defendant to a country agent for the company. A letter of allotment, duly addressed to the defendant, was posted from the London office, but never reached him. The company went into liquidation, and the liquidator sued for the amount due on the shares. It was held by Thesiger and Baggallay, LJJ., that on the existing authorities, which were carefully reviewed, "if an offer is made by letter, which expressly or impliedly authorizes the sending of an acceptance of such offer by post, and a letter of acceptance is posted in due time, a complete contract is made at the time when the letter of acceptance is posted, though there may be delay in its delivery" (a); that, on the grounds and reasoning of the authorities, this extends to the case of a letter wholly failing to reach its address; that in this case the defendant must under the circumstances be taken to have authorized the sending by post of a letter of allotment; and that in the result he was bound. The rule, it seems, is to be taken as limited "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" (b). Cases outside these limits, however, are not likely to be frequent. Nothing was said by the majority of the Court about the contingency of a revocation overtaking the acceptance. Bramwell, L.J. delivered a vigorous dissenting judgment, in which he pointed out among other things the absurdity of treating such a revocation as ineffectual. But he relied mainly on the broad ground that a letter not delivered at all " is not a communication, and that there is no agreement to take it as an equivalent for or to dispense with a communication" (c). It is perhaps not too presumptuous to regret that the Lord Justice Bramwell's view did not prevail. But the result must be (a) Baggallay, L. J. 4 Ex. D. at p. 224. (b) Baggallay, L. J., at p. 228; the same limitation seems admitted Acceptance won't taken, we think, as final. It will be seen by reference to the Appendix that it is not simply a decision by the Court of Appeal, but a confirmation by the Court of Appeal of that sense in which a previous decision of the House of Lords has on the whole been generally understood. The practical conclusion seems to be that every prudent man who makes an offer of any importance by letter should expressly make it conditional on his actual receipt of an acceptance within some definite time. It would be impossible to contend that a man so doing could be bound by an acceptance which either wholly miscarried or arrived later than the specified time (a). We have seen that in general the contract dates from relate back the acceptance; and though the acceptance be in form an though re- acknowledgment of an existing agreement, yet this will trospective not make the contract relate back to the date of the proposal, at all events not so as to affect the rights of third persons (b). in form. Death of proposer: semble, an revocation other party. There is believed to be one positive exception in our law to the rule that the revocation of a proposal takes absolute effect only when it is communicated to the other party. though not This exception is in the case of the proposer dying before known to the proposal is accepted. This event is in itself a revocation, as it makes the proposed agreement impossible by removing one of the persons whose consent would make it (c). There is no distinct authority to show whether notice to the other party is material or not; but in the analogous case of agency the death of the principal in our law, though not in the civil law, puts an end ipso facto to the agent's authority, without regard to the time when it becomes known either to the agent or to third parties (d). It would probably be impossible not to follow the analogy (a) See per Thesiger, L. J. 4 Ex. D. at p. 223, and per Bramwell. L. J. at p. 238. (b) Felthouse v. Bindley, 11 C. B. N. S. 869, 31 L. J. C. 1'. 204. (c) Per Mellish, L. J., in Dickinson v. Dodds, 2 Ch. D. at p. 475. (d) Blades v. Free, 9 B. & C. 167; Campanari v. Woodburn, 15 C. B. 400, 24 L. J. C. P. 13,2 Kent Comm. 646, D. 46, 3, de s. lut. et liberat. 32. The Indian Contract Act, s. 208, illust. (c), adopts the rule of the civil law. no revoca. of this doctrine. The Indian Contract Act makes the knowledge of the other party before acceptance a condition of the proposal being revoked by the proposer's death. As Insanity for insanity, which is treated in the same way by the tion. Indian Act, that would not in general operate as a revocation by the law of England, for we shall see that the contract of a lunatic (not so found by inquisition) is only voidable even if his state of mind is known to the other party. But it has been said that " if a man becomes so far insane as to have no mind, perhaps he ought to be deemed dead for the purpose of contracting" (a). The next rule is in principle an exceedingly simple one. It is that 6. "In order to convert a proposal into a promise the Acceptacceptance must be absolute and unqualified" (b). ance must be unquali. For unless and until there is such an acceptance on the fied. one part of terms proposed on the other part, there is no expression of one and the same common intention of the parties, but at most expressions of the more or less different intentions of each party separately-in other words, proposals and counter-proposals. Simple and obvious as the rule is in itself, the application to a given set of facts is not always obvious, inasmuch as contracting parties often use loose and inexact language, even when their communications are in writing and on important matters. will readily be seen that the question whether the language used on a particular occasion does or does not amount to an acceptance is wholly a question of construction, and generally though not necessarily the construction of a written. instrument. The cases in which such questions have been decided are numerous (e), and we shall here give by way of illustration only a few of the more recent ones (d). (a) Bramwell, L.J., Drew v. Nunn, 4 Q. B. D. at p. 669. () Indian Contract Act, s. 7, sub-s. 1. (c) For collected authorities, see inter alia) Fry on Specific Perform ance, c. 2, pp. 75 899. (d) Cp. also the French case in the Court of Cassation given in Langdell's Select Cases on Contract, 155. Instances of insufti cient accept ance. In Honeyman v. Marryat (a), before the House of Lords, a proposal for a sale was accepted "subject to the terms of a contract being arranged" between the vendor's and purchaser's solicitors: this was clearly no contract. Compare with this Hussey v. Horne Payne (b), from which it seems that an acceptance of an offer to sell land “subject to the title being approved by our solicitors" is not a qualified or conditional acceptance, but means only that the title must be investigated in the usual way; in other words, it expresses the condition annexed by law to contracts of this class, that a good title shall be shown by the vendor. In Appleby v. Johnson (c), the plaintiff wrote to the defendant, a calico-printer, and offered his services as salesman on certain terms, among which was this: "a list of the merchants to be regularly called on by me to be made." The defendant wrote in answer : "Yours of yesterday embodies the substance of our conversation and terms. If we can define some of the terms a little clearer, it might prevent mistakes; but I think we are quite agreed on all. We shall therefore expect you on Monday. (Signed)-J. Appleby.-P.S.—I have made a list of customers which we can consider together." It was held that on the whole and especially having regard to the postscript, which left an important term open to discussion, there was no complete contract. In Crossley v. Maycock (d) an offer to buy certain land was accepted, but with reference to special conditions of sale not before known to the intending purchaser. Held only a conditional accept ance. In Stanley v. Dowdeswell (e) an answer in this form: "I have decided on taking No. 22, Belgrave Road, and have spoken to my agent Mr. C., who will arrange matters with you," was held insufficient to make a contract, as not being complete and unqualified, assuming (which was doubtful) that the letter of which it was part did otherwise sufficiently refer to the terms of the proposal. In Addinell's case (ƒ) and Jackson v. Turquand (g), a bank issued a circular offering new shares to existing shareholders in proportion to their interests, and also asking them to say if in the event of any shares remaining they should wish to have any more. Certain shareholders wrote in answer, accepting their proportion of shares, and also desiring to have a certain number of additional shares, if they (a) 6 H. L. C. 112, by Lord (b) 4 App. Ca. 311, 322. (d) 18 Eq. 180. (e) L. R. 10 C. P. 102. Compare Smith v. Webster, 3 Ch. D. 49. (ƒ) 1 Eq. 225. (g) L. R. 4 H. L. 305. could, on the terms statel in the circular. In reply to this the directors sent them notices that the additional shares had been allotted to them, and the amount must be paid to the bank by a day named, or the shares would be forfeited. It was held by Kindersley, V.-C., and confirmed by the House of Lords, that as to the first or proportional set of shares the shareholder's letter was an acceptance constituting a contract, but as to the extra shares it was only a proposal; and that as the directors' answers introduced a material new term (as to forfeiture of the shares if not paid for within a certain time), there was no binding contract as to these. In Wynne's case (a) two companies agreed to amalgamate. The agreement was engrossed in two parts, and contained a covenant by the purchasing company to pay the debts of the other. But the purchasing company (which was unlimited) before executing its own part inserted a proviso limiting the liability of its members under this covenant to the amount unpaid on their shares. This being a material new term, the variance between the two parts as executed made the agreement void. In this, and later in Beck's case (b), in the same winding up, a shareholder in the absorbed company applied for shares in the purchasing company credited with a certain sum according to the agreement, and received in answer a letter allotting him shares to be credited with a "proportionate amount of the net assets of his former company. It was held that, apart from the question whether the allotment was conditional on the amalgamation being valid, there was no contract to take the shares. On the other hand, the following instances will show that the rule Instances of suffimust be cautiously applied. An acceptance may be complete though cient acit expresses dissatisfaction at some of the terms, if the dissatisfaction ceptance. stops short of dissent, so that the whole thing may be described as a "grumbling assent" (c). Again, an acceptance is of course not made conditional by adding words that in truth make no difference; as where the addition is simply immaterial (d), or a more formal memorandum is enclosed for signature, but not shown to contain any new term (e). And further, if the person answering an unambiguous proposal accepts it with the addition of ambiguous words, which are capable of being construed consistently with the rest of the document and so as to leave the acceptance absolute, they will if possible be so construed (ƒ). (a) 8 Ch. 1002. (b) 9 Ch. 392. (c) Joyce v. Swann, 17 C. B. N. S. 84: cp. per Lord St. Leonards, 6 H. L. C. 277-8 (in a dissenting judgment). (d) Clive v. Beaumont, 1 De G. & S. 397. (e) Gibbons v. N. E. Metrop. Asylum District, 11 Beav. 1. (f) English & Foreign Credit Co. v. Arduin, L. R. 5 H. L. 64; per Lord Westbury, at p. 79. |