordered, with the prices. This order has written on it the date, the name of the plaintiff, who was the purchaser, and a de- tailed description of the lot, style, and quantity, giving the different sizes and the different prices. All this writing was made by one of the defendants, and the paper was then given to the plaintiff; the defendants keeping a carbon copy of it for their use. It is manifest that this is a memorandum of an agreement to sell to the plaintiff the goods specified at the prices named. All the neces- sary terms of a contract and all the terms of the agreement actually made appear on the face of the memorandum. It does not state the terms or the time of delivery, but there was no agreement as to either, and there need be none to make a valid agreement. The plaintiff was permitted to testify, over objection, that at the time he gave the or- der the defendants said the goods would be delivered in two or three weeks. But this was not a part of the agreement. The order is dated May 24, 1919, and the plaintiff told the defendants he wanted the goods for his fall trade, he being in the retail clothing business, so he had no need of them in two or three weeks; and the plaintiff did not attempt to hold the defendants to a delivery within that period. When the goods were not received, he visited the defendants several times, and finally, after two months had elapsed, the defendants told him the goods had been sold to others. Thereafter this action was brought. It is admitted that the prices of the suits went up after the order was placed, though there is a dispute as to the amount of the advance. . The memorandum does not contain any signature of the defendants, either in ink or pencil; but the printed firm name appears at the top of it, and it is contended by defendants that this is not a signing within the meaning of the statute. The statute does not specify any particular form of signing. It merely requires that the party to be charged shall have signed the memorandum. It has been held that cross mark is a good signature (Zacharie v. Franklin, 12 Pet. 151, 161-162, 9 L. Ed. 1035); also initials (Barry v. Coombe, 1 Pet. 640, 7 L. Ed. 295; Salmon Falls Mfg. Co. v. Goddard, 14 How. 446, 14 L. Ed. 493); even numerals, when used with the intention of constituting a signature (Brown v. Butchers’ & Drovers’ Bank, 6 Hill, 443, 41 Am. Dec. 755); and a typewritten name or imprint made by a rubber stamp has the same effect (Landeker v. Co-opera- tive Bldg. Bank, 71 Misc. Rep. 517, 130 N. Y. Supp. 780; Degginger v. Martin, 48 Wash. 1, 4, 92 Pac. 674); and this is equally true, though the typewriting or stamp impression be made by another, if the person to be charged has directed it (Deep River National Bank’s Appeal, 73 Conn. 341, 346, 47 Atl. 675) .% 87“Proof that the letters containing the alleged acknowledgments were dic- 1328 CASES ON THE LAW oF CONTRACTS These and similar cases establish the rule that any name or symbol used by a party with the intention of constituting it his signature, or which is adopted by the party as his signature, is sufficient; and from this it necessarily follows that the party’s name printed on the mem- orandum fully satisfies the statute, if it is shown to have been adopted by him as his signature. This has been the law in England for more than a century, and has been followed quite generally in this country. Saunderson v. Jackson, 3 Esp. 480; Schneider v. Norris, 2 M. & 8. 286; Evans v. Hoare, 1 Q. B. 593, 596; 88 Hucklesby v. Hook, 82 L. T. N. 8. 117; Cohen v. Wolgel, 107 Misc. Rep. 505, 176 N. Y. Supp. 764; Drury v. Young, 58 Md. 546, 553, 554, 42 Am. Rep. 348. See other cases in note, 37 L. R. A. (N. 8.) 352. It has even been held that the name of a party printed on the loose cover of his order book is sufficient. Jones Brothers v. Joyner, 82 L. T. N. S. 768.5 There tated by the deceased to a stenographer and were, by the latter, at the direc- tion of the deceased, typewritten and signed with the deceased’s name by means of a rubber stamp, was proof (1) that they were writings (Henshaw v. Foster, 9 Pick. 312, 318), since ‘typewriting is a substitute for and the equivalent of writing’; (2) that they were made by the deceased, since he directed them to be made and adopted them after they were made, by direct- ing them to be stamped with his name; and (3) that they were signed by him, since in the absence of any express or implied requirement of law that one shall subscribe a writing with his own hand he may properly sign it by means of such a stamp used by himself or by another at his direction. Schneider v. Norris, 2 M. & S. 286; Streff v. Colteaux, 64 Ill. App. 179; National Accident Soc. v. Spiro,.47 U. S. App. 293; Hamilton v. State, 103 Ind. 96; Chapman v. Limerick, 56 Me. 390; Dreutzer v. Smith, 56 Wis. 292.” Hall, J., in Deep River Natl. Bank’s Appeal, 73 Conn. 341, 345 (1900). On signature made otherwise than by writing in ink, see 1 A. R. C. 156, note. On signing by mark, see 22 L. R. A. 370, note. On printed or stamped signature, see 37 L. R. A. (N. S.) 352, note; Ann. Cas. 1913 B, 663, note. On signature with a lead pencil, see 8 A. L. R. 1339, note. 68In Evans v. Hoare the address of the firm at the head of a letter pre- pared by its clerk for the plaintiff to sign as a binding memorandum was held to be a signature there by the firm. See Kilday v. Schancupp, 91 Conn. 29 (1916), where the memorandum prepared by the defendant began: “Sold to J. Schancupp” and he was held to have signed it at the beginning. On the place of signature, see L. R. A., 1917 A 153, note. But in Guthrie v. Anderson, 47 Kans. 383, 389-390 (1891), where the memo- randum recited that “the undersigned, husband and wife, owners * * * hereby bargain and sell the same to W. W. Guthrie,” etc., Horton, C. J., said: “The writing or memorandum was prepared by Mr. Guthrie, and his name appears in the body of the instrument as the party to whom the Andersons agreed to sell. But this is not equivalent to the instrument being signed by Mr. Guthrie. * * * If Mr. Guthrie had signed his name at the bottom or the top or anywhere upon the memorandum after it had been written or pre- pared or directed his name to be so written for acknowledgment, then it might be held that such a signature would satisfy the statute. But his name only appears * * * in the body of the instrument as one of the terms or a part thereof.” 69In Jones Bros. v. Joyner the names of the plaintiffs were not found as Contracts WITHIN THE STATUTE OF Fraups 1329 is nothing in conflict with this holding in James v. Patten, 6 N. Y. 9, 55 Am. Dec 376, and similar cases, for they only decide that under a statute requiring the memorandum to be ‘‘subseribed”’ there had to be a manual signing of it at the end. But even these cases, so far as they say there must be a signature made by hand, have been seriously questioned. Landeker v. Co-operative Bldg. Bank, 71 Mise. Rep. 517, 180 N. Y. Supp. 780. Where the statute (like the present form of ours) merely re- quired that the memorandum be signed and not subseribed, it is com- plied with if the signature appears upon any part of the paper. Merritt v. Clason, 12 John. 102, 7 Am. Dee. 286, affirmed as Clason v. Bailey, 14 John. 484; New England, etc., Co. v. Standard Worsted Co., 165 Mass. 328, 331, 43 N. E. 112, 52 Am. St. Rep. 516; Barry v. Coombe, 1 Pet. 640, 7 L. Ed. 295. And the signing by one partner binds the firm. Salmon Falls Mfg. Co. v. Goddard, 14 How. 446, 455, 14 L. Ed. 493; Hughes v. Gross, 166 Mass. 61, 43 N. E. 1031, 32 L. R. A. 620, 55 Am. St. Rep. 375. * * * The judgment should be affirmed, with costs. WILLIAM F. JOHNSON, Puaintirr in Error v. JOHN C. DODGE, DEFENDANT IN Error. (Supreme Court of Illinois, 1856. 17 Ill. 433.) Skinner, J. This was a bill in equity, for specific performance of a contract for the sale of land. | The bill and proofs show that one Iglehart, a general land agent, signatures, but as parties. On the leather cover in which removable memo- randum books were slipped was stamped “James Jones.” The stamped name was deemed part of the memorandum written in the removable memorandum book to supply the names of plaintiffs as sellers. If defendant had been suing, would it have served as a signature? In Pearce v. Gardner, [1897] 1 Q. B. 688, where the “Dear Sir” of the address of a letter was read with the address on the énvelope to make the memoran- dum required by the statute of frauds, Chitty, L. J., said (p. 691): “It is a matter of common knowledge that formerly letters were written on one sheet of paper, which was folded up and indorsed with the name and address of the person to whom it was sent. Subsequently, about 1840, adhesive envelopes were introduced, and since then the old method has to some extent come into use again as a combination of letter and adhesive envelope. In my opinion, it would be contrary to good sense to hold that there is any distinction between the effect produced by these three methods of'sending a letter. The letter and its contents reached the plaintiff, and it seems to me that there is no diffi- culty in dealing with the whole as one document. It is suggested that this would be to introduce the mischief against which the statute was intended to provide; but the answer to this objection is that it has long been established that parol evidence is admissible to connect separate documents.” Pearce v. Gardner was followed in Last v. Hucklesby, [1914] W. N. 157 (C. A.). 1330 CasEs ON THE Law or CONTRACTS executed a contract in writing in the name of Dodge, the respondent, for the sale of certain land belonging to Dodge, to one Walters, and received a portion of the purchase money; that Walters afterwards assigned the contract to Johnson, the complainant; a tender of per- formance on the part of Walters, and on the part of Johnson, and a refusal of Dodge to perform the contract. The answer of Dodge, not under oath, denies the contract and sets up the statute of frauds as a defence, to any contract to be proved. The evidence, to our minds, establishes a parol authority from Dodge to Iglehart to sell the land, substantially according to the terms of the writing. It is urged against the relief prayed, that Iglehart, upon a parol authority to sell, could not make for Dodge a binding contract of sale, under the statute of frauds; that the proofs do not show an authority to Iglehart to sign the name of Dodge to the contract, and therefore that the writing is not the contract of Dodge; that the writing not being signed by the vendee is void for want of mutuality; that no sufficient tender of per- formance on the part of complainant is proved, and that the proof shows that the authority conferred was not pursued by the agent. Equity will not decree specific performance of a contract founded in fraud, but where the contract is for the sale of land, and the proof shows a fair transaction and the case alleged is clearly established, it will decree such performance. ‘ In this case, the contract, if Iglehart had authority to make it, is the contract of Dodge and in writing; and it is the settled construction of the statute of frauds, that the authority to the agent need not be in writing, and by this construction we feel bound. 1 Parsons on Con. 42, and cases cited; Doty v. Wilder, 15 Ill. 407; 2 Parsons on Con. 292, 298, and cases cited; Saunders’ Pl. and Ev. 541, 542, 551; Story on Agency, 50; 2 Kent’s Com. 614. Authority from Dodge to Iglehart to sell the land, included the necessary and usual means to make a bind- ing contract in the name of the principal. If the authority to sell, may be created by parol, from this authority may be implied the power to use the ordinary and usual means of effecting a valid sale; and to make such sale it was necessary to make a writing evidencing the same. If a party is present at the execution of a contract or deed, to bind him as a party to it, when his signature is affixed by another, it is necessary that the person so signing for him should have direct authority to do the particular thing, and then the signing is deemed his personal act. Story on Agency, 51. In such case the party acts without the inter- vention of an agent and uses the third person only as an instrument to perform the mere act of sigring. This is not such a case. The agent was authorized to negotiate and conclude the sale, and for that purpose, authority was implied to,do for his principal what would have been incumbent. on the principal to do to accomplish the same thing in person. Hawkins v. Chance, 19 Pick. 502; 2 Parsons on Con. 291; Story on Agency, chap. 6; Hunt v. Gregg, 8 Blackf. 105; Lawrence v. Taylor, Contracts WITHIN THE StaruTE or FRaups 1331 5 Hill, 107, 15 Ill. 411; Vanada v. Hopkins, 1 J. J. Marsh. 283; Kirby y. Grigsby, 9 Leigh, 387. The mode here adopted was to sign the name of Dodge ‘‘by”’ Iglehart, ‘‘his agent,’’ and it is the usual and proper mode in carrying out an authority to contract conferred on an agent. But if the signing the name of the principal was not authorized by the authority to sell, yet the signature of the agent is a sufficient signing under the statute. The language of the statute is, ‘‘signed by the party to be charged therewith, or some other persons thereto by him lawfully authorized.’’ If Tglehart had authority to sign Dodge’s name, then the contract is to be treated as signed by Dodge; and if Iglehart had authority to sell, in any view, his signature to the contract, is a signing by ‘‘some other person thereto by him lawfully authorized,’’ within the statute. Truman v. Loder, 11 Ad. and El. 589; 2 Parsons on Con. 291. It is true that authority to convey must be in writing and by deed; for land can only be con- veyed by deed, and the power must be of as high dignity as the act to be performed under it. It was not necessary to the obligation of the contract that it should have been signed by the vendee. His acceptance and possession of the contract and payment of money under it, are unequivocal evidences of his concurrence, and constitute him a party as fully and irrevocably as his signing the contract could. 2 Parsons on Con. 290; McCrea v. Purmort, 16 Wend. 160; Shirly v. Shirly, 7 Blackf. 452. We cannot question the sufficiency of the tender in equity, to entitle the complainant to specific performance. Webster et al. v. French et al., 11 Til. 278. Nor do we find any substantial departure in the contract from the authority proved. While we hold that the authority to the agent who, for his principal contracts for the sale of land, need not be in writing, yet we should feel bound to refuse a specific performance of a contract made with an agent upon parol authority, without full and satisfactory proof of the authority, or where it should seem at all doubt- ful whether the authority was not assumed and the transaction fraudulent. Decree [dismissing the bill] reversed.”® 70In Illinois, and in a number of states, statutes have been passed re- quiring the agent’s authority to be in writing. Morton v. Murray, 176 Ill. 54 (1858), mentioned in note 72, post, was decided under such a statute. Where an unauthorized agent makes a written contract of sale, an oral promise of the owner to perform will not prevent him from pleading the statute. Kesner v. Miesch, 204 Ill. 320 (1903). On necessity that agent have written authority to make memorandum re- quired by the statute of frauds, see 7 Ann. Cas. 1101, note. “An auctioneer is [usually] the agent of both parties to the sale, and a Memorandum thereof, signed by him at the proper time, if otherwise com- plete, is sufficient to charge both the vendor and the purchaser under the statute of frauds. McBrayer v. Cohen, 92 Ky. 479, 18 S. W. 123; Gill v. Hewett, 7-Bush, 10; Thomas v. Keer, 3 Bush, 619, 96 Am. Dec. 262. 1332 Casks ON THE Law or Conrracrs EUGENE L. LEZINSKY CoO., Inc., vu. CHARLES HOFFMAN er at. (Supreme Court, Appellate Term, First Department, 1920. 111 Misc. 415, 181 N. Y. Supp. 732.) Action by the Eugene L. Lezinsky' Company, Incorporated, against Charles Hoffman and Jacob Hoffman. From a judgment entered in “While it is sometimes stated that the auctioneer’s authority ceases as soon as the sale has taken place, it-is now generally held that his agency for the vendor is not necessarily coextensive with his agency for the purchaser. His agency for the purchaser ends with the sale; and, unless the memorandum be made and signed contemporaneously with the sale, or immediately thereafter, it is not binding on the purchaser. On the other hand, his agency for the vendor may or may not end with the sale. If he be a mere crier, who simply calls for bids and strikes the bargain, his authority ends with the sale; but, if he be given authority to advertise the property and to make.all the necessary arrangements for carrying the sale into effect, his authority to bind the vendor does not end with the sale, but extends beyond it, and, until it is revoked, he may properly bind the vendor by a memorandum signed within a reasonable time.” Clay, C., in Martin v. Mathis, 184 Ky. 20, 211 S. W. 198 (1919), citing White v. Dahlquist Manufacturing Co., 179 Mass. 427 (1901). On the suffi- ciency of the auctioneer’s memorandum to satisfy the statute, see Ann. Cas. 1912 D, 1069, note, But the other party to the contract cannot serve as agent to execute the memorandum for both, even if he is an auctioneer. In Bent v. Cobb, 9 Gray (Mass.) 397 (1857), Bigelow, J., said: “In all cases of sales by auction, the auctioneer, acting only as such, is the competent agent of both parties, and his memorandum of a contract or agree- ment is binding on both. He is the agent of the vendor by virtue of his em- ployment to make the sale, and he is made the agent of the vendee by the act of the latter in giving him his bid and receiving from him without objection the announcement that the property sold is knocked off to him as purchaser. But this rule is not applicable to cases where the auctioneer is also himself the vendor. The great mischief intended to be prevented by the statute would still exist if one party to a contract could make a memorandum of it which would absolutely bind the other. If such were its true construction it would be a feeble security against fraud, or, rather, it would open a door for its easy commission. A vendor could fasten his own terms on his vendee. If it was a written contract binding on the purchaser he could not show by parol evidence that the terms of the bargain were incorrectly or imperfectly stated. He could not vary or alter it by the testimony of those present at the sale. The publicity of a sale by auction would be no safeguard against a false statement of the terms of sale, made in the written memorandum signed by a party acting in the double capacity of auctioneer and vendor. The chief reason in support of the rule, that an auctioneer, acting solely as such, may be the agent of both parties to bind them by his memorandum, is that he is supposed to be a dis- interested person, having no motive to misstate the bargain, and entitled equally to the confidence of both parties. But this reason fails when he is the party to the contract and the party in interest also. The purpose of the statute was, that a contract should not be binding unless it was in writing and signed by the party himself to be charged thereby, or by some third person, in his behalf, not a party to the contract, who might impartially note its contents. “Nor can it make any difference as to the power of the vendor to make a Contracts WITHIN THE Staturn or Fraups 1333 favor of the plaintiff, after a trial before the court and jury, defend- ants appeal. Judgment reversed, and complaint dismissed. Fincu, J. This is an action for damages for breach of an alleged contract for the sale of certain goods by defendants to plaintiff. The defendant denied generally, and as a defense set up the statute of frauds. It appears that the plaintiff’s president went to the de- fendants’ place of business and looked over their line of samples; memorandum binding on the vendee, that the sale is made by the former in a representative or fiduciary character as an executor, administrator, guardian or trustee. He is still the party to the contract, the price is to be paid to him, he is to deal with the purchase money; his interest and bias would naturally be in favor of those whom he represented, and, what is more material, in case of dispute or doubt as to the terms of the contract, his duties and in- terests would be adverse to those of the vendee. He would stand in a relation which would necessarily disqualify him from acting as agent of both parties. ‘We do not mean to say that a contract would not be binding, made by an auctioneer, where, from the form in which it was written, an action might be brought to enforce the contract in his name. In such case, if he was only the nominal party to the contract and the record, not being himself the vendor, and having no interest in the sale except as auctioneer, his memorandum might be sufficient to bind both parties to the contract. But we confine our opinion to the case at bar, where the auctioneer was the vendor and a party having an interest, greater or less, in the contract, as well as a party to it in terms. Wright v. Dannah, 2 Campb. 203; Farebrother v. Simmons, 5 B. & Ald. 338; Rayner v. Linthorne, 2 Car. & P. 124; Bird v. Boulter, 4 B. & Ald. 443, and 1 Nev. & Man. 318; Smith v. Arnold, 5 Mason 417.” The auctioneer’s authority is revocable moreover. “Between the fall of the hammer and the writing of his name in the memorandum, the bidder has a locus poenitentiae, and may withdraw his bid.” Valliant, J.. in Dunham v. Hartman, 153 Mo. 625, 6380 (1899). It would seem that a memorandum, if otherwise sufficient, will serve when signed by an agent even if it is not intended as a memorandum, if it would have served had the principal signed it under such circumstances. “It seems to me that the unintentional by-product of satisfying the statute of frauds may be provided as completely by a note or memorandum signed by an agent of the party as by a note or memorandum signed by the party him- self, provided, of course, that the agent had authority to sign the particular note or memorandum.” Sargant, J., in Daniels v. Trefusis, [1914] 1 Ch. 788, 799. In Grindell v. Bass, [1920] 2 Ch. 487, such “unintentional by-product” was held to have resulted from an answer in chancery signed by a solicitor which was deemed a sufficient memorandum for a party who did not coerce the answer. Although the solicitor was given no specific authority to sign a memorandum, but only to sign 4 defence which alleged the existence and terms of the contract, the solicitor was deemed “thereunto lawfully authorized” to sign within the meaning of the statute. But as to the solicitor’s authority, see Thirkell v. Cambi, [1919] 2 K. B. 590. Such “unintentional by-product” may be the result of a letter repudiating liability. Bailey v. Sweeting, 9 C. B. (N. S.) 843 (1861). In Thirkell v. Cambi, [1919] 2 K. B. 590, Scrutton, L. J., said that while such a letter may serve as a memorandum it must be both “a signed admission that there was a contract and a signed admission of what that contract was,” to be sufficient. 1334 Cases on THE LAW oF CONTRACTS that he procured from one of the defendants’ employes a pad, on which was printed the defendants’ names and a former address; that on this pad the plaintiff’s representative wrote in duplicate various items of goods at stated prices, signed and handed the sheets contain- ing the writing to defendants’ employe, who retained the original and returned the copy to plaintiff’s representative; the defendant making no writing thereon. It is urged by the respondent, however, that the defendant must be deemed to have appropriated as its signature its printed name upon the sheet, and hence the alleged contract is not within the statute of frauds. With this contention I am unable to agree. Both in this country and England no case has gone further than to hold that a printed name, when at the top of an order blank or bill, may be appropriated or assigned to a particular transaction as a signature only where the remainder of the blank has been filled in by the party to be charged therewith or his duly authorized agent. Cohen v. Wolgel, 107 Misc. Rep, 505, 176 N. Y. Supp. 764; Hucklesby v. Hook, 82 Law Times Report, 1177 (the latter pointing out the distinc- tion between the earlier English cases and the case at bar). Such de- cisions seem to mark the dividing line between those cases where the statute has been complied with and where it has not. In the one case you have taken the agreement out of the reach altogether of possible frauds and perjury, inasmuch as it is entirely out of the reach of verbal testimony only; whereas, in the case at bar, the vitals of the transaction are established or denied entirely by oral testimony. Wil- son v. Lewiston Mills Co., 150 N. Y. 314, at pages 325, 326, 44 N. E. 959, 55 Am. St. Rep. 680. The doctrine of appropriation of defendant’s printed name as his signature to the contract must rest upon the principle that a man may say in any form, ‘‘This is my signature,’’ but at the time he does so there must be a writing in existence, which must be the writing of the person to be charged therewith; for, if the writing is not then in existence, there is nothing to which the defendant’s printed signature may be appropriated or assigned. This writing must be made by either the defendant or his duly authorized agent. The other party cannot be his agent for this purpose any more than he could for the 71In Hucklesby v. Hook the memorandum was written on a letterhead of a hotel with name of the hotel followed by the words “sole proprietor, Wm. Thos. ‘Hook.” The memorandum was in the form of a letter addressed “T. Hook, Esgq.,” written by Hucklesby in Hook’s presence. In view of the cases holding that the other party to the contract cannot act as agent to sign for the defendant and that Hook wrote no part of the contract, it was held, that it was not signed by him. Brickley, J., said, however: “If it had been proved that the defendant dictated the document, actually dictated the words, and then did anything equivalent to handing it to the plaintiff, and said, ‘Sign that as representing the contract between us,’ I do not say that might not have been sufficient for the purposes of the statute.” Conrracts WITHIN THE StTaTUTE or FRAUDS 1335 purpose of appropriating the printed signatures. Wilson v. Lewiston Mills Co., supra. The defendants’ testimony in the case at bar furnishes an excellent example of the reason for the statute. Such testimony is that the plaintiff was trying to persuade the defendants to accept the order at the prices desired by the plaintiff, and the defendants refused, because a strike was in progress and labor costs could not be reckoned. Plain- tiff finally wrote down what it wanted on what defendants allege to be a memorandum pad used for scrap, and not used for the purpose of taking orders, and left it with the defendants- as a mere offer on the part of plaintiff, which the defendants never accepted. Plaintiff now seeks, solely by its own writing and oral testimony on its part, to bind the defendant, and the latter has to meet this issue likewise by oral testimony. As a result, the statute is entirely done away with, provided a plaintiff convinces a jury of the truth of his assertion. It follows that the judgment should be reversed, with costs, and the complaint dismissed, with costs.7? LEE v. VAUGHAN SEED STORE. (Supreme Court of Arkansas, 1911. 101 Ark. 68, 141 S. W. 496, 87 L. R. A. (N. 8.) 352.) Action by Arthur G. Lee against the Vaughan Seed Store. Judg- ment for defendant, and plaintiff appeals. Affirmed. The appellant sued appellee on an alleged contract for the sale of onion sets, as folllows: ‘‘Contract for onion sets between Vaughan’s Seed Store of the city of Chicago, state of Illinois, party of the first part, and Arthur. G. Lee, of the city of Ft. Smith, state of Arkansas, party of the second part. Said party of the first part sells said party of the second part the following amount of onion sets for delivery Jan. ’08.’’ Then follows description of the onion sets, and the terms of sale and shipment are set forth. The alleged contract was signed by appellant, and the name of appellee was printed in capital letters in the body of the contract, but was not written or printed at the bottom of the contract where the signature of appellant appears. Nor was the 72 See Cohen v. Wolgel, 176 N. Y. Supp. 764 (1919). Under a state statute requiring the authority of an agent to sign the memo- randum to be in writing, it has been held that a signature by another at the party’s request and with his mark or name is a signature by himself and not by agent. Morton v. Murray, 176 Ill. 54 (1898). Carter, C. J., said for the majority of the court: “One may write and execute an instrument by the hand of another when done in his presence and by his direction, and the fact may be proved by parol evidence and an action may be brought upon the in- strument without violating the statute of frauds.” On signing by proxy, see 22 L, R. A, 297, note. 1336 Cases ON THE LAW oF CONTRACTS name of appellee written anywhere in the instrument by the agent of appellee. Appellant insisted that he had a contract with appellee for the de- livery of the onion sets and appellee on the other hand claimed that. it had not booked appellant’s order and therefore had not approved or accepted same and had not entered into a contract for the sale and delivery of the onion sets. The court directed a verdict instead in favor of appellee, and appellant appealed. Woop, J.t Section 3656 of Kirby’s Digest provides: ‘‘No contract the sale of goods, wares and merchandise for the price of $30.00 or upward, shall be binding on the parties, unless, first, there be some note or memorandum signed by the party to be charged.’’ Under. the above section, in order to bind appellee to the alleged contract it must appear that same was signed by appellee. ‘‘The party to be charged’’ is the one against whom the contract is sought to be enforced. 20 Cye. 272, and note. See, also, Vance v. Newman, 72 Ark. 359, 80 8. W. 574, 105 Am. St. Rep. 42; Century Dig. p. 2286, § 244, where cases are collected; Browne on the Statute of Frauds, § 365.78 Does the printed name of appellee in the body, and on the back, of the instrument constitute a signature within the meaning of the above statute? Browne on the Statute of Frauds says: ‘‘In regard to the place of signature, there is no restriction. It may be at the top, or in the body of the memorandum as well as at the foot. * * * But the name, besides being in his handwriting, must always be inserted in such a manner as to authenticate the instrument as the act of the party executing it, or in other words, to show the intention of the party to admit his liabilty. The mere insertion of his name in the body of an instrument, where it is applicable to a particular purpose will not constitute a signature in the meaning of the statute, and al- though it be so inserted as to control and direct the entire instrument, {+ The statement of facts is abbreviated and parts of the opinion are omitted. 73 In some states the vendor is the party to be charged in a contract to sell land and the vendee may be sued in such states even if he has not signed if the vendor has. Evans v. Stratton, 142 Ky. 615 (1911); Brodhead v. Rein- bold, 200 Pa. St. 618 (1901). But in the great majority of jurisdictions the party to be charged means the one against whom the contract is sought to be enforced in the action, i. e., usually the defendant, as noted in the princi- pal case. In Idaho, in Houser v. Hobart, 22 Ida. 785 (1912), and in Kerr v. Finch, 25 Ida. 34 (1913), the court held that the memorandum is invalid when signed by less than all the parties. In Kerr v. Finch the memorandum was signed by the vendor only and it was held invalid even at the suit of the vendee. The court admitted, that its view was that of a small minority, but said that “Precedent is strongly persuasive with this court, but not controlling, and, if devoid of reason and justice, will not be followed.” On the sufficiency of a signature of the memorandum by one party only, see 3 Ann. Cas. 1036, note; 13 Ann. Cas. 1121, note; Ann. Cas. 1912 C, 416, note. Contracts WitHIN THE SratuTE or FRraups 1337 still the better opinion seems to be that its insertion must also be in- tended as a final signature, and that if it appear that the instrument was to be further executed, it will not be taken to have already been sufficiently signed.’’ Browne on the Statute of Frauds, § 357. The agent of appellee was furnished with a form of contract- con- taining blanks to be filled and with the name of appellee printed in the body and on the back thereof. The agent when he took the order for goods filled in the blanks, but he did not sign the name of appellee to the instrument. and did not write it in the alleged contract. The letters of appellee to appellant written after the instrument was signed by appellant (but introduced by appellant himself) indicate that ‘appellee’s agent who took the order had no authority to sign appellee’s name to the alleged contract. His authority according to these letters, was only to solicit orders and submit them for consideration and con- firmation of appellee at its home office. But even if it could be assumed that the sales agent had authority to sign appellee’s name, it does not appear that he did so. ‘‘A signature consists both of the act of writing the party’s name and of the intention of thereby finally authenticating the instrument.’’ Greenleaf on Evidenee, § 674, quoted in Vines et al. v. Clingfost, Ex., 21 Ark. 312, and in Seventh Street Colored Church v. Campbell, 48 Da Ann. 1546, 21 South. 184; Davis v. Sanders, 40 8. C. 510, 19 S. E. 138; Watson v. Pipes, 32 Miss. 466; 25 Am. & Eng. Ency. of Law, 1065. A name merely printed in an instrument where according to its purport the name should be mentioned in the recitals is not a signature within the meaning of the statute of frauds. See Evans v. Ashley, 8 Mo. 181. There must be a writing, stamping or printing of the name by the party to be charged, in person or through a duly authorized agent with the intention of authenticating and finally adopting the writing as his own. There is no proof to that effect in this record. We conclude therefore that the name of appellee printed in the instru- ment under consideration did not constitute a signing thereof within the meaning of the statute of frauds. * * * The judgment is correct, and is affirmed.”* 74 But in Jones v. Victoria Graving Dock Co., L. R.,-2 Q. B. D. 314, at 323-324 (1877), Lush, J., said: “The signature required by the 4th section is not of the substance of the contract; it is matter of procedure only (Leroux v. Brown 12 Cc. B. 801), and is required as evidence of the contract. To prevent frauds and perjuries, the act will not allow any other kind of proof than the writing itself (if it be in writing) or a written admission that the contract was made, and that it was signed in either case by the party to be charged. But so that this kind of evidence is given, it matters not that the memorandum was not made at the time, or for what purpose the signature was put, if only it was put to attest the document as that which contains the terms of the contract.” And in John Griffith Cycle Corp., Ltd. v. Humber & Co., Ltd., [1899] 2 Q. B. 414, 417-418, A. L. Smith, L. J., said: ° “Tt is undoubted law that the party to the contract himself may, by signing 1338 CASES ON THE LAw OF CONTRACTS ARNETT er au. v. WESTCOTT Et at. (Supreme Court of Kansas, 1920. 107 Kans. 698, 193 Pac. 377.) Suit by Floyd Arnett and others against Sarah J. Westcott and others for specific performance. Decree for plaintiffs, and defendants appeal. Affirmed. Porter, J. The appeal is from a judgment directing the specific performance of a contract wherein John A. Boylan agreed to convey to J. W. Wilson a farm of 160 acres in Cowley county. In her lifetime the legal title was in Martha A. Scott. She died intestate August 7, 1910, and one-half, of the property descended to her eight children and one-half to their father, Robert B. Scott. Rob- ert B. Scott owned another farm of 160 acres, and upon his death in 1911 the full title to both farms vested in the eight children. The heirs were of full age, and all except Nancy C. Boylan were nonresi- dents, some living in Oklahoma and others in Missouri. John A. Boylan, husband of Nancy C. Boylan, had been acting as the agent of all the heirs, looking after both farms, collecting the rents, and paying the taxes. Some years before he had on behalf of the heirs sold the farm they had inherited from their father, and for several years had had an arrangement with them to sell the farm in controversy at a fixed price. He was also the administrator of the estate of Rob- ert B. Scott. In July, 1917, he entered into a written contract to sell the farm to one of the plaintiffs, J. W. Wilson, for $11,500, the price the heirs had agreed upon, and the contract was deposited in a bank, together with Wilson’s check for $1,000; the balance to be paid when the title papers were perfected. Boylan prepared a deed for the heirs to sign, reciting the consideration and designating the grantors as the only heirs at law of Martha A. Scott, deceased, and Robert B. Scott, deceased. The deed was sent around among the heirs, and all except Alec Scott signed and acknowledged it for the purpose of carrying out the contract. Alec Scott and his wife refused to sign, not because of any dissatisfaction with the terms of the sale, but because Alec claimed that in the sale of the father’s farm the other heirs had defrauded him out of $500 of his share. J. W. Wilson, in the meantime had arranged to sell the property to the other plaintiffs, Arnett and Foster, for the same price at which he was to purchase it. The heirs who had signed a document subsequent to that containing the terms of the contract in the way required by the 4th section of the Statute of Frauds. It is also undoubted law that a signature to a document which contains the terms of a contract is available for the purpose of satisfying s. 4 of the statute, though put alio in- tuitu and not in order to attest or verify the contract. Jones v. Victoria Dock Co., L. R., 2 Q. B. D. 314.” Though the House of Lords reversed the case, it was on other grounds. See, also, note 70 ante, this chapter. 75 Part of the opinion is omitted. Contracts WITHIN THE StatuTE or FrRavups 1339 the deed, together with Wilson and Arnett, consalted an attorney, who advised them that there were three things they might do: First, the plaintiffs could take the deed executed by seven of the eight heirs; second, a suit in partition could be brought (which Wilson and Arnett claim they understood would force the sale of the one eighth interest belonging to Alec Scott); and, third, the plaintiffs could abandon the contract. Boylan wanted to see the contract carried out, and induced some of the heirs to bring suit for partition, and suit was filed. The sale in partition occurred in April, 1918. Boylan did not guar- antee that Wilson would get the farm at the agreed price, but Boylan wrote him shortly before the sale that the only thing left for them to do as ‘‘to go up and bid it in if we can, and hope no one will run it up higher than the price we had set.’’ ‘Wilson and Arnett attended the sale and bid the amount they had agreed to pay Boylan. W. S. Scott and Ross Scott bid $12, 000, and the property was struck off to them, and afterwards the sale was duly confirmed. On October 24, 1918, the check Wilson had left in the bank with the contract was taken down by him. The contract itself was left in the bank. Afterwards, on July 27, 1919, another check for $1,000 was placed in the bank payable to John A. Boylan. This was after the plaintiffs determined to begin suit for specific performance. Two propositions are insisted upon: First, that there was no written contract between plaintiffs and the defendant heirs, and especially none between plaintiffs and W. 8. Scott and Ross Scott, who now hold the title by virtue of their purchase at the partition sale. There was a written contract, however, between Boylan and Wilson, which is the contract the court ordered performance of. It is urged that Boylan only purported in the contract to act for the defendants, but that, in fact, he had no au- thority to act in their behalf, or at least that there was no way to prove that authority. That he did act in their behalf and under their authority are facts determined by the court, and there was abundant evidence to sustain the finding. It is of no consequence at all that in signing his name to'the contract with Wilson, Boylan added the letters ‘‘Admr.’’ It is conceded that, as administrator, he had no authority to make such a contract; in fact, he never claimed to possess such authority. He claimed to represent the defendant heirs under some arrangement with them, and Wilson so understood. If, in fact, he did have authority, though not in writing, to represent the defendant heirs, a court of equity would have the power, in a proper case, to compel the defendants to perform the contract, providing, of course, there was some memorandum in writing signed by the defendants which is sufficient to take the case out of the statute of frauds. The chief contention of the defendants is that there was no such mem- orandum. They say that the warranty deed signed by them was never delivered, and therefore is not a sufficient memorandum. The appeal is prosecuted particularly in the interest of W. S. Scott and Ross Scott, 1340 CAsEs ON THE LAiw oF CONTRACTS who claim title under the partition sale. They testified, in substance, that they understood John Boylan had contracted to sell the land to Wilson for the amount expressed in the deed, which was agreeable to them; that they signed the deed to carry out the agreement whatever it was; they remembered about the sale of the other place negotiated by Boylan in the same way. Boylan was named as a defendant because of his wife’s.interest. He testified that he was the agent of the owners to sell the place, that he sold it, and that all of them, including Alec, were satisfied with the price and terms. There can be no question that the deed was executed for the purpose of carrying out the contract made by Boylan with Wilson. Although not finally delivered, it was evidence of a ratification and confirmation by those who signed it of the contract Boyland had made as their agent. Painter v. Fletcher, 81 Kan. 195, 105 Pac. 500. Two of the heirs who had thus ratified the contract to convey obtained the whole title by virtue of the partition sale, and it is clear that a court of equity has the power to compel them to perform their contract and to convey the title subse- quently acquired. Nor is delivery of the deed essential in order to es- tablish the oral contract. If the deed has been executed, it may, and often will, constitute a sufficient memorandum of the oral contract. The writing required by the statute is merely evidence of the contract, and is not the contract itself. ‘‘The writing does not become the contract, but simply the evidence thereof; and whether it remains in the hands of the one party or the other, if it is properly identified as the full expression of the contract, upon which the minds of the two parties met, it fulfills the purpose of the statute and renders the contract agreed upon enforceable.’’ Ames v. Ames, 46 Ind. App. 597, 604, 91 N. E. 509, 512. In Schneider v. Anderson,.75 Kan. 11, 88 Pac. 525, 121 Am. St. Rep. 356, it was held that: ““A writing * * * and an undelivered deed, executed by the grantor at the same time and as part of the same transaction, which is deposited by the parties in escrow, constitute a sufficient memorandum of a contract for the sale of lands to satisfy the statute of frauds.’’ Syl. par. 1. In the opinion it was said: “‘The courts are at variance upon the question diction a deed alone, when executed by the vendor and deposited in escrow, to be delivered by the depositary to the grantee upon his paying the purchase price or performing some other condition, is itself a sufficient memorandum to avoid the statute of frauds. The cases are cited in 29 Am. & Eng. Ency. of Law, 855. A majority say that the deed alone is not a sufficient memorandum. But the better reasoning seems to be the other way... The ground usually stated for holding that the deed is not a sufficient memo- randum is that, until it is finally delivered or the condition is performed, it does not constitute a contract. The reason given seems to be beside Contracts WITHIN THE STaruTE or FRaups 1341 the question, which, in this character of cases, is not, Was there a writ- ten contract? but is, Is there a sufficient memorandum signed by the party which is evidence that a contract existed or which tends to prove that fact? The evil the statute seeks to guard against is the use of oral evidence to prove a contract. This is obviated by the production of the deed which is a memorandum of a contract. * * * ‘‘By far the best reasoned case we have examined is Jenkins v. Harri- son, 66 Ala. 345, followed in Johnston v. Jones, 85 Ala. 286, 4 South. 748. It is said in the former case: ‘A deed, drawn and executed with the knowledge of both parties, with a view to the consummation of the contract of sale, which, in itself and of itself, embodies the substance, though not all the details or particulars, of the contract, naming the parties, expressing the consideration, and describing the lands, though not delivered, and its delivery postponed until the happening of a future event, is a note or memorandum of the contract sufficient to satisfy the words, the spirit, and purposes of the statute of frauds.’ ”’ 75 Kan. 16, 17, 88 Pac. 527 (121 Am. St. Rep. 356.) See note to same case, 121 Am. St. Rep. 356, 362, and note 132 Am. St. Rep. 811, 813. The defendants insist that the case of Schneider v. Anderson, supra, goes not further than to hold that a deed may be a sufficient memo- randum, but they insist that the contract sought to be enforced must be the same as the one shown in the deed, and they say that the contract between Boyland and Wilson provided for the payment of $1,000 in cash and $10,500 on the Ist day of October, 1917, while the deed provided for payment of $11,500 in cash, and that there is a material variance between the contract and the deed. We think there was no variance. Both the contract and the deed contemplated a cash transaction. Ob- viously the parties understood that the entire consideration was to be paid upon delivery of the deed. Several things remained to be done, the execution of the deed by all the parties, the furnishing of an abstract and its approval. The $1,000 deposited with the contract and the $10,500 which was to be paid when the transaction was closed would constitute a cash payment of the entire consideration. In Anderson v. Anderson, 75 Kan. 117, 88 Pace. 743, 9 L. R. A. (N. 8.) 229, the written contract relied upon consisted of letters signed by the parties to be bound thereby which had been lost or destroyed, and secondary evidence of the contents was held sufficient to establish the written contract. In that case, however, the contract had been per- formed on the part of the plaintiff. Since an undelivered deed may constitute a sufficient memorandum, it is of no importance which party has the instrument in its possession or where it comes from. If the memorandum or writing ‘‘signed by the party to be bound thereby”’ is not in the possession of either party, if it be found discarded and abandoned in some ash heap or floating about the streets, and is produced at the trial and shown to have been signed 1342 Cases ON THE LAW oF CONTRACTS by the parties sought to be bound, and otherwise answers the require- ments of the statute, it is sufficient. ‘In Ames v. Ames, supra, it was said in the opinion: ‘‘Thus, where a verbal agreement was made for the sale of land, a letter written by the vendor or purchaser to his own solicitor or agent stating the terms of the agreement, and not intended for the inspection of the other party, has been held to be a sufficient note or memorandum within the intent of the statute.’’ 46 Ind. App. 605, 91 N. E. 512. The opinion cites the case of Barry v. Coombe, 1 Pet. 640, 651 (7 L. Ed. 295), where it was said: ‘‘An examination of the cases on this subject will show that courts of equity are not particular with regard to the direct and immediate purpose for which the written evidence of a contract was created.’’ In Charlton v. Columbia Real Estate Co., 67 N. J. Eq. 629, 60 Atl. 192, 69 L. R. A. 394, 110 Am. St. Rep. 495, 3 Ann. Cas. 402, the court said: ‘Nor does it signify to whom the memorandum is addressed. It may be to the third person, and yet be a good writing to satisfy the statute of frauds. Form is not important. * * * The reason for this is clear. The memorandum is only necessary to evidence the contract, not to constitute it.?? * * * The judgment is affirmed.” 76 But see Freeland v. Charnley, 80 Ind. 132 (1881); Morrow v. Moore, 98 Me. 373 (1903). On an undelivered deed or a memorandum, see 22 L. R. A. 278, note; 3 Ann. Cas. 404, note. On deed delivered in escrow as a memorandum, see 43 L. R. A. (N. S.) 390, note. While a deed may serve as a memorandum within the statute, deeds prob-. ably do not have to conform to the statute. The question is primarily one of signature. “It seems that the statute of frauds does not apply to deeds. Signature is unneeessary for the validity of a deed at common law, and it is not likely that the legislature meant to require signature where the higher solemnity of sealing (as it is in a legal point of view) is already present. But as in prac- tice deeds are always signed as well as sealed, and distinctive seals are hardly ever used except by corporations, the absence of a signature would nowadays add considerably to the difficulty of supporting a deed impeached on any other ground.” Pollock on Contracts, 8 ed., pp. 171-172. _ “I must own that I think a deed is not within the statute of frauds, because, in my opinion, that statute was never meant to apply to the most solemn instrument which the law recognizes.” Parke, B., in Cherry v. Heming, 4 Exch. 631, 636 (1849). : “So obsessed did the courts become with the notion that a seal imports a consideration, that in a long line of decisions they held that the presence of a seal on a contract or ‘memorandum’ dispensed with the recital of a con- sideration as required by the statute of frauds. Douglass v. Howland, 24 Wend. 35; Bush v. Stevens, 24 Wend. 256; Smith v. Northrup, 80 Hun. 65, 70, aff’d 145 N. Y. 627; 20 Cyc. 264.” Seals at Common Law and By Statute, 3 Bench and Bar (N. 8S.) 25-26. Contracts WiTsin THE SrarurTE oF Fravups 1343 SMITH & NYE v. MUNSEL er at. (Supreme Court of Vermont, 1920. 110: Atl. 12.) Bill for specific performance by Smith & Nye, as executors, against Wingate W. Munsel and others. Decree for the plaintiffs, and defend- ants appeal. Decree altered and affirmed, and cause remanded. Mites, J.” The defendant and Hannah (Smith) Skeels on the 28th day of August, 1899, were joined in marriage. Both were advanced in years, and each had been previously married. Neither had children at the time of the marriage, nor have they had any since. April 27, 1914, Mrs. Munsel died, leaving an estate slightly in excess of $15,000. Pre- vious to her death she made her will, devising and bequeathing her real and personal property to her relatives without leaving anything to the defendant. The defendant filed in the probate court his waiver of the provisions of his wife’s will. This bill is brought to enjoin the de- fendant from claiming any of his deceased wife’s estate, and for specific performance of a verbal antenuptial contract, reduced to writing sub- sequent to the marriage, and a written postnuptial contract, containing substantially the same terms as are contained in the alleged antenuptial contract. Both of these written contracts were executed by the defendant and his wife November 16,1901. * * * The second exception taken by the defendant is founded upon the claim that the alleged verbal contract is within the statute of frauds, and not binding in law or equity, and that the bar was not removed by reducing the contract to writing after the marriage. * * * The master has found upon substantial evidence that Munsel and his wife entered into a verbal antenuptial contract, as alleged in the plain- tiffs’ bill; that after the marriage that contract was reduced to writing in the form of ante-nuptial and post-nuptial contracts. In considering this exception it should be kept in mind that the lack of a writing does not render a contract in consideration of marriage in any way illegal or void under the statute. The statute only affects the matter of evi- dence by which such a contract may be proved. Child v. Pearl, 43 Vt. 224, 230. If, then, the evidence required by the statute can be sup- plied, the statute cannot be availed of by the defendant. The plaintiffs claim that it has been supplied by reducing the verbal ante-nuptial con- tract to writing before suit was brought. This claim seems to be sup- ported by Ide & Smith v. Stanton, 15 Vt. 685, 40 Am. Dee. 698. While the facts in that case are somewhat dissimilar to those in this case, the principle there involved is similar to the one here involved. It is there held that the statute has never required that the written evidence should be created at the time of making the contract, and that a written admis- sion of a previous verbal contract will satisfy the statute. To the same effect is the rule laid down in Brown on Frauds (2d Ed.) 222-224, inclu- 7 Parts of the opinion are omitted. 1344 Cases on tHE Liw or ConTRACcTS sive; Moore v. Harrison, 26 Ind. App. 408, 59 N. E. 1077; Claypool v. Jaqua, 185 Ind. 499, 35 N. E. 285; Buffington v. Buffington, 151 Ind. 200, 51 N. E. 328; Argenbright v. Campbell, 3 Hen. & M. (Va.) 144; Satterthwaite v. Emley, 4 N. J. Eq. 489, 43 Am. Dec., 618; Frazer v. Andrews, 1384 Iowa, 621, 112 N. W. 92, 11 L. R. A. (N. 8S.) 5938, 13 Ann. Cas. 556; Kohl v. Frederick, 115 Towa, 517, 88 N. W. 1055; MeNutt v. McNutt, 116 Ind. 545, 19 N. H. 115, 2 L. R. A. 372; Rowell v. Barber, 142 Wis. 304, 125 N. W. 987; 27 L. R. A. (N. 8.) 1140; Dundas v. Dutens, 1 Ves. Jr. 196, 2 Cox, 235; Mountacue v. Maxwell, 1 Strange, 235; 20 Cye. 158 D. As authorities holding otherwise, McAnnulty v. McAnnulty, 120 IIL 26, 11 N. E. 397, 60 Am. Rep. 552, Powell v. Myers, 64 S. W. 428, 23 Ky. Law Rep. 795, and Frazer v. Andrews, 134 Iowa, 621, 112 N. W. 92,11 L. R. A. (N.S.) 593, 13 Amn. Cas. 556, are cited. If we view these cases from the point taken by the several courts of review, and care- fully consider the facts of each case and the precise issue raised and determined, much, if not all, of the apparent conflict disappears. Some of the cases have turned on the peculiar provisions of the statutes, like the cases from New York and Wisconsin, others have turned on the rela- tions which creditors bore to the contract, and still others have turned on the character of the writing relied upon as avoiding the statute. The main question discussed in the MeAnnulty Case was whether a marriage contracted subsequent to the making of a will revoked the will. The question of whether a subsequent written contract, purporting to be an ante-nuptial contract, was sufficient as against the statute was dis- cussed by the court more briefly and without reference to or citation of any of the long list of cases upon that subject, and this, perhaps, can be accounted for upon the assumption that the court was of the opinion that the execution of the alleged contract had not been made out. Indeed, it discusses the evidence upon that subject in a manner indicating that such was its views. As an authority. upon that subject very little weight can be given to it. In the Powell Case a settlement had been made in accordance with a verbal ante-nuptial contract, and after the death of the wife the hus- band sought to avoid the settlement. It was held that he could not do so, though the ante-nuptial contract was within the statute, for the contract had been fully performed and was no longer executory. What was said with reference to the verbal ante-nuptial contract being within the statute was merely incidental and unnecessary to the decision of the case. Frazer v. Andrews turned on the character of the writing. The court in that case expressly approved the rule declared in Kohl v. Frederick, supra, but distinguish that case from the one then in hand, in that there is nothing in the writing itself that shows it was executed to give effect to the previous verbal ante-nuptial contract. The court considers the case as if no ante-nuptial contract had been made, and as if the written Contracts WITHIN THE StTaTuTE or FRaups 1345 contract was a post-nuptial contract. The court holds, however, by fair inference, that, if the written contract had contained a provision or statement that it was executed to give effect to the verbal ante-nuptial contract, or in consideration of such contract, it would have taken that contract out of the statue. Satterthwaite v. Emley, swpra, is sometimes cited as authority that a verbal ante-nuptial contract is not taken out of the statute by being reduced to writing after marriage. But the holding in that case goes no farther than as it affects creditors; but, as to a party to the con- tract or those claiming under such party, the court held that a subse- quent writing, made after the marriage, evidencing the verbal ante- nuptial contract, would save that contract from the operation of thé statute. Rowell v. Barber, supra, a strong and well-considered case, in which many of the authorities are collected, clearly points out the effect that slight variations in the wording of the different statutes have upon the decisions of the court. In that case it was held that, because of the stat- ute of Wisconsin which made a verbal ante-nuptial contract void, sub- sequently reducing it to writing after the marriage did not take it out of the statute; for, being void, there was nothing to revive or to be taken out of the statute; that in this respect it differed from the Eng- lish and many of the state statutes which did not render the verbal contract void, but provided the kind of evidence by which it must be proved, that the object of those statutes was not to prohibit such con- tracts, but was to require such evidence as would prevent fraud and perjury after the death of one or the other of the parties. Such has been the construction given to our statute. Child v. Pearl, supra. The so-called written ante-nuptial contract in this case removed the statute that otherwise would have barred a recovery on the verbal ante- nuptial contract, and this renders it unnecessary to consider what effect, if any, the so-called post-nuptial contract had upon the verbal ante- nuptial contract. * * * We think the decree below is too broad. * * * Decree altered and then affirmed. LOUISVILLE ASPHALT VARNISH CO. v. LORICK er At. (Supreme Court of South Carolina, 1888. 29 So. Car. 533, 8 S. E. 8, 2L. R. A. 212.) McIver, J.78 This was an action to recover the sum of $83.05, the price of certain varnish and paint alleged to have been sold by plaintiff to defendants. The defense was a general denial. At the trial the 78 Parts of the opinions are omitted. 1346 CASES ON THE LAW OF CONTRACTS plaintiff offered testimony tending to show that on the 16th October, 1885, one of its traveling salesmen, Hutchinson by name, took from Moore, a clerk of defendants, who, it was admitted, had authority to give the order, a verbal order for the articles specified in the account sued on, which Hutchinson immediately entered in his memorandum book as follows: “*No. 65 Cotumsia, 8. C., Oct. 16, 1885. ‘*Louisville Asphalt Varnish Co., Louisville, Ky. Ship Lorick & Low- rance, Columbia, S. C.: 1, Bbl. No. 1 Turpt. Asphalt Black Varnish, - 5de¢ 1. ‘* D. Roof Paint C. - - - - - - 50e 12. 5 gall. Pails D. Roof, do. - - - - - 55¢ “Or. by 2ce gal., on acct. freight. **60 days. H. L. Hutchinson, Salesman.’’ On the same day, a copy of this order was sent by mail, by said salesman, to the plaintiff, who received it on the 29th October, 1885, and on the next day shipped the goods, by rail, to defendants. On the 17th October, 1885, the defendants wrote to plaintiff as follows: ‘‘ Louisville Asphalt Varnish Co., Louisville—Gents: Don’t ship paint ordered through your salesman. We have concluded not to handle it.’’ This letter, however, was not received by plaintiff until after the goods had been shipped; and upon its receipt plaintiff wrote defendants, saying “‘that the shipment had gone before the request to cancel was received.”’ When the goods arrived in Columbia, the defendants declined to receive them, but what became of them the testimony does not show. At the close of plaintiff’s testimony, defendants moved for a nonsuit, which was granted, upon the ground that section 2020, Gen. St., (Statute of Frauds,) was fatal to a recovery. Plaintiff appeals, upon the several grounds set out in the record which make these two questions: First, whether there was such a note or memorandum in writing of the bar- gain as would satisfy the requirements of section 2020 of the General Statutes; second, if not, whether there was such an acceptance and actual receipt of the goods as would take the case out of the operation of that section. It is quite certain that there was no formal agreement in writing, signed by the parties to be charged, for the sale of the goods in ques- tion, and we think it equally certain that there was no single instrument or memorandum in writing sufficient to satisfy the requirements of the statute; for the letter of the defendants, copied above, did not specify the necessary particulars as to quantity, nature, and price of the goods which were the subjects of the alleged contract of sale, and the copy of the order sent by the salesman to the plaintiff, which did contain all the necessary particulars, was not signed by the defendants. It is plain, therefore, that neither one of these papers, standing-alone, would be sufficient. But as it is well settled that the whole agreement need not appear in a single writing, but may be made out from several instru- Contracts WITHIN THE StTaTuTE oF FRAupS 1347 ments or written memoranda referring one to the other, and which, when connected together, are found to contain all the necessary ele- ments, the precise, practical question in this case is whether the letter of defendants can be connected with the written order sent by the sales- man, so that the two together may constitute a sufficient note or memo- randum in writing to satisfy the requirements of the statute. In Saunderson v. Jackson, 2 Bos. & P. 238, the action was for not delivering certain articles alleged to have been sold by defendant to plaintiff, and the question was whether there was a sufficient note or memorandum in writing of the bargain, under the statute of frauds. It seems that when the plaintiff gave the verbal order for the goods, he was furnished by the defendant with a bill of parcels, not signed, but written on a piece of paper, with a printed heading containing the name and place of business of defendant. ‘Shortly after this, defendant wrote a letter to plaintiff, saying: ‘‘We wish to know what time we shall send you a part of your order,’’ etc. The court held that the requirements of the statute were complied with, saying: ‘‘This bill of parcels, though not the contract itself, may amount to a note or memorandum of the contract, within the meaning of the statute. * * * At all events, connecting this bill of parcels with the subsequent letter of the de- fendants, I think the case is clearly taken out of the statute of frauds; for, although it be admitted that the letter, which does not state the terms of the agreement, would not alone have been sufficient, yet, as the jury have connected it with something which does, and the letter is signed by the defendants, there is then a written note or memorandum of the order which was originally given by the plaintiff, signed by the defendants.’’ This case has been expressly recognized and followed in this state, in Toomer v. Dawson, Cheves, 68. The same doctrine was applied in Western v. Russell, 3 Ves. & B. 188. See, also, to the same effect, Drury v. Young, 58 Md. 546, 42 Amer. Rep. 343, where, as in the case now under consideration, the letter of defendant was written for the purpose of withdrawing from the contract; but as it referred to the previous order, the two, taken together, were held to satisfy the terms of the statute. * * * In Beckwith v. Talbot, 95 U. S. 289, it was held that, while the general rule is ‘that collateral papers adduced to supply the defect of signature of a written agreement, under the statute of frauds, should on their face sufficiently demonstrate their reference to such agreement, without the aid of parol proof,’’ yet such rule is not absolute, as “*there may be cases in which it would be a violation of reason and common sense to ignore a reference which derives its significance from such proof.” Accordingly, it was held in that case that ‘‘the defendant, unless he could show the existence of some other agreement, was estopped from denying that the agreement referred to by him in his letters was that which he induced the plaintiff to sign.’’ Even in the case of Johnson v. Buck, 35 N. J. Law 338, which seems to be much 1348 CASES ON THE LAW OF CONTRACTS relied on by the counsel for respondents, it is conceded that. parol evi- -dence may be received ‘‘to identify papers which, by a reference in the signed memorandum, are made parts of it.’’ While it is true that some of the cases which we have cited arose under the fourth section of the statute of frauds, and not under the seventeenth section, which controls the present case, yet it is admitted by Kent, C. J., in Bailey v. Ogdens, 3 Johns. 412, that the words of the two sections are in this respect similar, and require the same construction, and it was so held in Townsend v. Hargraves, 118 Mass. 325. It seems to us, therefore, that the letter of defendants, taken, as it must be, in connection with the order sent to plaintiff by the sales- man, to which it expressly referred, and which was in writing, and specified all the necessary particulars as to price, quantity, quality, and time of payment, constituted a sufficient note or memorandum in writing of the bargain to take the case out of the statute of frauds. In the absence of any evidence that any other order was given, the language of the letter—‘‘Don’t ship paint ordered through your sales- man’’—must necessarily be regarded as referring to the order of which a memorandum in writing was taken at the time by the salesman, and a copy thereof immediately forwarded to the plaintiff, who at once filled the order, and shipped the goods to the defendants. This is a stronger case than that of Beckwith v. Talbot, supra, for there the letter of the defendant simply referred to ‘‘the agreement,’’ without indi- cating when or how it had been made, while here the letter refers to a particular article ‘‘ordered through your salesman,’’ and we hear of no other order through the salesman or in any other way. The only necessity for any parol evidence at all, if, indeed, there was any, was to identify the order sent by the salesman, and for this purpose, as we have seen, such evidence “would be competent. Suppose the plaintiff had, on the 16th October, 1885, written a letter to defendants, propos- ing to sell them the articles mentioned in the salesman’s order, in the quantities there stated, and at the prices and on the time there men- tioned, and that defendants had replied by letter, simply saying, ‘‘I accept your offer,’’ without’ repeating the particulars as to quantity, price, etc,, it could not be doubted that, although defendants’ letter— the only paper which they signed—did not contain in itself the nec- essary particulars of the bargain, yet the two letters, taken together, would be held a sufficient compliance with the statute. It seems to us that the transaction here in question was in principle practically the same as that in the supposed case, and we think there was error in holding that the contract sued on was void under the statute of frauds. We do not see how it is possible to regard the letter of the defendants asa denial of the order given ¢o the salesman by their clerk, Moore, who, it was conceded, had authority to give the order. * * * The manifest purpose of that letter was to countermand the order, and this necessarily presupposed that the order had been given. The terms Contracts WITHIN THE StaTuTE or FRAUDS 1349 used clearly show this: ‘‘Don’t ship the paint ordered through your salesman. We have concluded not to handle it.’’ This clearly means that the paint had been ordered, but that the defendants had subse- quently changed their minds and ‘‘concluded not to handle it ;’? and we don’t see how it can be construed to mean anything else. We have then an admission in writing that an order for the goods in question through the salesman had been given, and we have the order referred to, likewise in writing, and the two together fully satisfy the require- ments of the statute. Under the view which we have taken of the first question raised by this appeal, the second question becomes immaterial, and need not, therefore, be considered. The judgment of this court is that the judgment of the circuit court be reversed, and that the case be remanded to that court for a new trial.7? 78See Smith v. Colby, 136 Mass. 562 (1884), where the words “upon the terms agreed upon when at your place” in a signed paper let in the memo- randum of those terms not signed by the defendant. But then, in Freeland vy. Ritz, 154 Mass. 257 (1891), where the defendants agreed in writing to accept a lease “to be made subject in all respects to the agreement and lease between” the plaintiffs and their lessor, which latter lease was not then in existence but came into existence, it was held that the statute of frauds was satisfied. Lathrop, J., for the court, said: “It is a well-settled rule of law that, while the memorandum must express the essential elements of the contract with reasonable certainty, these may be gathered either from the terms of the memorandum itself or from some other paper or papers therein referred to. If one of a series of papers which appear to have relation to the same contract is signed by the party to be charged, this is enough, as all the papers are to be considered together as forming one contract or memorandum. There is no doubt, also, that parol evidence is admissible to identify any paper referred to. * * * “The defendants, however, contend that these principles apply only to papers already in existence when the instrument signed by the party sought to be charged is executed. * * * The last point decided in [Brown v. Bellows, 4 Pick. (Mass.) 179] * * * is a direct authority for the proposition that it is no objection to a written contract that some of the terms are to be fixed by something to be done in the future, if that something is done before action is brought; and that if it is in writing the provisions of the statute of frauds are complied with. We are therefore of opinion that the statute of frauds is no defense to this action.” In Freeland v. Ritz the court cited Lerned v. Wannemacher, 9 Allen (Mass.) 412 (1864), where duplicate writings were delivered, each party signing one. The one signed by the defendants did not contain the names of the plaintiffs, as, apart from the plaintiffs’ signatures, was true of the one signed by the plaintiffs. Later the agent of the defendants wrote some words on the mem- orandum delivered to the defendants and the plaintiffs signed the addition and redelivered the memorandum. Although neither memorandum referred to the other, the court said that “the intrinsic evidence which they afford that they refer to the same transaction is very strong and competent for the con- sideration of the jury” and that if the jury so found they could be read together to make the memorandum required by the statute. On several writings as a memorandum within the statute of frauds, see 2 Ann, Cas. 293, note; 19 Ann. Cas. 1162, note; Ann. Cas. 1914 C, 1010, note. On telegrams as a memorandum, see 50 L. R. A. 240, note. 1350 CASES ON THE LAW OF CONTRACTS Simpson, C. J., (dissenting). * * * Was there evidence of a note or memorandum in writing, signed by the defendants or their agent thereunto lawfully authorized, sufficient to carry the case to the jury? There is no pretense that the order sent by plaintiff’s salesman was signed by the defendants or their agent. On the contrary, the order was prepared and sent by the plaintiff’s agent, and no doubt was suf- ficient to bind the plaintiff if it was the party sought to be charged, although the defendants might not be bound. It is not necessary that both parties should sign the contract. It is sufficient that the defend- ant, whether he be vendor or vendee, has signed the contract, and it is no objection that he has no remedy thereon against the plaintiff, in- asmuch as the latter has not signed it. Chitty Cont. (11 edit.), 568. It - may be urged, however, that it is not necessary that the whole of the terms of the contract should be confined in one memorandum, it being sufficient if they can be collected from several distinct writings having reference to the same subject-matter. This is true, and it has been held that if, after the transaction has taken place, it be recognized in a letter written by the party to be charged, which refers to the specific contract, and not merely to the subject-matter, this will satisfy the statute. Id. 546. Under this principle, plaintiff contends that defendants’ letter, in which they wrote: ‘‘Don’t ship paint ordered through your salesman. We have concluded not to handle it,’’—was sufficient to carry the case to the jury, on the question whether a note or memorandum in writing of the contract sufficient to comply with the statute has been executed by the defendants. The rule upon this subject, as will be seen from its dis- cussion by Mr. Chitty, (11th Ed.) 544 et seq., and the cases there cited in notes, seems to be this: The letter relied’ on must in itself contain the terms of the contract, quantity, quality, and price of the goods, ete., or it must refer to some other paper containing them in such way as by its own terms to connect itself with said paper. Now the letter here might possibly be construed as an admission by the defendants that they had ordered certain paints from the plaintiff, and that since said order they had concluded not to take said goods. But there is nothing in this letter which points distinctly to the contract sued on. It could as well apply to any other contract as this, and therefore a most important link is wanting, which could be supplied only by verbal testimony. If the case had gone to the jury, there was no testimony by which the memorandum made by plaintiff’s salesman could have been connected with defendants’ letter. It was said in Waterman v. Meigs, 4 Cush. 497, ‘‘that a letter from the purchaser to the vendor, alluding to a parol agreement for the sale of goods, and inquiring whether they will be ready at the time agreed upon, but not mention- ing the quantity, quality, or price of the goods, or the time of payment, is not a sufficient memorandum to take the agreement out of the statute of frauds.’’ See, also, Manufacturing Co. v. Goddard, 14 How. 446; Bailey v. Ogden, 3 Johns. 399. We think there was an absence of all Contracts WITHIN THE StaTuTE or FRAups 1351 testimony connecting defendants’ letter distinctly and clearly with the memorandum made by plaintiff’s agent, and sent by him as an order for the goods, so that the two could constitute one memorandum in writing, signed by the defendants; and, the letter itself failing to embody the contract as to the quantity, quality, and price of the goods, the nonsuit was inevitable. Thus far it has been admitted that the letter of defendants, impliedly, at least, acknowledged an order for paints, but there is great doubt whether such is a proper construction of said letter. It may well be construed as a denial of the order. This view strengthens the conclusion we have reached. Judgment reversed. ALBERT H. HAYES v. CHARLES E. JACKSON. (Supreme Judicial Court of Massachusetts, 1893. 159 Mass. 451, 34 N. BE. 683.) Houmss, J. This is an action upon a contract for the sale of land, The judge has found for the plaintiff, and the only question is whether the memorandum was sufficient to satisfy the Statute of Frauds. Pub. Sts. ec. 78, sec. 1, cl. 4. The memorandum was as follows: “Boston, April 6, 1889. “‘Received of Albert H. Hayes one hundred dollars on account of sale of estate number 379 Columbus Avenue, for the sum of $14,140, subject to a mortgage of 8,000 dollars on 414 per cent interest, and I agree to pay the 140 dollars as commission to James C. Tucker. Rents and in- surance and interest to be adjusted to date. Title to be passed within ten days from date. **C, E. Jackson.’’ On the face of it this discloses no defect. But as the defendant and the plaintiff agreed in their testimony that the assumption of the mort- gage of $8,000 was part of the consideration, and went to make up the sum of $14,140 mentioned, we assume that the judge found accordingly, and that it is open to the defendant to argue that the memorandum does not agree with the fact, but sets forth an agreement which was never made to pay $14,140 for the equity of redemption. Whether this argument is sound or not we do not consider, because it seems to be disposed of: by sec. 2 of our statute, that the consideration of such promise, contract, or agreement need not be set forth or expressed in the writing signed by the party to be charged therewith. This section was inserted in the Rev. Sts. c. 74, sec. 2, for the purpose of adopting and confirming the judgment of this court in Packard v. Richardson, 17 Mass. 122, declining to follow Wain v. Warlters, 5 East, 10.8° That In Wain v. Warlters it was held that a memorandum which did not state the consideration of a guaranty, although that consideration was fully executed, was insufficient, and the guaranty, being of the debt of another, could not be 1352 CASES ON THE LAw oF CONTRACTS case concerned a promise to pay the debt of another, a subject on which there has been much controversy in this country (Browne on St. Frauds, secs. 390 et seg.), and went on the broad ground that it was not neces- sary to state the consideration. Marcy v. Marcy, 9 Allen, 8, 10; Wether- bee v. Potter, 99 Mass. 354, 362. The rule laid down in Wain v. Warl- ters was altered by statute in England, St. 19 & 20 Vict. ¢. 97, § 3,84 ‘because it was found, in practice, that it led to many unjust and merely technical defences to actions upon guarantees.’’ 2 Smith Lead. Cas. (8th ed.) 262, 263, note to Wain v. Warlters. The second section of our statute goes further, and applies to all the contracts mentioned in sec. 1, no doubt for similar reasons among others. The defendant is suffi- ciently protected if all that he is to do is required to be in writing. Of course it may be said that, in a bilateral contract like the present, the contemporaneous payment of the price is a condition of the promise, and therefore that the promise cannot be set forth truly unless the consideration is stated. But the language of the section is general, and should be read as no doubt it was meant. The only effect is that a promise set forth as absolute may be subject to an implied condition of performance on the other side. When such an implied condition exists it will be construed into the writing, and knowl- edge of the law gives notice of its possible existence. In some cases it has been held unnecessary to state the consideration, even when there is no provision like our sec. 2, although the consideration was executory. Thornburg v. Masten, 88 N. C. 293; Miller v. Irvine, 1. Dev. & Bat. 108; Ellis v. Bray, 79 Mo. 227; Violett v. Patton, 5 Cranch, 142; Camp v. Moreman, 84 Ky. 635. In Howe v. Walker, 4 Gray, 318, Thomas, J., plainly indicated the opinion that sec. 2 of the statute applies in all cases, pointing out that this does not mean that when the parties are reversed the oral agreement will be sufficient to sustain an action. The only case at all opposed to our conclusion, so far as we know, is Grace v. Denison, 114 Mass. 16. That was a bill for specific per- formance; not of the original agreement, but of the written document set forth, which document showed that a mortgage was to be given by the purchaser, but did not state what part of the purchase money was to remain secured in that way. Specific performance was refused, and: in the judgment a brief reference was made to the statute of frauds, citing Browne on St. Frauds, secs. 376, 381; Fry on Spec. Perf. secs. 221, 222 and note 7. These sections state in general terms that the mem- orandum must contain the price, and do not apply in this state, so that the inference is that sec. 2 of our statute was overlooked by the court. enforced because of the statute of frauds. Most American courts refused to follow the case, just as Massachusetts refused. 81 This is known as the Mercantile Law Amendment Act. In this country local statutes should be consulted. They vary from statutes requiring con- sideration to be stated to those saying it need not be stated in the case of guaranties or need not be stated at all. Contracts WITHIN THE STaTUTE or FRAUDS 1353 It was not mentioned in the briefs of counsel, or in the judgment. The decision cannot overrule the statute, and is no authority for a distinction under it. So far as it went on the doctrines of specific performance only, as would seem from the reference to Fry on Spee. Perf. sec. 222, note 7, stating Baker v. Glass, 6 Munf. 212, and to Bos- ton & Maine Railroad v. Babcock, 3 Cush. 228, 232, and from the fact that Mr. Justice Wells, who delivered the opinion of the court in Grace v. Denison, also wrote the decision in ‘Wetherbee v. Potter, 99 Mass. 254, 362, it has no bearing on the case at bar. Exceptions overruled. Fie, C. J.62 I do not assent to the opinion of the court. * * * The real difficulty in the case is, that the writing is ambiguous in regard to the price, and one question in the case might have been whether oral evidence was competent to remove the ambiguity, but no such ques- tion appears to have been raised. The evidence of the usage of real estate brokers with respect to the amount of their commissions, if com- petent, had some tendency to show that the writing should be construed as both the plaintiff and the defendant testified the contract really was. The opinion of the court proceeds solely on the ground that under our statute of frauds the contract of sale or a memorandum of the sale of land signed by the vendor, need not contain the price, or any of the other terms of the sale; that it is enough if the writing shows that the defendant has agreed to sell certain designated land to the plaintiff on. some terms unexpressed, or if it contains an acknowledgment that such an agreement has been made. The réasons given for this opinion are, that by our statute, Pub. Sts. c. 78, sec. 2, ‘‘The consideration of such promise, contract, or agreement need not be set forth or expressed in the writing signed by the party to be charged therewith, but may be proved by any legal evidence.’’ This provision was introduced in the Revised Statutes in consequence of the decision in Packard v. Richard- son, 17 Mass. 122; Rev. Sts. c. 74, sec. 2. In the report of the commis- sioners appointed to make the revision, they say: ‘‘This section is new in terms, and is proposed for the purpose of adopting and confirming the judgment of the Supreme Judicial Court upon the construction of the statute now in force. 17 Mass. Rep. 122.’’ The decision in Pack- ard v. Richardson was upon a-written promise on the back of a promis- sory note signed by the defendants, as follows: ‘‘We acknowledge ourselves holden as surety for the payment of the within note.’’ In the opinion it is said: ‘‘The consideration existing was, that these defendants were members of the company which made the note; and that a suit, which had been commenced, was stopped by the plaintiff, at their request. But this consideration was proved by parol, and the writing acknowledges no consideration whatever.’’? 17 Mass. 128. The eourt declined to follow the decision in Wain v. Warlters, 5 East, 10 82 Parts of this dissenting opinion are omitted. 1354 CASES ON THE LAW OF CONTRACTS See Saunders v. Wakefield, 4 B. & Ald. 595. All these cases arose upon contracts of guaranty or contracts to pay the debt of another, and the consideration of the promise was executed. When these cases were de- cided it was not questioned that the memorandum of a contract of sale must contain the terms of the contract, and that one term of every con- tract of sale is the price. Many of the United States have passed statutes on this subject sim- ilar to ours, viz.: Illinois, Indiana, Kentucky, Maine, Michigan, Ne- braska, New Jersey, Virginia, and West Virginia. See Wood on St. Frauds, sec. 105, Appendix, 892-922. As it may be suggested that de- cisions in England and in states where no similar statutes exist are not applicable, I shall confine my citations chiefly, if not wholly, to our own decisions, and to the decisions-of the courts of those states whose statute on this subject is similar to ours. It is substantially con- ceded that Grace v. Denison, 114 Mass. 16, is directly opposed to the opinion of the court in the present case, but it is said that the second section of our statute of frauds was overlooked by the court. It was a bill in equity against a vendor, for the specific performance of an agreement to convey land. The case arose on a demurrer for the cause ‘‘that such contract as the plaintiff alleges to be in writing and signed by the defendant is not sufficient to enable a court of equity to decree specific performance thereof.’’ The only ground on which the demurrer was sustained was, that the memorandum of the agreement was not sufficient to satisfy the statute of frauds. The court say: ‘““The memorandum of agreement indicates that a part of the purchase money was agreed to be secured by mortgage of the premises to be con- veyed. -But it does not disclose nor furnish any means for the court to ascertain what part or amount is to remain upon mortgage, and what paid in cash upon delivery of the deed. * * * The writing being incomplete in one of its essential terms, and the court having no means to which it can lawfully resort to supply the defect, specific perform- ance must fail.”’? * * * While some of the cases cited above are suits against the vendee and some suits against the vendor, it seems to me that this court has always held, in both classes of cases, that, in a contract to convey land or other property executory on both sides, the contract or memorandum, although it need be signed only by the party to be charged, must contain all the essential terms of the contract or bargain, and that the price agreed to be paid is an essential term. To say that the court in the decision of Grace v. Denison overlooked a well-known provision of our statute of frauds concerning consideration is, I think, unwarranted. * * * When the whole contract or promise of the defendant is to do a cer- tain thing, and this is an absolute promise, resting upon a considera- tion which has been executed, there is some reason in saying that the memorandum signed by the defendant need not contain the considera- tion or inducement of the contract or promise. But in a contract exe- \ Contracts WITHIN THE StatuTE or Fraups 1355 cutory on both sides, where the promises are mutual, and each is the consideration of the other, the promises are conditional, and one party -agrees to perform his part of the contract only on condition that the other will perform his part, and it cannot’be known what the promise of the one is without knowing the express or implied promise of the other. A promise to convey land because the promisee has actually received $1,000 is not the same as a promise to convey land if the promisor will pay $1,000 on receiving the conveyance, and a promise to convey land for $1,000 to be paid on the delivery of the deed is not the same as a promise to convey land for $10,000 to be paid on the de- livery of the deed. The conditions on which the vendor agrees to con- vey are often many and complicated, and involve the assumption of mortgages and the performance of other acts. If a mere acknowledg- ment in writing by the vendor that he has agreed to convey specific land to the vendee on terms which are not expressed is sufficient to satisfy the Statute of Frauds, then it is open to the vendee to prove by oral testimony the price to be paid, and all other terms of the con- tract to be performed by him, and the statute will no longer prevent frauds and perjuries. If it is a condition of the promise of the vendor that it is not to be performed unless at the time of the performance the vendee pays money and gives or assumes mortgages, the condition qualifies the promise and is a part of it, and the writing should con- tain all that is essential to show what the promise or contract on the part of the vendor in fact was. The decision of the court seems to me in great part to nullify the statute. I have not considered whether the judgment of the court may not be sustained on some other ground than that stated in the opinion. Mr. Justice Knowlton concurs in this opinion.® BIRD v. BLOSSE. (Court of Chancery, 1688. 2 Ventris, 361.) The case was thus: One wrote a letter, signifying his assent to the marriage of his daughter with J. 8. and that he would give her 15001. 83 In agreement with the dissenting opinion, see Reid v. Diamond Plate Glass Co., 85 Fed. 193 (1898); ‘Williams v. Robinson, 73 Me. 186 (1882). In Drake v. Seaman, 97 N. Y. 230 (1884), where a statute requiring con- sideration to be stated had been repealed, Finch, J., for the court said: “And if we conceded that the consideration might be wholly omitted from the memorandum, it would still be requisite that all the essential and material elements of defendants’ own agreement [to pay plaintiff so much for his serv- ices as salesman] should be stated, and they are not stated where the very condition upon which they were to pay at all is omitted, and the subject matter of their agreement is absent.” On the necessity and sufficiency of a statement of consideration in a contract 1356 CASES ON THE LAW OF CONTRACTS And afterwards by another letter, upon a further treaty concerning the marriage, he went back from the proposals of his letter. And at some time after declared, that he would agree to what was proposed - in his first letter. . This letter was held a sufficient promise in writing, within the Statute of 29 Car. 2, called the Statute against Frauds and Perjuries, and that the last declaration had set the terms in the first letter up again.§* WEISENBERGER ert au. v. HUEBNER et At. (Supreme Court of Pennsylvania, 1919. 264 Pa. 316, 107 Atl. 763.) Simpson, J.85 Plaintiffs filed a bill in equity, praying specific per- formance of an agreement for the sale of real estate, Gottlieb Huebner, one of the defendants, filed an answer, a decree pro confesso was entered against the other two defendants, evidence was taken, the court decreed a dismissal of the bill because the entire contract was riot in writing as required by our statute of frauds of March 21, 1772 (1 Smith’s Laws, p. 389), and plaintiffs appeal * * * On January 31, 1914, Samuel Weisenberger, one of plaintiffs, paid to Huebner the sum of $2,000, one-fourth of which was contributed by each of plaintiffs, and received a paper, of which the following is a copy: “Harry A. Cyphers, Attorney at Law, ‘Cor, Fourth Street and Brodhead Ave., . ‘South Bethlehem, Pa., Jan. 31, 1914. ‘Received from Sam. Weisenberger by hand of H. A. Cyphers, Esq., Two Thousand Dollars down money on acct. of purchase price for property at 3 & Spruce. Total price $18,500. Balance to be paid on or before April 1st, 1914, $18,500 less $2,000—$16,500. ““Gottlieb Huebner. “T hereby approve of the within sale. ““Yours, H. A. Cyphers.’’ within the statute of frauds, see 60 Am. St. Rep. 432, note; 3 Ann. Cas. 656, note; Ann, Cas. 1912 A, 1242, note; Ann. Cas. 1918 A, 134, note. 84‘‘That report [Ventris’s] does not show the formation or date of the con- tract sued upon. It must be taken, however, that the defendant’s letter ‘signify- ing his assent to the marriage of his daughter’ was not an acceptance of terms, but only an offer or an incident in a continuing negotiation: for no court could have held even in the worst period of the Restoration, that an assent which concluded a contract could be revoked afterwards at will. Assuming this, the point decided was that after a revocation of this letter, cancelled in turn by a declaration (it seems not in writing) of adherence to the original proposal, the first letter was a sufficient memorandum of the terms therein expressed to satisfy the statute of frauds. This case is of some interest because the statute was then (35 Car. II A. D. 1683) only, six years old.” F. P, [Sir Frederick Pollock], 30 Law Quar. Rev., 5. 85 Parts of the opinion are omitted. Contracts WITHIN THE STATUTE or FRavups 135% The part of the paper above the date is Cyphers’ ordinary printed letter head, and even if a court would be justified in assuming. there- from the property referred to was in South Bethlehem, and that ‘‘3 & Spruce’? meant Third and Spruce streets in that city, the statute of frauds would still apply, for the receipt does not specify the size of the property, or whether it is at the corner of ‘‘3 & Spruce,’’ and, if it is, at which corner. * * * A different question would arise if the property referred to had a well-known name, as, for instance, the ‘‘Fleming Farm on French Creek,’’ Ross v. Baker, 72 Pa. 186; or the ‘‘Hotel Duquesne Property,’’ Henry v. Black, 210 Pa. 245, 59 Atl. 1070, 105 Am. St. Rep. 802; but there is nothing in the receipt to bring it within that class of cases. On the contrary, it is within the class of Mellon v. Davison, 123 Pa. 298, 16 Atl. 431, where the description was ‘‘a lot of ground fronting about 190 feet on the P. R. R., in the 21st Ward, Pittsburgh, Pa.,’’ and Safe Deposit & Trust Co. v. Diamond Coal and Coke Co., 234 Pa. 100, 83 Atl. 54 L. R. A. 1917 A, 596, where it is held an agreement reformed by parol, so as to comport with the one actually made, even if it then specifies every essential fact required by the statute of frauds, cannot be the basis of a bill for specific performance, because, as reformed, it is only a parol agreement.86 * * * The decree of the court below is affirmed, and the appeal dismissed, at the cost of appellant. PATRICK DOHERTY v. SARAH A. HILL. (Supreme Judicial Court of Massachusetts, 1887. 144 Mass. 465, 11 N. E. 581.) Contract for breach of an agreement to convey to the plaintiff cer- tain real estate in Stoneham. Answer, the statute of frauds. J. H. Green, who claimed to act as agent for the defendant, and who executed the contract declared on, testified, for the plaintiff, that the estate referred to in said contract was placed in his hands by the defendant in May, 1884, at which time the defendant instructed him to sell it for the sum of $1,300; that on May 28, 1885, in reply to a tele- gram from him inquiring at what price she would sell, the defendant sent him the following telegram, signed by her: ‘‘Eleven hundred and fifty cash, if possible try for more ;’’ that on May 30, 1885, the defend- ant wrote the witness a letter, which .contained the following: ‘‘As I telegraphed you, I will sell the house in Lincolnville for $1,150; will pay last year’s taxes and throw in insurance, which lasts until 1887. * * * J will make terms easy for the party purchasing it, say three or four hundred down and the other payments satisfactorily secured 86 See last part of note 96, post, this chapter. 1358 CASES ON THE LAW OF CONTRACTS by mortgage;’’ and that, on June 1, 1885, and after receiving this letter, the witness received from the plaintiff $100 in cash, and executed and gave to the plaintiff the following paper, being the same declared on: ‘‘$100. Stoneham, June 1st, 1885. Rec’d of Patrick Doherty one hundred dollars to bind sale of estate on Congress Street owned by Sarah A. Hill. $350 cash. $850 in mortgage at 6 per cent. J. Horace Green, agent for Sarah A. Hill.”’ The witness further testified, that he had never paid back to the plaintiff the $100 received; and that he told the plaintiff he would pay interest on it, and that the plaintiff could have the money whenever he called for it. The plaintiff offered the contract of sale in evidence, to which the defendant objected; but the judge admitted it. There was also evidence tending to show that the defendant, by her agent, one Kimball, sold said estate, on June 11, 1885, to one Almy, and delivered to Almy a deed thereof. The defendant testified, and upon this point her testimony was not controverted, that in addition to the estate claimed to have been sold to the plaintiff, and which consisted of a lot of land with a dwelling- house on it, she owned, on June 1, 1885, several lots containing two or three acres in all, and all in one parcel, or other land on said Con- gress Street, upon the other side of the street and nearly opposite to the land in question; and that this parcel of land had no buildings upon it. The plaintiff offered to show that the estate named in the agreement was the lot with the dwelling-house on it. The defendant requested the judge to rule that it could not be shown by extrinsic evidence to which of the defendant’s estates on Congress Street the written memo- randum referred; but the judge declined so to rule. The plaintiff offered in evidence a draft of a deed from the defendant to him of the estate which the plaintiff claimed to have purchased, which draft was made by Green and sent by him to the defendant to be executed, and which the defendant refused to execute. To the ad- mission of this draft in evidence the defendant objected; but the judge admitted it. The defendant, for the purpose of showing the value of the estate as affecting the question of damages, offered to prove that said estate had been, since December, 1885, in the hands of a real estate agent in Stoneham, with authority to sell it for $1,200, but no purchaser had been found. The judge excluded the evidence offered. The jury returned a verdict for the plaintiff in the sum of $200; and the defendant alleged exceptions.. , Hotmes, J. The memorandum would have satisfied the statute of frauds, if the evidence had shown that there was only one ‘‘estate on Congress Street owned by Sarah A. Hill,’’ in Stoneham, where the memorandum is dated. Hurley v. Brown, 98 Mass. 545; Scanlan v. Contracts WITHIN THE StTaTUTE oF FRAUDS 13859 Geddes, 112 Mass. 15; Mead v. Parker, 115 Mass. 413. But the evi- dence shows that there were more than one. The plaintiff argues that this is an ambiguity introduced by parol, and that therefore it may be removed by parol. 98 Mass. 548. But the statement seems to us mis- leading. The words show on their face that they may be applicable to one estate only, or to more than one. If, on the existing facts, they apply only to one, then the document identifies the land; if not, it fails to do so. In every case, the words used must be translated into things and facts by parol evidence. But if, when so translated, they do not ‘identify the estate intended, as the only one which would satisfy the description,’ they do not satisfy the statute. See Slater v. Smith, 117 Mass. 96, 98; Potter v. Duffield, L. R. 18 Eq. 4, 7. The letter from the defendant to her agent did identify the estate, we will assume, as the only one owned by her which had a house upon it. But, of course, this letter was not of itself a sufficient memorandum. It has been held that an offer in writing, afterwards accepted orally, satisfies the statute. Sanborn v. Flagler, 9 Allen, 474, Browne, St. of Frauds (4th Ed.) § 345 a8” But this letter was only an authorny to offer. It does not appear to have been exhibited to the plaintiff, as in Hastings v. Weber, 142 Mass. 232, and plainly was not intended to be. We express no opinion whether it would have been sufficient, if it had been shown and its terms had been accepted. Again, the letter cannot be used to help out the memorandum, on the ground that the latter impliedly incorporates it. The memorandum, it is true, purports to be signed by an agent, and therefore may be said to refer by implication to some previous authority. But this implied reference is at most rather an implied assertion that authority exists (which may be oral), than a reference to documents containing the authority. Jefts v. York, 10 Cush. 392, 395. Boston & Albany Rail- road v. Richardson, 135 Mass. 473, 475. It would hardly be argued as a defence to an action of deceit, against a person who had assumed to act as agent without authority, that the memorandum signed by him impliedly referred to and incorporated the written communications from his alleged principal, and that therefore the plaintiff must be taken to have known them, and that they did not confer the authority assumed. In this case, the agent had authority by telegram before he 87The authorities are almost unanimous in holding that an oral acceptance of a written option to sell land is valid. See 25 R. Cc. L. 674, and long list of cases there cited. The case of Wardell v. Williams, 62 Mich. 50, 28 N. W. 796, 4 Am. St. Rep. 814, is cited to us as holding a contrary doctrine. An examina- tion of the case will show that the court in that case held the written mem- orandum incomplete, and that the precise question here presented was reserved.” Vinje, J., in Russell v. Ives, (Wis.) 178 N. ‘W. 300, 301 (1920). On the necessity of a written acceptance of a written offer to constitute a suff- cient memorandum under the statute, see Ann. Cas. 1913 A, 1041, note. 13860 CASES ON THE Law oF ConrTRAcTS received the letter; the argument, therefore, would have to go the length of saying that all documents of authority were tacitly incorporated. In Hurley v. Brown, ubi supra, it was held that a memorandum of an agreement to sell ‘‘a’’ house on a certain street should be presumed to mean a house belonging at the time to the contractor. It may be asked whether there is not at. least as strong a presumption that a memo- randum signed by an agent refers to property which he is authorized to sell. But unless the document of authority is specifically incorporat- ed, then the memorandum is only of a sale of a house which the agent is authorized in some way to sell, and, so far as the memorandum goes, his authority may as well be oral as written. The difference may be one of degree, but the distinction is none the less plain between an identi- fication by extrinsic proof of the usually manifest, external, and con- tinuing fact that the party owned but one house on a certain street, and that by similar proof of possibly oral communications between prin- cipal and agent, which is precisely the kind of identification the statute seeks to avoid. See Whelan v. Sullivan, 102 Mass. 204, 206; Rossiter v. Miller, 3 App. Cas. 1124, 1141; Potter v. Duffield, wht supra; Jarrett v. Hunter, 34 Ch. D. 182. The same considerations would apply to an attempt to help out the memorandum by evidence that the estate intended was the only one which the plaintiff knew of as belonging to the defendant. The remaining exceptions become immaterial. The draft of a deed of the premises was admissible, in connection with proof that it was offered to the defendant for execution, to show a breach, but not to aid the memorandum. The deed was not referred to by the previously executed memorandum, nor were its contents governed by the signa- ture of the latter. Evidence that a real estate agent had not sold the land for $1,200 was not evidence of its value. Exceptions sustained:§8 88 But in Norton v. Smith (N. C.), 103 S. EB. 14 (1920), in holding that a Memorandum which recited that ‘‘Wheéreas, J. A. Smith has sold to W. H. Norton his entire tract or boundary of land consisting of 146 acres” was “the same as if J. A. Smith had described it as ‘his 146-acre tract of land’” and was a sufficient description, it appearing that J. A. Smith owned only one tract and that it contained 146 acres, Walker, J., for the court, said: . “Carson v. Ray, 52 N. C. 609, 78 Am. Dec. 267 is exactly in point. There the description was ‘my house and lot in the town of Jefferson,’ and it was held that it would ‘undoubtedly’ be sufficient, if in a will, to pass the testator’s house and lot, in the absence of any proof to show that he had more than one. If, then, such a description would be sufficiently certain in a will, we cannot perceive any reason why it should not be so in a deed, as, in both instruments, the only requisite, as to the certainty of the thing described, is that there shall be no patent ambiguity in the description by which it is designated. A house and lot, or one house and lot in a particular town, would not do, because too indefinite on the face of the instrument itself. See Plummer v. Owens, 45 N. C. 254; Murdock v. Anderson, 57° N. C. 77. But ‘my house and lot’ im- Contracts WITHIN THE STATUTE oF Fraups 1361 AUERBACH v. NELSON, (High Court of Justice, Chancery Division. [1919] 2 Ch. 383.) Witness Action. On November 21, 1918, the plaintiff paid the defendant 101. and re- ceived the following receipt :-— ports a particular house and lot, rendered certain by the description that it is one which belongs to me, and, upon the face of the instrument, is quite as definite as if it had been described as the house and lot in which I now live, which is undoubtedly good. “Where the deed or will does not itself show that the grantor or devisor had more than one house and lot, it will not be presumed that he had more than one, so that there is no patent ambiguity, and if it be shown that he has more than one, it must be by extrinsic proof, and the case will then be one of a latent ambiguity, which may be explained by similar proof. * * * “Every valid contract must contain a description of the subject-matter; but it is not necessary it should be so described as to admit of no doubt what it is, for the identity of the actual thing and the thing described may be shown by extrinsic evidence. Fry on Specific Performance, § 209; Pomeroy on Con- tracts, § 90, and note; Buckhorne L. & T. Co. v. Yarbrough, 102 S. E. 630, at this term.” In Mitchell v. Morgan (So. Dak.), 181 N. W. 958 (1921), “my farm at Estel- line,” the vendor owning only one, was held a sufficient description to satisfy the statute. In Sholovitz v. Noorigian, (R. I.), 107 Atl. 94, 97-98 (1919), Sweetland, J., said: “The description in the memorandum before us is, ‘Harry Noorigian brick store and land at 46 Blackstone street.’ It appears in evidence that -the de- fendant Henry A. Noorigian was known as ‘Harry Noorigian,’ and there is no question raised but that by that name in the memorandum reference is made to the defendant. According to a commonly recognized presumption, since the memorandum was made in Woonsocket and both parties reside in Woonsocket and the defendant owns property on Blackstone street in ‘Woonsocket, ‘46 Blackstone street’ in the memorandum refers to No. 46 Blackstone street in the city of Woonsocket. As thus interpreted, the description is of the defend- ant’s brick store and land at 46 Blackstone street in Woonsocket. This on its face is a definite description of a particular brick store and at least the land on which it stands. “A description is required in a memorandum evidencing a sale of land in order that the property which is the subject of the contract may be identified. We cannot agree with the criticism of the said [trial] justice that, because there were two doors to the brick store of the defendant, one numbered 44 and the other 46, that said store is not identified when referred to as ‘at 46 Black- stone street.’ The fact that the other door is numbered 44 creates no uncer- tainty as to the identity of the store or building described in the memorandum. “Neither in our opinion should the memorandum be held insufficient to charge the defendant because the width and depth of the lot, on which the store stands, is not set out therein. We-have already said above that the description without question must be held to define at least the land on which the brick store stands and surely to that extent the defendant was bound to make conveyance. By reference to the evidence presented in the case at bar it appears that the defendant’s brick store at 46 Blackstone street was situated at the easterly end of the defendant’s property and that the land on which it stands and the small amount of land adjoining it was well defined and set 1362 Cases ON THE Law or ContTRACTS **6d. stamp. 21/11/1918 Received of Mr. Auerbach, 197, High Street, Shoreditch, 101. on account of House being sold for 5002. from Mr. M. Nelson, Nelson Lodge, 148, Victoria Park Road. Possession to be taken in six weeks after date. 1d. stamp. Morris Nelson, 21/11/1918.”’ The plaintiff alleged that on November 21st, 1918, before signing this receipt the defendant verbally agreed to sell him his house and residence, Nelson Lodge, for 5001. with possession in six weeks, that the 101. was paid as a deposit on account of the purchase money. The defendant having failed to complete, owing to the difficulty of finding another residence, the plaintiff brought this action for specific per- formance relying on the receipt as a sufficient memorandum of the al- leged verbal contract within the statute of frauds. In addition to denying the verbal contract, which was however fully proved by the evidence, the defendant also contended that the memo- randum was insufficient as neither the purchaser nor the property was sufficiently indicated or described. The latter point is alone reported. Astsury, J. The only question is whether the memorandum is suf- ficient within the statute of frauds. The vendor contends that it is insufficient for two reasons—namely, first the purchaser is not suff- ciently indicated; secondly the property is not sufficiently described. -On ‘these points the general observations of Jessel, M. R. in Shard- low v. Cotterell, 20 Ch. Div. 90 must be borne in mind. He said (at p. 93): ‘‘No description can be framed that will prevent all disputes, and the framers of the statute of frauds knew very well that they could not prevent perjury altogether, but could only go some way towards it; and it was considered that to require a note in writing was a useful check. It could be nothing more: it could not entirely prevent perjury, for parties may suborn witnesses to swear to the existence, destruction, and contents of a memorandum which never in fact exist- ed. Looking at the statute in that light, what is a sufficient descrip- tion? I consider that any two specific terms are enough to point out sufficiently what is sold. For instance, ‘the estate of A. B. in the County of C.,’ or ‘the estate of A. B. which was devised to him by off from the remainder of the defendant’s land by monuments, consisting of Blackstone street and Burts lane to the north and south respectively, the land of one Cunningham on the east, and the wooden building of the defendant on the west. * * * “We are of the opinion that the description in question is in itself a sufficient description; that by the aid of parol evidence the finding would be warranted that the property described may be identified as all that portion of the defend- ant’s property on Blackstone street which is east of the defendant’s wooden building.” On the description of property by a street number, see L. R. A. 1918 C, 520, note. See also Baller v. Spivack (Mich.), 182 N. W. 70 (1921). Contracts WITHIN THE SvTaTUTE oF FRaups 1363 (. D.’ would be sufficiently specific. If so, why should not ‘the prop- erty which A. B. bought of C. D. on March 29, 1880,’ be sufficient? Would anybody doubt that in a will ‘the property which I bought from C. D. on March 29, 1880,’ would be a sufficient description? If it is so in a will why not in a contract?”’ In that case Jessel, M. R., and Baggallay, L. J., held that the fol- lowing receipt alone, without referring to other documents, was a suf- ficient memorandum: ‘‘Pinxton, March 29, 1880. Received of Mr. A. Shardlow the sum of 211. as deposit on property purchased at 4201. at Sun Inn, Pinxton, on the above date. Mr. George Cotterell, Pinxton, Owner.’’ This was signed by the auctioneer. Jessel, M. R., said (20 Ch. D. 92): ‘‘It has not been contested that if the receipt had said ‘on a house purchased’ there would have been a sufficient description, but it has been argued that because the word ‘property’ is used, the description is insufficient, and Kay, J., has so decided.’’ Further on (at p. 95) he agreed with Kay, J., that ‘‘You must have on the face of the contract a sufficient definite description of the thing sold to enable you to introduce parol evidence to show what the articles were to which that description refers.’’ Baggallay, L. J., adopted (20 Ch. D. 96) the statement in Dart’s Vendors and Purchasers, 5th Ed. p. 219 (7th Ed. p. 238), that ‘‘a general description of the estate is sufficient if parol evidence can be produced to show what property was in- tended.’”’ It is plain in the present case that the point as to the non-identifi- cation of the purchaser is bad because the memorandum says: ‘‘Re- ceived of Mr. Auerbach. * * * 101. on account of House being sold for 5001. from Mr. M. Nelson. * * *’ and in the absence of evi- dence aliunde the clear inference is that Auerbach, who paid the 101. is the purchaser. The similar receipt in Shardlow v. Cotterell, 20 Ch. Div. 90, was sufficient on this point. On the whole I also think there is a sufficient description of identity. In Shardlow v. Cotterell the description was ‘‘Property purchased at 4201. at Sun Inn, Pinxton, on the above date. Mr. George Cotterell, Pinxton, Owner.’’? That was held sufficient. Here it is ‘‘House being sold for 5002, from Mr. M. Nelson.’’ to Auerbach on November 21st, 1918. This is quite as explicit as the memorandum in Shardlow v. Cot- terell. In Plant v. Bourne, [1897] 2 Ch. 281, the description was vaguer still, namely, ‘“‘twenty four acres of land, freehold, * * * at Tot- monslow, in the parish of Draycott, in the County of Stafford.’’ Byrne, J., held that there was no sufficient identification of the subject mat- ter. The Court of Appeal however held that the vendor Plant was pre- sumably selling his own 24 acres, and the description being therefore equivalent to ‘‘Plant’s 24 acres at Totmonslow,’’ was sufficient to let in extrinsic evidence to show that he had only 24 acres at that place. Lindley, L. J. (at p. 288), after referring to Ogilvie v. Foljambe, 3 1364 CASES ON THE Law oF CoNnTRACTS Mer. 53, and Shardlow v. Cotterell, adopted the principle expressed by Lush, L. J., in the latter case to wit: ‘‘The general rule is, id certum est quod certum reddi potest, and I am of the opinion that this maxim applies here. In Ogilvie v. Foljambe, parol evidence was wanted just as much as here to show what was the subject matter of the contract and [Kay, J.’s, judgment in the present case, 18 Ch. D. 289, 291-95], if carried to its legitimate results, would establish that no contract can be good within the statute unless it describes the property in such a way that it is wholly unnecessary to resort to parol evidence.’’ Chitty, L. J., said, [1897] 2 Ch. 290: ‘‘It would be refinement, and not pro- moting justice, if we were to hold this description fails because ‘my’ is not to be found before the ‘twenty four’ or the definite article ‘the’.”’ In other words the court assumes that a man is selling his own property and that the man who pays the deposit is the purchaser. The description of the property as a house, being sold by Nelson to Auerbach for 5001. on November 21st, 1918, is sufficient to let in parol evidence identifying the only house answering that description. The plaintiff is therefore entitled to specific performance. NOBLE v. WARD anp OruHers. (Court of Exchequer, 1866, L. R., 1 Exch. 117, and Court of Exchequer Chamber, 1867, L. R., 2 Exch. 135.) In the Court of Exchequer, Jan. 12, 1866. BramMweE.u, B.8® This case was tried before me at Manchester, and the plaintiff was nonsuited. The case comes before us on a rule to set aside that nonsuit. I think it was wrong, at least on the ground on which it proceeded. The action was for not accepting goods on a sale by the plaintiff to the defendants. The defendants pleaded, among other things, that the contract had been rescinded, and that the plaintiffs were not ready and willing to deliver. The facts were, that a contract for the sale and delivery of goods from the plaintiff to the defendants, at a future day, was entered into on the 12th of August, which may be called contract A; that another contract for sale and delivery by the plaintiff to the defendants also at a future day was entered into on the 18th of August, say contract B; that before any of the days of delivery had arrived the plaintiff and defendants agreed, verbally, to rescind, or do away with, contract A, and'to extend for a fortnight the time for the performance of contract B; that is to say, the plaintiff had a fortnight longer to deliver, and the defendants a fortnight longer to take and pay for those goods. This, on principle and authority, was a third 89 The statement of facts, the short opinion of Channell, B., in the Exchequer, and parts of the other opinions are omitted. Contracts WITHIN THE StatuTE or FRavups 1365 contract, call it C. It was a contract in which all that was to be done and permitted on one side was the consideration for all that was to be done and permitted on the other. See per Parke, B., in Marshall v. Lynn, 6 M. & W. 117. It remains to add that the declaration would fit either contract B or contract C, and that goods were tendered by the plaintiff to the defendants in time for either of those contracts. My notes, and my recollection of my ruling, are that contract B was re- seinded, and contract C not enforceable, not being in writing. I think that was wrong. Either contract C was within the Statute of Frauds, or not. If not, there was no need for a writing; if yes, it was because it was a contract for the sale of goods, and so within the seventeenth section of the statute. That says that no contract for the sale of goods for the price of 101. or upwards shall be allowed to be good, except there is an acceptance, payment, or writing. The expression ‘‘allowed to be good’’ is not a very happy one, but whatever its meaning may be, it includes this at least, that it shall not be held valid or enforced. But this is what the defendant was attempting to do. He was setting up this contract C as a valid contract. He was asking that it should be allowed to be good to rescind contract B. It is attempted to say that what took place when contract C was made was twofold. First, that the old contracts were given up; secondly, a new one was made. But that is not so. What was done was all done at once—was all one transaction, one bargain; and had the plaintiff asked for a writing at the time, and.the defendants refused it, it would all have been undone, and the parties remitted to their original contracts. I think, therefore, that on principle it was wrong to hold that the old contract was gone. * * * The defendants appealed to the Exchequer Chamber. In the Exchequer Chamber, Feb. 8, 1867. Wuuiss, J. * * * In setting aside the nonsuit directed by the learned judge who tried the cause, the Court of Exchequer * * * held that what took place on the 27th must be taken as an entirety, that the agreement then made could not be looked on as valid, and that no rescission could be effected by an invalid contract. And we are of opinion that the Court of Exchequer was right. Mr. Holker [of-counsel for the defendant] has contended, that though the contract of the 27th of September cannot be looked on as a valid contract in the way in- tended by the parties, yet since, if valid, it would have had the effect of rescinding the contract of the 18th, and since the parties might have entered into a mere verbal contract to rescind simpliciter, we are to say that what would have resulted if the contract had been valid, will take place though the contract is void; or, in other words, that the transaction will have the effect which, had it been valid, the parties would have intended, though without expressing it, although it cannot operate as they intended and expressed. But it would be at least a 1366 CasEs oN THE LAw or ConTRACTS question for the jury, whether the parties did intend to rescind—whether the transaction was one which could not otherwise operate according to their intention; and a material fact on that point is, that, while they expressly rescinded the contract of the 12th of August, they simply made a contract as to the carrying into effect that of the 18th, though in a mode different from what was at first contemplated. It is quite in accordance with the cases of Doe d. Egremont v. Courtenay, 11 Q. B. 702, and Doe d. Biddulph v. Poole, 11 Q. B. 718, overruling the previous decision of Doe d. Egremont v. Forward, 3 Q. B. 627; see 11 Q. B. 723, to hold that, where parties enter into a contract which would have the effect of rescinding a previous one, but which cannot operate according to their intention, the new contract shall not operate to affect the pre- viously existing rights. This is good sense and ‘sound reasoning, on which a jury might at least hold that there was no such intention. * * * Judgment affirmed.®® MORRIS v. BARON AND COMPANY. (House of Lords, [1918] A. C. 1, 9 B. R. C. 399, Ann. Cas. 1918 C, 1197.) Lorp Finaty, L. C.94, My Lords, this action was brought for the re- covery of 8881. 4s. the price of goods which had been sold and delivered by the plaintiff to the defendants. The right of the plaintiff to recover this sum was not in dispute, but the defendants set up a counter-claim for damages for non-delivery of other goods by the plaintiff to the defendants. The case was tried by Bailhache, J., without a jury. He gave judgment for the plaintiff on the claim, and dismissed the counter- 80If, however, the new contract is not required to be in writing by the statute of frauds, as, for instance, where the original contract was one not to be performed within a year and when it had less than a year to run the new oral contract varying performance for the rest of the period was made, the new agreement governs. Williams v. Moss’ Empires, Ltd., [1915] 3 K. B, 242. Cf. Blake v. J. Neils Lumber Co., 111 Minn. 513 (1910). As Shearman, J., said in Williams v. Moss’ Empires, Ltd., supra, the cases of Goss v. Lord Nu- gent, 5 B. & Ad. 58 (1833) and Noble v. Ward, and cases following them “show that whenever the parties vary a material term of an existing contract [which would be invalid if it were not in writing] they are in effect entering into a new contract, the terms of which must be looked at in their entirety and if the new contract is one which is required to be in writing, then it must be wholly disregarded and the parties are relegated to their rights under the original contract. But if on the other hand there is nothing in the terms of the new contract which necessitites a written contract, then, although the original contract was one which was bound to be in writing, the new parol con- tract can be enforced because although it is not in writing it is nevertheless an effective contract.” 91The statement of facts is omitted, as are also the opinions of Viscount Haldane, Lord Dunedin, Lord Atkinson and Lord Parmoor. Contracts WITHIN THE STATUTE or FRAUDS 1367 claim on the ground that the defendants had not made a valid exercise of their option under the contract to have the goods in question delivered to them. The Court of Appeal reversed the judgment of Bailhache, J., on the counter-claim, and entered a judgment upon it for the defend- ants, the damages to be assessed by a referee. From that decision this appeal is brought to your Lordship’s House by the plaintiff in the action. The appellant is a worsted manufacturer and the respondents are merchants. On September 24, 1914, they entered into a contract in writing for the sale by the appellant to the respondents. of 500 pieces of cloth ; 223 of these pieces were delivered. Disputes arose between the parties, the respondents complaining of delay in delivery under the contract, and the appellant complaining of the respondents’ failure to pay for the goods’ which had been delivered, and litigation ensued. The first action was brought on March 19, 1915. In it the plaintiff (the present appellant) claimed 8881. 4s., the price of the goods de- livered, while the defendants (the present respondents) counter-claimed for damages in respect of the failure to deliver 277 pieces, the balance of the 500 pieces contracted to be sold. On April 20, 1915 (three days after the delivery of the counter-claim), the parties at an interview agreed to a settlement, and on April 22nd, the respondents sent a letter to the appellant setting out the terms of settlement. The appellant did not admit the correctness of the statement of the terms in this letter, but Bailhache, J., for the purposes of his judgment assumes its correct- ness, and I shall deal with the case on this basis, accepting the respond- ents’ statement of the terms of settlement. The letter is as follows: : ‘94 and 26, Brook Street, Bradford, April 22nd, 1915. ‘Messrs. The Troydale Mill Co., Leeds. “Dear Sirs:—As personally arranged between Mr. Morris and Mr. Baron, we herewith confirm the terms agreed upon. “Both to withdraw the legal proceedings and instruct the solicitors accordingly, and each to pay his own costs, you to allow 3800. (thirty pounds) to us to meet the expenses incurred through not fulfilling the orders. “The account to be left over for three months so as to give us the opportunity of selling the goods, and the goods not delivered to be kept for us if we ask for them. ‘“‘We have the option of taking up the balance of pieces to complete the order, giving time to make. “Yours faithfully, “Baron & Co.” The three months’ extension of credit which was given by the terms embodied in this letter for the goods delivered expired on July 22nd, 1915, and on the 27th, the appellant wrote asking for payment accord- ing to agreement. On the 28th the respondents wrote back saying “that they would be pleased to pay the account if the appellant delivered the balance of the blue pieces to complete the order, as stated in the re- 1368 Cases on THE Law orf ConTRACTS spondents’ letter of April 22. On August 17th the respondents wrote as follows to the appellant: ‘‘Gentlemen, we are surprised you have not replied to our letter of the 28th July. As explained in that letter, we shall be glad to pay your account on delivery of the balance of the pieces to complete the order. ‘As you have not answered we must now ask you to deliver the balance of the blue pieces on or before the 21st September, 1915. Kindly let us know by return of post if you will do this.’’ A proposal was made by the respondents in September for a variation in the class of goods to be delivered, but this came to nothing. On September 27th the respondents wrote pressing for delivery, and on February 15, 1916, the second action (that on which this appeal is brought) was begun by the appellant. Notwithstanding the agreement of April 22, 1915, the respondents had consistently refused payment for the goods already delivered, insisting on their claim to keep back the payment until delivery of the further ~ goods. The statement of claim in the second action was for the 8881. 4s. for the goods delivered. The defense admitted the plaintiff’s claim, subject to the counter-claim. The counter-claim set out the contract of September 24, 1914, the proceedings in the first action and the settlement embodied in the letter of April 22, 1915, alleging that the defendants had exercised their op- tion thereunder, but that delivery had not been made, and claimed dam- ages for non-delivery under the arrangement of April 22, 1915, or, alternatively, under the original contract of September 24, 1914. The counter-claim was based before Bailhache, J., solely on the agree- ment of April 22, and after hearing the evidence of the parties he delivered judgment, disallowing the counter-claim on the ground that the demand by the respondents for the delivery of the goods under the arrangement of April 22, 1915, was not a valid exercise of the option inasmuch as it was coupled with a refusal to abide by the terms of the arrangement as to payment for the goods already delivered. It was contended before your Lordships on behalf of the respondents that the payment of that money was not a condition precedent to the exercise of the option. But the real question is not whether payment was a condition precedent, but whether the respondents could make a valid claim to have the goods delivered under the option while refusing to observe their part of the bargain. It is perfectly true that the appel- lant did not, as he might have done, claim that the contract of April 22, 1915, was at an end, treating the respondents’ conduct as repudiation. But the question remains whether they could validly exercise their option while repudiating their own obligation under the agreement which con- ‘ferred that option. Bailhache, J., held that they could not, and I agree. It was contended that the obligation to pay the 8881. 4s at the end of S Contracts WITHIN THE SraTuTE or FRaups 1369 the three months did not go to the root of the contract and that the only remedy was an action for the amount. The question is whether the obligation was regarded by the parties as an essential part of the new contract, and I think that its terms show that it was so regarded. It is, indeed, in itself a very important question for a manufacturer whether he is to go on making goods without being paid for those which have been delivered, and the stipulation that he should have the money at the end of the three months appears to me to be an essential part of the contract. A party to a contract which imposes certain obligations and confers certain rights upon him cannot claim to exercise these rights while repudiating his obligations in material particulars. The option to take the goods might indeed have been exercised: before the three months had expired, but it would not have been a valid exercise of the option within the three months if at the same time the defendant re- pudiated his obligation to pay at the end of that term. For these reasons, I agree with the decision of Bailhache, J., on the contract of April 22. An objection was also raised before Bailhache, J., to the enforce- ment of the new contract on which the counter-claim is based on the ground that it is not enforceable by reason of the 4th section of the Sale of Goods Act. This point was not argued before him owing to the view which he took on the point I have just dealt with. -It was raised and fully argued in the Court of Appeal and in your Lordships’ House. It was contended on behalf of the respondents that the new agreement was not an agreement for the sale of goods but for the settlement of an action. It was no doubt the settlement of.an action but a part, and a very material part, of that settlement appears to me to have-been an agreement for the sale of goods. It is an agreement that the respondents should have an option of taking the balance of goods undelivered, and it was implied that they were to pay for them on the terms of the original agreement. Surely this is an agreement for the sale of goods. This point, I agree with the Court of Appeal, would be enough to defeat the counter-claim. But the Court of Appeal went on to hold that the arrangement of April 22, 1915, not being enforceable, must be wholly disregarded and the parties relegated to their rights under the original contract. : The Court of Appeal treated the case of Noble v. Ward, L. R. 1 Ex. 117; L. R. 2 Ex. 135, as having decided as a matter of law that in a ease to which the 4th section of the Sale of Goods Act applies, the original contract cannot be rescinded by a contract not complying with the section. In that case there was a valid contract, on August 18 for the delivery of goods by the plaintiff to the defendant, and at an interview on September 27th it was agreed that the time for delivery should be extended. The defendant refused to take delivery and an action was brought for non-acceptance, the declaration covering either the contract of August 18 or that of September 27. The case was tried 1370 CASES ON THE Law or CONTRACTS before Bramwell, B., who directed a nonsuit on the ground that the contract of August 18 had been rescinded by the parol agreement of September 27, and that the parol agreement itself could not be sued on owing to the 17th section of the Statute of Frauds. The nonsuit was set aside by the Court of Exchequer, and Bramwell, B., was himself a member of the court and delivered the leading judgment. He pointed out that under s. 17 the contract of September 27 was not ‘‘allowed to be good,’’ and that to treat it as having the effect of rescinding the old contract would be to hold that it was good for that purpose. A new trial was accordingly ordered. This decision was affirmed in the Ex- chequer Chamber, judgment being delivered by Willes, J. He said that no rescission could be effected by an invalid contract, and that it would be at least a question for the jury whether the parties did intend to rescind. There are two observations to be made on this case. In the first place, the agreement varying the first agreement was by s. 17 of the Statute of Frauds one which was not allowed to be good, while under s. 4 of the Sale of Goods Act, 1893, which applies in the present case, it is merely not enforceable by action. There is a marked difference between the wording in this respect of the 4th section of the statute of frauds and the 17th section, as was pointed out in Leroux v. Brown, 12 C. B. 801, and, notwithstanding the obiter dicta (for they are no more) of some eminent judges, I do not think that the language of the two sections had the same effect.2* For the present purpose it is enough to say that both courts in Noble v. Ward, treated the contract as being invalid. The change made in the wording of the 4th section of the Sale of Goods Act as compared with s. 17 of the Statute of Frauds in my opinion altered the law. The agreement of April 22, 1915, in this case is not under that section invalid, as was the agreement in Noble v. Ward under s. 17 of the Statute of Frauds. It is only not enforce- able by action. In the second place, Noble v. Ward does not lay down as a matter of law that the parties cannot agree to rescind a written agreement which the law requires to be in writing by the substitution for it of another agreement not in writing, and therefore unenforceable. On the con- trary Willes, J., in the Exchequer Chamber says that the question would be for the jury. If the law were as the Court of Appeal in the present case has laid it down, he would have said that the judge must i rule that such a rescission could not take place. The point which arises in such cases seems to me to have been well stated by Lord Denman in Stead v. Dawber (1839), 10 Ad. & E. 57, 64, 65. In that case there was an agreement for the sale of goods to be delivered ‘‘on the 20th to the 22nd.’’ The plaintiff at the defendant’s 92 But in his opinion Lord Dunedin said: “The statute of frauds does not make the parol contract void, but only prevents an action upon it.” [1918] A. C. at p. 28, Contracts WITHIN THE STATUTE oF Fravups 1371 request verbally agreed to enlarge the time to the 23rd or 24th. Lord Denman, after saying that many cases had been cited, expressed himself as follows: ‘‘But it seems to us that we are mainly called on to decide a question of fact; what, namely, was the intention of the parties in the arrangement come to for substituting the 24th for the 22nd as the day of delivery; did they intend to substitute a new contract for the old one, the same in all other respects except those of the day of delivery and date of the accepted bill, with the old one?’’ The present case is not a case in which there has been a mere attempt to vary the written contract by parol, the situation of the parties being otherwise unchanged. The legal proceedings then pending between the parties were withdrawn, each bearing his own costs, a sum of 301. was to be allowed to meet expenses from non-delivery, three months’ credit was given to the respondents to give them the opportunity of selling the goods, and the respondents were released from the obligation to take the balance undelivered, getting an option instead. Under these circum- stances it seems to me to be out of the question to hold that merely be- cause the option is not enforceable on account of.the 4th section of the Sale of Goods Act, the rights of the parties are to be regarded as still governed by the original contract under which the respondents were bound to take delivery of the balance. Both parties treated the original contract as at an end until attention was called in the Court of Appeal to the case of Noble v. Ward, supra, and the respondents throughout insisted on the option given by the new arrangement and treated the obligation to take delivery as at an end. To go back to the default in making delivery before the first action would be to ignore the settle- ment for 301. of that claim, and to give damages for a subsequent default would be to treat the respondents as having been willing after the settle- ment to perform the original contract, which they certainly were not. The evidence in the present case points to the conclusion that the parties intended not merely to vary the original contract but to set it aside and substitute another for it, giving a mere option to take delivery of the pereale undelivered. This is the effect of the language of the memorandum of April 22, 1915, and it was on this assumption that all the subsequent dealings and correspondence of the parties proceeded. It is true that neither party adhered to its terms. The appellant tried to get payment of the 8881. 4s. before the three months’ further credit had expired, and the respondents refused to pay when it had expired, claiming to retain the money until the goods were delivered. But neither party ever referred to the original contract as governing their rights; on the contrary, they treated it as at an end. Is the law such as to prevent effect being given to the intention of the parties to treat the original contract as rescinded? All that Noble v. Ward decided was that it was a mistake to say that as a matter of law the original contract was rescinded, the variation being by parol and there being no change of circumstances. It did not 1372 CasEs on THE LAw or ConTRACTS decide that as a matter of law the first contract still existed. As was said in the judgment of the Exchequer Chamber, that would be a matter for the jury. There are some old cases in which it was held that there could not be an accord and a satisfaction by taking an unenforceable agreement in substitution for one which was enforceable (see Case v. Barber, T. Raym. 450 in the 38rd year of Charles II.; also Comyns Digest, ‘‘Accord’’ (B 4) 4, 6, and the case there cited of Wickham v. Taylor, T. Jones, 168, 33 Car. 2); but I do not think that these cases can be now regarded as good law. The non-enforceability of the new agreement would no doubt be a very material fact in arriving at a con- clusion upon the question whether the new agreement without per- formance was taken in accord and satisfaction of the old, but it seems to me to be immaterial when once this has been established in point of fact. In the present case the parties, in my opinion, took the new agree- ment such as it was with the other terms of settlement in accord and satisfaction of the original agreement, and there is nothing in law to prevent them from doing so. The respondents, therefore, must stand or fall by the agreement of April 22. It was upon that agreement that the case was brought before Bailhache, J., and the learned judge held that the respondents could not recover upon it because they not only failed to pay the 8881. 4s. at the expiration of the extended credit given by that agreement, but throughout insisted that they would not pay until the further goods had been delivered under the option. In my opinion the decision of Bailhache, J., should be restored and this appeal allowed with costs here and below. Order of the Court of Appeal reversed and judgment of Bailhache, J., restored. IMPERATOR REALTY CO., Inc., v. TULL. (Court of Appeals of New York, 1920. 228 N. Y. 447, 127 N. E. 263.) Cuass, J. The parties to this action entered into a written contract under seal for the exchange of pieces of real property in the city of 93In his opinion Viscount Haldane said, that “While a parol variation of a contract required to be in writing cannot be given in evidence, the very authorities which lay down this principle also lay down not less clearly that parol evidence is admissible to prove a total abandonment or rescission. Now there is no reason why this should not be done through the instrumentality of a new agreement which does not comply with the statutory formalities just as readily as by any other mode of mutual assent by parol. What is, of course, essential is that there should have been made manifest the intention in any event of a complete extinction of the first and formal contract, and not merely the desire: of an alteration, however sweeping, in terms which still leave it subsisting.” [1918] A. C. at pp. 18-19. Contracts WITHIN THE SvaTurE or FRravups 1373 New York. On the day fixed therein for carrying out the contract and making the conveyances, the defendant deliberately defaulted. The action was brought to recover damages alleged to have been sustained by the plaintiff. At the trial the jury determined all of the issues in favor of the plaintiff and rendered a verdict for it. The defendant appealed from the judgment entered upon such verdict, and the Appellate Division reversed the judgment and dismissed the complaint. Imperator Realty Co., Ine., v. Tull, 179 App. Div. 761, 167 N. Y. Supp. 210. [Plaintiff appealed. ] One of the provisions of the contract is: ‘All notes or notices of violations of law or municipal ordinances, orders, or requirements noted in or issued by any department of the city of New York against or affecting the premises at the date hereof, shall be complied with by the seller and the premises shall be conveyed free of the same.’’’ There were several notices of violations of law or municipal ordi- nances, orders, or requirements noted in or issued by a department of the city of New York against or affecting the premises to bé conveyed by the plaintiff at the date of the contract which, although aggregat- ing an amount that is comparatively very small, were not satisfied or discharged on the‘day when the property was to be conveyed. The plaintiff sought to avoid the failure to procure the discharge of such violations by an alleged modification of the contract pursuant to a con- versation between the president of the plaintiff and the defendant in which it is claimed that there were reciprocal promises. The presi- dent of the plaintiff testified that after the making of the contract, and on the same day thereof, it was agreed between the parties to the con- - tract that either party in place of satisfying any of the so-called viola- tions that might be filed against the pieces of real property therein men- tioned might deposit with the New York Title Insurance Company a sufficient amount of cash to pay and discharge the same. There is evidence in the record to show that the plaintiff was able and willing on the day and at the time and place for closing the contract to carry out the same as therein provided except that he could not convey the property to be transferred by him free from such violations, and there is also evidence that he was able and willing to deposit a sufficient amount of cash to comply with and free the property from the viola- tions as required by such oral agreement between the parties. The conversation testified to by the plaintiff’s president is denied by the defendant, but in our judgment the question whether the con- versation occurred and the agreement was entered into by the parties as claimed by the plaintiff was a question of fact properly submitted to the jury. The objection that the oral agreement and waiver were not alleged in the complaint was not sufficiently taken by objection at 1374 Cases ON THE Law or CONTRACTS the trial. If it had been so taken at that time, the plaintiff would have had an opportunity to apply for an amendment of its complaint. It is claimed by the defendant that the contract with the plaintiff was in writing under seal and could not be changed as claimed by an oral agreement so as to be binding upon either party to it. The con- tract was also within the provisions of section 259 of the Real Property Law (Consol. Laws, c. 50), and it was therefore necessary that it should be in writing as stated in the statute. Where a contract is reduced to writing and appears to include the entire agreement of the parties and to be free from fraud, the rule is quite universal that oral evidence will not be received of conversations or transactions leading up to the making of a contract or in connection with the execution thereof for the purpose of varying, modifying, re- ducing or extending the terms thereof. Lese v. Lamprecht, 196 N. Y. 82, 89 N. E. 365; Eighmie v. Taylor, 98 N. Y. 288. After the execution of a written contract including one within the statute the parties may, of course, reconsider the subject-matter there- of and decide to modify or rescind it. The oral agreement found in this case was made after the execution of the written contract. It is not the right to make a new and independent contract to modify a prior unperformed written contract that we are considering, but the effect, if any, of an oral contract upon a contract under seal or required by the statute to be in writing. We must assume in this case thatthe oral contract as claimed by the plaintiff, to accept a deposit in cash in place of the payment of outstanding violations, was actually made upon a sufficient consideration. The jury has so found. The oral contract did not purport to be inconsistent with any material part of the writ- ten contract, nor to substitute a new oral contract for any material part of the written contract. The plaintiff was simply told in effect to let the violations stand unsatisfied until the due day and then provide for the expense of satisfying the same by a deposit in cash. The extent of the violations was inconsiderable. Both parties were convenienced by waiving the necessity of having them actually canceled and satisfied before the due day. In Thomson v. Poor, 147 N. Y. 402, 409, 42 N. E. 18, 15, which was an action to recover upon a balance claimed to be due pursuant to a written contract which was within the statute, this court say: ““We know of no principle of law which will permit a party to a contract, who is entitled to demand the performance by the other party of some act within a specified time and who has consented to the post- ponement of the performance to a time subsequent to that fixed by the contract and where the other party has acted upon such consent and in reliance thereon has permitted the contract time to pass without per- formance, to subsequently recall such consent and treat the nonperform- ance within the original time as a breach of the contract. The original contract is not changed by such waiver, but it stands as an answer to the Contracts WITHIN THE StTatruTE or FRAvps 1375 other party who seeks to recover damages for nonperformance induced by, an unrecalled consent. The party may, in the absence of a valid and binding agreement to extend the time, revoke his consent go far as it has not been acted upon, but it would be most inequitable to hold that a default, justified by the consent, happening during its extension, should furnish a ground of action. It makes no difference, as we con- ceive, what the character of the original contract may be, whether one within or outside the statute of frauds. The rule is well understood that, if there is a forbearance at the request of a party, the latter is precluded from insisting upon nonperformance at the time originally fixed by the contract as a ground of action. * * * Until he gives notice of withdrawal he has no just right to consider the latter in de- fault, although meanwhile the contract time has elapsed. We think the principle of equitable estoppel applies in such case.’’ The court further say that the principle of estoppel applies equally to sealed and unsealed contracts. More recently this court in Arnot v. Union Salt Co., 186 N. Y. 501, 79 N. E. 719, held that, where the time of payment under a contract had been extended by parol and the party required to make the pay- ment had acted upon such extension, the party waiving such time of payment cannot consider the debtor in default unless he withdraws the waiver before the time of payment has arrived. The oral contract in the case before us modified the written contract simply as to the manner of charging the plaintiff with the amount required to satisfy the violations. Such oral contract if carried out in good faith made unnecessary the haste otherwise required to make the slight changes to comply with the notices which constituted the in- cumbranees or so-called violations. The defendant by his mutual oral contract with the plaintiff is estopped from now claiming that the plaintiff who relied thereon was in default on the due day of the written contract because of its omis- sion to then have the property free of the violations. He should not be allowed to take advantage of an omission induced by his unrevoked con- sent. Thomson v. Poor, supra; Arnot v. Union Salt Co., supra; Swain v. Seamens, 76 U. S. (9 Wall.) 254, 19 L, Ed. 554; Brede v. Rosedale Terrace Co., 216 N. Y. 246, 110 N. B. 430. Parol evidence of the waiver constituting an estoppel as against the defendant under the circumstances was not error. Penn. Steel Co. v. Title Guarantee & Trust Co., 193 N. Y. 37, 85 N. E. 820. We do not think that the objections made by the: defendant to the admission of evidence were upon a consideration of the whole record of sufficient consequence to have materially affected the jury or to require further consideration in this opinion. The judgment of the Appellate Division should be reversed, and that of the Trial Term affirmed, with costs in the Appellate Division and in this court. 1376 CasEs ON THE Law or ConTRACTS Carpozo, J. (concurring in result). The statutes says that a con- tract for the sale of real property ‘‘is void unless the contract, or some note or memorandum thereof, expressing the consideration, is in writ- ing, subscribed by the * * * grantor, or by his lawfully author- ized agent.’’ Real Property Law (Consol. Laws, c. 50) § 259 (statute of frauds). In this instance, each party was a grantor, for the sale was an exchange, I think it is the law that, where contracts are subject to the statute, changes are governed by the same requirements of form as original provisions. Hill v. Blake, 97 N. Y. 216; Clark v. Fey, 121 N. Y. 470, 476, 24 N. E. 708. Abrogated by word of mouth such a con- tract may be (Blanchard v. Trim, 38 N. Y. 225), but its obligation may not be varied by spoken words of promise while it continues undis- solved (Swain v. Seamens, 9 Wall. 254, 271, 272, 19 L. Ed. 554; Emer- son v. Slater, 22 How. [U. 8.] 28, 42, 16 L. Ed. 360; Goss v. Lord Nugent, 5 B. & Ald. 58; Harvey v. Graham, 5 Ad. & El. 61; Hickman v. Haynes, L. R. 10 C. P. 598; Abell v. Munson, 18 Mich. 307, 100 Am. Dee. 165; Malkan v. Hemmung, 82 Conn, 293, 73 Atl. 752; Long v. Hartwell, 34 N. J. Law, 116; Rucker v. Harrington, 52 Mo. App. 481; Bradley v. Harter, 156 Ind. 499, 60 N. E. 139; Jarman v. Westbrook, 134 Ga. 19, 67 S. E, 403; 1 Williston on Contracts, § 593). A recent decision of the House of Lords reviews the English precedents, and declares the rule anew. Morris v. Baron & Co., 1918, A. C. 1, 19, 20, 31. Oral promises are ineffective to make the contract, or any part of it, in the beginning. Wright v. Weeks, 25 N. Y. 153; Marks v. Cowdin, 226 N. Y. 138, 123 N. E. 189. Oral promises must also be ineffective to vary it thereafter. Hill v. Blake, supra. Grant and consideration alike must find expression in a writing. Real Prop. Law, § 259; Con- sol. Laws, ¢. 50. ~ Some courts have drawn a distinction between the formation of the contract and the regulation of performance. Cummings v. Arnold, 3 Mete. 486, 37 Am. Dec. 155; Stearns v. Hall, 9 Cush. 31; Whittier v. Dana, 10 Allen, 326; Hastings v. Lovejoy, 140 Mass. 261, 2 N. E. 776, 54 Am. Rep. 462; Wood on Statute of Frauds, p. 758. The distinction has been rejected in many jurisdictions. See cases cited supra; also, L. R. A. 1917B, 141 note.. It has never been accepted by this court, and the question of its validity has been declared an open one. Thomson v. Poor, 147 N. Y. 402, 408, 42 N. E. 18, characterizing as dicta the state- ments in Blanchard v. Trim, supra. I think we should reject it now. The cases which maintain it hold that oral promises in such circum- stances constitute an accord, and that an accord, though executory, constitutes a bar if there is a tender of performance. Cummings v. Arnold; Whittier v. Dana, supra. There seems little basis for such a distinction in this state where the rule is settled that an accord is not a bar unless received in satisfaction. Reilly v. Barrett, 220 N. Y. 170, 115 N. E. 453; Morehouse v. Second Nat. Bank of Oswego, 98 N. Y. 508, 509; ef. Ladd v. King, 1 R. I. 224, 51 Am. Dec. 624; Pollock on Contracts WITHIN THE StaTuTE or FRAups 1377 Contracts (8d Am, Ed.) p. 822. But there is another objection, more fundamental and far-reaching. I do not know where the line of division is to be drawn between variations of the substance and variations of the method of fulfillment. I think it is inadequate to say that oral changes are effective if they are slight and ineffective if they are important. Such tests are too vague to supply a scientific basis of distinction. ‘‘Every part of the contract in regard to which the parties are stipulat- ing must be taken to be material.’ Per Parke, B., Marshall v. Lynn, 6 M. & W. 116, 117; 1 Williston on Contracts, § 594. The field is one where the law should hold fast to fundamental conceptions of contract and of duty, and follow them with loyalty to logical conclusions. The problem, thus approached, gains, I think, a new simplicity. A contract is the sum of its component terms. Any variation of the parts is a variation of the whole. The requirement that there shall be a writ- ing extends to one term as to another. There can therefore be no con- tractual obligation when the requirement is not followed. This is not equivalent to saying that what is ineffective to create an obligation must be ineffective to discharge one. Duties imposed by law irrespective of contract may regulate the relations of parties after they have entered into a contract. There may be procurement or encouragement of a de- parture from literal performance which will forbid the assertion that the departure was a wrong. That principle will be found the solvent of many cases of apparent hardship. There may be an election which will preclude a forfeiture. There may be an acceptance of substituted performance, or an accord and satisfaction. McCreery v. Day, 119N. Y. 1, 9, 23 N. E. 198, 6 L. R. A. 503, 16 Am. St. Rep. 793; Swain v. Sea- mens, supra; Long v. Hartwell, supra; Ladd v. King, supra. What there may not be, when the subject-matter is the sale of land, is an executory agreement, partly written and partly oral, to which, by force of the agreement and nothing else, the law will attach the attribute of con- tractual obligation. The contract, therefore, stood unchanged. The defendant might have retracted his oral promise an hour after making it, and the plaintiff would have been helpless. He might have retracted a week before the closing, and, if a reasonable time remained within which to remove the violations, the plaintiff would still have been helpless. Retraction even at the very hour of the closing might not have been too late if coupled with the offer of an extension which would neutralize the consequences of persuasion and reliance. Arnot v. Union Salt Co., 186 N. Y. 501, 79 N. E. 719; Brede v. Rosedale Terrace Co., 216 N. Y. 246, 110 N. E. 430. The difficulty with the defendant’s position is that he did none of these things. He had notified the plaintiff in substance that there was no need of haste in removing the violations, ‘and that title would be accepted on deposit of adequate security for their removal in the future. He never revoked that notice. He gave no warning of a change of mind. He did not even attend the closing. He abandoned the con- 1378 Cases ON THE Law ofr CoNnTRACTS tract, treated it as at an end, held himself absolved from all liability thereunder, because the plaintiff had acted in reliance on a consent which, even in the act of abandonment, he made no effort to recall. I do not think we are driven by any requirement of the statute of frauds to sustain as lawful and effective this precipitate rescission, this attempt by an ex post facto revocation, after closing day had come and gone, to put the plaintiff in the wrong. ‘‘He who prevents a thing from being done may not avail himself of the nonperformance, which he has, himself, occasioned, for the law says to him, in effect: ‘This is your own act, and, therefore, you are not damnified.’’’ Dolan v. Rodgers, 149 N. Y. 489, 491, 44 N. E. 167, quoting West v. Blakeway, 2 M. & Gr. 751. The principle is fundamental and unquestioned. U. S. v. Peck, 102 U. S. 64, 26 L. Ed. 46; Gallagher v. Nichols, 60 N. Y. 438; Risley v. Smith, 64 N. Y. 576, 582; Gen. El. Co. v. Nat. Contracting Co., 178 N. Y. 369, 375, 70 N. E. 928; Mackay v. Dick, 6 App. Cas. 251; New Zealand Shipping Co. v. Societe des Aletiers, etce., 1919 A. C. 1, 5. Sometimes the resulting disability has been characterized as an estoppel, sometimes as a waiver. Gallagher v. Nichols; Gen. El. Co. v. Nat. Constr. Co.; Thomson v. Poor, supra. We need not go into the question of the accuracy of the description. Ewart on Estoppel, pp. 15, 70; Ewart on Waiver Distributed, pp. 23, 148, 264. The truth is that we are facing a principle more nearly ultimate than either waiver or estoppel, one with roots in the yet larger principle that no one shall be permitted to found any claim upon his own inequity or take ad- vantage of his own wrong. Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819. The statute of frauds was not intended to offer an asylum of escape from that fundamental prin- ciple of justice. An opposite precedent is found in Thomson v. Poor, 147 N. Y. 402, 42 N. EH. 13. In deciding that case, we put aside the question whether a contract within the statute of frauds could be changed by spoken words. We held that there was disability, or, as we styled it, estoppel, to take advantage of an omission induced by an un- revoked consent. Cf. Swain v. Seamens, supra, 9 Wall. at page 274, 19 L, Ed. 554; Arnot v. Union Salt Co., supra; Brede v. Rosedale Ter- race Co., supra; 1 Williston on Contracts, §595. A like principle is recognized even in the English courts, which have gone as far as those of any jurisdiction in the strict enforcement of the statute. They hold in effect that, until consent is acted on, either party may change his mind. After it has been acted on, it stands as an excuse for nonperform- ance. Hickman v. Haynes, L. R. 10 C. P. 598, 605; Ogle v. Lord Vane, 2 Q. B. 275; 3 I. B. 272; Cuff v. Penn, 1 Maule & 8. 21; Morris v. Baron & Co., 1918 A. C. 1, at page 31. The defendant by his conduct has brought himself within the ambit of this principle. His words did not create a new bilateral contract. They lacked the written form pre- scribed by statute. They did not create a unilateral contract. Aside from the same defect in form, they did not purport to offer a promise Contracts WITHIN THE STATUTE or FRAuDS 1379 for an act. They did, however, constitute the continuing expression of a state of mind, a readiness, a desire, persisting until revoked. A seller who agrees to change the wall paper of a room ought not to lose his con- tract if he fails to make the change through reliance on the statement of the buyer that new paper is unnecessary and that the old is satis- factory. The buyer may change his mind again and revert to his- agreement. He may not summarily rescind because of the breach which he encouraged. That is what the defendant tried to do. When he stayed away from the closing and acted upon an-election to treat the contract as rescinded, he put himself in the wrong. I concur in the conclusion that the judgment must be reversed. Hiscock, C. J., concurs with Chase, J. Cardozo, J., concurs in opinion in which Pound and Andrews, JJ., also concur. Collin and Crane, JJ., dissent. Judgment reversed, etc.94 84“The corn, by the original contract, was to be delivered at Cairo by the 15th of March, 1865; and, by correspondence and agreement with the plaintiffs, in view of the difficulties of which the defendants complained, the time of delivery was extended to the ist of April, again to the 10th, and then to the last day of April. It would be strange law, indeed, if the defendants were allowed to say that, inasmuch as you gave us further time in which to perform our contracts, and we did not comply, you have no right to an action against us on our original contract; and this is the burden of many of the instructions, and a large part of the theory of their case. There is no merit in this plea of a new contract, or of variance in the one declared on.” Breese, C. J., in Bacon y. Cobb, 45 Ill. 47, 56, 57 (1867). See Hickman v. Haynes, L. R. 10 C. P. 598 (1875) ; Neppach v. Oregon and Cal. R. Co., 46 Ore. 374 (1905). In Hickman v. Haynes, the leading English case in accord with the principal case, the court emphasized the fact that the plaintiff was ready and willing to perform on time under the original contract and that there was not a sub- stitution of one agreement for another but merely a voluntary forbearance to perform on plaintiff’s part at the request of the defendant, or a waiver by the defendants of a delivery by the plaintiff at the time specified in the con- tract. Where the plaintiff could not or would not have performed under the original contract, the statute may be relied’ upon to obviate the oral extension or variation agreement. See Walter v. Victor G. Bloede Co., 94 Md. 80 (1901), where the plaintiff, being unable to perform on time, asked for the delay. So in Pleyins v. Downing, L. R., 1 C. P. 220 (1876), the written contract was to sell and deliver 100 tons of pig iron, 25 tons at once and 75 tons in July next. By the end of July only 75 tons were delivered, but in October defendant orally requested delivery, plaintiffs claimed, and then refused to accept it. It was held, that as the plaintiffs.were not ready and willing to perform in time under the written contract they could not recover on that, and they could not recover on the alleged oral request because “a substituted time of delivery” is “an altered contract or a new contract” and cannot be enforced if merely verbal and within the statute of frauds. : “There is no reason, in our opinion, why a party to a contract within the statute of frauds may not be estopped by his conduct from disputing a sub- 1380 CasEes ON THE LAw oF CONTRACTS SEYMOUR v. OELRICHS er at. (Supreme Court of California, 1909. 156 Cal. 782, 106 Pac. 88, 134 Am. St. Rep. 154.) Action by John Seymour against Theresa A. Oelrichs and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed. ANGELLOTTI, J.9° An opinion was filed on this appeal on July 6, 1909, and judgment given thereon. * * * We adhere to the views expressed in the former opinion as to the ques- tions determined therein, and as to such questions adopt the same as the opinion of the court. For the reasons stated therein, the judgment and order denying a new trial must be reversed, but for the purposes of a new trial that must follow, we will determine the question of estoppel. In our discussion we shall assume, of course, that Mr. Oelrichs was duty authorized in writing to enter into such a contract on behalf of the defendants as is alleged to have been made by him with plaintiff. If he was so authorized, it is apparent that defendants are bound by his acts, conduct and statements to the same extent that they would have been had they been personally present and personally had done just what he did. So assuming, the facts that plaintiff’s evidence tended to show are substantially as follows: Plaintiff was captain of detectives in the police department of the city and county of San Francisco, at a salary of $250 per month. Under the law, he held practically a life position as captain of police, being removable therefrom only for good cause, after trial. All this was known to the defendants and to Charles L. Fair, to whose property they have succeeded. Under these circum- stances they offered him a position, wherein he was to render personal services in connection with their property in San Francisco for a com- pensation in money. The terms of the contract were finally agreed upon before Mr. Fair left for Europe, Mr. Fair acting for himself and Mr. Oelrichs representing the defendants. Plaintiff told them that he then had a life position, with a right to a pension if he remained long enough in the police department, and that he could not afford to leave the place and go into anything else unless he was certain of steady employment, sequent oral modification of it. to the same extent as a party to any other con- tract. It is a principle of equity, superior to any technical, or artificial legal rules, which takes effect whenever the assertion of such a rule would result in perpetrating or ratifying a fraud.” Dorsey, C., in Hecht v. Marsh (Neb.), 181 N. W. 135, 188 (1920). On parol modification of a written contract as affected by the statute of frauds, see L. R. A. 1917 B, 144, note; 8 B. R. C. 642, note; 56 Am. St. Rep. 671, note; 1 Ann. Cas. 728, note; 7 Ann. Cas. 1041, note. On the validity and enforceability of a parol contract partly within the statute of frauds, see 8 Ann. Cas. 963, note; 10 Ann. Cas. 509, note. 95 Parts of the opinion are omitted. Contracts WITHIN THE StaruTE or FRaups 1381 and they then told him that they would give him a 10-year contract at $300 per month. This was assented to by plaintiff. The day before Mr. Fair left for Europe, to be absent a few weeks, being very busy in closing up certain business affairs that had to be attended to before he left, he told plaintiff: ‘‘Now, in regard to this contract, you leave that stand until I get back, and I will give you the contract.’’ Plaintiff asked him why it could not be done ‘‘now,’’ and Fair told him not to be afraid, it would be all right, everything would be all right. It was understood that he was to go to work at once. On leaving Mr. Fair, plaintiff met Mr. Oelrichs and told him about his conversation with Fair, and Oelrichs said: ‘‘As far as I am concerned I will give you my part of it now if you want it. I represent Mrs. Oelrichs and Mrs. Vander- bilt and there will be no trouble about it at all, but you might just as well leave it go until Fair returns,’’ and plaintiff said, ‘‘ All right.” This was about June 1, 1902. Plaintiff relied absolutely upon the under- standing that he was to have a written contract for 10 years at $300 a month, and would not otherwise have resigned his position in the police department or entered the employ of the defendants and Fair. The morning Fair went away, he asked plaintiff when he was going to re- sign, and plaintiff said, ‘‘Today,’’ and Fair said, ‘‘ All right, you go ahead, it will be all right, everything will be all right on my return.’’ He did resign at once and his new employment commenced June 1, 1902. Fair was killed near Paris, France, August 14, 1902, without having returned to America. Plaintiff continued to perform all services agreed to be rendered and received $300 a month therefor to July 1, 1904, when defendants, having determined to sell all their San Francisco property, discharged all of their employees, including plaintiff, and have ever since refused to recognize him as an employee or pay him any portion of the salary agreed upon. Plaintiff had no intimation that either Mrs. Oelrichs or Mrs. Vanderbilt did not know all about the terms upon which he entered their employ until November, 1903, when an attempt, which. was not persisted in, was made to reduce his salary; Mrs. Oel- richs on November 30, 1903, told him that Mr. Oelrichs had no right to make such an arrangement. There was nothing to indicate that Mrs. Vanderbilt personally had any knowledge that plaintiff was an employee at all until after Fair’s death, or that she personally knew anything about the alleged contract. It is not claimed by plaintiff that either Mr. Oelrichs or Mr. Fair did not act in perfect good faith in this matter, it being conceded that each of them fully intended to execute the writ- ten contract. The claim of plaintiff is not that mere part performance of a con- tract for personal services which by its terms is not to be performed within a year, ‘‘invalid’’ under our statute because not evidenced by writing, renders the same valid and enforceable. Such a claim would, of course, find no support in the authorities. Browne on Statute of Frauds, § 448. He necessarily is compelled to rely solely on the claim 1382 CasEs ON THE LAw or ConTRACTS that the defendants by their conduct and promises, on which he was entitled to and did rely, having induced him to give up his life posi- tion in the police department in order to enter their employ for a term | of years at $300 a month, on the assurance from them that they would \give him a written contract for such time and. amount, and it being impossible for him to be placed in statu quo, are estopped from now set- ting up the statute of frauds as a defense to his action on the con- tract. Under this claim, the fact of part performance by plaintiff plays no part whatever. It was the change of position caused by his resigna- tion from the police department upon which his claim wholly rests, and this resignation was, of course, no part of the performance of the contract of service, but was something that must be done by plaintiff before he could begin to perform, as was known to the defendants. Plaintiff’s case, in this regard, would be just as strong if after his resig- nation he had been prevented by defendants from beginning to per- form. The right of courts of equity to hold a person estopped to assert the statute of frauds, where such assertion would amount to practicing a fraud, cannot be disputed. It is based upon the principle ‘‘thoroughly established in equity, and applying in every transaction where the statute is invoked, that the statute of frauds, having been enacted for the purpose of preventing fraud, shall not be made the instrument of shielding, protecting or aiding the party who relies upon it in the perpetration of a fraud or in the consummation of a fraudulent scheme.’’ 2 Pom. Eq. Jur. §921. It was said in Glass v. Hulbert, 102 Mass. 24, 85, 3 Am. Rep. 418: ‘‘The fraud most commonly treated as taking an agreement out of the statute of frauds is that which consists in setting up the statute against its enforcement, after the other party has been induced to make expenditures, or a change of situation in regard to the subject-matter of the agreement, or upon the supposition that it was to be carried into execution, and the assumption of rights thereby to be acquired; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and unconscientious injury and loss. In such case, the party is held, by force of his acts or silent acquiescence, which have misled the other to his harm, to be estopped from setting up the statute of frauds.’’ This statement has been accepted as setting forth a plain and satisfactory:ground for equitable jurisdiction, together with a clear indication of the proper limitation of its exercise. See Browne on Statute of Frauds, § 457a. In the section last cited, Mr. Browne says: ‘‘A plaintiff * * * must be able to show clearly * * * not only the terms of the contract, but also such acts and conduct of the defendant as the court would hold to amount to a repre- sentation that he proposed to stand by his agreement and not avail him- self of the statute to escape its performance; and also that the plain- tiff, in reliance on this representation, has proceeded, either in per- Contracts WITHIN THE STATUTE OF Fravups 1383 formance or pursuance of his contract, to so far alter his position as to incur an unjust and unconscientious i injury and loss, in case the de- fendant is permitted after all to rely upon the statutory defense. After proof of this, the court may well be justified in using its undoubted power, in cases of equitable estoppel, to refuse to listen to a defendant seeking to deny the truth of his own representations previously made.’’ We can see no good reason for limiting the operation of this equi- table doctrine to any particular class of contracts included within the statute of frauds, provided always the essential elements of an estoppel are present, or for saying otherwise than as is intimated by Mr. Pomeroy in the words already quoted, viz., that it applies ‘‘in every transaction where the statute is invoked.’’ It is a general equitable principle, a part of the broader equitable doctrine stated in Dickerson v. Colgrove, 100 U. S. 580, 25 L. Ed. 618, and quoted therefrom in Carpy v. Dowdell, 115 Cal. 687, 47 Pac. 697, as follows: ‘‘The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood, and the law abhors both.’’ The question, then, is whether the facts of this case bring it within the principle we have discussed. It is clear that there was such a change of position on the part of plaintiff in his irrevocable surrender of his office in the police department, induced in fact by his reliance on the promise of defendants and Fair that a written contract for 10 years at $300 a month would be given, that he will incur great injury and loss in case the defendants are permitted to rely upon the statute of frauds as a defense. That there would necessarily be such a change of position on his part in the event that he relied upon their promise and accepted their offer was known to them, and the promise was given with this knowledge and with the intent that it should be relied on by him and the change in his position thereby induced. The injury done plaintiff by a repudiation of the promise by defendants under these pneu stances would certainly appear to be ‘‘unjust and unconscientious.’ Is it permissible to them, in view of the well-settled principle stated to so repudiate it by interposing the fact that the contract has not been reduced to writing, as promised, as a defense to his action? Learned counsel for defendants say that no fraud on the part of defendants is shown, and that there can be no estoppel in the absence of fraud on the part of the person estopped. The presence of fraud is, of course, essential. It is established by a multitude of cases that to con- stitute fraud sufficient to serve as a foundation for estoppel by acts or conduct an actual intent to mislead is not essential. Mr. Pomeroy in his work on Specific Performance says that the fraud essential in such eases is not necessarily an antecedent fraud, consciously intended by a party in making the contract, but a fraud inhering in the consequence 1384 Cases ON THE Law oF CoNTRACTS of thus setting up the statute. Section 104. In Anderson v. Hubble, 93 Ind. 570, 576, 47 Am. Rep. 394, it was aptly said: ‘‘It is not necessary, in order to the existence of an equitable estoppel, that there should exist a design to deceive or defraud. The person against whom the estoppel is asserted must, by his silence or his representations, have created a belief of the existence of a state of facts which it would be un- conscionable to deny; but it is not essential that he should have been guilty of positive fraud in his previous conduct. * * * All that is meant in the expression that an estoppel must possess an element of fraud is that the case must be one in which the circumstances and con- duct would render it a fraud for the party to deny what he had pre- viously induced or suffered another to believe and take action upon. * * * There need be no precedent corrupt motive or evil design.’’ See, also, 2 Pom. Eq. Jur. § 805. It is unnecessary to cite other authori- ties upon this well-settled doctrine in regard to equitable estoppel. We do not understand it to be disputed by counsel for defendant. Their claim, as we understand it, is that there is nothing more in this case than a mere promise on the part of defendants to give the written contract, made honestly and in good faith, and that a refusal to comply with such a promise so made cannot serve as a basis for the applica- tion of the doctrine of equitable estoppel; the contention being that the mere failure to keep an oral promise to reduce an oral contract to writing cannot suffice to constitute the fraud essential to the applica- tion of such doctrine, and that there must be some other fraud shown, such as an actual fraud to prevent the contract being reduced to writing. This claim presents the most doubtful question in this case. The an- thorities all recognize the proposition that the acts, conduct, or state- ments relied on as constituting ground for the estoppel must generally be acts, conduct, or statements amounting to a representation of fact, as distinguished from mere expression of opinion or intention, or mere promise of something to be done in the future. It has, therefore, been said many times that the mere refusal to make a writing, as agreed, is not such fraud as will take a case out of the operation of the statute of frauds under the doctrine of equitable estoppel. This, undoubtedly, is ordinarily true, even where a party, relying simply on the honor, word or promise of the other, has changed his position to his injury because thereof. But is it applicable to such a state of facts as we have before us? Practically, defendants said to plaintiff: ‘‘We want you to enter our employ at once. We know that to do so you must give up your life position in the police department and that you are not willing to do this unless you are assured of employment for ten years at $300 a month. A written contract is, under our statute, essen- tial to guarantee you such employment. We will execute this contract ' just as soon as Mr. Fair returns from Europe. Go ahead and resign your position now and commence work with us at once, and it will be all right. The written contract will be given as promised.’’ Here, cer- Contracts WiTHin THE StaruTE oF Fravups 1385 tainly, in the language of a note to section 877 of Pomeroy’s Equity Jurisprudence (volume 2), was a representation of a future intention absolute in form, deliberately made for the purpose of influencing the conduct of the other party, and it is stated in such note that, notwith- standing the rule set forth in the text that a statement of intention merely cannot be a misrepresentation amounting to fraud, such a representation of intention as last set forth, if acted upon hy the other party, is generally the source of a right, and may amount to a contract enforceable as such by a court of equity. Mr. Bigelow, in discussing the essentials of estoppel by conduct, and particu- larly the necessity of a representation or concealment of a fact, says that where the statement or conduct is not resolvable into a statement of fact, and does not amount to a contract, the party making it is not bound unless guilty of clear moral fraud, or unless he stood in a rela- tion of confidence toward him to whom it was made. Bigelow on Estoppel (5th Ed.) p. 572. The same learned author further says that situations may arise in which a contract should be held an estoppel, as in certain cases where only an inadequate right of action would, if the estoppel were not allowed, exist in favor of the injured party, citing the case of Faxton v. Faxton, 28 Mich. 159, in which a mortgagee was held estopped from enforcing his mortgage, where he had induced the son of a mortgagor, contemplating removal, to remain on the mortgaged land and care for it and support the family of the mortgagor, to whom the mortgagee was related, on a promise, honestly made, that the mort- gage would never be enforced if he did so. Page 577. In Harris v. Brooks, 21 Pick. (Mass.) 195, 832 Am. Dec. 254, it was held that a parol declaration by the holder of a note to a surety that he would look to the principal only was a good defense for the surety, on the ground that it lulled the party into security and prevented him from obtaining his indemnity, and that it would be a fraud on the part of the holder to subsequently call upon the surety contrary to such assurance. In White v. Walker, 31 Ill. 422, a somewhat similar case, it was said that while a promise to forgive a debt or forbear its collection, unsupported _ by any consideration, was ineffectual as a defense viewed merely as an agreement, yet if the surety has been induced by such assurance to neglect any of the means which might have been used for his in- demnity, the ‘‘promise may have that effect as an estoppel, which it wants as a contract, and amount to a defense in any subsequent action brought by the creditor.’’ These authorities are cited simply to show that the mere fact that there was no misrepresentation of fact, but only a promise of future action, is not always a bar to equitable relief. The cases to be found in support of the doctrine that the mere omission or refusal to make a writing, as promised, is not such fraud as will take a case out of the operation of the statute of frauds, are generally cases where the promise was not made under such circumstances as would warrant the conclusion that it constituted, in the eye of equity, a con- 1386 CASES ON THE Law oF CoNTRACTS tract, the repudiation of which would be a manifest fraud on the other party. For instance, in stating the rule, the Supreme Court of In- diana said, in Caylor v. Roe, 99 Ind. 1, that never has it been held that the simple failure or refusal to reduce a verbal contract to writing, unaccompanied by elements of estoppel or other circumstances invok- ing the equitable powers of the court, is such a fraud as will authorize the courts in excepting the contract from the operation of the statute of frauds. The case of Equitable Gas, etc., Co. v. Baltimore, ete., Co., 63 Md. 285, cited by defendants, was a case of an oral contract for the sale of personal property which, according to its terms, was not to be performed within one year. It was intended by the parties that it should be put into writing. The action was by the vendee to obtain an injunction preventing the disposition of the property to others and for specifie performance. There were allegations showing the irrepar- able injury that would be suffered by the plaintiff in view of its action had in reliance on the contract. The court recognized it to be a set- tled rule ‘‘that the equity of part performance to entitle a plaintiff to specific execution of a contract within the statute does not relate to con- tracts for personal service not to be performed within a year.’’ But they further said that here the parties intended a written contract, and that if such contract was fraudulently withheld, if executed, or, if not, signed, if the execution be fraudulently and without justifiable cause delayed, a court of equity may require its production or enforce proper execution. It is obvious that ‘‘the application of the rules as to equi- table enforcement must, to a considerable extent, be governed by the circumstances of each case.’’ Browne on Statute of Frauds (5th Ed.) p. 586. While the question is by no means free from doubt, we believe that it should be held that there were sufficient facts in this case to support a conclusion that the promise here to give such a written agreement as "was required by the statute was made under such circumstances that ‘the irrevocable surrender by plaintiff of his position in the police de- ‘partment in full reliance thereon made it, in the eye of equity, a bind- ing contract, the subsequent repudiation of which by defendants would constitute such a manifest fraud as would justify the application of the doctrine of equitable estoppel.%* ‘For the purposes of a new trial it may further be properly said that we are entirely satisfied with the opinion filed in this case by the district court of appeal of the third district, written by Justice Hart of that court, so far as the question of measure of damages is concerned. 96 On estoppel from pleading the statute of frauds in actions on contracts not to be performed within one year, see 134 Am. St. Rep. 172, note. In Clement v. Rowe, 33 So. Dak. 499 (1914), the defendant agreed with the ‘plaintiff that if the plaintiff would, as plaintiff accordingly did, convey certain land to a certain corporation in exchange for a stated amount of preferred Contracts WITHIN THE StatuTE or FRavups 1387 We adopt that portion of their opinion as the opinion of this court, * * * The judgment and order denying a new trial are reversed. stock in the corporation, and if the corporation failed to pay annually a 7 per cent dividend on the stock, which failure occurred, the plaintiff might transfer the stock to the defendant at the expiration of two years and the defendant would pay him the par value of the stock with 7 per cent interest. It was held that the contract was one not to be performed within a year, but it was also held that although the land was conveyed to the corporation and not to the defendant, the plaintiff should recover from the defendant the value of the land conveyed to the corporation. Gates, J., for the court, said (p. 507): “In the present case the defendant himself did not receive the land which was the partial consideration for the invalid promise. * * “ But it went to the Medicine Company at the direction of the defendant. So far as the relations between plaintiff and defendant are concerned, the situation was the same as though the land really became the property of the defendant, but by his direc- tion the title was taken in the name of a third person. In such a case the law will presume that the benefit of the transaction inured to the defendant.” While the decision technically merely holds that in a code state a quasi contract recovery may be had against one who pleads the statute of frauds to the contract but is enriched as the presumed resulting trust cestui of the property obtained from plaintiff under the contract, it is believed .that recov- ery should be allowed even if the presumption of a resulting trust for the defendant is rebutted. See George P. Costigan, Jr., Implied in Fact Contracts and Mutual Assent, 33 Harv. L. Rev. 376, 387n, 392-393. The court in Clement vy. Rowe went even farther, for the court added (p. 507): “If, however, under the pleadings and evidence offered, it should be thought that the contract whereby the farm was traded for the shares of stock was really made between plaintiff and the Medicine Company and that defendant’s oral promise to repurchase was the inducement which led the plaintiff to make the trade, the defendant should still be held responsible to plaintiff for the value of the property which plaintiff parted with because of that inducement. While defendant might assert the statute as a defense to the carrying out of the oral contract he could not assert such defense in an action on quantum valebat if he had received the farm. Nor should he be permitted, because he did not receive the farm, to assert the statute as against a claim for the recovery of the value of the property at the time of the trade. The plaintiff had irrevocably surrendered the farm relying upon defendant’s promise. De- fendant must therefore put him back as nearly as possible in statu quo. For a discussion of the doctrine of equitable estoppel as applied to this subject we refer to the case of Seymour v. Oelrichs, 156 Cal. 782, and the excellent note by Mr. Freeman in 134 Am. St. Rep. 171.” See also Fabian v. Wasatch Orchard Co., 41 Utah 404 (1912). In Safe Deposit & Trust Co. v. Diamond Coal & Coke Co., 234 Pa. 100 (1912), the court held that a contract for the sale of land would be reformed on parol evidence but would not be enforced specifically because of the statute of frauds, the whole contract being in contemplation of law reduced to an oral agreement which the legislature has said shall not be enforced. But see Carson v. Davis, 171 Ill. 497 (1898); Olson v. Erickson, 42 Minn. 440 (1890). On the effect of the statute of frauds upon the power of equity to reform a contract, see L. R. A. 1917 A, 571, note. CHAPTER X. THE DISCHARGE OF CONTRACTS. KING v. GILLETT. (Court of Exchequer, 1840. 7 M. & W. 55.) To assumpsit for breach of promise of marriage, the defendant - pleaded that before breach the plaintiff wholly absolved, exonerated, and discharged the defendant from his promise and the performance of of the same. Special demurrer and joinder in demurrer. ALDERSON, B.? In this case we are of opinion that the plea is good, and that the demurrer must be overruled. The question before the court was this, whether to an action founded on mutual promises to marry within a reasonable time the defendant could plead that, before any breach of contract on his part, the plaintiff wholly exonerated him from the performance of that contract. And it was contended that the proper plea was, that before breach, the plaintiff and defendant by mutual agreement had rescinded the contract previously made between them. No doubt such a plea would be good, but on looking into the precedents to which we have been referred, we find that the form of the present plea has been adopted and held good in several cases. There are precedents in sev- eral of the books of entries [Rast. Entr. 685; Brown’s Entr. 67 (fol. edit.) ; Hern’s Pleader, 31], and there are two decided authorities, Holland and Conier’s Case, 2 Leon, 214, and Langden v. Stokes, Cro. Car. 383. And we think this latter case explains the matter, and recon- ciles the present plea with general principles. It seems to have been treated there as a mere question of the form of plea—and so we think it is, for although we are of opinion that this plea is good in point of form, yet we think the defendant will not be able to succeed upon it at Nisi Prius, in case issue be taken upon it, unless he proves a proposi- tion to exonerate on the part of the plaintiff, acceded to by himself; and this in effect will be rescinding of the contract previously made. We think, therefore, that judgment must be given for the defend- ant, but the plaintiff should have liberty to amend on payment of costs. ; Leave to amend accordingly. 1See Arthur L. Corbin, Discharge of Contracts, 22 Yale L. J. 513. 2The statement of facts is omitted. : 8“It is apparently thought by some writers that the decision [in King v. Gillett] in some way discredits the early authorities [cited in it], but this 1388 Tue DiscHarce or Contracts 1389 NATHANIEL 8. COLLYER & CO. v. LEWMAN MOULTON anp ANOTHER.. (Supreme Court of Rhode Island, 1868. 9 R. I. 90, 98 Am. Dec. 370.) Porter, J. The plaintiffs made a verbal contract with the de fendants, then partners, to build a machine. The work was charged as fast as done, and the materials when furnished. After a small part of the work had been done, the firm was dissolved; and the defendant ‘Moulton, the same day, gave notice of it to the plaintiffs; and told them he could be no longer responsible for the machine. The defend- ant Moulton claims that the plaintiffs released him and agreed to look to the other partner for payment; but this the plaintiffs deny. The plaintiffs went on and completed the machine, and then sued Bromley alone for his claim, but discontinued’ the suit, and now sue both the former partners, the writ having been served on Moulton only. Where two parties contract, one to do a particular piece of work and the other to pay for it, the latter may, at any time, countermand the completion of it, and in such case the former cannot go on and complete the work and claim the whole price, but will be entitled only to pay for his part performance, and to be compensated for his loss on the remainder of the contract. Clark.v. Marsiglia, 1 Denio, 317; Durkee v. Mott, 8 Barb. 8. C. 423; Hosmer v. Wilson, 7 Michigan, 294, In the present case the two defendants, although the partnership was dissolved, still remained joint contractors so far as the plaintiff was concerned; and we think that either of them had a right to coun- termand the order before completion, and then the joint contractors would have remained liable as before stated. But the defendant, Moul- ton claims that he was verbally released by the plaintiffs, and that the plaintiffs agreed to look to the other defendant, Bromley, alone for their pay. There is some apparent inconsistency in the language used in the seems a mistake. The court simply said that mutual assent was necessary to make out the defense, but this is not saying that consideration was necessary. * * * The English law seems still to be that [in the case of a unilateral contract] exoneration before breach is good without consideration.” 3 Williston on Contracts, § 1830, pp. 3151-3152. See Hathaway v. Lynn, 75 Wis. 186 (1889), supporting the English view. But see Metcalf v. Kent, post, p. 1402, contra. “The doctrine of exoneration or discharge of a contract before breach without consideration never applied to sealed instruments.” 3 Williston on Contracts, § 1836, p. 3159. Under the Uniform Negotiable Instruments Law it applies to negotiable instruments providing the exoneration is in writing. As to these instruments it applies after breach, i. ¢., maturity, as well as before. On consideration for new agreements abrogating, altering, supplementing or supplanting prior contracts, see L. R. A. 1915 B, 1, note. 4The statement of facts is omitted. 1390 CasEs oN THE Law or ConrrRacts reports and text writers, as to the manner in which a simple contract may be annulled. We think the rule is, that so long and so far as the contract remains executory and before breach, it may be annulled by agreement of all parties; but that when it has been broken and a right of action has accrued, the debt or damages can only be released for a consideration; and even so far as it remains executory it may be said that the agreement to annul on one side may be taken as the consideration for the agreement to annul on the other side. Dane 5, 112; Johnson v. Reed, 9 Mass. 84; Cummings v. Arnold, 3 Met. 486- 489; Richardson v. Hooper, 18 Pick. 446; Blood v. Enos, 12 Vermont, 625. So far, therefore, as the contract in the present case remained un- finished on February 10th, 1865, when the notice was given and fhe alleged waiver was made, we may consider, either that the contract was annulled or waived by consent, in which case (the machine, so far as completed, being tendered -or delivered) the plaintiff could claim only for work and materials to that date without further dam- ages,—or that the work was countermanded by the defendant Moulton, without the assent of the plaintiffs, in which case the defendant would be liable for the part performed and for loss on the part unperformed. We consider the present case to fall under the first head, the notice to, and declarations and conduct of the plaintiffs amounting to a waiver of the fulfilment of the contract as first made—that is, to a release of the defendant Moulton for the part still unperformed. But the claim for payment for the part performed, stands, as we have seen, on a different ground. Was there any agreement to re- lease Moulton from liability for this—that is, the part performed; and if so, was there any agreement to take the other partner’s in- dividual promise in lieu of the promise of the firm, or anything which would amount to a consideration for the release of the firm? If, by mutual arrangement between the plaintiff Collyer and: the two defendants, Moulton had been released from his liability for the work already done, and a new promise made by Bromley, the other defendant, to pay for it, this would have been a valid release for a valuable consideration, one debt would have been substituted for the other. Thompson v. Percival, 5 B. & A. 925.5 But we cannot find sufficient evidence of any promise on the part of the other partner, Bromley, to assume the liability; and if there was none, then the release of liability for the work already done was 5See Lyth v. Ault, 7 Exch. 669 (1852); Ludington v. Bell, 77 N. Y. 138 (1879); Frye & Bruhn v. Phillips, 46 Wash. 190 (1907). But where the joint debtors aré not partners and so the detriment of giving up the shield of payment in bankruptcy of partnership debts out of individual assets only after partnership assets are exhausted does not exist, and where, as normally is the case today, the joint debtors are severally as well as jointly liable, con- sideration may be lacking. See 1 Williston on Contracts, § 123. THE DiscHARGE or ContTRACTS 1391 without consideration, as it is not claimed that there was any other consideration. We cannot find, however, any count in the declaration upon which, upon this view of the case, we can allow for anything except labor: done before February 10th, the day of the giving of the notice. Judgment for plaintiff's for amount so found due. REDDING v. VOGT er at. (Supreme Court of North Carolina, 1906. 140 N. C. 562, 53 S. E. 337, 6 Ann. Cas. 312.) Special proceeding by Lillian Redding against Lucy R. Vogt and others for dower. From a judgment in favor of plaintiff, defendants appeal. Reversed. Waker, J.f The plaintiff seeks to have dower allotted in the lands described in her petition, and her right to the relief depends upon the construction and legal effect of the contracts and deeds mentioned in the statement of the case. * * * ‘‘To give a right of dower, the estate of the husband must confer a right to the immediate freehold. This is an essential requisite at the common law. Dower is not allowed in estates in reversion or remainder expectant upon an estate of free- hold; and hence, if the estate of the husband be subject to an outstand- ing freehold estate, which remains undetermined during the coverture, no right of dower attaches.’? Houston v. Smith, 88 N. C. 312; 1 Seribner on Dower, 217. Under this settled rule of the law the defendants contended that the plaintiff is not entitled to dower in the lands in question, because there is an outstanding freehold estate in Mrs. Redding by virtue of the deed of J. P. Redding and wife to Lizzie C. Redding, dated June 5, 1899, the contract between Lizzie C. Redding and 8. A. Redding, dated June 5, 1899, and the deed of E. A. Brown and wife (formerly Lizzie C. Red- ding) to S. A. Redding, dater Nov. 18, 1901. The plaintiff, on the other hand insists that she is entitled to dower for either of two reasons: First, because by the agreement between Lizzie C. Redding and 8. A. Redding dated October 3, 1898, the latter acquired an equitable estate in fee in so much of the land as is described in that agreement and that as, under our statute, a widow is now dowable in an equitable estate, contrary to the rule of the common law (Fortune v. Watkins, 94 N. C. 314), she is entitled to have her dower set apart in those lands; and, second, be- cause the reservation of the life estate in the agreement of June 5, 1899, and the deed of Nov. 18, 1901, is to persons who were strangers to the contract and deed, and therefore void. In this conflict of views, +The statement of facts and parts of the opinion are omitted. 1392 CASES ON THE Law or ConTRACTS as to the law of the case, our opinion is with the defendants. If the contract of October 8, 1898, had not been followed by that of June 5, 1899, and by the deed of the same date made in execution of it, there would be force in the plaintiff’s contention, but it is apparent to us that the latter contract and deed were made as substitutes for the contract of October 3, 1898, and that, by the transactions between them, the par- ties clearly intended to rescind that contract and to give full force and effect to the latter contract and the deed made under it. That parties may rescind a contract, either expressly or by substituting another in its place which is so inconsistent with it that the two cannot well coexist and operate at one and the same time, cannot be doubted. Rights acquired under a contract may be abandoned or relinquished, either by agreement or by conduct clearly indicating such a purpose. Falls v. Carpenter, 21 N. C. 237, 28 Am. Dec. 592; Faw v. Whittington, 72 N. C. 321; Miller v. Pierce, 104 N. C. 389, 10 S. E. 554; Holden v. Purefoy, 108 N. C. 163, 12 8. E. 848; Taylor v. Taylor, 112 N. C. 27, 16 S. E. 924; Gorrell v. Alspaugh, 120 N. C. 368, 27 8. E. 85; May v. Getty (at the last term) 53 S. E. 75; Lipschutz v. Weatherly (at this term) 53 8. EH. 182. A contract may be discharged by the substitution of a new contract, and this results (1) where a new contract is ex- pressly substituted for the old one; (2) where a new contract is incon- sistent with the old one; (3) where new terms are agreed upon, in which case a new contract is formed, consisting of the new terms and of the terms of the old contract which are consistent with them; and (4) where a new party is substituted for one of the original parties by agreement of all three. Clark on Contracts, p. 610, § 260. The authori- ties are numerous to the same effect. It was held.in Cocheco Bank v. Perry, 52 Me. 293, that where parties make two contracts upon the same subject-matter, which cannot be reconciled without rejecting some of the material stipulations in one or the other or both, the court will not enter upon this work of expurgation, but will endeavor to give effect to the one contract or the other, as the intention of the parties shall seem to require. Substantially the same ruling was made in Stow v. Russell, 36 Ill. 18, and Chrisman v. Hodges, 75 Mo. 413. The principle is thus stated in Harrison v. Polar Star Lodge, 116 Ill. 287, 5 N. E. 546: ‘‘When the parties to a contract come to a fresh agree- ment of such a kind that the two cannot stand together, the effect of the second agreement is to rescind the first. This is one form of novatio in the Roman law. When an agreement is thus rescinded by novation, the contract. in existence prior to the novation loses its in- dividuality, and becomes merged in the new contract. Any circum- stances or course of conduct from whence can be clearly deduced an agreement to put an end to the original contract will amount to a rescission of it.’? Fry on Specific Performance (3d Am. Hd.) 998, 1009 et seg. In Patmore v. Colburn, 1 C. M. & R. (Exch.) 65, Lord _ Lyndhurst said that, when the provisions of two contracts are incon- Tue DiscHarge or ContRACTS 1393 sistent and the second cannot be operative if the first is still in existence, the first is no longer a subsisting agreement. Hart v. Lauman, 29 Barb. (N. Y.) 410; Paul v. Meservey, 58 Me. 419. Many other decisions of the same import might be cited. If upon the facts of our case, there- fore, we can gather that the parties intended the two contracts not to coexist, and the second was designed to take the place of the first, the former must be taken to embody the entire and final agreement of the parties. Mather v. Butler County, 28 Iowa, 253. * * * It was impossible for the first and second transactions to stand to- gether. By the first contract S. A. Redding acquired absolutely the entire interest and estate in one-half of the land, according to the very terms of the instrument, and by the second he was given only a re- mainder in one-half of that and other land; that is, a one-half interest therein subject to the life estate. His acceptance of the last contract is conclusively established by his taking the deed from his sister and thereupon entering into possession of the land and conveying a part of it to another. The first and second contracts could not, therefore, stand together, because the two estates conveyed are radically different ; one being the entire fee, and the other only a remainder. If he claimed under the first contract, he must necessarily have rejected the second, and, if he claimed under the second contract and the deed made in fulfillment of it, he must just as surely have rejected the first contract. He acquired additional land under the second contract and the deed which he could not in good conscience keep and at the same time repu- diate the provisions of the deed by virtue of which he asserted his right to it. If he had claimed under the first contract, the life estate excepted in the second contract and the deed to him would necessarily fail. When he claimed under the second contract and the deed, he thereby as fully recognized the existence of the life estate as if he had expressly done so by an instrument in due form of law, and those claiming under him will not be allowed to assert a right or title totally inconsistent with his de- liberate choice so clearly manifested and in contravention of the just rights of others who must be held to have acquired interests, by virtue of his election which induced them to part with their land upon the faith of the rectitude of his conduct. The last contract and the deed ‘made to §. A. Redding must be regarded as a substitute for the first contract and as a rescission of it; the two transactions being wholly irreconcilable. * * * It follows that the plaintiff cannot have dower for want of the seisin of her husband; for the right of dower, as we have said, can attach only when the husband has the immediate estate of freehold, as well as the inheritance, and here the tenant for life was living at the death of the husband and at no time during the coverture could the latter have had the requisite seisin. Weir v. Humphries, 39 N. GC 264. * = * Upon the consideration of the whole case, we conclude that 8. A. Redding had no equitable estate in the land under the first contract. 1394 CASES ON THE Law or CoNnTRACTS at. the time of his death, and no seisin sufficient to support the plain- tiff’s claim of dower. * * * New trial.8 ADAMS v. BATTLE et au. (Supreme Court of North Carolina, 1899. 125 N. C. 152, 34 S. EB. 245.) Action by. Len H. Adams against R. H. Battle and J. N. Holding, executors of W. H. Pace, deceased. There was a judgment for plaintiff, and defendants appeal. Affirmed. Farrciotu, C. J.7. On January 22, 1890, the plaintiff, by deed, con- veyed a large amount of real and personal property to W. H. Pace, in trust to ‘pay plaintiff’s debts in the manner described, with power to collect, sell the property at private or public sale, and to do the usual duties of a trustee in such cases. Pace died in April, 18938, and this action was brought October 16, 1896; and it is agreed that the trust was closed in the lifetime of the trustee, except as to the matter controverted in this action. The deed provided that the trustee might retain 4 per cent. commissions on receipts and disbursements; that is, 8 per cent. on the total amount, which was $2,461.01. The defendants are the personal representatives of the trustee. The plaintiff was allowed to prove by parol that, some days after the deed was executed, Pace agreed with plaintiff that, if there was no litigation in the courts respecting the trust, he would charge only 214 per cent. on receipts and disbursements. He also proved that there was no suit brought, and there is no evidence of any unusual trouble in executing the trust. 6“A subsequent contract completely covering the same subject-matter, and made by the same parties, as an earlier agreement, but containing terms in- consistent with the former, so that the two cannot stand together, rescinds, supersedes and is substituted for the earlier contract, and becomes the only agreement of the parties on the subject.” Sanborn, J., in Housekeeper Pub. Co. v. Swift, 97 Fed. 290, 294 (1899). In Taylor v. Hilary, 1 Cr. M. & R. 741 (1835), before breach of a contract of guarantee of the payment of goods to be supplied to one Holt, the plaintiff and defendant agreed to change the time of payment for the goods, and, the defendant having set up the new agreement as a defense to an action on the original contract, the court said: “Before the breach of the first agreement a new agreement is entered into, varying the contract in an essential part, the time of payment. The latter, then, is a substituted contract, and is an answer to an action upon the former. The plea is not a plea of accord and satisfaction, and does not therefore require an averment of performance.” ' On rescission of contract by substitution of new contract between same par- ties, see 6 Ann. Cas. 315, note. 7Part of the opinion and all of the dissenting opinion of Furches, J., are omitted. Tue DiscHarGE or ConTracts 1395 The defendants excepted to the admission of this parol evidence, and to the charge of the court in respect thereto. The verdict was for the plaintiff. The defendants’ contention is that the evidence is incompetent to prove that the parties agreed ‘subsequently that the commissions should be less than specified in the deed, unless done in as solemn a manner as.the deed was made; that is, under seal, under the maxim, ‘‘Ho lhigamine quo ligatur.’’ It seems that no verbal agreement contem- poraneous with the execution of an instrument under seal will be heard to contradict or vary its terms. The effect of a subsequent agreement by.the same parties has been much discussed by different courts, and in some. of the states the matter is put to rest by legislation. But we are informed by counsel that the question has not yet been decided in our state, and we find no such decision. It was an old, ironclad maxim of the common law that an obligor would only be released by an instrument of as high dignity as that by which he. was bound; that is, being obligated by a seal, he could be re- leased only by an instrument underseal. Technically this is the rule of modern times unless changed by statute, but practically it is seldom enforced. To this rule the exceptions were and are so numerous that seldom can the rule be applied. In an action on the bond or other sealed instrument, the debtor pleads and proves the actual receipt of the money by the obligee. No court could hesitate to hold this to be a release and discharge of the bond. Suppose the debt secured by a mortgage; a release and discharge need not be under seal. Suppose the principal of a note under seal pays the debt, and the sure- ties are sued on the same; would any court require them to show that their principal had been discharged under seal? Suppose, again, that a landlord leases land for a term of years under seal, and during the 8‘Where a contract under seal is altered by parol, it all becomes parol. Vieary v. Moore, 2 Watts 451. But a mere additional parol agreement, not changing or modifying the one under seal, will not have this effect. Hllmaker: v. The Franklin Fire Ins. Co., 6 W. & Ser. 489. Nor will a stipulation by parol releasing or waiving performance of part of the covenant. McComb v. McKennan, 2 W. & Ser. 217. ‘The test of collision,’ said Chief Justice Gibson in Ellmaker v. The Insurance Co., ‘was the capacity of the two contracts to be executed together. Where that can be done, the one is not substituted for the other, and where there is in fact substitution it operates as abandonment, the specialty being relinquished, except as matter of reference, for the terms of the parol contract which has supplanted it.’” Knox, J., in Lawall v. Rader, 24 Pa. St. 288, 285 (1855). “Verbal or written, or in part verbal and in part written, a contract not attested by seal is only parol, but the written part, being the better evidence, excludes spoken words contradicting the written part or contrary to it.” Jenks, J., in Schwartzman v. Pines Rubber Co., 179 N. Y. Supp. 284, 286 (1919). On subsequent parol agreement to vary a writing, see 56 Am..St. Rep. 659, note, ( ' ! i ! 1396 CasEs ON THE LAw oF ConTRACTS term the premises are greatly damaged without any fault of the lessee, or that they have greatly depreciated in value, or have become partially unfit for the purpose intended, and the landlord, conscious of these and similar facts, agrees verbally with the lessee that for the balance of the term he will take less rent than is stipulated in ‘the deed; would not the lessee be protected by such agreement? If proof of payment will discharge, why should not an agreement to discharge have the same effect between the same original parties? It seems difficult to find a case where the parties, bound to each other by an instrument under seal, will not be discharged by parol proof of facts, if. they are sufficient in themselves to constitute a dis- charge. In such matters the defenses are performance in pais, and are probably of more value to business men than the dignity of being shel- tered by a seal. The chief reasons for the sacredness of the seal have ceased since statutes and courts of equity have been liberally removing the hard places of the common law. The dignity of the seal is due more to the original form of the instrument than to the real interest and intention of the parties. Whether the trustee intended to retain 8 per cent. commissions we are not informed, as he had recently before his death closed the other trust matters; nor is this very material now. He was a practicing attorney, and understood technicalities of the law, and we must assume that when he made the parol agreement he did so in good faith. We are led to the conclusion that the evidence was admissible, and that the charge of the court was not erroneous. The result seems to be full justice, without the infringment of any sound principle of law. * * * Affirmed.9 9In jurisdictions where, by statute, law and’ equity are administered in one ' action, the allowance of equitable defenses in actions at law has in general resulted in the disappearance of the old rule that a contract under seal can- not be varied or discharged by a parol agreement. “The rule that a sealed contract cannot be varied by a subsequent parol agreement is of great antiquity, the maxim on which it rests, unumquodque dissolvitur eodem modo quo ligatur, being one of the most ancient in our law. * * * But in this country it has become a well settled exception to the rule that a sealed contract may be modified by a subsequent parol agreement, if the latter has been executed, or has been so acted on that the enforcing of the original contract would be inequitable.” Young, J., in Stees v. Leonard, 20 Minn. 494, 508-509 (1874). “It is a necessary consequence of our changed system of procedure that whatever formerly would have constituted a good ground in equity for re- straining the enforcement of a covenant, or decreeing its discharge, will now constitute a good equitable defence to an action on the covenant itself. It was one of the subtle distinctions of the common law as to the discharge of covenants by matter in pais, that although a specialty before breach could not be discharged by a parol agreement, although founded on a good considera- tion, nor even by an accord and satisfaction, yet after breach the damages, if unliquidated, could be discharged by an executed parol agreement, because, Tue DiscHARGE or ConTRACTS 1397 THACKERAY v. KNIGHT st at. (Supreme Court of Utah, 1920. 192 Pac. 263.) Suit by George Thackeray against Elizabeth A. Knight and others. From a judgment and decree for defendants, plaintiff appeals. Affirmed. Corrman, C. J.!° Plaintiff brought suit against the defendants in the district court of Morgan county, Utah, for the specifit performance of a written agreement entered into by defendants Elizabeth Ann Knight, Mary Jane Wickle, and Agnes Irene Adkins with the plaintiff for the conveyance of real estate and water stock which the said defendants had subsequently thereto contracted to convey to the defendant Gibson A.Condie. * * * It ‘appears beyond dispute that by the terms of the contract between the parties the plaintiff was entitled to a conveyance of the property by a warranty deed. That was to impliedly say a title free and clear of all incumbrance. It is an admitted fact that the property was in- cumbered by a pipe line owned or claimed by John E. Condie, a third party. The defendants failed to have the pipe line removed from the premises. Thereupon, although there is some conflict in the evidence on this point, the plaintiff asserted he would not take the property, and on at least two occasions, March 20th and April 7th, demanded the money back which he had paid under the contract. The court so finds, and we think the great weight of the testimony justifies this finding. Acting on the plaintiff’s representation that he would not take the property and the demand made for a return of the money, the de- fendants Knight, Wickle, and Adkins thereupon proceeded to negotiate with, and entered into a contract on April 10th for the sale of the property to Gibson A. Condie for $1,500. That this contract was en- tered into in good faith by the defendants Knight, Wickle, and Adkins, they believing and relying on the representations of the plaintiff that he would not take the property, and that he wanted his money returned, there can be no doubt from the facts and circumstances as detailed by the record. as was said, in the latter case the cause of action is founded ‘not merely on the deed, but on the deed and the subsequent wrong.’ Broom’s Legal Maxims, 848, and cases cited. * * * The technical distinction between a satisfac- . tion before or after breach seems to have been disregarded in this state, and a new agreement by parol, followed by actual performance of the substituted agreement, whether made. and executed before or after breach, is treated as a good accord and satisfaction of the covenant. Fleming v. Gilbert, 3 John. 580;- Lattimore v. Harsen, 14 id. 330; Dearborn v. Cross, 7 Cow. 48; Allen v. Jaquish, Cowen, J., 21 Wend. 633. So, also, a new agreement, although with- out performance, if based on a good consideration, will be a satisfaction, if accepted as such. Kromer v. Heim, 75 N. Y. 574, and cases cited.” Andrews, J., in McCreery v. Day, 119 N. Y. 1, 8-9 (1889). 10 Part of the opinion is omitted. 1398 CasEs ON THE Law or ContTRAcTS Immediately after the contract had been entered into with Gibson A. Condie the said defendant advised the plaintiff that they had raised the necessary funds to return to him his money; that it had been deposited in a Salt Lake City bank, where he could call and get it upon surrender of his contract. Not until after the defendants had thus placed themselves in a position, by reason of their acting on plaintiff’s representation that he would not take the property and a demand for the return of his money, did the plaintiff announce his purpose of requiring performance of the contract of sale with him. As a legal proposition, there can be no doubt but that an executory contract with respect to real property may not be rescinded nor dis- charged, unless by act or operation of law, where neither party is in default, without some form of written agreement entered into between the contracting parties. Our statute (section 4874), supra, is to that effect, and the following cases, cited and relied on by plaintiff, so hold: Barrett v. Durbin, 106 Ark. 332, 153 S. W. 265; Woolen v. Sloan, 94 Wash, 551, 162 Pac. 985; Grunow v. Salter, 118 Mich. 148, 76 N. W. 325; Finner v. McVay, 37 Mont. 306, 96 Pac. 340, 19 L. R. A. (N. S.) 879, 15 Ann. Cas. 1175; Carr v. Williams, 17 Kan. 575; Bennett v. Harrison, 115 Minn. 342, 132 N. W. 309; Brown v. Brown, 194 Mich. 578, 161 N. W. 828; Cutwright v. Savings & Inv. Co., 33 Utah, 493, 94 Pac. 984, 14 Ann. Cas. 725. But where there is a breach or abandonment of a contract by either party, the rule as held by the great weight of authority is otherwise. There can be no question but that the defendants had defaulted under their contract in failing to remove the incumbrance of a pipe line upon the real property. The plaintiff had a right to demand its removal because the defendants had contracted to transfer to him the property unincumbered and without defect, when they agreed to convey by warranty deed. The defendants being in default in that regard, the plaintiff had a legal right to rescind the contract without the consent of the defendants in writing or otherwise. 24 Am.-& Eng. Ene. (2d Ed.) 648; 39 Cye. 1408, 1404; 2 Black on Rescission, § 560; 13 C. J. 601, § 624; Pool v. Motter, 185 Pac. 715; Obrecht v. Neilson Land & Water Co., 44 Utah, 270, 140 Pace. 117. We cannot conceive of a more effective way for a party to rescind a contract than that used by plaintiff in the present instance—asserting that he did not intend to take the property and demanding a return of his money. Then, again, under the facts and circumstances, there are equitable principles involved that we think estop the plaintiff from insisting on a specific performance of the contract now under con- sideration. As pointed out, the defendants, Knight, Wickle, and Adkins, in contracting with and by accepting the defendant Condie’s money, placed themselves in a position whereby they are now unable to perform their contract with the plaintiff. This was done without knowledge on the part of the defendant Condie, and by reason of the plaintiff leading THE DISCHARGE OF CoNnTRACTS ’ 1399 them to believe that he would not take the property and by making a demand for a return of his money. As a matter of equity one party may not induce another by his representations and demands to act to his prejudice, and then complain of the other’s conduct, when he has thus performed in good faith and with good intentions. The law applicable to the facts and circumstances of this case was quoted with approval in the opinion of Mr. Justice Frick in Cutwright v. Savings & Inv. Co., supra, from 2 Warvelle on Vendors (2d Ed.), which reads: ‘“‘It has been held in some of the earlier cases that an agreement to rescind is as much an agreement concerning land as the original contract, and hence should be in writing; but all the later cases, both in England and the United States, are unanimous in affirming that a contract in writing, and by law required to be in writing, may in equity be rescinded by parol, and this even though the contract may have been under seal. Such rescission may be effected, not only by an express agreement, but by any course of conduct clearly indicating a mutual assent to the termination or abandonment of the contract. It may consist either of words or acts, and all the circumstances attend- ing may be shown to prove intention; but if evidenced by acts alone they must be such as leave no doubt as to such intention.”’ For the reasons stated, we are of the opinion that the conduct of the plaintiff was such as a matter of law to amount to a rescission of the contract sued upon. The defendants Knight, Wickle, and Adkins in good faith acted upon and treated plaintiff’s conduct as a rescission, and thereupon placed themselves in a position in which they were unable to perform. The defendant Condie entered into his contract with the defendants, and paid his money to them also without knowl- edge that the plaintiff would demand performance of his contract, all resulting from the acts of the plaintiff in declaring that he would not take the property, and by demanding a return of his money. Under these circumstances the trial court was, in our opinion, fully justified in withholding from the plaintiff a decree of specific performance. It is therefore ordered that the judgment and decree of the district court be affirmed, with costs to the defendants. BLAKE’S CASE. (Court of King’s Bench, 1605. 6 Coke, 43 b.) Eden brought a writ of covenant against Blake, assignee of Price, and the breach was for not repairing of the house; the defendant pleaded an accord between him and the: plaintiff, and execution thereof 1400 - (Cases on tHE Law or Conrracts in satisfactione and exoneratione decasis reparationim predict’, upon which the plaintiff demurred. * * * But it was resolved !® by the whole court that the defendant’s plea was good in the case at bar; for there is a difference, when a duty accrues by the deed in certainty, tempore confections scripti, as by covenant, bill, or bond, to pay a sum of money, there this certain duty takes its essence and operation originally and solely by the writing; and there- fore it ought to be avoided by a matter of as high a nature, although the duty be merely in the personalty; but when no certain duty ac- erues by the deed, but a wrong or default subsequent, together with the deed, gives an action to recover damages which are only in the personalty for such wrong or default, accord with satisfaction is a good plea; as in the case at bar, the covenant doth not give the plaintiff at the time of the making of it any cause of action, but the wrong or default after in not repairing of the house, together with the deed, gives an action to recover damages for default of reparations. And forasmuch as the end of the action is but to have amends and damages in the personalty for this wrong, therefore amends and satisfaction given the plaintiff is a good plea. For the action is not merely grounded on the deed, but also on the deed and the wrong subsequent, which wrong is the cause of the action, and for which damages shall be re- covered. * * * ELIZABETH CASE v. JAMES BARBER. (Court of King’s Bench, 1681. Thomas Raymond, 450.) The plaintiff declares in an indebitatus assumpsit for £20 for meat, drink, washing, and lodging for the defendant’s wife, provided for her 1l1“Accord is an agreement between two at the least, to satisfie an offence. that the one hath made to the other, when a man hath done a trespasse or such like unto another, for the which hee hath agreed with him to satisfie and content him with some recompence, which if it bee executed and performed, then because that this recompence is a full satisfaction for the offence, it shall be a good barre in the law, if the other after the accord performed, should sue againe any action for the same trespasse. “Note, that the first is properly called an accord, the other a contract.” Les Termes De La Ley (1629 Ed.). Professor Ames has shown that accord in that sense, i. e., accord and satis- faction of a tort, has existed “from time immemorial.” Ames, Lectures on Legal History, pp. 110-111, citing a Year Book case as early as 1273-1274. As it existed long before bilateral contracts were recognized and enforced, accord was used in the sense of an offer, sealed or unsealed, to give or receive the designated satisfaction. Today the ordinary accord consists of mutual prom- ises, and the unsealed and therefore revocable offer as to satisfaction, which is like the accord of days before bilateral contracts were recognized and en- forced, is no longer deemed worthy of being called an accord. See 3 Williston on Contracts, § 1838. As to a sealed offer, however, see Young v. Jones, re- ported post, p. 1403 and note. 12 Part of the report is omitted. Tue DiscHARGE or ConTRACTS 1401 at the request of the defendant, and lays it two other ways. The defendant pleads that after making the said promise, etc., and before for exhibiting the said bill, viz., such a day, it was agreed between the plaintiff and the defendant, and one Jacob Barber his son, that the plaintiff should deliver to the defendant divers clothes of the defend- ant’s wife then in her custody, and that the plaintiff should accept the said Jacob, the son, for her debtor for £9, to be paid as soon as the said Jacob should receive his pay due from his Majesty, as lieutenant of the ship called the ‘‘Happy Return,’’ in full satisfaction and discharge of the premises in the declaration mentioned; and avers that the plain- tiff the same time did deliver to the defendant the said clothes, and that she accepted the said Jacob, the son, her debtor for the said £9, and that the said son agreed to pay the same to the plaintiff accordingly; and that the said Jacob afterwards, and as soon as he received his pay as ‘aforesaid, viz., 27 April, 32 Car. 2, was ready, and offered to pay the said £9, and the plaintiff refused to receive it; and that the said Jacob hath always since been, and still is ready to pay the same, if the said plaintiff will receive it. Ht hoc paratus, etc. The plaintiff demurs. And it is alleged by the defendant’s counsel that the plda is good; for though in Peyto’s case, and formerly, it hath been held that an accord cannot be pleaded unless it appears to be executed, 9 Co. 79 b, 3 Cro. 46, pl. 2, yet of late it hath been held that upon mutual promises an action! lies, and consequently, there being equal remedy on both sides, an accord may be pleaded without execution as well as an arbitrament, and by the same reason that an arbitrament is a good plea without per- formance; to which the court agreed,!* for the reason of the law being changed, the law is thereby changed; and anciently remedy was not given for mutual promises, which now is given; and for this reason, Mich. 18 Car. B. R. Palmer v. Lawson, ante. In indebitatus assumpsit against an executor upon a contract madd by the testator, the defend- ant pleads judgment in debt upon simple contract against him for the debt of the testator, and after argument resolved a good plea; because, though in debt against an executor upon a simple contract the defend- ant may demur, yet when he admits the demand, and executors are now liable to pay such debts in action upon the case, the judgment so obtained was pleadable; so Vaughan, Rep. Dee v. Edgecomb. But in this case at bar judgment was given for the plaintiff for two reasons: 1 Because it doth not appear that there is any consideration that 18 But in Allen v. Harris (1701), reported ante, p. 428, though this case was cited to the court, it was held that an arbitrament differed from an accord, “For, per curiam, if arbitrament be pleaded with mutual promises to perform it, though the party has not performed his part who brings the action, yet he shall maintain his action; because arbitrament is like a judgment, and the party may have his remedy upon it. But upon accord no remedy lies.” 1402 CASES ON THE Law oF ConTRACTS the son should pay the £9, but only an agreement without any con- sideration. . 2. Admit the agreement would bind, yet now by. the statute of frauds and perjuries, 29 Car. 2, this agreement ought to be in writing, or else the plaintiff could have no remedy thereon; and though upon such an agreement the plaintiff need not set forth the agreement to be in writ- ing, yet when the defendant pleads such an agreement in bar, he must plead it so as it may appear to the court that an action will lie upon it, for he shall not take away the plaintiff’s present action, and not give him another upon the agreement pleaded. C. R. METCALF v. W. M. KENT, AppEeLLant. (Supreme Court of Iowa, 1898. 104 Iowa 487, 73 N. W. 1037.) Action upon a written contract to recover commissions for the sale of real estate. Defendant answered, admitting the execution of the contract, and alleging that it was without consideration, that plaintiff failed to perform his part, and that a full settlement had been made with plaintiff. At the conclusion of the evidence, the court, on a mo- tion of the plaintiff, directed a verdict for plaintiff for the amount claimed, and rendered judgment thereon. Defendant appeals. Affirmed. Given, J.1# * * * TT. As to the alleged settlement, the defendant testifies as follows: ‘‘I met Mr. Metcalf the day I sold the farm after the contract was drawed up; met him in front of the First Na- tional Bank in Sae City; and I told him that I had sold my farm. ‘Now,’ I says, ‘you had better come up, and give me up my contract.’ He says: ‘That don’t amount to anything. I don’t charge you any commission.’ I says, ‘All right, I will set up the cigars and call it square.’ He says, ‘That is all right, sir.’ Mr. Tom Riddinough was present at this conversation. Since that time there has been no conversation between Mr. Metcalf and myself concerning this mat- ter; nothing more than I spoke to him here some time ago, after he had sued me, and I asked him what he done it for, was all the con- versation we had.’’ Riddinough testifies: ‘‘Mr. Kent says to Mr. Metcalf, ‘I sold my farm.’ Mr. Metealf says, ‘Is that so?’ and he says, ‘Yes, and I thought I would get my contract.’ Mr. Metcalf says: ‘That contract is no account. I don’t charge anything for it.’ Mr. Kent pulled out a cigar, ‘If that is all you charge, I will treat you, and call it square.’ Mr. Metcalf says, ‘That is all right.’’’ We have seen that under the contract and the fact of the sale to Gregory defend- ant was liable to plaintiff for the commission named on the $8,400. * * * 4 14 Parts of the opinion are omitted. THE DiscHarcE or Contracts 1403 In this case there was a mutuality, and hence a contract, irrevocable except by consent of the parties. The cases cited by plaintiff’s counsel sustain the claim that the release of an existing indebtedness is a new contract, and, to be binding, must be based upon a consideration. It is not seriously contended that the cigar was given or received as a con- sideration for the claimed release. Surely, such a trifle as that could not have been so intended. In determining whether the court erred in ordering a verdict, we do not consider plaintiff’s evidence denying that there was any settlement or release. Accepting the evidence for de- fendant as true, it fails to show any consideration for the alleged release. Therefore, though made as claimed, it’ is not binding, and is no bar to plaintift’s right to recover. There was no error in sustain- ing plaintiff's motion for a verdict, and the judgment is therefore affirmed.15 YOUNG v. JONES. (Supreme Judicial Court of Maine, 1875. 64 Me. 563, 18 Am. Rep. 279.) AppLeToN, C. J.{ This is an action of assumpsit upon an accepted draft. After the plaintiff had made out his case the defendant offered to prove an agreement under the hand and seal of the plaintiff, after the maturity of the draft, to accept a certain percentage less than the amount of the draft, in payment thereof; and to transfer to some third person his debt, on receipt. of the same within a certain space of time; that the percentage agreed upon was tendered within the time limited, and that the plaintiff refused to accept the same, and brought this action. [This evidence the trial court held to be inadmissible. ] The material question in whether these facts, if proved, would con- stitute a defense to this suit. It is manifest they would not show payment. The plaintiff was to transfer his debt to a person agreed upon. The debt to be assigned must exist. If the debt was to be regarded by the parties as paid or discharged, it would cease to be a debt, and consequently would ceasé to be transferable. But as it was to be transferred, it is manifest that 18In Thurber v. Sprague, 17 R. I. 634 (1892), a father made, as trustee for his minor son, a deposit in a savings bank. After coming of age in 1885, the son demanded the deposit of his father, who said: “I never want to hear of this matter again. I made the change of investment supposing that it was for the best, but it was not. * * * If you are not satisfied and want the $500, take it and go; but if you remain here I do not want to hear of it again.” The son, after this, remained at home and was supported by his father until the father’s death in 1888. In an action for the five hundred dollars, brought by the son against the father’s executors, it was held that the facts showed a complete accord and satisfaction. +The statement of facts is omitted. 1404 Cases on THE Law or ConTRACTS neither its payment nor its discharge was in the contemplation of the parties. It was to be held by the assignee for ulterior purposes. Neither do the facts offered to be proved show accord and satis- faction. The agreement relied upon was executory. In Hawley v. Foote, 19 Wend. 517, it was held not a good plea of accord and satisfaction that the plaintiff agreed to accept the note of a third person in dis- charge of the demand in suit, which on being tendered him, he refused to accept. ‘‘There has been no satisfaction,’’ observes Bronson, J., ‘‘the accord has not been executed and the action is not barred.’’ Russell v. Lytle, 6 Wend. 390; Com. Dig., B. 4. It has been said that a different rule was laid down in Coit v. Houston, 3 Johns. Cas. 247, but the remark is not well founded. The question there was one of evidence, not of pleading. Thompson, J., said, ‘‘There were circum- stances from which the jury might infer an actual acceptance at the place where the coal lay and that they were there at the risk of the plaintiff.’’ The plea of accord to be good, must show an accord not executory at some future time, but one executed. Cushing v. Wyman, 44 Me. 121. A mere readiness to perform the accord, or tender of performance, will not suffice, and a plea of accord tendered has been held bad on demurrer.!® A plea of accord and satisfaction must allege not only a clear agreement or accord, but that it was executed by the acceptance of the matter agreed upon in satisfaction. Hearn v. Kiehl, 38 Pa. 147. The facts do not show a consummate. payment. Mansure v. Keaton, 46 Me. 346. The tender, if there was one, cannot avail the defendant as it has not been brought into court. The remedy of the defendant is upon his contract, if the plaintiff has failed to perform it.?” , Exceptions overruled.'8 16 “Mere readiness to perform the accord, or a tender of performance, or even a part performance and a readiness to perform the rest, is not sufficient. Prest v. Cole, 183 Mass. 283, 67 N. E. 246; Hosler v. Hursh et al., 151 Pa. 415, 25 Atl. 52; Russell v. Lytle, 6 Wend. (N. Y.) 388, 22 Am. Dec. 537; Burgess v. Denison Paper Mfg. Co., 79 Me. 266, 9 Atl. 726.” Slack, J., in Sargent v. Donahue (Vt.), 110 Atl. 442, 445 (1920). ’ On failure to perform act required by new agreement as affecting character thereof as accord and satisfaction, see 10 A. L. R. 222, note. On accord and satisfaction, see 100 Am. St. Rep. 390, note. On the accord promise taken as satisfaction, see 6 Ann. Cas. 564, note. 17 For a similar statement about suing on the contract, see Gleason v. Allen, 27 Vt. 364 (1855). See also Harbor v. Morgan, 4 Ind. 158 (1853). 18 Professor Williston suggests that “The word ‘accord,’ to avoid confusion, should be used only to designate a bilateral contract, by which the defendant promises to give the proposed satisfaction, and the plaintiff promises to accept it.” 3 Williston on Contracts, § 1838, p. 3160. While that remark was made in successfully combatting the use of the word “accord” to apply to a re- vocable offer of a creditor to accept, or of a debtor to give, something as THE DiscHaRrcE oF ConTRACTS 1405. DAY v. McLBA. (Court of Appeal, 1889. 22 Q. B. D. 610.) The action was brought to recover damages for breach of contract. The defence was that the plaintiffs had agreed to accept and had accepted £102 18s. 6d., in full satisfaction of all demands in respect of the breach. It appeared that, after the breach, the plaintiffs made a claim on the defendants, who thereupon sent them a check for £102 18s. 6d., being less than the amount claimed, stating that it was ‘‘in full of all demands,’’ and enclosing a receipt in that form for signature by the plaintiffs. The plaintiffs wrote in reply that they took the check on account, and had placed it to the defendants’ credit, at the same time enclosing a receipt on account, and asking for a check for the balance of the claim. In answer to this letter the defendants wrote stating that the payment was made in full of all demands, and asking for a receipt in full. It was contended on behalf of the defendants that the keeping of the check by the plaintiffs was in law an accord and satisfaction of the claim. Charles, J., held that there was no accord and satisfaction, and gave judgment for the plaintiffs. The defendants appealed. Lorp EsHer, M. R. This was an action to recover damages for breach of contract. The plaintiffs were claiming a considerable sum as damages, and, before action brought, the defendants sent them a check for £102 18s. 6d., being less than the amount claimed, with a form of receipt, to be signed by the plaintiffs, that this sum was ac- cepted in full satisfaction of the claim. The plaintiffs kept the check but refused to accept it in satisfaction, and sent a receipt on account. It was contended that the keeping of the check so sent was, as a matter of law, an accord and satisfaction of the claim, and that the plaintiffs were bound either to take it in full satisfaction or to return it. The contention, therefore, was that the plaintiffs having kept the check must be taken in law to have accepted it in satisfaction. Upon the other side it was contended that the keeping of the check could only be evidence of accord and satisfaction, and that whether or not it was taken in satisfaction was a question of fact to be determined according to the circumstances of the case. That argument raises the question whether the fact of keeping a check sent in satisfaction of a claim for a larger amount is in law conclusive that there has been an accord and satisfaction. It is said that that inference of law must be satisfaction, it.seems to go too far in excluding unilateral sealed contracts by the creditor to accept something as satisfaction from the debtor where the debtor is not bound to give it, as seemingly was true in the principal case. Such sealed offers, though unilateral rather than bilateral contracts, seem fairly entitled to be called accords. 1406 CAsEs ON THE LAw or ConTRACTS drawn even though the person receiving the check never intends to take it in satisfaction and says so at the time he receives it. All I can say is that if that is a conclusive inference it would be one contrary to the truth. I object to all such inferences of law. This very question, however, came before this court in [1879 in the unreported case of] Miller v. Davies. In that case the action was upon a solicitor’s bill of costs for £50, and there was a plea of accord and satisfaction. Be- fore action the defendant sent the plaintiff a check for £25, with a letter stating that, in order to put an end to the matter, he sent the check for £25, on the terms that the plaintiff would receive it in set- tlement. The plaintiff kept the check and cashed it, and wrote to the defendant that he declined to accept it in settlement and that he required a check for the balance. The defendant thereupon wrote in reply requesting: the plaintiff to return the check if he would not accept it in satisfaction. The jury found that there was no accord and satis- faction. It was contended there as in the present case that the fact of the plaintiff keeping the check was conclusive in law that he had taken it in accord and satisfaction of the claim, inasmuch as it had been sent in satisfaction and the plaintiff was bound either to keep it upon the terms on which it had been sent or to return it. This court, however, held that the fact of keeping the check was not con- clusive in law, that the question was one of fact, and that the jury hav- ing found that there was no accord and satisfaction the court would not interfere. That case is clearly in point. The question, therefore, whether there has been an accord and satisfaction is one of fact. It was for the: judge to decide whether the plaintiffs agreed to take £102 18s. 6d., in satisfaction of their claim. The learned judge has found that fact in favor of the plaintiffs, and consequently this appeal must be dismissed. - Bowen, L. J. I am of the same opinion. It seems to me, as a matter of principle as well as authority, that the question whether there is an ‘accord and satisfaction must be one of fact. If a person sends a'sum of money on the terms that it is to be taken, if at all, in satisfaction of a larger claim; and if the money is kept, it is a question of fact as to the terms upon which it is so kept. .Accord and satisfaction ‘imply an agreement to take the money in satisfaction of the claim in respect of which it is sent. If accord is a question of agree- ment, there must be either two minds agreeing or one of the two persons acting in such a way as to induce the other to think that the money is taken in satisfaction of the claim, and to cause him to act upon that view. In either case it is a question of fact. Therefore, upon principle, as well as upon the authority of the case of Miller v. Davies, which has been brought to our notice, the judgment of Charles, J., must be affirmed. Tur DiscHarce or ContTRACTS 1407 Fry, L. J. I also agree that the case of Miller v. Davies is conclu- sive upon the point of law. Appeal dismissed.'89 WHITTAKER CHAIN TREAD CO. v STANDARD AUTO SUPPLY Co. pee (Supreme Judicial Court of Massachusetts, 1913. 216 Mass, 204, 103 N. E. 695, 51L. R. A. (N. 8.) 315, Ann. Cas. 1915 A, 949.) Lorine, J. The plaintiff sold and delivered to the defendant goods to the amount of $80.08. The defendant undertook to return a part of the goods sold, of the value of $50.02. The plaintiff dis- puted its right to do so and refused to receive the goods from the teamster through whom the defendant undertook to make the return. While matters were in this condition the defendant sent the plaintiff a check for $30.01, which was admittedly due and which the defend- ant stated was in full settlement of the account. The plaintiff cashed the check and on the following day notified the defendant that it had done so, and demanded payment of $50.02, the balance claimed by it to be due after crediting the amount of the check as a payment on account. The judge found that the defendant had no right to return the goods which it attempted to return, and that the plaintiff was entitled to recover the $50.02 due from them unless it was barred by cashing the check. Cases in which debtors have undertaken to force a settlement upon their creditors by sending a check in full discharge of a disputed 19‘‘We were pressed with Day v. McLea, 22 Q. B. D. 610, where the debtor himself sent a cheque for an amount smaller than that of the debt to the creditor on the terms that it should be in satisfaction of the debt. In that case, there being no consideration for the discharge of the balance of the debt, it was held that the creditor could retain the money, and sue for the balance. The same reasoning does not apply where the money is sent by a stranger, in which case it can only be accepted on the terms upon which it is sent. In the former case the creditor can reply to the debtor, ‘you owe me more than this, and, if you sue for a return of this, I shall set off my larger claim against it’ In the latter case, the creditor has no excuse or justification for retaining the stranger’s money, unless he complies with the condition on which it was paid. I agree with Fletcher Moulton, L. J., that the plaintiffs cannot be heard to say that they have acted dishonestly when an honest construction can be put upon their conduct by treating their acceptance and retention of the money as being. upon the terms on which it was offered.” Farwell, L. J., in Hirachand Punamchand v. Temple, [1911] 2 K. B. 330, 342. In that case the father of the debtor sent a draft for less than the amount of the son’s debt, offering it in full settlement. The creditor cashed the draft but merely credited it on account. He was denied recovery of the balance of the debt. See Sigler v. Sigler, reported post, p. 1412. 1408 Cases ON THE Law or CoNnTRACTS account have given rise to more than one question upon which there is a conflict in the authorities. In Day v. McLea, 22 Q. B. D. 610, it was decided by the Court of Appeal in England that a creditor who cashes a check sent in full settlement is not barred from contending that he did not agree to take it on the terms on which it was sent if at the time he accepts it he says that he takes it on account. The ground of that decision was that to make out the defence of accord and satisfaction the debtor must prove an agreement by the creditor to take the sum paid in settlement of the account, and that if the creditor in taking the check notifies the debtor that he accepts it on account and that he refuses to accept it in full settlement, the debtor as matter of law has not proved an agreement on the part of the creditor to accept the check in satisfaction of the claim, but that that question must be decided by the jury. This doctrine is upheld in 17 Harvard Law Review, at p. 469, and in the case of Goldsmith v. Lichtenberg, 139 Mich. 163. See also in this connection Krauser v. McCurdy, 174 Penn. St. 174; Kistler v. Indianapolis & St. Louis Railroad, 88 Ind. 460. But the true rule is to the contrary. The true rule is put with accuracy in Nassoiy v. Tomlinson, 148 N. Y.'326, 331, in.these words: “‘The plaintiff could only accept the money as it was offered, which was in satisfaction of his demand. He could not accept the benefit and reject the condition, for if he accepted at all, it was cum onere. When he indorsed and collected the check, referred to in the letter asking him to sign the enclosed receipt in full, it was the same, in legal effect, as if he had signed and returned the receipt, because ac- ceptance of the check was a conclusive election to be bound by the condition upon which the check was offered.’’ And to that effect is the weight of authority. Nassoiy v. Tomlinson, 148 N. Y. 326; ‘Washington N. Gas Co. v. Johnson, 123 Penn. St. 576; Partridge Lumber Co. v. Phelps-Burruss Lumber & Coal Co., 91 Neb. 396; Neely v. Thompson, 68 Kan. 193; Hull v. Johnson, 22 R. I. 66; Cunningham vy. Standard Construction Co., 134 Ky. 198; Canton Union Coal Co. v. Parlin, 215 Ill. 244; Petit v. Woodlief, 115 N. C. 120; Pollman & Brothers Coal & Sprinkling Co. v. St. Louis, 145 Mo. 651; Potter v. Douglass, 44 Conn. 541; Cooper v. Yazoo & Missis- sippi Valley Railroad, 82 Miss. 634. Barham v. Kizzia, 100 Ark. 251; Thomas v. Columbia Phonograph Co., 144 Wis. 470; Sparks v. Spaulding Manuf. Co., 158 Iowa, 491. See also in this connection MeDaniels v. Bank of Rutland, 29 Vt. 230; Hutton v. Stoddard, 83 Ind. 539; Creighton v. Gregory, 142 Cal. 34. Indeed the decision in Day v. McLea, wbi supra, was explained by the Court of Appeal in the recent case of Hirachand Punamchand v. Temple, [1911] 2 K. B. 380, and made to rest not on the lack of agree- ment, but on the lack of consideration. But in cases (like the case at bar) where there is a dispute as to Tue DiscHARGE of ContRACTS 1409 the amount due under a contract and payment of an amount which he (the debtor) admits to be due (that is to say, as to which there is no dispute) is made by the debtor in discharge of the whole contract, further and other questions arise. The question whether the creditor who under these circumstances accepts such a payment, protesting that he takes it on account, is or is not barred, is a question upon which again the authorities are in conflict. It was held in the following cases that a creditor in such a case is barred: Nassoiy v. Tomlinson, 148 N. Y. 326; Ostrander v. Scott, 161 Ill. 389; Tanner v. Merrill, 108 Mich. 58; 2 Neely v. Thomp- son, 68 Kans. 193; Treat v. Price, 48 Neb. 875; Hull v. Johnson, 22 R. I. 66; Cunningham vy. Standard Construction Co., 134 Ky. 198; Pollman & Brothers Coal & Sprinkling Co. v. St. Louis, 145 Mo. 651. See also in this connection Chicago, Milwaukee & St. Paul Railway y. Clark, 178 U. 8. 353.22 But in the following cases it was held that he was not barred: Demeules v. Jewel Tea Co., 103 Minn. 150;+ Seat- tle, Renton & Southern Railway v. Seattle-Tacoma Power Co., 63 Wash. 639; Prudential Ins. Co. v.. Cottingham, 103 Md. 319. See also in this connection Chrystal v. Gerlach, 25 So. Dak. 128; Robin- son v. Leatherbee Tie & Lumber Co., 120 Ga. 901; Watson v. F. D. Calkins Co., 119 Iowa, 150; Weidner v. Standard Life & Accident Ins. Co., 180 Wis. 10; Louisville, N. A. & C. Railway v. Helm & Bruce, 109 Ky. 388. The decision in most of these cases was made to turn upon the question whether payment of the amount admitted to be due without dispute did not constitute a valid consideration for the discharge of the balance of the debt about which there was a dispute. If that were the only question involved in the case at bar it would be necessary to consider whether Tuttle v. Tuttle, 12 Met. 551, is in conflict with the well settled law of the Commonwealth that a promise to pay one for doing that which he was under a prior legal duty to the promisee to do is not binding for want of a valid consideration. The cases are collected in Parrot v. Mexican Central Railway, 207 Mass. 184, 194. Tuttle v. Tuttle, ubi supra, was a case in which the holder of a note made an express agreement to forego a claim which he had made to interest on the note in consideration of payment of the balance of the principal then unpaid. It was a question whether he was en- titled to interest, but there was no question of his right to the prin- 20Tanner v. Merrill is reported ante, p. 416. 21That payment of an admittedly due part of a disputed claim in full set- tlement, will satisfy the claim if the dispute is in good faith, see also Janci v. Cerny, 287 Ill. 359 (1919). See, further, note 160, page 418, ante. But “the payment of an admitted liability is not a payment of or a consideration for an alleged accord and satisfaction of another and independent alleged liability.” Chase, J., in Mance v. Hossington, 205 N. Y. 33, 36 (1912). + Demeules v. Jewel Tea Co. is reported ante, p. 418. 1410 Cases ON THE Law or CONTRACTS cipal. It was held that this agreement was a bar to any claim for interest on the note. There was no discussion in the opinion as to the lack or validity of a consideration. But the point was involved in the decision. ; In the case at bar there was no express agreement by the creditor to forego the balance of his claim on receiving payment of the amount admitted without dispute to be due. The only way in which such an agreement can be made out in the case at bar is on the ground that the plaintiff had to take the check sent him on the condition on which it was sent, and that by cashing the check he elected to accept the condition and so took the part admittedly due in full discharge of the whole debt.2# But while the doctrine of election is sound where 22 “The check was tendered on condition it, and the notes which accompanied it, should be accepted in satisfaction of the unliquidated disputed claim. The acceptance and retention of the check involved the acceptance of the condition upon which it was offered, and the law will not permit the appellees to escape that conclusion so long as they retain the check. Ostrander v. Scott, supra, [161 Ill. 339] exemplifies this doctrine. In that case appellants’ enclosed by mail to appellees a check, and in an accompanying letter advised them the check was tendered in settlement of the account in full and should be so accepted or returned. Appellees (in that case) replied that they retained the check as a payment in the amount thereof, and demanded remittance of the balance of such account. The doctrine of the case is that the legal effect of the act of retaining the check was an acceptance of the same on the conditions upon which it was tendered. In Fuller v. Kemp, 138 N. Y. 238, which involved the same principle, it was said: ‘The tender and the condition could not be dissevered. The one could not be taken and the other rejected. The accept- ance of the money involved the acceptance of the condition, and the law will not permit any other inference to be drawn from the transaction. Under such circumstances the assent of the creditor to the terms proposed by the debtor will be implied, and no words of protest can affect the legal quality of this act.” And in McDaniels v. Bank, 29 Vt. 230, the court said: ‘When a party makes an offer of a certain sum to settle a claim, when the sum in controversy is open and unliquidated, and he attaches to his offer the condition that the same, if taken at all, must be received in full satisfaction of the claim in dis- pute, and the party receives the money, he takes it subject to the condition attached to it, and it will operate as an accord and satisfaction. * * * The mere act of receiving the money is an agreement to accept the same on the conditions upon which it was offered.’ The doctrine of these cases is applicable here.” Boggs, J., in Lapp v. Smith, 183 Ill. 179, 184-185 (1899). On part payment as satisfaction of a disputed claim, see Ann. Cas, 1915 A, 951, note. ‘ See Wilcox, Ives & Co. v. Rogers, 13 Ga, App. 410, 79 S. E. 219 (1913), where cotton was sent to the holder of a note on condition that if he sold the cotton under certain circumstances, the note must be deemed paid in full, and where a plea of accord and satisfaction to the action on the note, the sale having occurred and the proceeds being less than the amount of the note, was held good on the ground that the defendant ‘thad a right to dictate the con- ditions upon which it [the cotton] should be received, and the plaintiffs were bound to comply with his terms upon their acceptance of the cotton.” See also the machinery case of Walters v. Glendenning, 87 Wis. 250 (1894), to the same effect. THe DiscHarGE or ConrTrRacts 1411 a check is sent in full discharge of a claim no part of which is admitted to be due, it does not obtain where a debtor undertakes to make pay- ment of that which he admits to be due conditioned on its being ac- cepted in discharge of what is in dispute. Such a condition, under those circumstances, is one which the debtor has no right to impose, and for that reason is void. In such a case the creditor is not put to an election to refuse the payment or to take it on the condition on which it is offered. He can take the payment admittedly due free of the void condition which the debtor has sought to impose. Take an example: Suppose the defendant had agreed to deliver to the plain- tiff a stipulated quantity of iron for a stipulated price during each month of the year, and after six months the markét price of iron was double that stipulated for in the contract. Suppose further that the defendant on the seventh month sent the stipulated amount of iron but on condition that the plaintiff should pay double the stipulated price, can there be any doubt of the plaintiff’s right to retain the iron without paying the double price? That is to say, can there be any doubt that the condition which required the plaintiff to pay double the contract price for the instalment sent was void and that the plaintiff under those circumstances is not put to an election but can keep the iron under the contract? There can be no doubt on that question in our opinion; and in our opinion the principle of law governing that case governs the case at bar, where the debtor undertook with- out right to impose upon a payment of what was admittedly due a void condition that it be received in full discharge of what was in dispute.?8 28In addition, for a condition that the payment is in full satisfaction to be effective, it must be understood by the creditor to be such a condition. “The defendant claims that the understanding by the creditor of the offer made by the debtor is to be determined by the standard of what a reasonable man would have understood under like circumstances. To a great degree this claim is well founded, but there still remains the duty and obligation to prove, by direct or implied testimony, what the debtor’s intention was, and that the creditor, or the ordinarily reasonable man, under the circumstances, should have understood that intention. But understanding the intention of the debtor and acceptance by the creditor so as to constitute accord and satis- faction are not necessarily one and the same thing, as we have seen in cases already cited. True, if the debtor adds to his intention a condition that, if the creditor accepts, he does so in full settlement of the claim, and, fully under- standing both the intention and the condition, the creditor does accept, then accord and satisfaction are established as a bar to subsequent suit upon the claim. But the ‘proof should be clear and convincing that the creditor did understand the condition on which the tender was made, or that the circum- stances under which it was made were such that he was bound to understand it’ Horigan v. Chalmers Motor Co., supra, [111 Me. 111, 114].” Philbrook, J., in Bell v. Doyle (Me.), 111 Atl. 513, 514 (1920). See also, Alling v. John Vv. Lee & Sons (Ark.), 230 S. ‘W. 1 (1921); Le Doux v. Seattle North Pac. Ship- building Co. (Wash), 195 Pac. 1006 (1921). 1412 CASES ON THE LAW of CoNnTRACTS It follows that in accepting the check in the case at bar as a pay- ment on account, the plaintiff was within its rights and that it has not agreed to accept it in full settlement of the balance of the account. By the terms of the report judgment is to be entered for the plaintiff in the sum of $50.52, with interest from the twentieth day of October, 1911; and it is so ordered. SIGLER v. SIGLER. (Supreme Court. of Kansas, 1916. 98 Kans. 524, 158 Pac. 864, L. R. A. 1917 A, 725.) Action by Ode Sigler against his brother Joseph Sigler on a prom- issory note. Before the action was brought defendant employed one R. C. Wilson to purchase the note and mortgage for defendant as cheaply as possible. Wilson, concealing from plaintiff that he was acting for the defendant, paid the plaintiff $400, for which plaintiff delivered the note and mortgage to Wilson together with a blank assignment of the mortgage in which later Wilson wrote the name of one Hutchison as assignee so that Hutchison might make a formal release of the mort- gage. Plaintiff insisted that the whole transaction amounted in law to nothing more than the payment of $400 on the note, and sued for the balance. Judgment was entered for the defendant, and plaintiff ap- pealed. Affirmed. Porter, J.24 * * -* The plaintiff relies upon the rule that an agreement to accept part in satisfaction of the whole of a liquidated de- mand is invalid because without consideration. Bridge Company v. Murphy, 13 Kan. 35; St. L., Ft. 8S. & W. R. Co. v. Davis, 35 Kan. 464, 11 Pac. 421. The reason for the rule is that there is no consideration for the release of the remainder of the debt, as the debtor gives no more then.he is bound to give and the creditor accepts no more than he is entitled to receive. * * * In a number of states it has been en- tirely abrogated or modified by statute. Courts generally refuse to apply the rule where the technical reasons for doing so do not exist (Brooks and Another v. White, supra; Harper v. Graham, 20 Ohio, 105, 115), and have recognized numerous exceptions to it, for instance, the payment of a part before due, or at a place other than that where the obligor was legally bound to pay, or a payment in property, regardless of its value, or by the debtor in composition with his creditors generally by which they agree to accept less than is due them, is held to create a consideration which is sufficient. The rule quite generally followed is that any additional consideration, however small, will support the 24 The statement of facts is summarized from the statement in the opinion and parts of the opinion are omitted. THe DIscHARGE OF ContTRACcTS 1413 new agreement, provided only it be such that in law it is sufficient to support an ordinary contract and consist of something which the debtor was not legally bound to do or give. Bryant v. Proctor, 53 Ky. (14 B. Mon.) 451. * * * One established exception to the rule is that pay- ment by a third person of a sum less than the amount due, with the understanding that it shall be in full payment, is held to be an accord and satisfaction. A very thorough discussion of the subject of accord and satisfaction will be found in an elaborate note in 100 Am. St. Rep. 390-456. The author of the note, referring to the technical distinction drawn by the earlier cases, says: ‘‘The strictness of the rule undoubtedly worked many hardships in preventing a creditor, who needed the money, from making an accord and satisfaction with his debtor or in preventing a debtor who might be temporarily embarrassed from settling with his creditor for less than the fixed amount of his debt. Hence the courts, though bound by prec- edents, from time to time enlarged the exceptions to the rule, so that now the exceptions might almost be said to form the rule itself.’’ Page 430 of 100 Am. St. Rep. There was great lack of harmony in the earlier decisions on the ques- tion whether part payment made by a stranger to the transaction to which it relates could be pleaded as accord and satisfaction. The Eng- lish and many of the early American cases held that a satisfaction given by a stranger is not good because he is in no respect a privy to the original contract. The leading English cases to that effect are Grymes v. Blofield, 1 Croke’s (89 Eliz.) 541, and Edgecombe v. Rodd and Others, 1 Smith, 515, 5 Hast, 294. The doctrine of Grymes v. Blo- field, was followed in the United States by Clow v. Borst, 6 Johns. (N. Y.) 37, and by a number of other courts. In Leavitt and Lee, Executors of Hans Wilson, Dec’d, v. Morrow, 6 Ohio St. 71, 67 Am. Dec. 334, the doctrine that a satisfaction is no defense if it accrue from a stranger is discussed, and the older cases are criticized. In the opinion it was said: “But mere precedent alone is not sufficient to settle and establish forever a legal principle. Infallibility is to be conceded to no human tribunal, A legal principle, to be well settled, must be founded on sound reason, and tend to the purposes of justice. * * * Precedents are to be regarded as the great storehouse of experience, not always to be followed, but to be looked to as beacon lights in the progress of judicial investigation, which, although at times they may be liable to conduct us to the paths of error, yet may be important aids in light- ing our footsteps in the road to truth, * * * The rule laid down is purely technical; and the reason assigned, that the stranger is not privy to the condition of the obligation, loses all its reality when we con- sider that the satisfaction must have been accepted by the plaintiff, and assented to or ratified by the defendant. It would seem, therefore, 1414 CASES ON THE LAw oF CONTRACTS that a rule which in its tendency is calculated to foster bad faith and defeat the purposes of justice ought not to be adhered to simply on account of its antiquity.’’ Pages 78, 80, of 6 Ohio St., 67 Am. Dec. 334, The Ohio case was approved in Harvey v. Tama County, 53 Iowa, 228, 233, 5 N. W. 130, and cited in Wellington v. Kelly et al., 84 N. Y. 548, 547, as having materially criticized and limited Grymes v. Blofield, supra. In Snyder v. Pharo (C. C.) 25 Fed. 398, it was held that: ‘‘Satisfaction of a debt by the hands of a stranger is good when made by the authority of or subsequently ratified by the defendant; and the fact of pleading it will be sufficient evidence of ratification.’’ Head- note, par. 2. In Jackson v. Pennsylvania, R. R. Co., 66 N. J. Law, 319, 49 Atl. 730, 55 L. R. A. 87, it was held that an accord between the plaintiff and a third person and satisfaction moving from such third person to the plaintiff, who accepts and retains it, are available as a defense if the defendant has either authorized or ratified the settlement. After a full consideration of the early authorities, English and American, on the question of accord and satisfaction entered into by a third person, it was said in the opinion: ‘‘The tendency of the American decisions is strongly in favor of sup- porting a satisfaction moving from a third person, when such person either had authority to make it, or the act was followed by ratification. and the article received in satisfaction was retained. * * * The reason of the rule is simple. On the one hand, no party can be deprived of a right by mere payment by a volunteer. On the other hand, since a party is entitled to only one satisfaction, his acknowledgment that he has received it, and his retention of it, operate to extinguish his right.’’ Pages 325, 326 of 66 N. J. Law, page 732 of 49 Atl. [55 L. RB. A. 87]. In Crumlish’s Adm’r v. Cent. Imp. Co., 38 W. Va. 390, 18 S. E. 456, 23 L. R, A. 120, 45 Am. St. Rep. 872, there is a review of the English cases and the early New York cases, as well as the later American cases, and attention is called to the fact that in Wellington v. Kelly et al., 84 N. Y. 548, the old cases were doubted. In the opinion it was said: “It seems utterly unjust and repugnant to reason that a creditor accepting payment from a stranger of the third person’s debt should be allowed to maintain an action against the debtor pleading and there- by ratifying such payment, on the technical theory that he is a stranger to the contract. The creditor has himself, for this purpose, allowed him to make himself a quasi party, and consents to treat him so, so far as payment is concerned. To regard the debt paid, so far as he is _ concerned, is but to hold him to the result of his own act. Shall he collect the debt again? In that case can the stranger recover back? What matters it to the creditor who pays? As the Supreme Courts of Wisconsin and Ohio in eases above cited said, this doctrine is against THE DiscHarGeE OF Contracts 1415 common sense and justice.’’ Page 396 of 38 W. Va., page 458 of 18 S. E. [45 Am. St. Rep. 872, 23 L. R. A. 120]. a Harrison v. Hicks, 1 Port. (Ala.) 423, 27 Am. Dee. 638, it was said : “The payment of a debt, although it be made by one who is not a. party to the contract, and although the assent of the debtor to such payment does not appear, is still the extinguishment of the demand.’’ Syl. par. 2. No cases have been cited in the brief which involved facts at all similar to the case at bar. Our own research has resulted in finding but two cases which are at all analogous. In Shaw vy. Clark, 6 Vt. 507, 27 Am. Dee. 578, where a judgment debtor furnished the money to a third person to purchase a judgment from the creditor who accepted a less sum than the face of the judgment, it was said in the opinion: ‘‘As the sum paid was really the money of the debtor and paid over by his agent it is the same as if paid by himself.’’ Page 508 of 6 Vt. 27 Am. Dee. 578. The court held it to be quite obvious that the act of a debtor in furnishing funds to a third person to buy up his debts at a discount is so far fraudulent as to render the sale voidable at the election of the creditor. This case was decided in 1856. A case to the contrary is Gordon v. Moore, 44 Ark. 349, 51 Am. Rep. 606, where the facts were in some respects similar to those in the pres- ent case, and it was held that an agreement by a creditor to accept from a third person, in behalf of the debtor, a smaller sum in satisfaction of the whole is valid and binding and will discharge the debt. In the opinion it was said that the consideration is that the creditor gets, or is assured of getting, what perhaps the debtor might never pay, and that ‘‘it cannot alter the nature of the case that the debtor repaid the advanece.’’ Page 355 of 44 Ark., 51 Am. Rep. 606. In R. C. L. 182, it is said: ‘“‘The modern and better rule is that an accord and satisfaction, made with one who is a stranger to the transaction to which it relates, is good, and will bar an action on the claim involved, if the person against whom the claim was made has either authorized or ratified the settlement.’’ The author concedes that there are authorities which hold to the con- trary supported by some of the earlier American cases and the Eng- lish authorities, but adds that: ‘Tt requires powers of discrimination looking far beyond the justice of the case to see the reason of this rule. The reason assigned by some of the early adjudications is that the person from whom the accord and satisfaction comes is not privy to the contract giving rise to the debt. This reason might give just cause to the creditor to refuse to receive the satisfaction from a stranger, or third person, not known in the transaction of the parties, even as agent of the debtor, but, when the creditor has actually received and accepted the contribution in sat- 4 1416 Cases on tHE Law or Contracts isfaction of the debt, to allow him to maintain an action on the same debt afterward would seem to shock the ordinary sense of justice of every man.’’ Page 182. In 1 Cye. 317, it is said: “But in order that the act of the stranger operate as a satisfaction of the debt or demand it must have been authorized by the debtor or subsequently ratified by him.’’ Formerly an exception to the rule was always made in a case where a release under seal was given with part payment on the theory that a release under seal implies a consideration. But this exception to the rule finds no room for application in those jurisdictions where, as in this state, the distinction between sealed and unsealed instruments has been abolished. Gen. Stat. 1909, § 1648; 1. J. 548. From the foregoing authorities) it seems firmly established that a debtor may authorize and employ a third person as his agent to make a satisfaction of his debt;. that where he does so, and the money is advanced by the third party and accepted by the creditor in satisfac- tion of the debt, it is a good accord and satisfaction. This is so even where the third party makes the payment without the Mebtor’ s knowl- edge, if the latter afterward ratify the action.*5 Did the concealment by Wilson of the fact that he was acting for the defendant destroy the effect of the payment,.or, in other words, must there be knowledge on the part of the creditor that the payment is made on behalf of the debtor before it will constitute an accord and satisfaction? It was held that an accord and satisfaction is: “The result of an agreement between the parties, and, like all other agreements, must be consummated by a meeting of the minds of the parties, accompanied by a sufficient consideration. If the cred- itor is to be held to abate his claim against the debtor, it must be shown that he understood that he was doing so when he re- ceived the claimed consideration therefor.’’ MHarrison v. Henderson, 67 Kan. 194, 200, 72 Pac. 875, 62 L. R. A. 760, 100 Am. St. Rep. 386. 26 “It may be laid down as incontestible, as a general thing, that where one man is indebted to another and a third person steps in and pays the debt, in the absence of all circumstances tending to show the contrary, the rational inference would be that the act done, being for the debtor’s benefit, was done with his consent, or, if without his knowledge at the time, that it would, as a matter of course,.be ratified by him afterward. If in such a case the creditor should subsequently bring suit against the debtor, and the debtor should ap- pear in the action and plead the satisfaction in discharge of his liability, I cannot conceive upon what just and rational ground the creditor could be allowed to reply that his debt was not discharged because the satisfaction which he had accepted in discharge of it -was without the consent of the defendant. The very fact of the satisfaction being set up in the action by the defendant in discharge of the debt would, of itself, seem sufficient to conclude the plaintiff from denying that it had received the defendant’s consent or ratification.” Bartley, C. J., in Leavitt v. Morrow, 6 Oh. St. 71, 76-77 (1856). THE DiscHarGE or ConTRACTS 1417 And in Matheney v. El Dorado, 82 Kan. 720, 109 Pac, 166, 28 L. R. A. (N. 8.) 980, it was ruled that: “To constitute an accord and satisfaction, the agreement that a smaller sum shall be accepted in discharge of a larger one originally claimed must have been entered into by the parties understandingly and with unity of purpose.’’ Syl. par. 1. But the extent of the doctrine there declared is merely that the smaller sum must not only have been offered, but it must have been accepted with the understanding that it was in full satisfaction of the iarger amount claimed. The plaintiff certainly understood that he was accepting the $400 in full satisfaction of all hig interest in the note and mortgage. It is difficult to see how his rights were affected in the slightest by his failure to know and understand that Wilson was act- ing as the agent of the debtor, because, as we have seen, the weight of authority is that a payment of a part by a stranger, who may have acted without the knowledge or consent of the debtor, will, if accepted by the creditor and afterwards ratified by the debtor, constitute a full accord and satisfaction. Section 126 of the negotiable instruments law (Gen. Stat. 1909, § 5372) enumerates the various ways in which negotiable instruments may be discharged, among which is ‘‘(5) when the principal debtor becomes the holder of the instrument at or after maturity in his own right.’’ The phrase ‘‘in his own right’’ has been construed to exclude a case where a maker acquires the instrument in a purely representa- tive capacity. Bank v. Dryden, 91 Kan. 216, 137 Pac. 928. There it was held that the note is not discharged when the maker acquires it as agent for another. Nor is it discharged when the maker becomes the holder, for example, as executor or administrator. See Crawford’s Ann. Neg. Inst. Law (Revised Uniform Ed.) p. 195, and cases cited. Did not the debtor in this case become the holder of the instrument after maturity in his own right? Whether we consider the transaction as one in which he furnished the money in the first instance to purchase the note through his agent, Wilson, or as one in which Wilson first purchased it with his own funds and subsequently, upon being reim- bursed by defendant, transferred it to him, it would seem to be clear that the maker became the owner in his own right, unless there be some principle of law which forbids a debtor to purchase his own debt. The holder of the note was willing to part with all his interest in it upon payment of $400, and accepted in full consideration for his interest that sum from one whom he believed to be the purchaser and surren- dered the note and security. How are his rights as a holder affected in any manner by the subsequent transfer of the note to the maker? Promissory notes, both before and after maturity, are negotiable and transferable, and the exigencies of business aud trade demand the ex- tension rather than the restriction of these qualities. We fail to find any showing of fraud in the transaction by which 1418 CASES ON THE LAW oF CONTRACTS plaintiff was induced to transfer the note to Wilson, unless it must be said as a matter of law that the transaction was fraudulent because it amounted to a purchase by the defendant of his own debt, and be- cause the plaintiff supposed he was dealing with Wilson. * * * It certainly does no violence to the presumed intention of the par- ties to hold him [plaintiff] to the result of his own act in accepting the $400 with the understanding, at least, that he was parting with all his interest-in the note, and that, so far as he was concerned, the sum he received was to be in full payment of his claim. So far as shown by the evidence or findings, the money actually received by the plaintiff was advanced by the third party. Plaintiff, therefore, received some- thing he might not otherwise have received; and applying the rule that any benefit or advantage accruing to the creditor, however slight, is a ‘sufficient consideration to support the agreement, we think it must be held that a consideration was shown in this case. The rule that a pay- ment of a lesser sum, accepted with the understanding that it shall be in full discharge of the entire debt, will not bar an action to recover the balance unless made upon a new and distinct consideration rests rather upon technical considerations than upon common sense, and the strict adherence to it has often resulted in preventing justice and the enforcement of the real intent of the parties. As we have seen, the modern tendency of the courts is to enlarge the exceptions to the rule in order to avoid its harshness, and to enforce settlements, adjustments, and compromises. It is always necessary that the minds of the debtor and creditor meet upon the proposition that the receipt of the lesser sum shall extinguish all right on the part of the ereditor to exact fur- ther payment. Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875, 62 L. R. A. 760, 100 Am. St. Rep. 386; Matheney v. El Dorado, 82 Kan. 720, 109 Pac. 166, 28 L. R. A. (N. 8.) 980. When it is shown that the minds of the parties, whether acting by and for themselves as prin- cipals, or through others as agents, have met and agreed upon this point, the courts should reach out and seize upon any possible or probable benefit to the one, or loss or inconvenience to the other, which may be said to constitute a consideration for the new agreement, and thus carry into effect the understanding of the parties. * * * So far as the record shows, the $400 was advanced by a third party. It was entirely satisfactory to plaintiff until he learned subsequently that Wilson had been acting in behalf of his [plaintiff’s] brother, when he attempted to repudiate the transaction, but retained the payment. Property of all kinds, real and personal, is purchased every day by agents for undisclosed principals. Why may not an individual pur- chase and become the owner of the evidence of his indebtedness? It is a common practice for the state, for cities and other municipalities, as well as for private corporations, to purchase their own bonded indebt- edness. We have been cited to no principle of law, and are not aware of any, which would prevent an individual from going into the market THE DiscHarGE or Contracts 1419 and purchasing, at a discount or otherwise, securities upon which he is indebted and which he has put in circulation. If he may do this him- self, he may accomplish the same thing by an agent who acts without disclosing the agency. We think * * * that upon the facts plaintiff cannot maintain the action to recover on the note. * * * The judgment will be affirmed.26 ; FORD v. BEECH. (Court of Exchequer Chamber, 1848. 11 Q. B. 852.) Parke, B.t This is a writ of error brought to reverse a judgment of her Majesty’s Court of Queen’s Bench. The declaration is in assump- sit, and contained five counts. The first count is upon a promissory note, dated 28th May, 1839, made by the defendant, for the sum of £140 and interest, payable to the plaintiff twelve months after date; the second count is also on a promissory note, made by the defendant, for the sum of £200, payable with interest to the plaintiff, two years after date. It is unnecessary to advert to the other counts in the declaration, or to the pleadings connected with them. Judgment has been given upon them for the defendant; and no question arises in respect of that judgment. The defendant pleaded to the first count that he did not make the note therein mentioned, and the like plea to the second count. Upon these pleas issues were joined, and verdicts have been found upon them for the plaintiff. The defendant also pleaded, to both the first and second counts, that, after the making of the notes in those counts re- spectively mentioned, and after the same notes respectively became due, it was agreed between the plaintiff, the defendant, and one Alfred Beech that the said Alfred Beech should and would, at the request of the plaintiff, pay to the plaintiff, in trust for Elizabeth Beech, the sum of £200, for her own sole use and benefit, or the sum of £25 per annum so long as the sum of £200 should remain unpaid, which sum of £25 should be paid quarterly as therein mentioned; and that the rights and causes of action of the plaintiff upon and in respect of the said two several notes should be suspended so long as the said A. B. should continue to pay the said sum of £6 5s. every quarter; the payments to commence as therein set forth. The plea proceeds to aver that the said A. B. duly paid the annual sum of £25 quarterly according to the 26See Hirachand Punamchand v. Temple, [1911] 2 K. B. 330, quoted from in note 19, ante, this chapter. + The statement of the procedural history of the case and part of the opinion are omitted. 1420 Cases on THE Law or Conrractrs agreement. The plaintiff in his replication to this plea traversed the allegation of the payments alleged to have been made by Alfred Beech of the annual sum of £25; and a verdict was found for the defendant upon the issue joined upon that traverse. And judgment having been given by the Court of Queen’s Bench for the defendant upon the ver- dict so found, the present writ of error has been brought to reverse that judgment, upon the ground that, non abstante veredicto upon the matters in that plea, judgment ought to have been given for the plain- tiff upon both the first and second counts. The plaintiff has brought . his writ of error, praying for a reversal of this judgment. And, upon the argument before us, the learned counsel for the plain- tiff has contended that the plea of the defendant to the first and second counts of the declaration is bad, and sets forth no matter which is in law a bar to his right of recovery upon those counts. Upon the part of the plaintiff, the validity of the agreement mentioned in the plea is not denied; but it has been insisted in the argument before us, that the agreement does not in point of law operate as a suspension of the plain- tiff’s right of action or power to sue for the recovery of the notes men- tioned in the first and second counts in the declaration; and that the plea which sets up the agreement in bar of the present action is bad, and furnishes no answer to the action, although such an agreement may give the defendant a claim to damages by reason of the plaintiff suing in breach of it, The defendant, on the other hand, has contended before us that the legal operation of the agreement is to suspend the plaintiff’s. right of action so long as A. B. shall continue to make the quarterly payments; and such agreement has therefore been well plead- ed in bar. The question for the decision of the court is, therefore, what is the legal effect of the agreement between the parties set forth in the plea,—that is, whether the agreement operates as a légal suspen- sion of the plaintiff’s right to sue upon the notes so long as A. B. shall continue to make the quarterly payments, or whether the effect of the agreement is limited to the rendering the plaintiff liable to an action for damages in the event of his suing contrary to its terms. In adjudicating upon the construction and effect in law of this agree- ment, the common and universal principle ought to be applied; namely, that it ought to receive that construction which its language will admit, and which will best effectuate the intention of the parties, to be col- lected from the whole of the agreement, and that greater regard is to be had to the clear intent of the parties than to any particular words which they may have used in the expression of their intent. And applying this rule, the question is, what sense and meaning must be given to the word ‘‘suspended,’’ used by the parties. It is quite clear that it was not the intention of the parties that the agreement should have the effect, from the moment of its being signed, of utterly and forever and in all events extinguishing the plaintiff’s claim and demand upon the notes, and of ever maintaining an action for the recovery; or, in other THe DiscHaraE or ConTRActs 14.21 words, that it should operate as a release of the money due upon them. This is plain from the words which import that the plaintiff might sue upon the notes when A. B. should cease to make the quarterly pay- ments mentioned in the agreement. It is a very old and well-established principle of law that the right to bring a personal action, once existing and by act of the party sus- pended for ever so short a time, is extinguished and discharged, and can never revive. It is said in Platt v. The Sheriffs of London, Plowd. 35, 86: ‘“‘And if a personal thing is once in suspense, or the person of a man once discharged for a personal thing, it is a discharge for- ever.’? And in Lord North v. Butts, 2 Dyer, 139 b, 140 a, (39), it is said: ‘‘A thing personal or suspended, or action personal suspended for an hour, is extinct and gone forever, when it is by the act and consent of the party himself who has the thing suspended.’’ And in Woodward v. Lord Darcy, Plowd. 184, it is said: ‘‘For a personal action once suspended by the act or agreement of the party is always extinct; and then if a personal thing cannot be had but by action, if the action is extinguished, the thing itself is extinguished.’’ The principle thus laid down is repeated throughout the text-books of authority, and recognized and applied through a long course of decision. And in Cheetham v. Ward, 1 Bos. & P. 630, 633, it is said by Lord Chief Justice Hyre that the principle is ‘‘now acknowledged that where a personal action is once suspended by the voluntary act of the party entitled to it, it is forever gone and discharged.”’ To construe the agreement, therefore, to operate as a legal suspension or bar of the plaintiff’s right to sue until the quarterly payments should cease, would have the effect of precluding him from ever suing at all, and of giving to the agreement the effect of an immediate release of the demand upon the notes, and an extinction of the debt. It follows that giving such meaning and effect to the word ‘‘suspended,’’ used in the agreement, would be contrary to the intention of the parties; and it is a well approved rule of law that, where parties have used language which admits of two constructions, the one contrary to the apparent general intent and the other consistent with it, the law assumes the latter to be the true construction. * * * Applying the rules of construction before referred to to the present case, and in order best to effectuate the intention of the parties, it is necessary to construe the agreement to mean that the plaintiff agreed to forbear his suit until the quarterly payment should cease to be made; and that the effect of such agreement on his part was, not to suspend his right of action in the meantime, but to subject him to an action for damages in the event of his suing contrary to his agreement. The general doctrine of suspension of personal actions appears to be applicable to cases where persons have, by their own acts, placed them- selves in cireumstances incompatible with the application of the ordi- nary legal remedies ; the cases generally referred to in the books being 142° Cases ON THE Law or Conrracts where the party to pay and to receive have become identical, or where the same person was necessary to be joined at once both as plaintiff and defendant, which by law cannot be; such as a creditor making his debtor his executor, or debtor making his creditor executor, or debtor and creditor marrying, or similar cases of incapacity to sue, as to which the authorities are numerous. Cee Co. Litt. 264 b, also Butler’s note, ib. 209; Woodward v. Lord Darcy, Plowd. 184; Sir. J. Nedham’s case, 8 Rep. 135 a; Dorchester v. Webb, Cro. Car. 872; Wankford v. Wankford, 1 Salk. 299; Freakley v. Fox, 9 B. & C. 180; 2 Williams on Executors, 1124 (4th Ed.). The only case in which a covenant or promise not to sue is held to be pleadable as a bar, or to operate as a suspension, and by consequence a release or extinguishment of the right of action,’ is where the covenant or promise not to sue is general, not to sue at any time. In such cases, in order to avoid circuity of action, the covenants may be pleaded in bar as a release (note (1) to Fowell v. Forrest, 2 Wms. Saund. 47 gg), for the reason assigned that the damages to be recovered in an’ action brought for suing contrary to the covenant would be equal to the debt (Smith v. Mapleback, 1 T. R. 441, 446) or sum to be recovered in the action agreed to be forborne. Accordingly, in Deux v. Jefferies, Cro. Eliz. 352, in debt on obligation, the defendant pleads that the plaintiff covenanted that he would not sue before Michaelmas; it was resolved, upon demurrer, for the plaintiff, for that it was only a covenant not to sue, and should not enure as a release, nor could be pleaded in bar, but the party was put to his writ of covenant, if sued before the time. ‘‘But if it had been a covenant that he would not sue it at all, there peradventure it might enure as a release, and to be pleaded in bar, but not here; for it never was the intent of the parties to make it a release.’’ And there are other authorities to the like effect. The agreement in the present case, though not under seal, being founded upon a good consideration, may be argued to be equivalent in effect to a covenant, but cannot have a greater effect; and, in the modern case of Thimbleby v. Barron, 3 M. & W. 210, it was held that a covenant not to sue for a limited time for a simple contract debt could not be pleaded in bar to an action for such debt. In that case the plaintiff had covenanted that he would not before the expiration of ten years demand or compel pay- ment of certain sums of money, nor would take any means or proceed- ings for obtaining possession or receipt of the same. Lord Abinger, C. B., said: ‘‘The breach of the agreement to forbear suing renders the party liable in damages, but it is not pleadable in bar ;’’ and Parke, B., said: ‘‘The books are full of authorities’’ against the defendant, and referred to Ayloffe v. Serimpshire, Carth. 63 s. c. 1 Show. 46: judgment for. plaintiff. In 1 Roll, Abr. 939, tit. Extinguishment (L), pl. 2, it is said that, if the obligee covenant not to sue the obligor before such a day, and if he do, that the obligor shall plead this as an acquittance, and that the obligation shall be void and of none THE DISCHARGE OF CONTRACTS 1423 effect, this is a suspension of the debt, and by consequence a release. It must be observed that in that case it was expressly covenanted that, in the event of the covenantor suing upon the obligation contrary to his covenant, the obligation should be void, and that the obligor or cove- nantor should plead the covenant as an acquittance, which, by conse- quence, was a release; the covenant in that case therefore went much beyond a mere covenant not to sue. By holding the plea in question a valid bar, injustice would be done to the plaintiff, who would lose his demand upon the notes, contrary to the intention of the parties; but, by construing the agreement not to operate as a suspension of the plaintiff’s right of action upon the notes, but as giving a remedy to the defendant by a cross-action to recover damages to the extent of the injury sustained by the defendant by the plaintiff suing in breach of the agreement, no injustice is done to the defendant. Nor is such a construction inconsistent with the class of authorities in which matters were allowed to be pleaded in bar in order to avoid circuity of action, because such decisions are limited to cases in which, from the nature of them, the damages to be recovered must be sup- posed to be equal in both actions: Smith v. Mapleback, 1 T. R. 441, 446; which does not apply to the present instance, as the damages to which the defendant could be entitled as against the plaintiff, by reason of his suing upon the notes before a discontinuance of the quarterly pay- ment, can in no view be assumed to be equal to the plaintiff’s demand. Neither is the decision in this case inconsistent with the several cases in which it hag been held that a party accepting a negotiable security payable in future for and on account of an antecedent demand cannot, until after such negotiable security has become due and been dishonored, sue for such antecedent demand; because, independently of the consid- eration of how far the acceptanecy of such negotiable security may be deemed payment for the time, all such decisions seem to be grounded upon the peculiar nature of the negotiable instruments, and are deemed to be necessary exceptions to the general rules of law, in favor of the law-merchant. See note (c) to Holdipp v. Otway, 2 Wms. Saund. 103 6b (6th Ed.). The case of Stracey v. The Bank of England, 6 Bing. 754, was cited on the defendant’s behalf, as an authority to the effect that a right to bring.a personal action may be suspended by agreement, without oper- ating as a release or extinguishment. But, upon examination, it will be found probably not to be an authority bearing upon the point. The action was brought to recover damages for an alleged breach of a public duty in not making a transfer, upon request, of certain stock to which the plaintiffs were entitled ; and the defendants insisted that the plain- tiffs had for good consideration agreed not to make such request until they had themselves done certain acts; and alleged that the plaintiffs, contrary to their agreement, made the request, for the noncompliance 1424 Casgs ON THE Law ar Contracts Bik with which they brought their action, before they had done those acts; the defendants therefore contended that such noncompliance was no breach of duty on their part. There was no right of action suspended by the agreement, as it is clear from the case that no request had ever been made to the bank to transfer the stock, and no means had ever been given to enable the bank to do so, no name of a transferee having been given at the time when the agreement was made, nor for a long time afterwards ; consequently the only right of action the plaintiffs ever asserted was a right founded upon a request made long after the agree- ment. The decision, therefore, was, not that any existing right of action was suspended by the agreement, but that the plaintiff suspended his right to call upon the defendants to make a transfer until after he had done the acts mentioned in the agreement. And, although the expression of suspending an action was used, perhaps inaccurately, yet it is plain that they referred to the right to call for the transfer of stock, and to that only. At all events, as a decision upon the point for which the case was cited, it could-not be supported, as it would be inconsistent with an undoubted principle of law and an undeviating course of authority. In the result, we are of opinion that the plea in question is bad in substance, and that the judgment which has been pronounced upon it in favor of the defendant must be reversed, and a judgment entered for the plaintiff, non obstante veredicto, upon the confession and insuffi- cient avoidance in the plea. Judgment accordingly. STEEDS anp Anotiurr v. STEEDS anp ANOTHER. (High Court of Justice, Queen’s Bench Division, 1889. 22 Q. B. D. 587.) Wis, J.27 The plaintiffs in this case sue for a sum of money alleged to be due for principal and interest on a bond made in their favor by the two defendants. One of the defendants pleads that he delivered to one of the plaintiffs certain stock and goods which were given by him and accepted by the said plaintiff in satisfaction and discharge of the money due upon the bond. The other defendant pleads that he executed the bond as surety and was discharged by the transaction set up by the first. defendant. The plaintiffs apply to have this defence struck out, as being no answer to their claim. The same question arises as to both defendants, and is shortly whether in respect of a bond given by C. to A. and B., accord and satisfaction made by C. to A. after the cause of action had arisen, and accepted by A., is an answer to the claim of A. and B. On behalf of the plaintiffs two objections are raised. 1. That in respect of a specialty debt, accord and satisfaction of the cause of 27 The statement of the pleadings is omitted. THE DIscHARGE oF ConTRACTS 1425 action by the person or persons liable is no more an answer to the action in equity than it is at law. 2. That even if it would be so, were the bond made in favor of A. alone, accord and satisfaction with A. is no answer in equity to the action by A. and B. It is clear that at law accord and satisfaction of a debt due upon a bond is no bar to the action. This is, however, purely the result of a technicality absolutely devoid of any particle of merits or justice, viz., that a contract under seal cannot be got rid of except by performance or by a contract also under seal; so that supposing it had really been the case that in satisfaction of an overdue bond for £1,000 the person liable had given property worth £2,000, which had been accepted in discharge of the obligation, still at law the obligee of the bond might recover his £1,000 without returning the property. One would have thought that if the Courts of Equity ever interfered at all to prevent a man from enforcing an wnconscientious and dishonest demand to which there was no answer at law, they would perpetually restrain an action brought under the circumstances described. Mr. Wood, however, who is an equity lawyer, contended before us that this was a case in which equity would follow the law, and would refuse to interfere, and he laid great stress upon a case of Webb v. Hewitt, 3 K. & J. 488, which he said established that proposition. We are glad to say that we are unable to agree with him, and that we think he has done injustice to a system of which one recommendation has been supposed to be that it was, sometimes at all events, competent to cor- rect some of the worst and most odious technicalities of the common law. The case cited appears to us to lead to the opposite conclusion to that contended for, and we think it perfectly clear that the ratio dect- dendi of the learned Vice-Chancellor was, that when the plaintiff had accepted money’s worth in place of money in discharge of the bond, the debt in equity was gone and there was an end of it. Upon the first point, therefore, we are against Mr. Wood, [counsel for the plaintiffs,] and have no doubt that if payment to one of the plaintiffs would have been an answer, the delivery to him and acceptance by him of goods in satisfaction of the debt would be equally an answer. But Mr. Wood is, we think, right in saying that, as the defence is an equitable one, it is equally necessary to establish that payment by C., the obligor, to A., the latter being joint obligee with B., would in equity be an answer to the claim by A. and B. on the bond. We cannot fol- low Mr. Bullen’s argument [as counsel for the defendants] that as equity would treat the satisfaction as equivalent to payment, having got so far, he is at liberty to discard any further reference to equity, and say that as at common law payment to or release by A. would prevent A. and B. from suing, he is now in a position to treat A. as having been paid, and say that as this is a common law action there is the equivalent to a common law defence. If he is obliged to resort to equity for his defence, he must take the equitable principles applicable to the eircum- 1426 CasEs ON THE LAw or ConTRACTS stances in their entirety ; and we must therefore inquire what is the rule in equity with respect to payment to one of two co-obligees or co-creditors. The reason why the defence is a good one at law is that the two creditors are treated as having a joint interest in the debt, with its meident of survivorship, and the satisfaction to one of the parties of a joint demand due to himself and others puts an end to the joint de- mand, and he cannot afterwards, by joining the other parties with him as plaintiffs, recover the debt; nor can a right of action be supposed to exist which, if it existed, might survive to the very. person who had already received full value. Wallace v. Kelsall, 7 M. & W. 264. In equity, however, it would appear as if the general rule with regard to money lent by two persons to a third was that they will prima facte be regarded as tenants in common, and not as joint tenants, both of the debt and of any security held for it. Petty v. Styward, Eq. Ca. Abr. 290; Rigden v. Vallier, 2 Ves. Sen. 258, cited in the notes to Lake v. Craddock, 1 White & Tudor, 5th ed. 208. ‘‘Though they take a joint security,’’ says Lord Alvanley, M. R., ‘‘each means to lend his own money and to take back his own.’’ Borley v. Bird, 3 Ves. 631. Where a mortgage debt has been paid to one of the mortgagees, accordingly, it was held that the land was not discharged, and that the concurrence of the other mortgagees was necessary to make a good title. Matson v. Dennis, 10 Jur. (N. s.) 461, 12 W. R. 926. This is on the ground that the debt is held by the two in common and not jointly, and the principle seems to us equally applicable whether the debt is secured by a mortgage or is merely the subject of a personal contract. The prin- cipal right of-a mortgagee is to the money, the estate in the land is only an accessory to that right. It is obvious, however, that this proposition cannot be put higher than a presumption capable of being rebutted. If the money, sup- posing it to have been lent, were trust money, the presumption of a tenancy in common on the part of the two trustees could not, as it seems to us, arise. Survivorship is essential for the purpose of trusts, and so there may be a variety of circumstances which may settle the question either one way or the other. In the present case we do not even know whether the bond was for money lent, or what was the groundwork of the obligation, and it is clear that if the presumption is that the interest in this obligation belonged in equal portions in severalty to the two plaintiffs, the plaintiff who was settled with by the accord and satisfaction has been paid his half, at all events, and it can- not be recovered again in this action. We think, therefore, that we cannot strike out this defence as we are invited to do. It seems to us that it must be good for a part of the claim at all events. But we think the statement of defence defec- tive, and that Mr. Bullen [as counsel for the defendants] ought to amend by a further statement of the material facts, and our order is that the THe DiscHarGE oF ConTRACTS 1427 statement of defence be amended accordingly, and if that be not done within ten days, the plaintiff be at liberty to sign judgment for half the amount claimed. We trust that upon the amended pleading being delivered the plaintiffs will, if possible, meet it by any necessary addi- tion to or correction of the facts alleged, and not repeat a motion of this kind, which asks the court to do what is to the last degree unsatisfactory, give judgment for a defect of pleading and in ignorance of all the facts which ought to be known before the rights of the parties are definitely adjudicated upon. Both parties are partly responsible for the present motion, and the costs of this appeal will be costs in the cause. Order accordingly.*8 28In Upjohn v. Ewing, 2 Oh. St. 18, 18-19 (1853), Thurman, J., said: “But we are not prepared to say that one or more of several joint creditors, between whom no partnership exists, can release the common debtor so as to conclude their co-creditors who do not assent to such release. It is true, they may defeat an action at law, but it does not follow that a recovery in equity cannot be had. At law, joint creditors must join in the action; and all must recover, or none can. Hence, if part of them are barred, all are. But the forms of equity procedure require no such joinder when justice would be defeated by it. It may be admitted, that, as a general rule, joint creditors cannot, by a division between themselves, acquire a separate right of action against the debtor, either at law or in equity; but where the debtor himself procures the release of a part of them, we do not see how he can object to the others pro- ceeding against him in equity.” On the other hand, in Powell v. Brodhurst, [1901] 2 Ch. 160, 164, Farwell, J., said: “In my opinion, the old rule of common law that payment to one of two joint creditors is a good discharge of the joint debt still remains good. There was no possible conflict of any equitable rule with this, because no bill would lie in Chancery to recover a mere money demand. WNquity, no doubt, had to deal with debts in the administration of the estates of deceased persons and in the liquidation of companies, but in determining whether claims for debts had been discharged or not equity followed the law, and indeed, in cases of difficulty before the Chancery Procedure Act, 1852 (15 and 16 Vict. C 86) ss. 61, 62, sent cases for the opinion of the common law courts. There is nothing inconsistent wtih this in Steeds v. Steeds, 22 Q. B. D. 537. The ques- tion there was whether it was so clear that the debt claimed was joint, that the defense should be struck out and it was held that there was a conflict between law and equity as to the presumption to be drawn from the existence of a security to two without words of severance, and that the rule of equity as to such presumption now prevails: But this was a conflict of presumption whether there was or was not a joint tenancy, and had no relation to the legal consequences flowing from the existence of an admitted joint tenancy. In the present case both sides agree that this is a joint debt, and * * * I take this to be correct. “But the joint debt in this case was not paid to either of the joint creditors, but to the firm of which one of them was a member. Now, payment of a private debt, due to a member of a firm, to the firm of which the creditor is a member will not, in my opinion, support a plea of payment in the absence of evidence, express or implied, that the creditor has authorized the receipt of the money by the firm as his agents.” 1428 Cases on THE Law or Conrracts WILLIAM M. GRIFFIN v. JOHN H. CUNNINGHAM. (Supreme Judicial Court of Massachusetts, 1903. 183 Mass. 505, 67 N. E. 660.) Contract to recover for lumber furnished by Griffin, the plaintiff, to one Griffiths, a contractor, for the purpose of making alterations. on a house owned by Cunningham, the defendant. Griffin proposed to bring a suit against Griffiths, and the three parties entered into an agree- ment by which Cunningham promised to pay Griffin the amount of his bill against Griffiths, if Griffiths approved the bill, payment to be made direct to Griffin. Verdict for plaintiff, and defendant excepts. Exceptions overruled. Brauey, J. If the promise made to the plaintiff by the defendant was nothing more than an oral agreement on his part to pay any bal- ance due to Griffiths that remained after a settlement of liens for labor, the undertaking was collateral, as the original debt owed by Griffiths to the plaintiff was not extinguished. Amd as it is not claimed that the defendant derived any benefit from the arrangement, the statute of frauds on which the defendant relies would be a full defense. Curtis v. Brown, 5 Cush. 488; Manley v. Geagan, 105 Mass. 445; O’Connell v. Mount Holyoke College, 174 Mass. 511, 514, 55 N. E. 460. But there was something more. What the parties agreed to was in dispute. And as the case is before us on a refusal to rule that upon all the evidence the plaintiff could not recover, it becomes necessary to determine whether there was any evidence to sustain the verdict. The plaintiff puts his case on a substitution of debtors, and his evi- dence in substance tended to prove that Griffiths, who was owing him a large amount for lumber that had been used in reconstructing a house belonging to the defendant, with whom Griffiths had a contract to fur- nish materials and do the work, agreed that the balance coming. to him under the contract should be paid by the defendant to the plaintiff in settlement of his bill for the lumber, and that the defendant, at whose suggestion the arrangement was made, assented to the substitution, and promised to pay the plaintiff the balance remaining due under the con- tract after the settlement of any liens for labor. Relying on this agree- ment, and in consequence of it, the plaintiff released Griffiths, his original debtor, and looked to the defendant solely for the payment of his bill. The question is, what was the intention of the parties? and, in order to determine the character of the transaction, all the cireum- ‘stances are to be considered. The substitution sought to be accomplished was a change of debtors to the extent of the. plaintiff’s claim against Griffiths, and it was not necessary that the whole indebtedness of the defendant to Griffiths, if it’ exceeded the amount of the plaintiff’s bill, should have been discharged. But the arrangement between the parties was enough under the evidence in this case to fully discharge the defendant from any liability under Tun Discuarar or Contracts 1120 the building contract, as there was no contention that the amount due the plaintiff from Griffiths was more than the sum finally paid to him by the defendant in the settlement made between them. There was also evidence from which the jury might find that the original debt of Grif- fiths to the plaintiff had been discharged, though this follows if mutual consent to the substitution is proved. Walker v. Sherman, 11 Mete. 170. If the claim of the plaintiff against him had been converted into a claim of the plaintiff against the defendant, it is not necessary to consider the transaction as a possible assignment of a part of the claim of Griffiths against Cunningham, and that in such a case the plaintiff could have relief only in equity. See James v. Newton, 142 Mass. 366, 374, 8 N. E. 122, 56 Am. Rep. 692; Holbrook v, Payne, 151 Mass. 383, 384, 24 N. FE. 210, 21 Am. St. Rep. 456. Under the plaintiff’s evidence, the defendant, by accepting the order of Griffiths, who signed it with the understand- ing that the bill of the plaintiff was to be paid by the defendant, con- tracted not only to pay the debt, but also, as a part of the transaction, undertook that the debt should be paid to the plaintiff, while the plain- tiff at the same time agreed to accept the defendant as his debtor in place of Griffiths. It would not be enough that the defendant accepted the order; he must go further and promise to pay the plaintiff. The consideration for the promise is that the plaintiff, as a part of the com- pleted arrangement, became bound to look solely to the defendant for the money owed him, instead of to Griffiths. If the original debtor did not remain liable, the defendant’s promise was not to answer for the debt of another, and it was not within the statute. Furbish v. Good- now, 98 Mass. 296; Richardson v. Robbins, 124 Mass. 105. For these reasons, the case does not fall within Curtis v. Brown, wbi supra, as argued by the defendant, but is to be governed by Caswell v. Fellows, 110 Mass. 52, 54; Eden v. Chaffee, 160 Mass. 225, 35 N. KE. 675; Trudeau v. Poutre, 165 Mass. 81, 42 N. EK. 508; and Plummer v. Greenwood, 169 Mass. 584, 48 N. E. 782; and is to be distinguished from the line of decisions in which this court has held that a stranger to a simple con- tract, and from whom no consideration moves, cannot sue on it, or en- force a promise made to another for his benefit. Exchange Bank v. Rice, 107 Mass. 37, 9 Am. Rep. 1; Borden v. Boardman, 157 Mass. 410, 32 N. BE. 469, and cases cited; Aldrich v. Carpenter, 160 Mass. 166, 35 N. E. 456. In the case at bar the plaintiff was the promisee, and the contract between him and the defendant gave all the contractual rights provided for his benefit, and had an ample consideration to support it by the re- lease of the original debtor. If there had been no conflict of testimony, and the terms of the alleged substitution of debtors was not in dispute, whether enough had been made out to establish the claimed novation would have been a matter of law for the court. But there were two possible conclusions on the evidence: If the defendant was believed, the plaintiff could not prevail; while if the plaintiff’s testimony was accepted 1430 CASES ON THE LAw or ConrRACTS as true, a complete substitution had taken place, and the defendant was liable. Obviously it could not, be ruled as matter of law that the plain- tiff was not entitled to recover; and, as the case was submitted to the jury under instructions not excepted to, the presumption is that they were full and accurate, and the order must be Exceptions overruled. MOTT GLEASON v. DAVID FITZGERALD, Survivor, Etc. (Supreme Court of Michigan, 1895. 105 Mich. 516, 63 N, W. 512.) Grant, J. July 18, 1889, the defendants made a contract with the Chicago & West. Michigan Railroad Company by which they agreed to lay and ballast the track between Baldwin and Traverse City. The work was to be done under the instruction and supervision of its chief engineer, whose decisions were to be final and conclusive on all matters of dispute. The defendants sublet this work to the firm of Lambert & Van Norman. The contract contained the following provision : -‘“That the said parties of the second part reserve the right to pay off the laborers who work for said first party under this contract, and the said party of the first part, for and in consideration of the sum of one dollar, hereby sells, releases, and assigns unto the party of the second part all moneys and sums of money due to laborers under this contract, and in execution of the same; but it is expressly agreed that the party of the second part assumes no liability to the laborers who do work in execution of this contract, over and above the amount assigned by the party of the first part to the party of the second part, and not over and above the amount due and payable to the party of the first part.’’ Lambert & Van Norman continued for some time to work under the contract. A dispute arose between them, and Lambert & Van Norman finally abandoned it. Lambert & Van Norman, through their time- keeper, gave time checks to their workmen, certifying the number of days’ work performed, the rate per day, the deductions, and balance due, and made payable at Hannah, Lay, & Co.’s Bank, at Traverse City, Mich. Lambert & Van Norman had no money at the bank with which to pay these checks. Plaintiff insists that he purchased these time checks, and made an arrangement by which the defendants agreed to pay them; that he released Lambert & Van Norman from liability; and that a complete novation was effected. It is insisted on the part of the defendants that a novation was not proven, and that before a novation could take place a valid indebtedness must be shown to exist between Lambert & Van Norman and the defendants. It is not necessary, under the facts of this case, to determine whether the defendants were in fact indebted to Lambert & Van Norman. Tue DiscHArGE oF ConTRACTS 1431 They had assigned to the defendants all moneys due from them to their laborers. If, therefore, the defendants had agreed to pay ‘the plaintiff, and he had released Lambert & Van Norman, it is entirely clear that they could not defend upon the ground that they had in fact overpaid Lambert & Van Norman. The statute of frauds has no appli- cation to such case. The evidence on the part of the plaintiff tended to show that he made the agreement with defendants and Lambert & Van Norman, that defendants made the promise to pay with notice that Lambert & Van Norman were to be released, and that these time checks were in fact charged up against Lambert & Van Norman in an account rendered by the defendants. It is unnecessary to review the evidence at length. The question was fairly left to the jury, under proper and explicit instructions, and there was ample evidence to sup- port their verdict. The case is controlled by Mulerone v. Lumber Co., 55 Mich. 622. Judgment affirmed.2® 29See James Barr Ames, Novation, 6 Harv. L. Rev. 184, Lectures on Legal History, 298. “Novation by a change in the form of the obligation, as by the substitution of a specialty for a simple contract, has existed in English law from time immemorial under the name of merger. But our novation by a change of parties, whether by the intervention of a new creditor (novatio nominis) or by the substitution of a new debtor (novatio debiti) is a modern institution. The earliest judicial recognition of the doctrine seems to be the oft-quoted opinion of Mr. Justice Buller in 1759: “‘Suppose A owes B £100, and B owes C £100, and the three meet, and it is agreed between them that A shall pay C the £100: B’s debt is extinguished, and C may recover the sum against A.’” Ames, Lectures on Legal History, 298, While Mr. Justice Buller spoke of novation where there are two debts, there need be only one, as the principal case shows. The essential thing is to get by the agreement a new debtor or a new creditor in place of the old. In Perry & Walden v. Gallagher (Ala. App.), 82 So. 562, 563 (1919), Samford, J., said: “The complaint alleged a previous valid indebtedness due from the original debtor to plaintiff, an agreement of all the parties to the new contract or obligation, an agreement that it was an extinguishment of the old contract or obligation, and a new contract or obligation binding between the parties thereto. It was not necessary to allege a consideration passing to the defend- ants other than the release by plaintiff, at the instance of defendants, of the claim which he held against the original debtor. This was not a promise of the defendants to answer for the debt, default, or miscarriage of another, but was an original undertaking by them, where, on account of their promise, the plaintiff released the claim which he had theretofore held. The complaint was not subject to demurrer interposed. Perry & Walden v. Gallagher (Sup.) 75 South. 396; Hopkins v. Jordan (Sup.) 77 South. 710; McDonnell v. Ala. Gold Life, 85 Ala. 414, 5 South. 120; 20 R. C. L., pp. 367, 368, § 10; Underwood v. Lovelace, 61 Ala. 155; Howard v. Rhodes, 81 South. 362. “Ags has already been seen, it was not necessary to a novation that the defendants should have been actually indebted to plaintiffs original debtor.” In Mills v. McMillan (Fla.), 82 So. 812, 1813 (1919), Ellis, J., said: “A neces- 1 1432 Cases ON THE LAW or CONTRACTS CORBETT v. COCHRAN. (Court of Appeals of South Carolina, 1836. 3 Hill, 41.) Curia, per Haris, J.2° The case made on the trial below seems to be this: Mrs. Pellott being indebted to the plaintiff in the sum of $407.69, on a book account for merchandise, and the account being pre- sented to her for payment, the defendant came to the plaintiff, produced the account, and assumed to pay it in consideration that she should be discharged from the debt. Her account was accordingly credited in full, and the amount was charged to the defendant by his own direction. in the argument here a question has been raised whether Mrs. Pellott was privy to the arrangement by which the defendant assumed the pay- ment of her debt, and whether the credit discharging her was entered with the knowledge and by the direction of the defendant. Both these were questions for the jury. It was only on proof of both that the lia- bility of the defendant arose. And I think that the jury were warranted in the conclusion, that the defendant, when he exhibited Alrs. Pellott’s account, and assumed the payment of it, came from her and with her assent for that purpose. And also that the credit given to her on the books was by the direction of the defendant, and in pursuance of the agreement with him, for his undertaking was to pay her debt in con- sideration that she should be discharged. * * * In relation to the class of contracts we are now considering, where the promise is to pay another's debt, in consideration of his being discharged, it seems to be well settled now, that there need be no consideration moving between the person promised for and the person who promises. * DS * But the exception mainly urged here is that the promise of the de- fendant was without consideration, as, in point of fact and law, the debt of Mrs. Pellott was not discharged. * * * But it is surely competent for the creditor to accept of whatsoever he will, in discharge or satisfaction of a debt. If he may accept the promissory note of the debtor, he may also accept that of a stranger. And if he may accept the note of a stranger, he may also accept his promise without writing. The validity of the substitute, the note or promise, depends on the express agreement to discharge the original debt. * * * There is no form of words or writing necessary to give effect to these mutual undertak- sary element in novation is that the original debt is by the agreement extin- guished, and the debtor is*absolutely released. If novation is pleaded, this element must clearly and definitely appear by averment or necessary infer- ence from the facts averred. If by the agreement the parties intended to keep alive the old debt and accept the new as a sort of security, novation is not accomplished.” The burden is on the original debtor to show a novation re- leasing him. Thomas v. George (Neb.), 181 N. W. 646 (1921). On assent of creditor as essential to novation by substitution of debtors, see Ann. Cas., 1914 A, 339, note. 30 The statement of facts and parts of the opinion are omitted. Tie DiscHarce or Contracts 1433 ings. * * * But in the case at bar there is something more than a mere verbal agreement, if more be necessary. The plaintiff it is true has not given a receipt, or other written discharge, to the former debtor. But he has entered satisfaction in writing in the books, which constituted the evidence of his demand; and has declared by such entry that he has no further claim upon Mrs. Pellott, in whose stead he has accepted the defendant as his debtor and although he cannot be said. to have can- celled the books, the entry furnishes written evidence of his agreement to discharge Mrs. Pellott, in consideration of the defendant’s promise. Such agreement, whether proved by writing or parol, was an effectual legal discharge; and, after this agreement, the plaintiff could not have recovered on the original demand from her. * * * The motion [by defendant for a new trial alter verdict for plaintiff] is refused.3! J. 1. CASE THRESHING MACH. CO. v. ROAD IMPROVEMENT DIST. NO. 3 OF PULASKI COUNTY, ARK. (United States District Court, E. D. Arkansas, W. D., 1914. 210 Fed. 366.) At Law. Action by the J. I. Case Threshing Machine Company against Road Improvement District No. 3 of Pulaski County, Ark. On demurrer to the jurisdiction of the eourt. Demurrer overruled. 81 That the original debtor must also be a party to the agreement, see Rose v. Million (Ark.), 228 S. W. 376 (1921). Professor Ames was of opinion that a valid novation might be made be- tween only the old creditor and the person intending to take his place. He said, that “To convert a claim of C against B into a claim of C against A, it is only necessary for C and A to enter into a bilateral contract in which C prom- ises never to sue B and A promises to pay C the amount due from B. (C’s promise operating as an equitable release, now pleadable as a defense at law, the claim of C against B disappears, while A’s promise creates in its place the new claim of C against A.” Ames, Lectures on Legal History, pp. 300-301. Professor Williston suggests that the agreement would not be an equitable defense to B in a jurisdiction not recognizing the right of a beneficiary of a contract to sue upon it, though he concedes, “That an agreement with C for sufficient consideration to discharge A should be at least an equitable defense to A, need not be denied.” Apart from the fact that the theory of Professor Ames is founded on the right of a beneficiary to enforce a promise, Professor Williston’s chief objection to it seems to be “that a novation was valid at law as a discharge” of the debtor’s liability “long before equitable defences were allowed at law.” 1 Williston on Contracts, § 114, p. 238, n. The troublesome question, however, is not what constitutes a novation, but the question of fact in the given case whether the parties agreed upon one either absolutely or conditionally. It would seem that a novation could take place with the old debtor at once discharged, in consideration of a conditional promise by the intending new debtor, although the event never occurs on which the new promisor would have to pay. Compare note 165, p. 423, ante. {434 CASES ON THE Law or Conrracts The complaint, in so far as it is necessary to set it out for the purpose of understanding the jurisdictional questions involved, states that the plaintiff is a corporation existing under the laws of the state of Wiscon- sin, and the defendant is a corporation created by the state of Arkansas, having its domicile within the jurisdiction of this court; that the de- fendant and one Mary V. Wiegel, the latter doing business under the firm name of Pulaski Stone Company, entered into a contract whereby Mrs. Wiegel was to build a certain road for the defendant; that the pay- ments were to be made by the defendant to her on estimates of the engineer in charge as the work progressed; that 10 per cent. was tobe retained until the contract was completed and accepted by the defendant, whereupon that sum was to be paid; that she performed the work, which amounted to $32,561.40, of which 90 per cent. has been paid, and 10 per cent., amounting to $3,256.14, is still unpaid; that while the work was being performed by Mrs. Wiegel, she being indebted to the plaintiff in the sum of $3,800, as evidenced by her note, assigned to it all of the 10 per cent. retained estimates to the extent of $3,800 and the interest on the note; that upon presentation of this assignment to the defendant it con- “sented in writing thereto and agreed to pay the same to the plaintiff. This agreement is as follows: **We hereby consent to the within assignment to the J. [. Case Thresh- ing Machine Company by the Pulaski Stone Company and Mary V. Wiegel, and agree to pay the said assignee such part of the 10 per cent. retained by us in accordance with our contract with said assignors as may be due upon final settlement with the said assignors after the com- pletion of the work called for by said contract up to the amount due upon the $3,800.00 note, with interest at the time of payment. ‘* Signed ] O. P. Robinson, President.’’ The contract having been completed by Mrs. Wiegel, and accepted by the engineer, the plaintiff demanded payment of the 10 per cent. re- tained sum, which was refused. The defendant demurs to the jurisdiction of the court on the ground that. the complaint fails to allege that Mrs. Wiegel, plaintiff’s assignor, was a citizen of a state other than that of the defendant, and that she could have maintained an action for this money in this court. TRIEBER, J.32. It is conceded by counsel for the plaintiff that, if this action is merely upon an assigned chose in action, the failure of plaintiff to allege in its complaint that its assignor, Mrs. Wiegel, could have maintained the suit in this court would have been fatal; but it is claimed that the defendant made an express promise to pay this sum of money to the plaintiff, and that this action is upon that express promise, and for that reason the citizenship of Mrs. Wiegel is immaterial. 32 Part of the opinion is omitted. Tue DiscHarcE or ConTRACTS 1435 lf this is a new promise to pay to the plaintiff this specific money due from the defendant to Mrs. Wiegel, agreed to by all the parties, it extinguished the liability of the defendant to Mrs. Wiegel, and created an obligation on the part of the defendant to the plaintiff. This is clearly a novation of the original indebtedness, and in such a case the jurisdiction of this court is controlled by the citizenship of the plaintiff and the defendant, regardless of that of Mrs. Wiegel. ‘‘Novation’’ has been properly defined as: “The substitution by mutual agreement of one debtor or of one creditor for another, whereby the old debt is extinguished, or the sub- stitution of a new debt or obligation for an existing one which. is to be extinguished. The requisites of a novation are: (1) A valid prior obligation to be displaced ; (2) the consent of all the parties to the sub- stitution ; (3) a sufficient consideration; (4) the extinguishment of the old obligation, and (5) the creation of a valid new one.’’ 88 In re Rans- ford, 194 Fed. 658, 662, 115 C. C. A. 560, 564,.and authorities there cited. In the instant case all of these requisites exist. It is true that Mrs. Wiegel’s indebtedness to the plaintiff has not been extinguished, and will not be until the defendant makes the payment, as the plaintiff has ac- cepted the assignment from her as collateral security only. But the defendant, when it accepted the order of Mrs. Wiegel, was exonerated from liability to her to the extent of the $3,800 and interest thereon, and, as it appears from the complaint that its liability is less than the indebtedness due plaintiff from Mrs. Wiegel, her claim is entirely ex- tinguished, and she cannot maintain an action for the recovery of the retained 10 per cent. The contract between the plaintiff and the de- fendant is a new contract between them; the consideration for the promise to pay plaintiff being the extinguishment of Mrs. Wiegel’s claim to this retained 10 per cent. The agreement of the defendant to pay this money to the plaintiff was, in effect, an acceptance of an order on it, and from the moment of acceptance it became the primary debtor, and Mrs. Wiegel only contingently liable in case of nonpayment by the defendant. Derby v. Sanford, 9 Cush. (Mass.) 263. In Superior City v. Ripley, 188 U. 8. 98, 11 Sup. Ct. 288, 34 L. Ed. 914, the facts were very much like those in this case In that case the city had entered into a contract with S. K. Felton & Co. for the con- struction of a system of waterworks for the sum of $25,000; Felton & Co. built and completed the waterworks, which were accepted by the city and a part of the contract price paid. Felton & Co., being indebted to plaintiffs Ripley and Brunson in the sum of $5,750, gave them an order which read as follows: 38 For a criticism of such statement of the requisites of a novation as being inaccurate, see 3 Williston on Contracts, §§ 1869-1872. - 1-436 CASES ON THE LAw or CoNTRACTS ‘Upon final completion and acceptance of waterworks by the city of Superior, Nebraska, pay to the order of Ripley and Brunson $5,750.00, and charge same to contract price and on contract for erection of said waterworks. “*S. K. Felton & Company. ‘“To the Mayor and City Council of the City of Superior, Nebraska.’’ This order was presented to the city council and accepted. The ac- ceptance indorsed on the order was as follows: ‘‘The city of Superior, Nebraska, hereby accepts the within written order, provided the waterworks are fully completed according to plans and specifications and are duly accepted by the cfty, and then, in that event, the city of Superior will withhold from the final payment of con- tract price that may be due S. K. Felton & Company the amount of this acceptance or such part thereof as may be due said S. K. Felton & Com- pany thereon, and will pay over such amount in city warrants to Ripley and Brunson in lieu of S. K. Felton & Company, such amount to be credited on said contract price for said waterworks as if the same was paid to S. K. Felton & Company. ‘‘Dated Superior, Nebraska, December 24, 1888. “By order of the City Council: “Seal of the City. ] C. E. Davis, City Clerk. ““C, E. Adams, Mayor.’’ The waterworks having been completed and accepted by the city, and the amount due 8S. K. Felton & Co. being in excess of the sum for which the order was drawn, Ripley and Brunson demanded payment, which was refused, and thereupon they instituted an action against the city in the federal court. The complaint failed to allege the citizenship of Felton & Co. On behalf of the city it was claimed that the court was without jurisdiction, as the complaint failed to show that Felton & Co., the drawers of the order, were citizens of a state other than that of the defendant; but this contention was overruled, the court saying: “‘This acceptance was a contract directly between the city and the plaintiff below, upon which the city was immediately chargeable as promisor to the plaintiff. “Nothing is better settled in the law of commer- cial paper than that the acceptance of a draft to order in favor of a certain payee constitutes a new contract between the acceptor and such payee, and that the latter may bring suit upon it without tracing title from the drawer. From the moment of acceptance the acceptor becomes the primary debtor, and the drawer is only contingently liable in case of nonpayment by the acceptor.’’ It will be noticed that the order was not an instrument negotiable under the law merchant, as the date when it was payable was not cer- THE DIscHARGE OF ConTRACTS 1437 tain, nor was the acceptance an unconditional one. It was practically the same as the order in the case at bar. * * * In Castle v. Persons, 117 Fed. 835, 888, 844, 54 C. CU. A. 133, 136, 142, it was held by the Cireuit Court of Appeals for this cireuit that even a verbal request is sufficient, when accepted, to constitute a nova- tion. The court said: ‘“We see no difference between a verbal order or request and a written order or request, there being no law requiring either to be in writing. Neither need the acceptance be in writing. If the defendant in error owed Thomas Persons, and Thomas Persons requested him to pay the debt to Maria Persons, and he, upon such request, promised to pay it to Maria Persons, thereby extinguishing his debt to Thomas Persons, Maria Persons could sue and recover upon the promise, and, if this could be done, then all control over the chose in action would be in Maria Persons. She had complete power to reduce it to possession.’ In that case Judge Sanborn, in a concurring opinion, said : “Tf a creditor orally directs his debtor to pay his debt to a third party, and the debtor verbally agrees with the third party to do so, the latter is substituted for the first party as his creditor, the first party is estopped from collecting the debt, the debtor is released from paying to him, and is legally bound to pay it to the third party. A complete novation and assignment have been effected.”’ As this is an action upon an express promise of the defendant to-pay to the plaintiff the retained money due on the contract to Mrs. Wiegel, and the requisite diversity of citizenship of the plaintiff and defendant exists, the demurrer to the jurisdiction is overruled. COSTNER v. FISHER. (Supreme Court of North Carolina, 1889. 104 N. Car. 392, 10 S. E. 526.) ‘The plaintiff brought his action before a justice of the peace, for recovery of $135.35 due by account and note under seal. When the cause was called for trial the plaintiff entered a nolle prosequi as to the cause of action upon the note. The plaintiff testified in substance that the bond was given for the amount due upon the account, and that he accepted it on condition that the defendant would pay him $10 a month; that the bond was intended merely as a security; and that he did not receipt the account. The court held that “‘the cause of action upon the account was merged into the HOE, and that, the same not being due, the plaintiff could not recover.’’ There was a verdict for ihe defendant, and the plaintiff appealed. Suepuerp, J. His honor was clearly right in holding that the ac- count was merged in the bond. Gibson, C. J., in Jones v. Johnson, 3 1438 CASES ON THE LAw oF CONTRACTS Watts & S. (Pa.) 277, says: ‘‘Extinguishment by merger takes place between debts of different degrees, and lower being lost in the higher; and, being by act of the law, it is dependent on no particular intention. * ™* * No expression of intention would control the law which pro- hibits distinct securities of different degrees for the same debt; for no agreement would prevent an obligation from merging in a judgment on it, or passing in rem judicatum. Neither would an agreement, how- ever explicit, prevent a promissory note from merging in a bond given for the same debt, by the same debtor; for to allow a debt to be at tlie same time of different degrees, and recoverable by a multiplicity of in- consistent remedies, would increase litigation, unsettle distinctions, and lead to embarrassment in the limitation of actions,’’ ete. This high au- thority fully sustains the ruling of his honor. Even if there were no merger, the taking of the bond payable at a certain time implies an agreement to suspend his remedy on the ac- count for that period. 2 Daniel, Neg. Inst., § 1272; Putnam v. Lewis, 8 Johns. (N. Y.) 389; Frisbie v. Larned, 21 Wend. (N. Y.) 450, and other cases cited in Bank v. Bridgers, 98 N. Car. 67. Affirmed.34 84 But if the remedies are not inconsistent, the intention will prevail. “There can be no doubt, as a general rule, that the taking of a bond and mortgage or other security of a higher nature extinguishes a debt arising from mere matter of account; yet this will depend on the intention of the parties. If the higher security was given as the future evidence of the debt, to which the party was to look for payment, then the less security would merge in the greater; but, if the higher security was to be merely additional or col- lateral to the less, showing that the intention of the parties was to keep the latter open, to be looked to for payment in any event—then the less is not extinguished by the greater security. This doctrine is familiar, and may be found in most of the elementary works and cases that treat upon this subject, particularly in Chit. Cont. 607, and authorities there cited. The defendant’s counsel admitted the position, but insisted that it must appear upon the face of the instrument itself, that it was an additional or collateral security, and the works that treat on this subject and cases adduced, seem to give counte- nance to this idea; for in the former it is usually stated as an exception to the general doctrine of merger, that if it appear upon the face of the instru- ment that it is intended to be a further or collateral security, then the rule of merger does not apply, and the cases referred to by counsel, are of the description where the matter appeared upon the face of the instrument. But these authorities, although they show very clearly that when the matter does so appear the general rule of extinguishment does not apply, yet they do not therefore prove that when it does not so appear the rule does apply; and if such cases do exist the labors of counsel and the researches of the court have failed to produce them. Deciding the case then upon principle rather than precedent, the question of extinguishment or not is one of intention. What did the parties mean by the transaction? Did they intend that the old security should remain open and the new one be merely collateral or additional; or did they intend to extinguish the former? This intention is of course to be col- lected from the face of the instrument itself, where it so appears; and, if it does not so appear, then from the next best evidence: the only difference being, Tue DiscHarGE or ConTRACTS 1439 W. A. CAROTHERS v. JAMES STEWART & CO. (Supreme Court of North Carolina, 1920. 179 N. C. 693, 102 S. BE. 615.) Action by W. A. Carothers against James Stewart & Co., Incorporat- ed. Judgment for plaintiff, and defendant appeals. Affirmed. PrER CURIAM. The plaintiff was an employé of defendant as a car- penter foreman receiving 8714 cents an hour. The defendant became a contractor of the United States government to do construction work that in the former case the security itself proves the exception to the rule, and also the intention of the parties, whilst in the latter, the party alleging the exception must prove it. And in this no evil can arise, there is no parol con- tradiction of a written instrument, but only an explanation as to the object for which it was given. A contrary doctrine would. prohibit parol proof of the payment of a collateral security, by the payment of the original claim, unless it appeared upon the face of the collateral that it was such.” Randolph, J., in Van Vliet v. Jones, 20 N. J. L. 340, 342-343 (1845). In Settle v. Davidson, 7 Mo. 604 (1842), a bond given by one of several debtors for a simple contract debt was held to extinguish the debt leaving the bond debt as the only one and, therefore, the sole debt of the one who exe- cuted the bond. “The substantial question in the case is, therefore, whether the agreement is merged in the subsequent mortgage, or whether the mortgage was taken merely as collateral security for the performance of the agreement. There is no doubt that the acceptance of a security of a higher nature in lieu of or in satisfaction of one of an inferior nature operates as an extinguishment or merger of the latter; but where such security is accepted merely as an additional or collateral security for a pre-existing debt, it is equally clear that the doctrine of extinguishment or merger does not apply. Brengle v. Bushay, 40 Md. 141, and the cases there cited. The question whether the mortgage in this case was taken merely as collateral security is therefore one of fact, and the burden of proof is upon the appellee to show that such was the case. Tak- ing the whole evidence, we think the appellee has made out his case with rea- sonable certainty.” Stone, J., in Rees v. Logsdon, 68 Md. 93, 96-97 (1887). “The execution of a deed in pursuance of a contract of sale of real estate where the conveyance of the property is the entire subject-matter of the con- tract extinguishes the contract, but not so where the contract provides for the performance of other acts than the conveyance. In such case the contract remains in force as to such other acts until full performance.” Dunn, J., in Brewer v. Mueller, 254 Ill. 315, 321-322 (1912). “Even though the original engagement [to marry] was absolute, and not coupled with an express or implied understanding as to the marriage settle- ment, the parties by the subsequent written contract are taken as a matter of law to have entered into new promises, including the engagement of mar- riage, and the original agreement must be treated as rescinded, or absorbed and embodied in the new. Lattimore v. Harsen, 14 Johns. 330.” Brown, J., in Appleby v. Appleby, 100 Minn. 408, 428 (1907), citing, also, McNutt v. MeNutt, 116 Ind. 545 (1888), a similar marriage settlement case. “The execution of a note in renewal of a previous one is not a payment of such prior note, nor the creation of a new indebtedness, unless there is an express agreement to that effect by the parties.” Ellis, J., in Cheves v. First Nat. Bk. of Gainesville (Fla.), 83 So. 870 (1920). 1440 Casres on THE LAw or ContTRACTS in France. The government was to furnish all tools, equipment, ete. The necessary labor and superintendent was to be secured by the defend- ant. The defendant through its superintendent, E. N. Pratt, induced plaintiff to go to France. He signed the contract to work for the gov- ernment at 70 cents per hour. This contract is also signed by defend- ant as agent of and on behalf of the government. Plaintiff alleges that, while in the employment of defendant, and before signing the contract to work for the government at 70 cents, he had an agreement with Pratt for defendant that, if he would go to France and sign the contract with the government, he should receive at least 8714 cents an hour. Plain- tiff sues to recover the difference between 70 cents per hour and 8714 cents per hour, admitted to be $553.46. + At conclusion of evidence the defendant moved to nonsuit the plaintiff. We think there is abundant evidence to establish the agreement to pay 8714 cents an hour. The plaintiff testifies:to it, and also that in his formal application for employment he inserted in it a condition that he was to receive 8714 cents an hour and gave it to Pratt for de- fendant. There is evidence that defendant knew of Pratt’s contract. and never repudiated it. This is shown by Pratt’s letter to defendant of June 22, 1918, in which Pratt informs them of his agreement with plaintiff. This letter is a strong testimonial to the efficiency of the plaintiff. We think there is abundant evidence of the agreement to pay the 8714 cents to plaintiff if he would sign up with the government at instance of defendant and go to France, and that defendant knew of the agree- ment and ratified it. It is contended that the agreement to pay 8714 cents is a violation of the rule which prohibits the contradiction of a written contract by parol evidence. We do not think the rule applies here. The contract in writing was made with the government, and in it plaintiff agreed to accept 70 cents per hour from the government. The contract for the ‘8714 cents per hour was in parol and a separate and distinct contract entered into by plaintiff with defendant before the contract with the government was signed. The consideration for the parol, the first contract, was that, if plain- tiff would enlist with defendant for the government as a workman, the defendant would see to it he received at least 8714 cents per hour. This was a separate and distinct contract and preceded the one in writ- ing with the government. It constituted a condition precedent to the plaintiff’s entering into and executing the written contract with the gov- ernment, and is separate and distinct from it. Under the authorities there is no contradiction, and parol evidence was competent to prove such condition precedent. Elliott on Contracts, §§ 1629-50; Typewriter Co. v. Hardware Co. 148 N. C. 97, 55 8. E. 417; Taylor, Evidence, §$ 1038; Basnight v. Jobbing Co., 148 N. ©. 357, 62 8. BE. 420. Nor do we think the parol contract to pay 871%4 cents is merged into THe DiscHarce or Conrracts 1441 the written contract to pay only 70 cents, for the very good reason that the latter was made with the government. The parol contract was made with the defendant and guarantéed to plaintiff wages while in France of not less than 8714 cents per hour. : We think the rulings of the court upon the questions of evidence were correct, and that the charge presented the matter to the jury fairly and fully. We find no error. BACON v, REICH. (Supreme Court of Michigan, 1899. 121 Mich. 480, 80 N. W. 278, 49 L. R. A. 311.) Assumpsit by Elbridge F. Bacon against William Reich for goods sold and delivered. From a judgment for defendant, plaintiff brings error. Affirmed. Hooker, J.36 The defendant recovered a judgment against the Architectural Iron & Wire Works for a breach of a contract. He was afterwards sued by the assignee of the iron works for the price of the articles furnished to him under the contract, the assignment being made before his action for damages was instituted. In this action he sought to set off or recoup his damages, which was permitted by the trial court. The plaintiff has appealed the case, contending that the claim for damages is merged in the defendant’s judgment, and there- fore will not again support an action or defence, and that the judgment cannot be set off against the plaintiff, for the reason that there is a want of privity. It is also claimed that the plea was insufficient to watrant the admission of this proof. It must be admitted that the plaintiff is not privy to the judgment, because he acquired his rights, whatever they are, before defendant began his action. Bartero v. Bank, 10 Mo. App. 76; Powers v. Heath’s Adm’r, 20 Mo. 319; Mathes v. Cover, 43 Iowa, 512; Todd v. Flournoy’s Heirs, 56 Ala. 99 (28 Am.. Rep. 758) ; Marshall v. Croom, 60 Ala. 121; Cook v. Parham, 63 Ala. 456; Coles v. Allen, 64 Ala. 98; Winslow v. Grindal, 2 Greenl. 64; Weed Sewing-Machine Co. v. Baker, 1 McCrary, 579; Bigelow, Estop. 135, 1386. He is privy, however, to the injury upon which defendant’s judgment rests. It is also true that the elaim of the defendant was merged in the judgment against the iron works, and the judgment would be a bar to another action, or an attempt to recoup the damages, against the Architectural Iron & Wire Works. But the judgment could be set off in an action brought by the iron works, or an action might be-brought upon it. We deem it unnecessary 35 Parts of the opinions are omitted. 1442 Casgs ON THE Law or CONTRACTS to cite authorities in support of these principles, which are elementary. It is nevertheless true that the plaintiff took this claim subject to the equitable right of the defendant to Have his damages applied upon it, and all that can prevent is the technical rule that they are merged in a judgment against plaintiff’s assignor. Theoretically, this may be said to be no hardship, because, if the defendant shall pay the plaintiff’s claim, he would yet have the right to collect his judgment for dam- ages, which would work out exact justice to all. Practically, however, that is not so, because he cannot collect his judgment. The iron works is insolvent, and was at the time the plaintiff, who was a stockholder in the concern, took his assignment, and the defendant cannot collect his judgment in any other way than to set it off against his contract obligation. Furthermore, the record contains evidence that he was ignorant of the assignment at the time he took his judgment, and had a right to suppose that, by obtaining the judgment, he had settled the question of his liability on the contract, and was led to do so to avoid liability in a garnishment suit, which was adjourned for the purpose. But for the previous assignment, this would have been so, because the judgment would have bound all persons afterwards acquiring title to ‘the claim from the iron works. ‘‘According to more recent cases, the doctrine that claims become merged in judgments is supported on the grounds that the allowance of a new suit is a superfluous and vexatious encouragement to litigation, injurious to the defendant and of no benefit to the plaintiff.’’ 15 Am. & Eng. Enc. Law, 339, and cases cited. * * * In cases where, through mistake or fraud, it would be inequitable to treat such judgments as a bar, the doctrine cannot be invoked. The case of Ferrall v. Bradford, 2 Fla. 508 (50 Am. Dec. 293), is in point. We quote: “The plaintiffs in the court below took judgment against only-one of the joint obligors, and, when that fact is pleaded by the defendants in bar, they reply that they did only do so because their attorney was circumvented, and induced to dismiss the proceedings as to the other defendants, in consequence of the fraudulent representations of one of the defendants. It matters little as to the mode or manner in which fraud is effected. A court must look to the effect, and ask if the result is a consequence of the fraud. Here the defendants: seek to avail themselves of a legal defence, arising from a state of facts which they themselves, by their fraud, have produced.: They admit, virtually, by their demurrer, that the plaintiffs have been deprived of a legal right by their fraud, and they seek now, by their defence, to take ad- vantage of their own wrong, a defence admitted to arise from their own fraudulent act. The question now is, Will such a defence be available, tolerated, or allowed? Law, reason, justice, and morality unite in a negative response. * * * At the first blush, we thought we discovered some difficulty arising from the fact that only one of Tue DiscHarcs or ContTRACTS 1443 the defendants is alleged to have been guilty of the fraud; but it soon disappeared, for we find this principlé broadly laid down,—that inter- ests gained by one person by the fraud of another cannot be held by them; otherwise, fraud would always place itself beyond the reach of the court.””> * * * In the case before us, there is evidence from which it might be found that the course taken by the defendant in procuring a judgment for the breach of the contract was due to the concealment on the part of the iron works of the fact of the transfer of the claim, or, at least, of the mis- take of the defendant in supposing that it belonged to the iron works at that time. We think the hardship and injustice of a strict~ appli- cation of the rule of merger is so apparent that we are justified in considering the case within the principle of the cases cited, and hold- ing that, although the plaintiff was not strictly in privity as to the judgment, he was as to the cause of action upon which it was based, and that the defence made was proper. We think this conclusion ren- ders it unnecessary to discuss the subject of election of remedies raised by the briefs. * * * The judgment should be affirmed.36 Grant, C. J. (dissenting) * * * (2) Defendant, claiming dam- ages for violation of contract on the part of the Architectural Iron & Wire Works, had two courses open to him. He could have waited until the iron works or its assignee sued him, and then have recouped his damages, or he could have brought an independent action for damages. He chose the latter. The tort became merged in the judgment, which became a new debt, unaffected by the claim upon which it was based. Judgments are contracts, and are subject to set-off in actions of assumpsit. 1 Freem. Judgm. § 217; 15 Am. & Eng. Enc. Law, 338, 339. The latter authority states the rule as follows: ‘‘And the present rule undoubtedly is that no second suit can be maintained on the same cause of action, irrespective of the question whether the judgment in the first suit was of a higher or lower nature than the cause of action; the,reason for the rule being that the judg- ment is a judicial determination of the rights of the parties, into which the plaintiff has voluntarily elected to transform his claim.’’ The authorities in support of this are cited in note 7. The general rule, as above stated, is admitted, but it is urged that there are exceptions to it, and that the present case forms one of the exceptions. * * * I find no evidence of fraud or deception on the part of Bacon or his 36In some jurisdictions, a judgment in an action on a judgment is deemed to merge the judgment sued upon, but other jurisdictions allow both judg- ments to stand. But in any event both should stand where one is rendered in one state and the other in another state. Lilly-Brackett Co. v. Sonneman, 163 Cal. 632 (1912). ’ 14-44 CASES ON THE LAW or CONTRACTS assignor in the assignment of this claim, or any evidence that it was assigned for the purpose of defeating Reich. The rule of law involved cannot, in my judgment, be changed by the fact that the iron works has become insolvent. The original cause of action in Reich against the iron works has, in the language of Eastern Townships Bank v. Beebe, 53 Vt. 177 (88 Am. Rep. 665), become so merged in the judgment ‘‘that the record itself has become a cause of action.’’? The only office which that judgment can now serve is as a set-off. Huntoon v. Russell, 41 Mich. 316. Judgment should be reversed and new trial ordered. Judgment affirmed. FREEMAN v. BERNARD. (Court of King’s Bench, 1702. 1 Lord Raymond, 247.) Assumpsit upon an agreement for the delivery of a certain quantity of hops, ete. The defendant pleads that the plaintiff and he had sub- mitted this matter to the arbitration of J. S., ita quod the award should be made, and ready to be delivered, by such a day, ete., and the de- fendant shows that J. S. made an award before the day that the defend- ant or his executors or administrators should give a general release to the plaintiff, and that the plaintiff should give a general release to the defendant; and the defendant pleads that he was always ready, and vet is, to sign and seal a release. The plaintiff demurs.37 * * * But judgment was given by the whole court for the plaintiff; for the arbitra- tor has awarded nothing in satisfaction, but only has ordered means to discharge the action. He has not awarded a horse or money in satisfac- tion, but only mutual releases. Where an award creates a new duty instead ‘of that which was in controversy, the party has remedy for it upon the award; and therefore if the party resorts to demand that which was referred and submitted, the arbitrament is a good bar against such action. Contra where the award does not create a new duty, but only extinguishes the old duty by a releasé of the action. COMMINGS v, HEARD. (Court of Queen’s Bench, 1869. L. R., 4 Q. B. 669.) Declaration containing indebitatus counts for work done and ma- terials provided, for money paid, for the conveyance of goods, for in- terest and money due on accounts stated, and claiming 4001. Fourth plea: Except as to the sum of 1451. 8s. 1d.; parcel of the money claimed, the defendant says that the plaintiff ought not to be 37 Part of the report of the case is omitted, THE DISCHARGE OF CONTRACTS 1445 , admitted or received to claim or allege that at the commencement of this suit any more than the sum of 1451. 3s. 1d. was due from the defendant to the plaintiff in respect of the causes of action in the declaration mentioned, because the defendant says that after the accruing of the eauses of action in the declaration mentioned, and before this suit, a dispute arose between the plaintiff and the defendant as to how much was due from the defendant to the plaintiff in respect of the causes of action, and thereupon by agreement made between them before this suit they referred the question of how much was due from the defendant to the plaintiff in respect of the causes of action to the award of William Wills, and agreed to be bound by his award as to such amount; and that afterwards, and before this suit, the said William Wills, having taken upon himself the burden of the arbitration, and having heard and considered all that the plaintiff and defendant respectively had to allege, and all the evidence which they had to produce relating to the premises so referred, made his award in writing of and concerning the premises so referred to him as aforesaid, and thereby awarded that the amount due from the defendant to the plaintiff in respect of the causes of action was 1451. 3s. 1d. Demurrer and joinder. Lusu, J.28 This was a demurrer to a plea. It is to be observed that the plea does not profess to be an answer to the entire claim, but to the excess over and above the amount of 145/. The question is, whether the plaintiff is concluded by the award from alleging that the entire amount was due to him. I am of opinion that he is concluded, and that the award is binding between the parties in all matters which it professes to decide. It was contended that an award is not an estoppel, that the parties are not concluded by an award, and that it is dis- tinguishable from a judgment which it is admitted, would have bound the parties. The contention was that it was so distinguishable because an award was an adjudication by a tribunal appointed by the parties, and not one constituted by the sovereign power within the realm. It is impossible, to my mind, to suggest ‘any good ground of distinction between these two, when we consider that the reason why a matter once adjudicated upon is not permitted to be opened again is because it is expedient that there should be an end to litigation. When once a matter has been decided between parties, the parties ought to be con- eluded by the adjudication, whatever it may be. I am at a loss to sug- gest any reason that would be applicable to the one, that would not be applicable to the other tribunal.” 38 The opinion of Hayes, J., is omitted. 39 At common Jaw a bond for the payment of money or a record was not ended by award, but today each probably is. 3 Williston on Contracts, § 1926. “After an agreement to arbitrate has been executed or consummated by the making of an award following a submission by both parties, which was un- revoked when the final action of the aribtrators was taken, the award so made 1446 CASES ON THE LAW or CONTRACTS Several cases were cited which it was supposed were authorities in favor of the plaintiff, but which, I think, may be contended to be clearly authorities in favor of the defendant. It is not a new doctrine that an award is a bar. That is found in Comyn’s Digest, Tit. Accord, D. 1; and there are several instances of it to be found in the books. The case of Allen v. Milner, 2 C. & J. 47, was relied on, on the part of the plaintiff. When that case is examined it will be found to differ from the present in a most. essential particular. There the money demand had been referred to arbitration. The arbitrator has found a given sum to be due from one to the other. That case was a money demand, as this is; the action was brought on the original consideration, but the plea, unlike the plea in this case, set up the award as a bar to the entire action. The plea was held bad, and for this reason, that an award upon a money claim does not alter the nature of the original debt; it leaves it remaining due. The amount which the arbitrator found to be due was for the original consideration. The award did not change the nature of the debt, consequently a plea which professed to answer the whole of the debt, and admitted a part of it was due, was a bad plea. That is the ground of that decision. On the other hand, it is settled, where the claim is one for unliqui- dated damages, an award which settles the amount may be pleaded in bar to the entire action, although the plea, on the face of it, shows that the money is not paid. In the case of Gascoyne v. Edwards, 1 Y. & J. 19, there was a general plea pleaded to the whole declaration, by which it was alleged that the parties had agreed to refer the amount of the damages to arbitration, and an award had been made, by which it was awarded that the defendant should pay the plaintiff 51. to put the prem- ises in repair. The plea, although it did not aver that the 51. was paid, was held to be a good plea because an award, fixing the amount and creating a debt between the parties, extinguished the original demand for unliquidated damages. The principle upon which this was held a good plea is, that an award, professing to determine the matter, is bind- ing upon both parties, and it as much precludes the parties from alleg- ing anything contrary to the award as a judgment would, on the ground that it is res judicata. If this action had been brought upon the award, it is clear the defendant would be precluded from saying the 1451. was is not deprived of binding effect by the circumstance that before it was made the arbitration agreement did not stand in the way of either party resorting to the courts for the settlement of the controversy. Where parties submit mat- ters in controversy to arbitration, and an award is made pursuant to the agree- ment of submission, such award is final and binding on the parties, unless the arbitrators are guilty of fraud, partiality, or other improper conduct in making it. Gardner v. Newman, 135 Ala. 522, 33 South. 179; Willfams v. Bran- ning Mfg. Co., 154 N. C. 205, 70 S. E. 290, 47 L. R. A. (N. 8S.) 337, and note; 5 Corpus Juris, 48, 163; 2 R. C. L. 366.” Walker, J., in N. P. Sloan Co. v. Standard Chemical & Oil Co., 256 Fed. 451, 455 (1918). But see Conant v. Arsenault, 118 Me. 281 (1919). THE DISCHARGE OF CONTRACTS 1447 not due, because the arbitrator found it was. Why is not a plaintiff equally prohibited from alleging that more is due when the amount has been found by the arbitrator? Each must be concluded by the finding. It is elementary knowledge that an award, good on the face of it, is binding and conclusive upon both parties to it until it is set aside. Nothing appears on the face of this plea to show that the award is not perfectly good. It professes to adjudicate upon all matters referred, and it has decided finally the whole matter. In answer to the argu- ment that the award may be bad, it is enough to say that if the award is bad it might be shown by a replication setting it out. If it is not bad on the face of it, then the parties not having moved to set it aside, it stands, and each party is prohibited from objecting to it. The plea is a perfectly good plea, and our judgment must be for the defendant. The plea, no doubt, is in an unusual form, because it is pleaded by way of estoppel. It begins in the ordinary way of a plea of estoppel, that the plaintiff ought not to be admitted or received to say so and so. That I consider immaterial. The award is a bar, and it concludes the parties. Judgment for the defendant.” WHITE EAGLE LAUNDRY CO. v. SLAWEK. (Supreme Court of Illinois, 1921. 296 Ill. 240, 129 N. E. 753.) Dunn, J.42_ The White Eagle Laundry Company brought suit in the municipal court of Chicago on October 18, 1920, against Joseph Slawek for damages to the plaintiff’s automobile, caused by a collision on a public street in the city of Chicago with the defendant’s automobile, alleged to have resulted from the defendant’s negligence. On October 29, 1920, the parties entered into a written agreement for the submission of the cause to arbitration and appointing an arbitrator. The agreement provided that judgment should be entered on any award that was made and it was filed in the municipal court. The arbitrator, after taking the oath prescribed by law, heard the cause and the argu- 40“It is not necessary that a party should have a legal cause of action to authorize a submission and award and to bind the parties by the award. * * * ‘hat there is a dispute, controversy, or honest difference of opinion between them concerning any subject in which they are both interested is enough, nor indeed is it necessary that they should have come to the actual point of dispute; for a matter simply in doubt may be submitted. It is suf- ficient to sustain the arbitration if the appellee’s claim was made in good faith, that it was disputed by appellants, and that it was submitted to arbitration. Downing v. Lee, 98 Mo. App. 604, 73 S. W. 721; Findly v. Ray, 50 N. C. 125; Morse on Arbitration & Award, p. 36.” McMahan, J., in Milhollin v. Milhollin. (Ind. App.), 125 N. E. 217, 218 (1919). 41 Part of the opinion is omitted. 14-48 Cases oN THE LAW oF Conrracts ments of counsel, and at the close of the argument counsel for the plain- tiff stated that the plaintiff then and there withdrew from the submission to arbitration and asked the arbitrator to suspend further proceedings until the plaintiff could move the court for a nonsuit. Thereupon the arbitrator took no further action in the matter, and the plaintiff moved . the court for a nonsuit, but the court overruled the motion and ordered the arbitrator to file his final award instanter. On November 9 the arbitrator filed his award, finding that the defendant was guilty of neg- ligence, and that the plaintiff was guilty of contributory negligence, the negligence of both parties being the primary cause of the accident, and finding that there was no right of recovery in favor of the plaintiff. Objections were filed to the award, but the court entered judgment that the plaintiff take nothing by his suit and that the defendant recover his eosts. The plaintiff appealed directliy to this court, claiming that the case involves the constitutionality of certain provisions of the Arbitration Act as amended in 1919, Laws of 1919, p. 216. * * * The appellant contends that it had a right to revoke the submission to arbitration and take a nonsuit at any time before the arbitrator had indicated his finding in the controversy. At common law the rule was well established that either party might revoke the submission at any time before the award was made, thus rendering the submission wholly ineffectual and taking from the arbitrator all power to make a binding award. 2 Parsons on Contracts, *710; Paulsen v. Manske, 126 Ill. 72, 18 N. E. 275, 9 Am. St. Rep. 532; People v. Nash, 111 N. Y. 310, 18 N. E. 630, 2 L. R. A. 180, 7 Am. St. Rep. 747.” Section 8 of the Arbitration Act provides that a submission to arbitration shall, unless a contrary intention is expressed therein, be irrevocable. The legislature has the right to enact such a provision unless it is prohibited by the constitution from doing so. The appellant contends that the provision is unconstitutional because it deprives parties of property without due process of law and confers judicial powers on individuals not recognized by the constitution. It is true that arbitration is in the nature of a judicial inquiry, but the statute confers no judicial powers on arbitrators. It is not compulsory, but is 42 Compare Matter of Berkovitz v. Arib & Houlberg, 230 N. Y. 261 (1921). “The formality of a revocation [of a submission to arbitration] must con- form to the formality of the submission. If the submission is under seal or by deed, the revocation must be by deed. If the submission is in writing, the revocation must be in writing.” Benson, J., in Lesser v. Palley (Ore.), 188 Pac. 718, 720 (1920). On revocation of agreements to arbitrate, see 138 Am. St. Rep. 640, note; Ann. Cas. 1914 B, 300, note. “Where the parties agree upon the number of arbitrators, they are entitled to the judgment of each, and neglect or refusal of any one to act will render an award made by others invalid. American & English Encyclopedia of Law, vol, 2, p. 641 et seq.; C. J., vol. 5, “Arbitration & Award,” §§ 137, 204; Secu- rity Insurance Co. v. Kelly, 196 S. W. 874.” Huff, C. J., in Beirne v. North Texas Gas Co., 221 S. W. 301, 302 (1920). See 15 Ann. Cas. 507, note. THE DiscHArRGE or ConTRACTS 1449 entirely voluntary. If parties choose to submit their controversies to arbitration, they have the right to do so. The object of arbitration is to avoid the formalities, delay and expense attending litigation in court, and it has been recognized from a very early period by the common law as a method of settling disputes. At common law an agreement could be entered into by parol to arbitrate any cause of action which did not involve the title to land, and an award was a full and final adjustment of the controversy, having all the force of an adjudication and effectually concluding the parties from again litigating the same subject. Smith v. Douglass, 16 Ill. 34. The statute, in making the agreement irrevocable, confers no new power and takes away no inalienable right. It simply recognizes the agreement of the parties and enforces it. Before the stat- ute was enacted the court would not specifically enforce the agreement to arbitrate, but left the parties to their remedies at law for a breach of the contract. The effect of making the agreement irrevocable was merely to provide for the specific enforcement of the contract, and it violated no constitutional rights. It conferred no power on individuals, but pro- vided for the method of carrying into effect the contract of the parties. It is also objected that the act is unconstitutional and void as being an attempt to oust the courts appointed by the Constitution of their juris- diction. There is no constitutional provision against the settlement of controversies out of court or the submission of them to the judgment of arbitrators who may be agreed upon by the parties, and no constitu- tional provision is referred to under this head of the appellant’s argument. It has been held that an agreement in an executory con- tract to submit any controversy which may arise under it to arbitration is an effort to divest the courts of their jurisdiction and is invalid because contrary to public policy. Stephenson v. Piscataqua. Fire & Marine Ins. Co., 54 Me. 55; Hurst v. Litchfield, 39 N. Y. 377; Fox v. Masons’ Fraternal Accident Ass’n, 96 Wis. 390, 71 N. W. 363. This principle applies only where there is a general agreement to submit all controversies to arbitration. It does not apply to cases where a con- troversy has arisen and an agreement is made to submit the particular controversy to arbitration or to agreements to arbitrate special ques- tions, such as the amount of the loss under an insurance policy as a condition precedent to maintaining an action. Niagara Fire Ins. Co. v. Bishop, 154 Ill. 9, 39 N. E. 1102, 45 Am. St. Rep. 105; Hamilton v. Liverpool & London & Globe Ins. Co., 136 U. S. 242, 10 Sup. Ct. 945, 34 L. Ed. 419; Scott v. Avery, 5 H. L. Cas. 811. The statute does not require any causes to be submitted to arbitration, and nobody is any more bound now to submit causes to arbitration than before. It merely recognizes the right, already existing, of parties to submit their causes to arbitration and regulates the method in which the arbitration may be conducted. The judgment of the municipal court will be affirmed. . Judgment affirmed. 1450 CasEs ON THE Law or CoNTRACTS CALVIN ROBINSON, 2np. v. FERDINAND HAWKINS. (Supreme Court of Vermont, 1866. 38 Vt. 693.) | Peck, J. The action is trespass in which the plaintiff seeks to re- cover for the taking and conversion of a cow. The defendant justifies, as deputy sheriff, the taking and sale of the cow under a writ of attach- ment in favor of Josiah Gilson against the plaintiff. The plaintiff claimed before the referee that at the time of the attachment and sale the cow was [exempt from levy because it was] the plaintiff’s last and only cow, and so the referee finds the fact. * * * The defendant relies on a submission and award of an arbitrator between the plaintiff and Gilson, as a bar to the action. It appears that in 1858, while the suit in which the cows were attached was pend- ing in the county court, to which it had been appealed, Calvin Robin- son, 2d, and his father, William Robinson and Gilson executed mutual bonds of submission to arbitration, in pursuance of which an award was made in May, 1859. The arbitration bonds specify as a matter of difference submitted, a ‘‘disagreement relative to the sale and pur- chase, or rent and occupancy, of certain premises, wherein the said Gilson claims damages of said Calvin Robinson, which disagreement has resulted in a suit at law’’ (referring to the suit already men- tioned), and also specifying a claim on the part of the said William Robinson, that Gilson has, by deputy sheriff Hawkins, attached a certain cow claimed by William Robinson as his property, for which Robinson has a suit pending against Gilson. To this particular de- scription of the matters submitted is added a general clause of all matters existing between Gilson and William Robinson, and between Gilson and Calvin Robinson. The defendant’s counsel insists that, under this general clause, the plaintiff was bound to present the claim embraced in this suit before the arbitrator and have it there adjudicated, and that if he neglected to do so he is barred of all remedy, not only as against Gilson but as against this defendant. We recognize the principle established by the cases cited in argument, that under a general submission of all matters existing between the parties, if a party withholds a part of his claims from the arbitration he cannot, as a general rule, afterwards enforce it against the other party to the sub- mission. Whether this rule is limited, to cases where a party, in bad faith and intentionally in violation of his contract, withholds a claim, it is not necessary to decide. Nor is it necessary to decide what exceptions there are to this rule as between the parties to the submis- sion. It is sufficient to say that, in the opinion of the court, the neglect of the plaintiff to present this claim before the arbitrator does not operate to bar ‘him from his remedy against the oe who was no party to the submission. The cases on this subject, i 43 The statement of facts and parts of the opinion are omitted. THe DiscHarGE or Contracts 1451 ‘which it is held that the party is concluded, proceed upon the ground that the party was bound, by his contract of submission, to present the: claim and have it adjudicated by the arbitrator. We think in this case the plaintiff was not bound by the submission to present the claim before the arbitrator, but had a right to look to the officer who actually committed the trespass. It is true he might have made Gilson liable for the acts of the officer if he could have shown that Gilson directed the officer to attach and sell the particular cow in question, but he was not bound to resort to him instead of the officer for remedy. The sub- mission and award is no bar to a recovery, without showing that the matter was submitted to and adjudicated by the arbitrator, and this the referee says he does not find. . The defendant’s counsel claims that the presumption is that it was presented to, and adjudicated by, the arbitrator, unless the contrary is shown. This would be so if by the terms of the submission it became the duty of the plaintiff to present it to the arbitrator, but not so in this case. * * * Judgment [for the defendant] reversed and judgment for the plain- tiff on the report. GIBBONS v. VOUILLON. (Court of Common Pleas, 1849. 8 C. B., 483.) Witve, C. J.44 This question arises upon a plea which sets forth an agreement under seal between the defendant of the first part, three individuals named, as trustees, of the second part, and the plaintiff and certain other persons, creditors of the defendant, of the third part; and the plea, which is pleaded either as a bar to the action generally, or, in bar of the further maintenance of the action, states that the defendant had carried on the business of a silk-mercer; that the several debts due to the parties of the second and third parts, which were set. opposite to their respective names, had accrued; that the defendant was unable immediately to satisfy those debts; that, for the purpose of realizing his effects, it has been deemed advanta- geous to all the parties interested, that the defendant should, for five years, be permitted to carry on the business, under the inspec- tion of the trustees; and that it was agreed that the business should be so carried on for the said term of five years. The plea then goes to state, that, in pursuance of the agreement, the several persons parties thereto of the second and third parts, by that indenture gave and granted unto the defendant until May 17th, 1848 (the indenture 4“4The statement of facts and the opinion of Vaughan Williams, J., are omitted. 1132 Cases ON THE LAW oF CoNTRACTS bearing date May 17th, 1843), full and free license and authority to pass and repass, ete.; and that it was further provided, that, if any of the said persons parties thereto of the second and third parts, should, at any time thereafter during the continuance of the license thereby granted, molest or interfere with the defendant, contrary to the true intent and meaning of the said indenture, the defendant should be released, exonerated, acquitted, and forever discharged of and from all debts and demands whatsoever which were then due unto, or then could be made by, the creditor or creditors respectively by whom the said letter of license thereinbefore contained should in any such respect be contravened, and of and from all manner of actions, suits, etc., by reason, on account, or in consequence of the same debts or demands respectively, and that the said indenture should or might be pleaded in bar to such respective debts or demands accordingly. The molestation or interference herein mentioned must be intended to mean such sort of molestation and interference as the parties lawfully might resort to, having relation to their situation as creditors and debtor. The question is, whether or not effect may be given to this agreement of the parties. Now, the first part of the deed operates as a letter of license, with a covenant on the part of the creditors not to sue within a limited time. This, it is contended, on the part of the plaintiff, cannot be pleaded in bar; but it is said, upon the supposed authority of Ford v. Beech, that the only remedy of the covenantee is, by a cross action for damages. Nothing, how- ever, fell from the Court in Ford v. Beech, to countenance that sup- position. Why is it that a covenant not to see for a limited time cannot be pleaded in bar? By reason of the rule that the right to a personal action once vested, and suspended, by the voluntary act of the party, for however short a time, is precluded and gone forever. It could only be pleaded in bar; for, that is its legal operation. To have allowed the agreement in Ford v. Beech to. be pleaded in bar as _a release, would have been obviously contrary to the intention of the parties; and no injustice followed from holding that the defend- ant’s remedy for a breach was to be found in a cross action. But how does that apply where we have to deal with express and unequiv- ocal words, and in a case where there are circumstances to warrant our concluding that the parties intended to give a totally different effect to the contract from what is before stated? Here, we have to deal with a contract entered into in express terms between a debtor and a body of twenty or thirty creditors, each of whom, for the benefit of the general concern, agrees that the debtor shall for a given period continue to carry on the business without molestation, and that, if ‘that contract should be contravened by any creditor molesting or interfering with the debtor, such molestation or interference should operate an extinguishment of the debt, and that the indenture might Tue Discuar@r or Contracts j 1453 be pleaded in bar to such debt. How would it be possible to secure the object the parties had in view, if effect could not be given to the agreement in the terms in which they have framed it? The intention is beyond doubt. A covenant not to sue for a given time enures as a re- lease, not by the mere agreement of the parties, but by operation of law. Then it is said that that which has occurred here is not a molesta- tion within the meaning of the deed. Looking at all the circum- stances, it is impossible to doubt that suing the debtor was the very species of molestation which the parties sought to guard against, and no other. They clearly could not have had anything else in their contemplation. When, therefore, this action—which in the ordinary course would go on to judgment and execution—was brought, the defendant had a right to assume that it was brought for the purpose of molesting or interfering with him, and so preventing him from carrying into effect the contract he had entered into. In the ab- sence, therefore, of anything to control it, it seems to me that the parties contemplated a molestation by suing out a writ. The cases referred to in Rolle’s Abridgment appear to me to af- ford distinct authority on the present occasion, We are to consider what is the effect of this deed, taking the whole of it together. On the part of the defendant, it is contended that the deed, taken alto- gether, operates as a release; and accordingly he pleads it in bar. The plaintiff’s counsel, on the other hand, argues with much inge- nuity, that if we hold it to be a release, we must hold it to be a release from the. moment of its execution; and that is manifestly contrary to the intention of the parties. To extinguish the debt, would man- ifestly be to defeat the whole intention of the deed. But upon what assumption is that ground taken? Upon the assumption that every release, to have any operation at all, must operate from the moment at which it is given. I must confess I do not assent to that proposi- tion. I do not see why parties may not agree that a certain instru- ment shall operate as a release, from the happening of such an event. The passage in Co. Litt. referred to by my brother Maule, seems to show that they may. There is, then, a clear and manifest intent, to be collected from the deed, that it shall operate as a release, from’ the happening of the event which the parties contemplated, viz., the molesta- tion which has happened. It is no reason why effect should not be given to the clear intention of the parties, that, in so doing, we neces- sarily carry its operation somewhat beyond what was contemplated. For these reasons, I am of opinion that the defendant is entitled to our judgment. Judgment for the defendant.4® 450f the notion in Newington v. Levy, L. R., 5 C. P. 607 (1870), L. R,, 6 C. P. 180 (1870), denied in Tyson v. Dorr, 6 Whart. (Pa.) 256 (1841), that 1454 Cases ON THE Law or Contracts DAVIDSON, Pusuic Orricer, &. v. COOPER & BRASSINGTON. (Court of Exchequer Chamber, 1844. 13 Meeson & Welsby, 343.) Lorp Denman, C. J.%. This was a declaration in assumpsit on a written guarantee, to which one defendant pleaded, that, while. the guarantee was in the plaintiff’s hands, it was, without the defendant's consent or knowledge, materially altered by the addition of two seals opposite the names of the defendant and the other party to it, whereby its apparent nature and effect were wholly altered. Issue being taken on this plea, the jury found it was so altered; and judgment has been given by the Court of Exchequer for the defendant, after having dis- charged a rule for judgment, non obstante veredicto, upon argument. After much doubt, we think the judgment right. The strictness of the rule on this subject, as laid down in Pigot’s Case, 11 Coke 26b,* can only be explained on the principle that a party who has the custody | of an instrument made for his benefit, is bound to preserve it in its original state. It is highly important for preserving the purity of legal instruments that this principle should be borne in mind, and the rule ad- hered to. The party who may suffer has no right to complain, since there cannot be any alteration except through fraud, or laches on his part. To say that Pigot’s Case has been overruled, is a mistake; on the con- trary, it has been extended: the authorities establishing, as common sense requires, that the alteration of an unsealed paper will vitiate it. Upon the doubt whether this instrument is altered, because it remains a release may be given subject to a condition subsequent, Professor Williston, while insisting that the old cause of action once discharged is gone forever, suggests that “The intention of the parties can be effectuated in great meas- ure, however, by construing the so-called condition subsequent as a promise to pay the released claim in a given event. The creditor’s right of action on the happening of that event would then be on the new promise contained in the release, not on the original cause of action. The seal on’ the release would support the promise, wherever seals still retain their efficacy.” 38 Williston on Contracts, § 1824, pp. 3142, 3143. 46 The statement of facts is omitted. For a full statement, see 11 M. & W. 778, 47In Pigot’s Case, 11 Coke 26b (1614), which was an action of debt on a bond, “these points were resolved: “1. When a lawful deed is rased, whereby it becomes void, the obligor may plead non est factum, and give the matter in evidence, because at the time of the plea pleaded, it is not his deed. “2. * * * When any deed is altered in a point material by the plaintiff himself, or by any stranger, without the privity of the obligee, be it by inter- lineation, addition, rasing, or by drawing of a pen through a line or through the midst of any material word, * * * the deed thereby becomes void. * * * So if the obligee himself alters the deed by any of the said ways, although it is in words not material, yet the deed is void: but if a stranger, without his privity, alters the deed by any of the said ways in any point not material, it shall not avoid the deed.” THE DIscHARGE OF CONTRACTS 1455 exactly as it was when signed, but only something is added near to the signatures of the defendants, we may observe, that that addition gives a different legal character to the writing, and would, if made with the consent of all interested, completely change the nature of the relation towards each other of the parties to it, and the remedies upon it. The observation that a deed is not made by sealing, but by delivery, does not appear to touch the argument, for no addition, erasure, or inter- lineation, after execution, makes the actual instrument different in legal effect from what it was; the original document may be perfectly visible through the attempt to disguise it, but a different appearance is pro- duced. The truth cannot be known from inspection, but would require to be established by evidence, and this through some default of the person to whose care it was consigned, and who would be possessed of a superior legal remedy if the altered writing could be imposed on the contractor as genuine. We are therefore of opinion, both upon prin- ciple and authority, that this judgment must be affirmed. Judgment affirmed.*® 48 While the doctrine that recovery would be denied in the case of altera- tion at first applied only to sealed. instruments, it was extended to negotiable instruments and then to written contracts and written memoranda not under seal. With the extension has gone more liberality toward the party seeking to recover on the altered instrument or on the original debt or consideration for which the instrument was, given. Spoilation, which is alteration by a stranger, will not discharge an obligation in general in the United States, except so far as § 124 of the Uniform Nego- tiable Instruments Law (quoted below), may have made a change. Spoliation, however, does discharge an instrument in England by the rule of the principal case of Davidson v. Cooper, if the instrument at the time was in the custody of the obligee. In general today, immaterial alterations and innocent material alterations, made in each case by the obligee, do not discharge the obligation. And in a jurisdiction where a material alteration, though innocently made, will prevent a recovery on the obligation—see, for instance, Merritt v. Dewey, 218 Ill. 599 (1905) ,—recovery will be allowed on the original debt or consideration which it evidences. See Hayes v. Wagner reported next, post. If the material altera- tion is fraudulently made by the obligee, in general no such recovery will be allowed except so far as §124 of the Uniform Negotiable Instruments Law gives recovery on the negotiable instrument as it was before alteration. § 124 of the Negotiable Instruments Law reads: “Where a negotiable instru- ment is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers. But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.” On discharge by alteration, see 5.Page on Contracts, 2 ed., §§ 3072-3123; 3 Williston on Contracts, §§ 1888-1917. See also Samuel ‘Williston, Discharge of Contracts by Alteration, 18 Harv. L. Rev. 105, 165. On unauthorized altera- tion of written instruments, see 86 Am. St. Rep. 80, note. 1456 CASES ON THE LAw or ConTRACTS DENNIS H. HAYES v. J. G. WAGNER. (Supreme Court of Illinois, 1906. 220 III. 256, 77 N. E. 211.) Cartwricut, C. J.t * * * The contract was in writing and in duplicate, and the judgment of the Appellate Court has settled the fact that it was executed by the parties. One of the originals so executed was kept by the plaintiff and was afterward altered in mate- rial respects by changing the amount to be paid for the work from $52,000 -to $54,700, changing the date of the completion of the work, and making other alterations in the agreement. The trial court, after receiving evidence as to the circumstances, under which and the intent with which the alterations had been made, admitted in evidence the altered duplicate, and also admitted secondary evidence of the con- tents of the duplicate retained by the defendant. It is contended that the court erred in overruling the objections of the defendant to such evidence. The changes in the contract’ made by the plaintiff made it different, in legal effect, from what it was when executed by the parties, and were therefore material. A material alteration of an executory written contract destroys it as a basis of recovery by the person making the alteration, and the changes in this contract invalidated it as against the defendant, who did not consent to such changes. No recovery could be had upon the contract, either in its altered form or in its original condition, and it was wholly void. (Pankey v. Mitchell, Breese, 383; Gillett v. Sweat, 1 Gilm.) 475; Benjamin v. McConnel, 4 Id. 536.) This was conceded to be the law, and the altered instrument was not offered in evidence as a basis for a recovery of damages but only to show all the facts in relation to its execution as a part of the original transac- tion, and the changes made in it, in connection with all the facts and circumstances. The question whether there has been an alteration in a contract and the intent with which it has been made are questions for the jury, to be determined from: all the cireumstances. (2 Elliott on Evidence, § 1,516.) The intent with which alterations are made may be, and in this case was, material. If any alteration is innocently made, without fraudulent intent, it destroys the instrument by changing it into one to which the parties never agreed. But if there is an original ° debt or obligation which was not satisfied or extinguished by the instru- ment, a recovery can be had in such a case on such original debt or obligation. (Vogle v. Ripper, 34 Il. 100; Elliott v. Blair, 47 Id. 342, 2 Cyc. 183, 2 Am. & Eng. Ency. of Law (2d Ed.) 200.) The court did not err in admitting in evidence the altered instrument for the pur- pose for which it was offered. The objection of counsel for the defendant to the secondary evidence of the unaltered duplicate was, that the alteration of one rendered the other nugatory and void, and had the same effect upon the other dupli- + Parts of the opinion are omitted. ~ Tue DISCHARGE OF CONTRACTS 1457 cate that it had upon the one altered. A duplicate is defined as a docu- ment which is the same, in all respects, as another instrument from which it is indistinguishable in its essence and operation. (10 Am. & Eng. Ency. of Law (2d Ed.) 318.) Instruments are executed in dupli- eate so that each party may have an original, and one is not a copy of the other, but both are primary evidence. In order to introduce an original duplicate it is not necessary that the other should also be pro- duced, but to admit secondary evidence of the contents of one it is neces- sary to show the loss of both. (1 Greenleaf on Evidence, § 558.) If one of the duplicates is unaltered there is original primary evidence of the contract as agreed to by the parties, although the other dupli- cate has been destroyed, by alterations or otherwise. We see no good reason why the same principle upon which a recovery is allowed on the original consideration in case of an alteration without fraudulent in- tent should not be applied in a case where one of the duplicates has been innocently changed without fraudulent intent., The evidence for the plaintiff was that the alterations were made in contemplation of making a new and different contract, and that they were innocently made, without fraudulent intent, in the expectation that such new con- tract would be executed in the altered form, and were mtended as notations or memoranda for making the new contract. We think it was proper to allow proof of the contents of the unaltered duplicate as the basis for recovery. * * * Judgment [for the plaintiff] affirmed.® FREEMAN H. ELLSWORTH v. FOGG & HARVEY. (Supreme Court of Vermont, 1862. 35 Vt. 355.) Assumpsit on five promissory notes signed by Fogg & Harvey, but which had been surrendered to Harvey, one of the makers, on part pay- ment by him. Verdict and judgment for defendant Harvey, who alone was served. Aupis, J.42 * * * II. Does acceptance of a part of the amount due on a promissory note in satisfaction and discharge of the whole note, and a surrender of the note by the owner to the maker, to be cancelled, bar a writ brought by the owner for the recovery of the unpaid portion ? . We are not disposed to disturb the rule as stated in Wheeler v. Wheeler, in the 11th Vt. 60, that payment of a part of a debt upon an 48 See Edington v. McLeod, 87 Kans. 426 (1912). 49 The statement of facts is omitted, the foregoing brief summary being sub- stituted, and parts of the opinion are omitted. 1458 CasEsS ON THE Law oF ConrrRaActs agreement that it shall be satisfaction of the whole, even though the agreement and payment are shown by a receipt, will not extinguish the whole debt. It is.claimed here that besides the part payment and the agreement, there is another element—the surrender of the notes to the maker—which operates as a complete discharge of the whole amount due upon them. * * * But we must abide by the old decisions, which have long since de- termined that payment of part in discharge of the whole does dis- charge the whole, if shown by a release under seal; but if shown by a. written agreement, or a receipt, or any proof short of a release, it does not. * * * Tt is sufficient for us to hold that the surrender of an instrument to be cancelled by the party to whom it belongs, is equivalent ‘to a release, A release is the act of a party by which he does what he has agreed to do. Before the release is executed, his liability stands upon agreement merely, and if the agreement is without consideration, he may legally refuse to do what he has agreed. He may back out from his agreement but not from his release. The surrender of the instru-. ment in which the party’s rights appear is also the act of the ae Giving it up would seem literally ue be dissolving the contract ‘‘ ligamine quo ligatur.’’ We think the surrender of the notes by the owner to the maker may well be put upon the same ground as a release,—as being an act of the highest significance and clearest import to show the deliber- ate and well understood agreement of the parties. It is their agree- ment executed ;—a release in practical operation. It is free from lia- bility to mistake or fraud. The deliberate surrender of notes by the owner to the maker, to be cancelled; is an act which no man of pru- dence, or of the least knowledge of‘business, would do, unless he in- tended to discharge the debt. A release, as well as the surrender of notes may be procured by deceit and fraud,—but when they are made according to the intent of the parties, they should be sustained. * * * Judgment affirmed.5° 50 ‘The effect of cancellation or surrender upon written contracts which are not formal contracts must depend somewhat upon the particular circumstances of the case. Surrender or cancellation frequently forms part of and is evidence of a parol agreement to discharge the contract. The validity of such an agree- ment depends upon rules previously considered. Even though it is impossible to make out a binding parol contract of discharge, the rules of evidence may save the original promisor from liability upon his contract; for the voluntary cancellation of the writing by the promisee may have deprived him of his only legal evidence. General Film Co. v. Sampliner, 252 Fed. 443, 448, citing Ingersoll v. Crocker, 228 Fed. 844, 852. If the writing is still in existence the mere fact that it has been surrendered will not however, it seems, prevent its use in evidence, or prevent the admission of secondary evidence of its con- tents if the holder of it refuses to produce it.” 3 Williston on Contracts, § 1879. . Tue DiscHarge or Contracts 1459 “But the cancellation of a bond, or its delivery to the obligor, or even to a stranger, with the intent that it shall be cancelled, amounts to an extinction of the debt.” Knox, J., in Albert’s Execrs. v. Ziegler’s Execrs., 29 Pa. St. 50, 58 (1857). So of bills and notes, but if the surrender is before maturity and the bill or note is payable to bearer or is indorsed in blank and is afterwards lost or stolen and before maturity is transferred to a holder in due course, the maker’s liability reattaches under §16 of the Uniform Negotiable Instruments Law, which provides that “where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed.” On the destruction of a bill or note with intent to discharge the debt, see note 50, p. 548, ante. INDEX [References are to pages, the numbers given being the first and the last pages for each item. _ Where the treatment of an item begins or ends in a note on a page having no pertinent text matter, an ‘‘n’’ follows the proper page number.] ABANDONMENT OF CONTRACT, See Conpitions; DiIscHARGE oF ConTRACTS; ESTOPPEL. ABILITY, to pay as condition precedent, 726-728. to pay as condition of promise to pay a debt barred by the statute of limitations, 726-728, ABLE, See ABILITY. ABOUT, meaning of, 903, n.-904, n. ACCEPTANCE OF DEED, See DELIVERY OF SEALED INSTRUMENT. _ACCEPTANCE OF OFFER, where bilateral contract, 43, n. by conduct, 45-48, 68-71, 251-252. where auction sale, 71-77. when in time, 77-80, 113-115. by mail or telegraph, 85-116. condition as to mode of, 115-116. counter proposal as affecting, 148-150. where conditional, 148-154. must be absolute and unequivocal, 155-164. effect of one party reserving right to reconsider, 164-165. effect of subsequent negotiations not resulting in contract, 192-194. formal contract contemplated, 195-201, 204, n. when acceptance must be actually communicated, 137, n., 212-214, n. effect of vagueness and uncertainty of terms, 214-216. silence as evidence of, 244-251. 2 accepting devise charged with payment of legacy or debts as, 254-256, n. See ILLUSORY PROMISES; OFFER AND ACCEPTANCE; REWARDS. ACCORD AND SATISFACTION, what constitutes, 1400, n., 1404, n. action upon executory accord, 428-430, 433-437. executory accord, no bar, 430-434, n. accord taken as satisfaction, 428-430. 1461 1462 INDEX ACCORD AND SATISFACTION (Continued), consideration for, 398-401, 948-951. effect of offer of satisfaction rejected, 430-434, n., 1400-1404. executory accord distinguished from compromise, 494-497. accord and satisfaction of a sealed contract, 1399-1400. whether check for part of disputed claim sent on condition that to be taken in full payment but which is credited only on account is satisfaction, 1405-1412. aceord and satisfaction by a third person with creditor, 1412-1419. ACT OF GOD, See IMPOSSIBILITY OF PERFORMANCE, ADEQUACY, : of consideration, 276-277, 283-284, 311-318, 323-334. ADMINISTRATOR, See ExEcuTor on ADMINISTRATOR. ADVERTISEMENT, See OrrerR AND ACCEPTANCE, AFFIDAVIT, making of as consideration, 328-329. AGENT, acceptance of offer by unauthorized agent as affecting revocation of offer, 195-203. interpreter as agent, 223-226, n. power of attorney on assignment, 505, n. ‘lawfully authorized’’ within the statute of frauds, 1329-1333, n, See ASSIGNMENTS; STATUTE OF FRAUDS. AGREEMENT, See ACCEPTANCE; MEETING OF EXPRESSIONS; MEETING OF MINDS; OFFER AND ACCEPTANCE, ALEATORY CONTRACT, consideration in, 497-500. conditions in, 778-780. legality of, 1131-1133. ea a ALIENABILITY, See ASSIGNMENTS. ALTERATION OF INSTRUMENT, See DISCHARGE OF CONTRACTS. ALTERNATIVE CONTRACTS, and liquidated damages, 365, n. conditions as to, 803-804. AMBIGUITY, in offer or acceptance, i. e., terms of alleged contract, 226-227, 230-232. INDEX’ 1463 ANTENUPTIAL CONTRACTS, effect of postnuptial memorandum where statute of frauds applies, 1343-1345. ANTICIPATORY BREACH, advance repudiation as, 959-991, n. : statement of inability as, 967, n. repentance as affecting, 973-975. statute of limitations as affected by, 982-986. bankruptcy as, 991-994, mitigation of damages after, 994-1009, u. APPORTIONMENT, of rewards, 182-184, APPRENTICE, obligation of master to teach, 776-778. inability of to learn as defense to master, 1021-1023. ARBITRATION, arbitration and award as condition precedent, 758-760, n. agreement for when illegal, 1166-1174, n. ° arbitration and award as discharge, 1444-1451. Tevocation of, 1447-1449. statutory arbitration, 1447-1449. condition requiring excused by other party’s repudiation of contract, 793, n., 1173, n. award after as final, 1444-1447, ARCHITECT, certificate of as a condition, 732-747, 752-758. - ARREST, as affecting failure of performance, 789-792. ASSIGNMENTS, history of, 501-511. power of attorney express or implied, 505, n. form of, 511-514, n., 519. oral assignment, 519. distinguished from negotiation, 514-519. covenants running with the land, 520-524. distinguished from discharge by new agreement, 524-527. of unearned wages or salary, 527-531, n. effect of notice by one of successive assignees of same chose in action, 531-536. rights of successive assignees of same chose in action, 531-536. partial assignments, 536-538, n. gift assignments, 538-548. effect of payment to assignor after notice of assignment, 548-555, n. right of assignee to perform contract, 554-562, 574-577, n., 580-582, 837-844. assignment of benefits, 562-574, n., 582-583, 837-844. assignment of duties, 554-562, 574-577, n., 580-582, 837-844. * effect of assignment where contract makes assignment void, 577-581, n. assignment to party objectionable to other party to contract, 574-576. by operation of law on death of party to contract, 583-588. 1464 INDEX ASSUMPSIT, when concurrent with action of debt, 278-280. ATTORNEYS AT LAW, contingent fee contracts, 1133-1139, n. contract to share fees with layman, 1139-1140. contract tending to induce violation of duty, 1194, n.-1196, n. ATTORNEY, POWER OF, theory of origin of assignments of choses in action, 505, n. AUCTION, offer and acceptance at auction sales, 71-77, 165-167. AUCTIONEER, authority to bind both parties by statute of frauds memorandum, 1331, n.- 1333, n. selling for less than reserve price, 165-167. AWARD, 2S See ARBITRATION. « BAIL, whether promise to indemnify one who becomes surety on bail bond illegal, 1181-1185, n. See STATUTE or FRAUuDSs. BAILMENT, gratuitous and consideration, 322-323. BANKRUPTCY, effect of promise to pay debt discharged by, 300, n. whether action on old debt or new promise, 303-307. See ANTICIPATORY BREACH. BASTARDY, agreement to compromise proceedings, 1163-1166. BENEFICIARIES, creditor beneficiaries, 591-600, 603-606, 639-647. sole beneficiaries, 589-590, 600-603, 606-616, n, 617-622, n. as cestuis que trust, 591, n. incidental beneficiaries, 616-617, 622-624. of contracts under seal, 42, n., 622-627. effect of attempted rescission of contract on beneficiary, 627-638. material-men and laborers’ rights on contractors’ bonds, 644-647. ascertainment of beneficiary dependent on contingency, 647-648. election between rights, 642, n. whether both promisee and beneficiary may sue, 643, n. whether parties or beneficiaries, 68-71, 637-640, n. devise charging land with payment of legacy or debts, 254-256, n. BENEFIT, ote ate See CONSIDERATION. : InpDEx 1465 BETTING, wagering contracts, 1120-1133. BID, See Auction Sate; ILLEGAL ConTRAcTs. BILATERAL CONTRACTS, bilateral and unilateral contracts, 43, n. acceptance by act in, 125. one instead of series called for, 126, n. mutuality of obligation in, 438-475. See ConsIDERATION; OFFER AND ACCEPTANCE. BLOOD RELATIONSHIP, or natural affection not consideration, 315-318, as affects beneficiaries, 589-590. BOUNDARIES, oral contract fixing disputed boundary line and the statute of frauds, 1285-1287. BREACH OF CONTRACT, See ConDiITIONS. BREACH OF PROMISE OF MARRIAGE, defenses to action for, 792, n., 799, n., 1058-1063. physical defects as excuse, 792, n., 1058-1063. BUILDING, sale of and the statute of frauds, 1271-1276. BUILDING CONTRACTS, See ARCHITECT; ConDITIONS; IMPOSSIBILITY oF PERFORMANCE. BURDEN OF PROOF, See ConpDITIONS. CANCELLATION, See DiscHARGE or ConTRACTS. CAPACITY, See DrunKEN Person; InFanT; INSANE PERSON. CERTIFICATE, See ARCHITECT; CONDITIONS. CHAMPERTY AND MAINTENANCE, See ILLEGAL CoNnTRACTs. CHARITABLE SUBSCRIPTIONS, consideration for, 334-347. CHECK, given in payment of amount larger than its amount, 398-401. ; effect of recovering a judgment on check given by one joint promisor as con- ditional payment, 668-671. 1466 INDEX COERCION, See DvuREss. CHOSE IN ACTION, See ASSIGNMENTS. CIRCULAR, as offer or only invitation to treat, 51-53, n. COLLATERAL: PROMISE, See Stature or Fravups. COMMUNICATION, See OFFER AND ACCEPTANOE. COMPOSITION WITH CREDITORS, consideration for, 335, n.-336, n. frfudulent preferences, 1228-1231. moral consideration for new promise to pay balance of debt discharged by, 312, n.-313, n. COMPOUNDING CRIME, See STIFLING PROSECUTION. COMPROMISE, consideration for, 481-497. distinguished from executory accord, 494-497, See BounDARIES, CONCURRENT CONDITIONS, See ConDITIONS. CONDITIONAL ACCEPTANCE, See ACCEPTANCE OF OFFER; OFFER AND ACCEPTANCE. CONDITIONS, distinction between gift on and consideration, 351-357. conditions going to existence of contract, 683, n. history of conditions in the law of contracts, 683, n.-684, n. independent promises, 683-684, 689-690, 761-762, 823-828, 931-933. express conditions precedent, 684-687, 694. express concurrent conditions, 688-689. implied conditions, 690-693, 695-699, 760. rules on conditions of Lord Holt, 690-693. rules on conditions of Serjeant Williams, 700-702. implied-in-fact conditions, 702-707. notice as a condition, 702-707. conditions subsequent, 708-712, n., 803-804, 854-859, n. representations and warranties in charter-parties, 712-716. representations and warranties in insurance policies, 717-722. satisfaction as a condition, 722-726. ability to pay as a condition, 726-728. certificates to be obtained as condition in insurance contracts, 728-732. certificates of architects as conditions in building contracts, 732-747, 752-758. INDEX 1467 CONDITIONS (Continued), substantial performance of conditions, 741-747, 760-764, 780-784, 802, n., 837- 844, 913, n. valuation by third persons as a condition, 748-750, n. pleading allegations and proof as to performance ‘of conditions or as to tender of performance or readiness to perform, 684-685, 710-711, 750-752, 764-767, 806-807, 819-823, 844-847, 956-959. certificate of architect as condition precedent despite fraud of architect for which owner not responsible, 752-758. arbitration and award as condition, 758-760, n. service contract silent as to time of payment, 760-761. breach to essence by plaintiff, 762-764, 768-776, 780-793, 797, u.-799, n., 801- 803, 923-930, 951-952. partly unilateral, partly bilateral contracts, 776-778. aleatory contracts, 778-780. service contract conditions, 760-761, 780-793. illness as cause as not excusing breach of condition by plaintiff in service con- tract, 784-789, n. arrest as cause as not excusing breach of condition by plaintiff in service con- tract, 789-792. breach to essence by defendant, 794-797. government war regulations as cause as not excusing breach of condition by plaintiff in sale of goods contract, 798-801. wilful default by plaintiff not going to essence, 801-803. alternative contracts and conditions, 803-804. eontract silent as to time of performance; 760-761, 804, 805. leases and conditions, 807-811. eviction, actual or constructive, and leases, 808, n.-809 n. acceptance of defective goods as waiver of damages for breach of condition or of warranty, 811-818, n. acceptance of deficiency in goods as waiver of breach of condition, 818-819. duty to prepare and tender deed on contract for the sale of real estate, 820, n. tender under contract for the sale of real estate, 819-823. implied condition in contract for instalment payments on the sale of land, 823- 828, 850-864. conveyance by vendor to third persons after contract made for sale of land, 828-836, n. ability to perform or to have performed as condition precedent, 836-837, 848-850. actual receipt of substantial performance as curing breach in transferring to another, 837-844. waiver of condition precedent, 844-848, n. separate instruments, each a unilateral contract in form, executed as part of a contract, for the sale of land as dependent, 823-826, 859-864. prevention by defendant of plaintiff’s performance as waiver of condition, 864- 866, 956-959. risk of loss by injury to building after contract for sale of land, 866-869. contract to employ as fulfilled by paying salary without furnishing work, 869- 874, n. contract to employ as manager as fulfilled by paying salary but requiring lower grade of work, 874-875. insolvency of other party as excuse for nonperformance, 876-880, n. refusal to perform for insufficient reason as no waiver of good reason unless other party could and would have removed good reason and performed if he had not been misled, 880-883. divisible contracts, conditions in, 883-913. 1468 INDEX CONDITIONS (Continued), repudiation of divisible contract, 883-888, 891-897. breach in limine of divisible contract, 888-891. breach to essence of divisible contract, 888-891, 897-913, 915-916. breach of one contract as affecting another, 909-915. dilatory refusal to perform, 915-918, n. mitigation of damages as privilege, 956-959. mitigation of damages as duty, 919-923, n, 994-1009, n. entire and separable contracts, 931-951. anticipatory breach, 952-956, 959-979, 986-994. present breach of contract of uncertain duration and total recovery, 979-981. repudiation of contract, 952-1009, n. statute of limitations applicable to contract to leave property at death in return for support, if broken by promisor in his life-time, 982-986. CONDITION PRECEDENT, See CONDITIONS. : CONDITION SUBSEQUENT, See CONDITIONS. CONDITIONAL PROMISE, as consideration, 423, n. See CONDITIONS. CONSIDERATION, theories of origin of doctrine, .261-269. in equity, 269-275. as a form, 275-276. adequacy of, 276-277, 283-284, 311-318, 323-334. promise to pay existing debt as, 277-278, 280-282. assumpsit as concurrent with action of debt, 278-280. mutual promises as, 284-285, 438-475, past consideration, 277-278, 280-282, 285-290, 294-295. moral consideration, 292-309, 311-318. blood or natural affection as, 315-318. distinguished from motive, 319-322. for gratuitous bailment, 322-323. privilege of naming child as, 323-327. making oath as, 328-329. for charitable subscriptions, 334-347. for business subscriptions, 347-351. estoppel to plead lack of consideration, 344-347. distinguished from gifts on condition, 351-357. vague and indefinite promises as, 355-358, 437-438. partly good and partly void as sufficient, 358-360. doing or promising to do what already by law apart from contract bound to do, 360-364, 480-481. doing or promising to do what already bound by contract to do, 364-397. part payment of overdue debt as consideration, 397-415. part payment by check as, 398-401. part payment of unliquidated claim as, 416-419, 948-951. part payment under agreement executed and with receipt in full given as, 420- 423, InpEx 1469 CONSIDERATION (Continued), conditional promise as, 423, n. where time for payment of debt extended, 425-428. accord and satisfaction, 428-437, 948-951, 1399-1427. ‘will, wish or want’’ contracts, 438-444. requirements contracts, 445-458, n. mutuality of obligation in bilateral contracts, 438-475. where contract voidable by infant, 471-472. where contract voidable by insane person, 473-475. where contract voidable by drunkard, 476, n. where contract voidable for duress, 477, n. in forbearance and compromise agreements, 476-497. aleatory promise as, 497-500. whether consideration must move from promisee, 637-640. CONSTRUCTIVE EVICTION, See CONDITIONS. CONSTRUCTION, implied-in-law conditions not found by construction alone but, after construction, are court-created equitable defenses, 700, n.-701, n. CONTINGENT FEES, See ATTORNEYS aT Law. CORONATION CASES, 1038-1041, n. CORPORATIONS, See PROMOTER. CORRESPONDENCE, contracts by, 85-116. COUNTER-OFFER, See COUNTER-PROPOSAL. COUNTER-PROPOSAL, effect of, 148-152, n. distinguished from inquiry as to terms, 150, n.-151, n. COVENANTS, See ASSIGNMENTS; DELIVERY oF SEALED INSTRUMENT; SEALED CONTRACTS. COVERTURE, ; promise after coverture to pay debt contracted during, 295-301. CREDITOR BENEFICIARY, See BENEFICIARIES. CROPS, sale of growing and the statute of frauds, 1274, n. 1470 InpDEX DAMAGES, liquidated, 365, n. mitigation of after repudiation, 919-923, n., 956-959, 994-1009, n. future damages, 979-981. DEATH, effect on offer of death of either offeror or offeree, 170, n. DEEDS, See DELIVERY: or SEALED INSTRUMENT; Escrow; SEALED CoNTRACTS. DEBT, See ASSUMPSIT; CONSIDERATION. DEL CREDERE AGENT, contract of not to answer for debt, default or miscarriage of another within the statute of frauds, 1237-1239. DELIVERY OF SEALED INSTRUMENT, acts and words, 24-34. treating a deed as a deed as delivery, 24. acceptance by grantee or obligee as necessary, 25-30. delivery to unauthorized third person as, 25-30. escrows to grantee, 30-33. delivery for record as, 28, n. ‘effect of mistake as to instrument’s contents, 34-35. See SEALED CoNTRACTS. DEPENDENT PROMISES, See CONDITIONS. DESCRIPTION, See STaTuTse oF FRAUDS. DESTRUCTION, ef instrument as discharge, 1459, n. DETRIMENT, See CoNsIDERATION. DIFFERENCES, wagering contracts to pay, 1122-1132, n. DISCHARGE OF CONTRACTS, by exoneration, 1388. by agreement, 1389-1391. by parol agreement to vary a sealed contract, 1391-1397, u. by estoppel, 1397-1399. by accord and satisfaction, 1399-1427. by novation, 1428-1437. by merger, 1437-1444. by arbitration and award, 1444-1451. by release, 1451-1454, n. by alteration, 1454-1457. by surrender and cancellation, 1457-1459. by intentional destruction, 1459, n. InpEx 1471 DIVISIBLE CONTRACTS, See ConpITIons. DORMANT PARTNER, discharge of by judgment against other partners, 664-668. DRUNKEN PERSON, incapacity of to contract, 476, n. DURESS, : right to avoid contract for, 477, n. ELECTION, See BENEFICIARIES ; Connitions; Join’ anp Joint AND SEVERAL Contracts, EMPLOY, meaning of word in contract, 869-873. whether contract to employ as manager performed by retaining as clerk at same salary, 874-875, : ENHANCEMENT OF DAMAGES, See DamaGEs. ENTIRE CONTRACT, See Conpitions; Stature or FRavps. EQUITABLE ASSIGNMENT, See ASSIGNMENTS. ERROR, ESSENTIAL, See MISTAKE. ESCROW, delivery to grantee or obligee in, 30-33, n. ESSENCE OF CONTRACT, BREACH TO, See ConpDITIONS. ESSENTIAL ERROR, See MISTAKE. ESTOPPEL, as to defense of statute of limitations, 309-310. as to defense of no consideration, 344-347, as to defense of statute of frauds, 1380-1387, n. See DISCHARGE oF CONTRACTS, EVICTION, See CoNnDITIONS. EVIDENCE, whether contract to procure is legal, 1139-1140. whether contract changing presumption from absence is legal, 1176-1181. . 1472 INDEX EXCUSE, See ConpDITIONS; IMPOSSIBILITY OF PERFORMANCE. EXECUTED (PAST) CONSIDERATION, See CONSIDERATION. EXECUTOR OR ADMINISTRATOR, consideration for promise by, 280-282, 290-292, n. statute of frauds as defense to, 1233-1235, n. EXONERATION, parol as discharge, 1388. See DiscHARGE OF CONTRACTS. EXPRESS CONDITIONS, See CONDITIONS. EXTENSION OF TIME, of debt, consideration for, 425-428. EXTINGUISHMENT, after voluntary, new promise and moral consideration, 311-314. See DISCHARGE OF CONTRACTS. FEE, See ASSIGNMENTS; ATTORNEYS-AT-Law. FIXTURES, sale of and statute of frauds, 1275, n. FORBEARANCE, as sufficient consideration, 476-479. See COMPROMISE. FOREIGN LAW, See IMPOSSIBILITY OF PERFORMANCE. FORMAL WRITING, as condition precedent to formation of contract, 195-201, 204, n. See MISTAKE. FRAUD, See ARCHITECT; ILLEGAL CONTRACTS. FRAUDS, STATUTE OF, See STATUTE OF FRAUDS. FRUCTUS INDUSTRIALES, statute of frauds and, 1274, n. FRUCTUS NATURALES, statute of frauds and, 1274, n. INDEX 1473 FRUSTRATION, See Impossisiuiry or PERFORMANCE. FUTURES, wagering on future prices, 1122-1133. GAMING CONTRACTS, See Brerrine; Futurrs; Innecan Cowrracrs, GIFTS, of choses in action, 538-548. condition of as distinguished from consideration, 351-357. GOODS, WARES AND MERCHANDISE, See Stature or Fraups. GRANTEE, i effect of covenant in deed poll purporting to bind, 40, n., 41, n. See DELIVERY or SEALED INSTRUMENT; SEALED Conmmacts. GRATUITOUS BAILMENT, See CoNSIDERATION. GROWING CROPS AND TREES, See StaTuTEe or FRAvpDS. GUARANTY, need of notice of acceptance of, 167-174. See OFFER AND ACCEPTANCE; STATUTE oF FRAUDS. HARDSHIP, See IMPOSSIBILITY OF PERFORMANCE. HISTORY, of contracts in English law, 1-7. of seals, 8-10. of assignments, 501-505, n. of conditions in the law of contracts, 683, n.-684, n. IDENTITY, See MISTAKE. ILLEGAL CONTRACTS, whether promise to pay for goods after statute making sale illegal is repealed is supported by moral consideration, 304. restraint of trade, 1108-1120, n. wagering contracts, 1120-1133. stock exchange transactions, 1122-1132, n, champerty and maintenance, 1133-1140. coerced agreement to stifle prosecution, 1140-1143, n. agreement to indemnify railway company against liability for the company’s negligence, 1143-1147. contract which requires other party to break a prior contract, 1147-1150. 1474 INDEX ILLEGAL CONTRACTS (Continued), agreement by author to indemnify publisher from possible actions for libel, 1150-1153. contracts not to marry, and marriage brokerage contracts, 1153-1158. eontracts to resume marital relations, 1159-1164, n. separation agreements between married persons, 1162, n. contract in compromise of or for forbearance in bringing bastardy proceedings, 1163-1166. arbitration agreements, 1166-1174, n. eontracts limiting parties to particular courts, 1173-1176. contract changing presumption as to death because of seven years’ absence, 1176-1181. contract to indemnify bail, 1181-1185, n. contract waiving in advance exemptions from execution, 1185-1187. contract never to plead the statute of limitations, 1187, n. contract to influence voters surreptitiously, 1187-1190. contract to influence legislation, 1191, n.-1192, n. lobbying contract, 1191, n.-1192, n. contract in violation of good faith to others, 1147-1150, 1191-1196, n. contract not to bid at public sale, 1195-1198. Sunday contracts, 1198-1201, n. contract to distribute intestate’s estate without administration, 1200-1202. malum in se and malum prohibitum, 1201, n. contract by unlicensed person, 1202-1204. sale with use of unsealed weights and measures, 1205-1206. effect of penalty in statute, 1206, n.-1208, n. contract of married person to marry, 1207-1209, n. innocent plaintiff suing on illegal contract, 1207-1210. knowledge of illegal purpose as affecting plaintiff, 1210-1223, n. knowledge of subsequent illegal purpose of other party as justifying refusal to perform, 1223-1227. fraudulent preferences in compositions with creditors, 1228-1231. ILLNESS, See ConpITIONS; IMPOSSIBILITY OF PERFORMANCE. ILLUSORY PROMISES, 206-211, 214-216. IMPLIED CONDITIONS, See CoNDITIONS. IMPLIED-IN-FACT CONDITIONS, See CONDITIONS. IMPLIED-IN-FACT CONTRACTS, presumptions as between relatives and members of the same household, 45-48. instances of, 45-48, 234-237, 250, n. : IMPLIED-IN-LAW CONDITIONS, See CoNDITIONS. IMPLIED PROMISES, 467-471, u. See IMPLIED-IN-FACT CONTRACTS. INDEX 1475 IMPOSSIBILITY OF PERFORMANCE, when act impossible of performance in fact when promise was made, 1009- 1011, n. where destruction of partially completed building, 1011-1019, n. where plans for building or other work are defective, 1011-1017, n., 1045-1048. where destruction of property being repaired, 1018, n.-1019, n. when performance impossible by act of God, 1013, 2., 1020-1021, 1048-1057. when performance impossible because of subsequent destruction of subject- matter, 1011-1021, 1028-1037, 1041-1044. caused by inability of pupil taught to learn, 1021-1023. when performance as contemplated by the parties impossible without the fault of either, 1023-1027, 1051-1053. coronation cases, 1038-1041, n. when performance prevented by death of party to personal service contract, 1048-1053, n. when due to fault of obligee, 1057-1058. when performance of contract to marry prevented by fitiises 1058-1063, n. where performance delayed by strikes, 1063-1067. impossibility by local law, 1067-1073. impossibility by foreign law, 1070, n.-1071, n. failure of contracted for means of performance, 1073-1075. mistake as to existence of conditions essential to performance, 1024-1027, 1075- 1080. disappointed expectations because use intended for property prevented by local law, 1080-1083. effect of prohibition law on lease of saloon, 1071-1073. prevention of performance by receivership, 1083-1085. effect of closing of schools because of epidemic on contract to pay teachers for teaching, 1085-1087, n. ‘restraint of princes’’ clause in charter-parties where war arises to prevent per- formance, 1087-1091, n., 1097, n.-1099, n. effect of war suspension clause where a war within it breaks out between the counties of the contracting parties frustrating the adventure, 1091-1097. prorating performance, 1099, n. effect of war, 1097, n.-1099, n., 1098-1107. IMPRISONMENT, See ARREST. INABILITY, See ABILITY; ANTICIPATORY BREACH. INCAPACITY, See CAPACITY. INDEMNIFY, CONTRACT TO, See InpEGAL Contracts; STATUTE OF FRAUDS. INDEPENDENT PROMISES, See CONDITIONS. INDORSER, promise of discharged indorser as supported by moral consideration or as waiver of discharge, 303. 1476 INDEX INFANT, promise of as consideration, 471-472. new promise after becomes of age as binding without new consideration, 300, n. whether old debt or new promise sued upon, 308-309. INQUIRY AS TO TERMS, distinguished from counter-proposal, 150, n.-151, n. INSANE PERSON, effect of insanity on offer, 170, n. promise of as consideration, 473-475. INSOLVENCY, See CONDITIONS. INSTALLMENT CONTRACTS, See CoNnDITIONS. INTENT, See OFFER AND ACCEPTANCE. INTENTIONAL BREACH, See CONDITIONS. INTERPRETER, formation of contract through an, 223-226, n. effect of mistakes and misrepresentations by, 223-226, n. INTOXICATION, See DRUNKEN PERSON. IRREVOCABLE OFFERS, 81-85, n., 195-206. JEST, offer made in, 49, n.-51, n. JOINT AND JOINT AND SEVERAL CONTRACTS, presumption that promisors are joint, 649-651. presumption in charitable subscription contracts that promisors are several, 651-652. when promisees are joint and when several, 653-655. joinder of promisors in action on a joint or joint and several obligation, 655- 657, 659. joinder of joint promisees, 657-659, n., 660. effect of death of a joint promisor, 659, 660-663. effect of death of a joint promisee, 660. effect of recovering a judgment against one of joint or joint and several promisors, 664-675, n. effect of recovering a judgment upon a check given by one joint promisor as conditional payment, 668-671. effect of judgment in favor of one of alleged joint promisors, 674-677, n. INDEX 1477 JOINT AND JOINT AND SEVERAL CONTRACTS (Continued), effect of release of one of joint or joint and several promisors, 674-680. whether there is release or is covenant not to sue, 677-680. effect of accord and satisfaction with or release by one of joint promisees, 680-682. : the statute of limitations and joint promisors, 682, u. ‘JOINT TORT-FEASORS, release of one of several as release of all, 679, n. JOKE CONTRACTS, not binding, 49-50. JUDGMENT, See DISCHARGE OF RENTER TE, JOINT AND JOINT AND SEVERAL CONTRACTS; MERGER. JURISDICTION, contracts ousting courts of as illegal, 1166-1176. KNOWLEDGE, of offer as necessary to contract, 183-188. of illegal purpose of other party as affecting contract rights, 1210-1227. of revocation of offer acquired indirectly, 188-192. 2 LANDS, TENEMENTS AND HEREDITAMENTS, See STATUTE OF FRAUDS. LATENT EQUITIES, See ASSIGNMENTS. LAWYER, See ATTORNEYS aT LAW. LEASE, See ConpiTIons; ILLEGAL CONTRACTS. LETTER, See MAIL. LIMINE, BREACH IN, effect of, 888-891. See CONDITIONS. LIMITATION OF ACTIONS, See SratutTe or LIMITATIONS. LIQUIDATED DEBT, See CoNSIDERATION. LOBBYING CONTRACT, when illegal, 1191, n.-1192, a. 1478 INDEX LOCUS POENITENTIAE, See ILLEGAL CONTRACTS. LOVE AND AFFECTION, See CoNSIDERATION. LUNATIC, See INSANE PERSON. MAIL, Contracts by, 85-116. « notice by, 111-113. when rejection by mail effective, 152, n. MAINTENANCE, See ILLEGAL CoNTRACTS. MALUM IN SE, 1201, n. MALUM PROHIBITUM, 1201, n. MARRIAGE, as consideration, 383, n. illegal contracts as to, 1153-1164, n. See STATUTE OF FRAUDS. MARRIED WOMAN, See CovERTURE. MEETING OF EXPRESSIONS, 43-45, n., 226-228, n. MEETING OF MINDS, effect of no meeting, 44, n., 45, n. equity rule as to specific performance, 45, n. MEMORANDUM, See STATUTE OF FRAUDS. MERGER, discharge by, 1437-1444. See ARBITRATION AND AWARD; DISCHARGE OF CONTRACTS; JUDGMENT. MINOR, See INFANT. MIS-JOINDER, See JOINT AND JOINT AND SEVERAL CONTRACTS. MISTAKE, as to contents of sealed instrument executed, 34-35. as to nature of the transaction, 218-221, 223-226, n. as to right to fill an order, 222-223. as to the identity of the subject-matter, 226-228, n. as to the existence of the subject-matter, 228-229. InDEX 1479 MISTAKE (Continued), as to the terms of ‘the alleged contract, 230-232, 234-242, n, as to the identity of the other party to the contract, 232-234, where interpreter, 223-226, n. effect of new promise after debt barred by judgment by mistake, 301-302. See OFFER AND ACCEPTANCE, MITIGATION OF DAMAGES, See Damages. MORAL OBLIGATION, See CoNSIDERATION. MOTIVE, distinguished from consideration, 319-322. MUTUAL ASSENT, See MisTAKE; OFFER AND ACCEPTANCE, MUTUAL AND CONCURRENT CONDITIONS, See ConpDITIONS. MUTUAL PROMISES, See BibaTerRaL ConTRACTS; CONSIDERATION. MUTUALITY OF OBLIGATION, See CONSIDERATION. NATURAL AFFECTION, See BLoop RELATIONSHIP. NEGLIGENCE, contract as to, 1143-1147. NEGOTIABILITY, See ASSIGNMENTS. NEGOTIABLE INSTRUMENT, See DiscHarRGEe or CONTRACTS, NEGOTIATION, PRELIMINARY, distinguished from offer, 51-53, n., 56-58. NEW PROMISE, to pay debt incurred during coverture, 295-301. to pay debt discharged in bankruptcy, 300, n., 305-307. to pay debt incurred in infancy, 300, n., 308-309. to pay debt by mistake barred by judgment, 301-302. to pay as indorser where promise made after failure to charge, 303. to pay debt incurred by illegal sale, but where statute repealed at time of promise, 304. to pay debt barred by the statute of limitations, 308, n. to pay debt voluntary released, 311-314. 1480 InDEXx NEWSPAPER, revocation of offer’: made through, 178-181. illegal contract with, 1187-1190. NON-JOINDER, See JOINT AND JOINT AND SEVERAL CONTRACTS. NONPERFORMANCE, _ See ConpDITIONS; IMPOSSIBILITY OF PERFORMANCE. NOTICE, mailing as satisfying requirement of in offer or contract, 111-113, 164-165, 171-174. See AccEPTANCE or Orrmr; ANTICIPATORY BREACH; ILLEGAL CONTRACTS; OFFER AND ACCEPTANCE; UNILATERAL CONTRACTS. NOVATION, discharge by, 1428-1437. NUDUM PACTUM, See CONSIDERATION. OBJECTIVE TESTS OF CONTRACT, 43-44. See MEETING OF EXPRESSIONS. OFFER AND ACCEPTANCE, bilateral contracts, 43, n. unilateral contracts, 43, n., 174-181, 252-254. objective tests, 43-44. implied-in-fact contracts, 45-48, 236, u., 237, n. offef and acceptance by conduct, 45-48, 68-71. offers made under excitement or in jest, or otherwise without ‘contracting in- tent, 48-50. invitations to purchase, 51-53, u., 56-58. preliminary negotiation, 51-53, n., 56-58. railway time-tables as part of offer of contract of carriage, 53-55. quotations distinguished from offers, 59-65. necessity of authorized communication of offer and of acceptance, 66-68, n., 212-214, n. as between contenders in boat race, 68-71. auction sale contracts, 71-77, 165-167. ; offers to last a definite time accepted within the time limit, 77-80. revocation of offers under seal, 81-84. irrevocable offers, 81-85, n., 195-206. attempted revocation of irrevocable offers as affecting specific performance of accepted offer, 83, u. nature of options, 84, n.-85, n. offers and acceptances by mail, 85-116. offers and acceptances by telegram, 99, u. attempted revocation after acceptance of offer by mail is itself mailed, 103-105. acceptance by mail or telegram of offer delivered or sent by some other means of communication, 106-113. personal notice, when required for acceptance or under contract, 111-113, 164- 165, 171-174. INDEX 1481 OFFER AND ACCEPTANCE (Continued), 3 conditions as to time and manner of acceptance prescribed in offer must be com- plied with, 113-116, 142-148, 165-167. contract by telephone, where made, 117-118, n. acceptance by acts, 118-126, 130-141, 251-254. reasonable time duration of offer not specified to last a definite time, 126-148. effect of failure to object that acceptance too late, 128-130. _--~uncommunicated mental intent, 136, n.-139, n., 212-213. counter-proposal as rejection, 148-152, n. conditional acceptance as rejection, 150-155, n. when rejection by mail takes effect, 152, n. . acceptance must be absolute and unequivocal, 155-164, _-ffers crossing in mail, 157-164. : contract reservation of right to reconsider, 164-165. acceptance of offer of guaranty, 167-174. death as affecting offer, 170, n. insanity as affecting offer, 170, n.-171, n. revocation of offer of unilateral contract after acts of acceptance partly per- formed, 174-181. : revocation of offer of reward made by advertisement, 178-181. apportioning reward offered, 182-183. knowledge of offer and intention to accept as essential, 183-188. communication of revocation of offer, 188-192. effect of conduct of offeror inconsistent with offer remaining open, 188-192. subsequent negotiation as affecting acceptance, 192-194. formal contract contemplated,. 195-201, 204, n. acceptance by unauthorized agent as affecting right to revoke offer, 195-203, u. acceptance on conditions which really add’ no new terms, 202-206. illusory promises, 206-211. offers for a series of contracts, 206-209, n. acceptance by conduct, 213, n.-214, n. vagueness and uncertainty of terms, 214-216. whether clauses on margin or other parts of paper containing offer or acceptance are incorporated, 216-219, n. mistake as to contents of document signed, 218-221, 223-226, n. attempted acceptance by assignee of offeree, 222-223. unilateral mistake, 223-226, n. i interpreter ’s mistakes and misrepresentations as affecting offer and acceptance, 223-226, n., 227, n.-228, n. mistake as to identity of subject-matter of contract, 226-228, n. mistake as to existence of subject-matter of contract, 228-229. mistake as to ambiguous offer, 226-227, n., 230-232, 234-237. mistake as to identity of other party, 232-234. mistake of telegraph company in transmitting offer, 238-244. whether silence of offeree is acceptance, 224-252. effect of accepting devise charged with payment of legacy or debts, 254-256, n. promoters’ contracts as offers, 256-260, n. OFFICER, See REWARD. ONE YEAR, See STATUTE OF FRAUDS. 1482 INDEX OPTIONS TO PURCHASE, nature of, 84, n., 85, n. consideration for, 332, n., 333, n. time of the essence of, 85, n. tight to revoke, 81-85, n. under seal as revocable, 81-84. See CONDITIONS. ORAL CONTRACT, See STATUTE oF FRAUDS. ORIGINAL PROMISE, See STATUTE OF FRAUDS. PAROL MODIFICATION, See DIscHaRGE OF CONTRACTS; STATUTE OF FRAUDS. PART PAYMENT, See CONSIDERATION; STATUTE OF FRAUDS. PART PERFORMANCE, See ConDiITIONS; OFFER AND ACCEPTANCE, . PARTIAL ASSIGNMENTS, See ASSIGNMENTS, PARTIES, See CoverturE; DrunKEN Person; INFANT; InsANE PERSON; OFFER AND ACCEPTANCE; SEALED CONTRACTS. PARTITION OF LAND, See STATUTE OF FRAUDS. PARTNERSHIP, oral contract of to deal in lands and the statute of frauds, 1282-1285. PART PERFORMANCE, See STATUTE OF FRAUDS. PARTY TO BE CHARGED, who is under statute of frauds, 1336, n. PAST CONSIDERATION, See CoNSIDERATION. PAYMENT, See CoNDITIONS; CONSIDERATION; STATUTE OF FRAUDS. PENALTY, See ILLEGAL CONTRACTS. PERFORMANCE, See CoNDITIONS; IMPOSSIBILITY OF PERFORMANCE. INDEX 1483 POST, See MAIL. PRECEDENT CONDITION, See ConpDiITIONs. PRELIMINARY NEGOTIATION, See OFFER AND ACCEPTANCE, PREVENTION OF PERFORMANCE, See CoNDITIONS. PRINCIPAL, See AGENT, : PRIORITY, as between successive assignees of the same chose in action, 531-536. PRIVITY OF CONTRACT, See BENEFICIARIES, PROMOTER, so called contracts of as offers, 256-260, n. PROPOSAL, See Counrrr-ProposaL; OFFER orf ACCEPTANCE. PROSECUTION, See StIrLina A PROSECUTION. PUBLIC OFFICER, See Rewarp. QUALIFIED ACCEPTANCE, See ACCEPTANCE OF OFFER; OFFER AND ACCEPTANCE, QUOTATION OF PRICES, See OFFER OF ACCEPTANCE. RATIFICATION, as affecting offer accepted by unauthorized agent but sought to be revoked before ratification, 195-203. See NEw PROMISE. REASONABLE TIME, how determined, 128, n., 142-148. effect of failure to say acceptance too late, 128-130. effect of offeror’s belief that offer still survives, 130-141. See OFFER AND ACCEPTANCE. RECEIPT IN FULL, See Consiprration; DiscHarGe or CONTRACTS. REJECTION OF OFFER, when effective if made by mail, 152, n. 1484 INDEX RELEASE, See DiscHarcre oF ConTRACTS; JOINT AND JOINT AND SEVERAL CONTRACTS; JOINT TORT-FEASORS. RENEWAL, note as supported by moral consideration, 303, n., 304, n. RENUNCIATION, See CONDITIONS. REPRESENTATION, distinguished from warranty, 712-722. REPUDIATION, See ANTICIPATORY BreacH; CONDITIONS; DAMAGES. RESCISSION, See ConDITIONS; STATUTE OF FRAUDS. ‘“RETRAINT OF PRINCES,’’ as defense for nonperformance, 1087-1091, n., 1097, n.-1099, n. RESTRAINT OF TRADE, See ILLEGAL CONTRACTS. RETURN MAIL, condition in offer requiring answer by must be complied with, 114, n., 115, n. REVOCATION, See ARBITRATION; DEATH; INSANE PERSON; OFFER AND ACCEPTANCE; REWARD. REWARD, length of time of offer of, 126-127. revocation of offer of, 178-181. who earns, 182-188. apportionment of, 182-184. necessity of knowledge of offer and intention to aecept, 183-188. distinction between public and private offers, 188, n. ; whether public officer may earn, 360-363, n. RISK OF LOSS, . by destruction of real property after. contract to purchase, 866-869. SALARY, See ASSIGNMENTS. SALE OF GOODS, See ConpiTions; STATUTE oF FRAUDS. SALE OF LAND, See Conpirions; STATUTE oF FRAUDS. SATISFACTION, ; See AccorD AND SATISFACTION; CONDITIONS. INDEX 1485 SCRAWL OR SCROLL, as seal, 12-18. SEALED CONTRACTS, history of seals, 8-10. what is a, 10-18, impression on paper as, 10-11. need of testimonium clause, 17, n. serawl or scroll as seal, 12-18. testimonium clause not conclusive of sealing, 18-20. adoption of seal where several signers, 21-23. effect of sealing by some but not by all, 21, n. effect of sealing without signing, 22-23. what constitutes both sealing and signing, 23, n. treating a deed as a deed as delivery, 24. acts or words as delivery, 24, n.-25, n. delivery to third person unauthorized by grantee or obligee as delivery, 25-30. delivery for record as delivery, 28, n. delivery to grantee or obligee in escrow, 30-33, n. effect of erroneous date, 33-34. effect of mistake as to instrument’s contents, 34-35. essentials of sealed contract, 33-34. effect of false or impossible date, 33-34. effect of obligor’s mistake as to nature of document, 34-35. no presumption of consideration from seal at common law, 35-37. effect of statutes making seal only presumptive evidence of consideration, 37-39. effect of parties signing and sealing though not named, 39-40. effect of deed poll not naming or describing grantee or obligee, 40. obligation of grantee in deed poll which contains covenants binding him, 40, n.-41, u. “who may sue on deed inter partes, 41-42. contract under seal for the benefit of a third party, 42, u., 622-627. effect of loss of seal in early common law, 676-677. parol agreement to vary, 1391-1397, n. SEPARATION AGREEMENTS, See ILLEGAL ConTRACTS. SICKNESS, See ILLNESS. SIGNATURE, whether necessary to contract under seal, 22-23. what is to memorandum required by statute of frauds, 1326-1338, n. See SEALED ConTRACTS; STATUTE OF FRAUDS. SILENCE, when evidence of acceptance of offer, 244-251. SNAPPING UP OFFER, is ineffective acceptance, 241, n. SPECIALTY, See SEALED CONTRASTS. 1486 INDEX STATUTE OF FRAUDS, statutory provisions, 1232-1233. contract by executor presonally to pay legacy, 1233-1235, n. original and collateral promises, 1235-1237. del credere agency contracts, 1237-1239. contract to pay another’s debt to prevent lien on promisor’s property, 1239- 1249. , ‘special promise,’’ meaning of, 1241, n.-1242, n. contracts to indemnify, 1249-1256, n. leading purpose test, 1255-1268. contracts upon consideration of marriage, 1268-1272, n. contracts for the sale of a building, 1271-1276, contracts for the sale of trees, 1274, n. licenses to use land, 1275, n. trade fixtures, 1275, n. parol partition by tenants in common, 1276-1279. part performance doctrine, 1277, n.-1278, n., 1280. oral rescission of written contract for the sale of land, 1279-1281. contract to procure a right of way, 1281-1282. oral partnership agreement to deal in lands, 1282-1285. oral agreement fixing boundary line between adjoining pieces of land, 1285- 1287. contract not to engage in business for several years, 1287-1289, 1292, n.-1293, n. contract for several years’ performance terminable on less than a year’s notice, 1290, n. contracts performable on: one side within a year, 1290-1294. contracts severable by years, 1294-1296. contracts to marry after a year, 1296-1297. contracts forthe sale of goods, 1297-1302. contracts for the sale of choses in action, 1301-1302. effect of failure to satisfy statute, 1302-1305. whether one contract or several contracts, 1305-1307, n. meaning of ‘‘no action shall be brought’’ and of ‘‘no contract * * * shall be allowed to be good,’’ 1302-1305. acceptance and actual receipt of goods, 1302-1309. part payment for goods, 1306-1313. sufficiency of memorandum, 1313-1364. abbreviations in memorandum, 1313-1323. certainty of description, 1323-1326. what constitutes signature, 1326-1329, 1332-1338, n. signature and authority of agent, 1329-1331. signature and authority of auctioneer, 1331, n.-1333, n. party to be charged, 1336, u. undelivered deed as memorandum or part of memorandum, 1338-1342. oral antenuptial contract and postnuptial memorandum, 1343-1345. several writings, 1345-1351. statement of consideration, 1351-1356, n. description of property, 1356-1364. oral variation of contract evidenced in writing as required by the statute, 1364- 1379. estoppel to plead the statute, 1380-1387, n. STATUTE OF LIMITATIONS, waiver of bar of, 308, n. estoppel to plead, 309-310. < INDEX 1487 STATUTE OF LIMITATIONS (Continued), ability to pay as condition of promise to pay a barred debt, 726-728. anticipatory breach and, 982-986. STIFLING A PROSECUTION, illegal contract as to, 1140-1143, n. STOCK, shares of and statute of frauds, 1301, n. STOCK EXCHANGE, contracts on the, 1122-1132, n. STRIKES, as excuse for nonperformance, 1063-1067. SUBROGATION, See BENEFICIARIES. SUBSCRIPTIONS, charitable, consideration in, 334-337. charitable, presumption that signers promise severally, 651-652. business, consideration in, 347-351. See CoNSIDERATION; JOINT AND JOINT AND SEVERAL CONTRACTS. SUBJECTIVE TESTS OF CONTRACT, See MEETING oF MINDS. SUBSEQUENT CONDITIONS, See CoNDITIONS. SUBSTANTIAL PERFORMANCE, See CoNDITIONS. SUNDAY CONTRACTS, See ILLEGAL CONTRACTS. SUPPORT, repudiation of contract for, 979-986. statute of limitations applicable to, 982-986. Prevention of performance of contract for, 1057-1058. SURETY, See ILLEGAL ConTRACTS; JOINT AND JOINT AND SEVERAL Contracts; STATUTE or FRAUDS. SURRENDER, See DISCHARGE OF CONTRACTS. SURVIVORSHIP, See Jomnt AND JOINT AND SEVERAL CoNnTRACTS. TACIT ACCEPTANCE, See OrrerR AND ACCEPTANCE. 1488 INDEX TEACHER, See ConDITIONS; IMPOSSIBILITY or PERFORMANCE. TELEGRAPH, acceptance by when communicated when offer by telegram, 99, n. acceptance by when offer oral or written, 106-110. offer by telegram calls for prompt reply, 110, n., 111, n. mistake in message as affecting offer, 238-244. telegraph company as agent of offeror, 238-244, TELEPHONE, where contract by is made, 117-118, n. TENDER, meaning of, 821, n. See ConbDiITIONS. TERMINATION OF OFFER, See CouNTER-PRoposaL; DEaTH; INSANE PERSON; OFFER AND ACCEPTANCE; REASONABLE TIME, THIRD PARTIES, See ASSIGNMENTS; BENEFICIARIES; CONSIDERATION. TIME, of the essence means what, 901, n.-902, n. See ConpDiITIONS. TIME-TABLE OF RAILWAY. as part of offer of carriage, 53-55. TORT, estoppel to plead statute of limitations as to, 309-310. new promise will not revive if barred, 310, n. See Joint Tort-FEasors. TRADE CIRCULAR, as an offer, 51-53, n. TREES, contract to sell standing and statute of frauds, 1274, n. TRUST, See BENEFICIARIES. UNFORESEEN DIFFICULTIES, . as justification for exacting increased compensation for performing promise, 393-396, un. See IMPOSSIBILITY OF PERFORMANCE. UNILATERAL CONTRACTS, unilateral and bilateral contracts, 43, n. acceptance by doing act, 118-125, 252-254. guaranty as unilateral, 167-174. a ‘guaranty, need of notice of acceptance, 171-174. : InpEx 1489 UNILATERAL MISTAKE, See MISTAKE. VOLUNTARY AGREEMENT UNDER SEAL, valid at common law, 35-36. effect of statute making seal only presumptive evidence of consideration, 37-39. UNLAWFUL AGREEMENTS, See ILLEGAL CoNnTRACTS. UNLIQUIDATED CLAIM, See AccorD AND SATISFACTION; CONSIDERATION. VALUATION, as a condition, 748-750, n. VARIATION, of sealed contracts by parol, 1391-1397, n. of written contracts within the statute of frauds by oral contract, 1364-1379. VOLUNTARY DISCHARGE, effect of new promise by debtor after, 311-314. WAGERING CONTRACTS, See ILLEGAL CONTRACTS. WAIVER, See ConpiTIons; NEw PROMISE. WAR, effect of in suspending statute of limitations, 708-710. effect on condition subsequent as to time of suit on insurance policy, 708-710. danger of capture during as excuse for nonperformance of carriage by vessel, 1090, n.-1091, n. frustration of adventure and, 1087-1107. as excuse for nonperformance, 1087-1107. ‘‘restraint of princes’? clause in contract construed with reference to, 1087- 1091, n., 1097, n.-1099, n. when dissolves contract despite suspension clause, 1098-1107. WARRANTY, distinguished from representation, 712-722. as condition, 712-722. WATER COMPANY, See BENEFICIARIES. WILFUL DEFAULT, See CONDITIONS. ‘WILL, WISH OR WANT”’’ CONTRACTS, 438-444. WRITTEN CONTRACT, See ForMAL WRITING; STATUTE OF FRAUDS. YEAR, See STATUTE OF FRAUDS. ? & KF 801 A7 C84 c.1 Author Vol. Costigan, George Purcell Title Copy Cases on the law of contracts