which may be overcome by evidence; and this statutory effect is extended to all actions founded upon contract, whether legal or equitable. The practical result of this legislation is, that in actions upon sealed agreements, the burden of proof, in regard to a consideration, is shifted from the plaintiff to the defendant.(1) Although there must be a valuable consideration, it need not be pecuniary. In family arrangements, agreements for the settlement of actual or possible controversies, and the like, a slight consideration is sufficient, and the court requires but little to uphold and enforce a compromise fairly and deliberately made. In all such cases the contract is, of course, not a "voluntary" one.(2)

SECTION III.

A contract must be actually concluded between the parties, with the requisite formalities; there must be an aggregatio mentium" upon the same matters.

SECTION 58. A contract must be actually concluded, for otherwise there are no rights upon which the equitable remedy can operate. "An agreement is the result of the mutual assent of two parties to certain terms, and if it be clear that there is no consensus, what may have been written or said becomes immaterial."(3) Whenever, therefore, the transaction has not passed beyond the condition of negotiation or treaty, there can be no specific performance. And if it is left

(1) R. S. of N. Y. v. 2, p. 406, § 77: "In every action upon a sealed instrument, and when a set-off is founded upon any sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner and to the same extent, as if such instrument were not sealed." See, construing this section, Wilson v. Baptist Education Soc., 10 Barb. 308; Alabama-Rev. Code (1867), p. 526, § 2632; Michigan-Comp. Law (1871), v. 2, p. 1710, § 90; Oregon-Gen. Laws (1872), p. 258, § 743; Texas-Pasch. Dig. v. 1, § 228. In several states, the distinction between sealed and unsealed instruments is abolished, and a want of consideration can always be shown as a defense, except in the ordinary case of negotiable paper. California-Civ Code, § 1629; Indiana-2 R. S. (G. & H.) p. 180, § 273; Iowa-Rev. Code (1873), p. 383, §§ 2112, 2113, 2114; Kansas-Gen. Stat. (1868) p. 183, §§ 6, 7, 8; Kentucky-1 R. S. (Stanton's) p. 267, §§ 2, 3; Nebraska-Gen. Stat. (1873) p. 1001; Tennessee— Gen. Stat. (1871) §§ 1804, 1806; Texas-Pasch. Dig., v. 1, § 5087 (on contracts and conveyances "respecting real or personal property ”).

(2) For an illustration, see Houghton v. Lees, 1 Jur. (N. S.) 862.

(3) Per Ld. Ch. WESTBURY, in Chinnock v. Marchioness of Ely, 4 De G., J. & S. 638, 643.

doubtful, from all the evidence in a case, whether a contract was concluded or not, equity will not grant its specific relief:(1) When the parties have, at the same time, executed a written instrument which sets forth, in a formal manner, the terms of the agreement, there can hardly be any doubt or difficulty as to the fact of its actual conclusion. The practical questions connected with this branch of the subject arise upon contracts which are claimed to have resulted from negotiation, correspondence, conversation, or other analogous acts, through which the final assent of the parties to the same terms may be brought about and expressed. The various modes through which the agreement of the two minds may be produced, the mutual assent reached, and contract thereby concluded, may be reduced to a few generic classes; and I shall examine the important questions presented by each class separately.

SEC. 59. 1. Offer and acceptance.- Contracts resulting from negotiations, whether written or verbal, when reduced to their elements, generally consist of an offer and an acceptance. The general rules, to which attention is now called, are equally applicable, whether the offer and acceptance are made and the negotiation conducted by writings or by conversation; the particular modifications introduced by the requirements of the statute of frauds will be considered in a subsequent part of the section. An offer or proposal made by one party, and the acceptance thereof by the other, constitute a contract; in other words, a contract is thereby concluded, so that it may be enforced.(2) By these means the minds of the parties meet, and their mutual assent is obtained in respect to the same terms and subjectmatter. I shall discuss: 1, the nature and incidents of the offer; 2, the nature and incidents of the acceptance; and 3, the time when they become effective in producing a contract.

SEC. 60. Nature and incidents of the offer.-The offer or proposal has, before acceptance, no binding force or effect. Even when promissory in its form, it is, at most, a unilateral promise, without consideration. It is an act of one party alone, and requires the corresponding act of the other party in order to produce the mutual assent, and to give it a legal validity as a constituent part of a contract. When the proposal is in writing, it acquires, as such, no higher or more compulsory character. It has none of the qualities which

(1) Stratford v. Bosworth, 2 V. & B. 341; Huddleston v. Briscoe, 11 Ves. 583, 591; Carr v. Duval, 14 Pet. 77.

(2) Kennedy v. Lee, 3 Mer. 441.

belong to a written memorandum of an agreement.(1) The offer is, while it remains such, completely under the control of the person who makes it.

SEC. 61. How may it be terminated ?—The proposal may be ended by a withdrawal; by a refusal on the part of the person to whom it is made; and by an unreasonable delay; and, after it is thus terminated, no acceptance or offer to accept is operative By withdrawal. As the offer is not in any sense binding, the person who makes it may, at any time before a valid acceptance has changed its character, withdraw it and thus put an end to the negotiation; he can do this whatever be its form, whether promissory or not, and without any reason except his own will.(2) Although the person to whom the offer was made may have intended, and even attempted, to accept, still if the acceptance was for any reason imperfect and not binding, so that no contract

(1) In Warner v. Willington, 3 Drew. 531, V. C. KINDERSLEY said: "In the case of an offer, no doubt the party signing it may, at any time before acceptance, retract; but if it be an agreement, though signed by one party alone, he cannot retract at his pleasure, but all he can do is to call upon the other party to sign or rescind the agreement. A memorandum of an agreement supposes that the two parties have verbally made an actual contract with each other; and when the terms of such contract are reduced into writing and signed, that is sufficient to bind the party signing; but if the memorandum is of an offer only, that assumes that there has been no actual contract between the parties." And see Meynell v. Surtees, 1 Jur. (N. S.) 737; Horsfall v. Garnett, 6 W. R. (1857-8), 387; Tucker v. Wood, 12 John. 190; Bower v. Blessing, 8 S. & R. 243. In Rummens v. Robbins, 3 De G., J. & S. 88, the offer was, in form, a contract of sale containing special clauses, submitted by the owner to the proposed purchaser for his approval. L. J. KNIGHT BRUCE said (p. 95): "It was requisite that the plaintiff's accession to these terms [of said proposed contract] should be obtained; and until that accession should be obtained, this contract was a mere proposal - a mere proposal of terms by a person not then bound."

(2) Dickenson v. Dodds, L. R. 2 Ch. D. 463; Rummens v. Robbins, 3 DeG. J. & S. 88, 95; Thornbury v. Bevill, 1 Y. & C. C. C. 554; Meynell v. Surtees, 1 Jur. (N. S.) 737; Warner v. Willington, 3 Drew. 523; Mactier v. Frith, 6 Wend. 103. In Rummens v. Robbins, 3 DeG. J. & S. 88, an offer in the shape of a contract submitted to the proposed purchaser for his approval, was withdrawn before acceptance by the intended vendor, by means of a written notice; per L. J. KNIGHT BRUCE, p. 95: "Now this was what the writers of the letter had a right to do, for they were not bound until their proposal was capable of being validly accepted and had been accepted, and two months had passed without the plaintiffs intimating any acceptance. The attorneys then on behalf of the vendors were acting in the clear exercise of their right in withdrawing the proposal and in refusing to have anything more to do with it. It was then in vain for the plaintiff to carry on a correspondence according to the proposed contract which had been left two months without being acceded to."

was concluded, the power of withdrawal remains unaffected.(1) If the offer, in express terms, specifies the time within which the acceptance may be or must be made; or, in other words, states the period during which it will remain open, the power of withdrawal is not thereby restricted, but may be exercised at any time before an acceptance and before the limitation has expired.(2) No formal notice is necessary to constitute a withdrawal. It is sufficient that the person making the offer does some act inconsistent with it-as, for example, sells the property in question to another purchaser, and that the person to whom the offer was made has knowledge of such act. Indeed, it appears that a sale of the property to a third person would, of itself, be a withdrawal, although made without the knowledge of the originally intended vendee.(3)

SEC. 62. By a refusal.—A refusal to accept by the person to whom the proposal is made, terminates the offer, and no subsequent readiness to accept or acceptance will avail to conclude a contract upon the basis of such original offer.(4) The proposer may, of course, renew and thus commence the negotiation. It would appear that, to

(1) In most of the cases which turn upon a withdrawal, it will be found that there was some attempt to accept-some act claimed to have been an acceptance. Rummens v. Robbins, 3 DeG. J. & S. 88; Warner v. Willington, 3 Drew. 523.

(2) Routledge v. Grant, 4 Bing, 653; Cooke v. Oxley, 3 T. R. 653; Dickenson v. Dodds, L. R. 2 Ch. D. 463; Boston & Me. R. R. v. Bartlett, 3 Cush. 224. In Dickenson v. Dodds the owner of property signed a paper which purported to be an agreement to sell at a fixed price, but included: "This offer to be left over until Friday, 9 A. M." Before that time he sold the property to another person. After this sale, the one to whom the first offer was made announced his acceptance, and brought an action to compel a specific performance. Held, that the offer was properly withdrawn, and that no contract arose from the plaintiff's subsequent acceptance. In Boston & Me. R. R. v. Bartlett, an offer was given to sell certain land at a specified price, the answer to be given in thirty days. Held, that such offer was a continuing one; "during the whole of that time it was an offer every instant;" but it might be withdrawn at any time before acceptIf unrevoked at the time of acceptance, it would become a concluded

ance.

contract.

(3) Dickenson v. Dodds, L. R. 2 Ch. D. 463. Facts are stated in the last note. Held, that an offer to sell may be withdrawn before acceptance without any formal notice to the party to whom it was made. It is sufficient if that person has knowledge that the vendor has done some act inconsistent with the offere. g., selling the property to a third person. Semble, a sale to a third person would be a withdrawal, even though the first vendee had no knowledge of it. The act of the vendor, in this case, amounted to an offer which was effectually withdrawn.

(4) Hyde v. Wrench, 3 Beav. 334; Frith v. Lawrence, 1 Paige, 434.

produce the effect above mentioned, the refusal must be positive, intended as a rejection, and not merely as a suggested modification of the proposed terms, while the original offer remains in abeyance, to be further considered and perhaps accepted, if the suggestion is not approved. There are many cases in which the offer as first made has been accepted, and a contract thereby concluded, after alterations in it had been unsuccessfully attempted by the intended purchaser. In all such cases the offer must, of course, remain unrevoked. As the person to whom an offer is made, may, instead of accepting or rejecting it, suggest some variation or addition, so the original proposer may, instead of wholly withdrawing his offer, modify it at any time and in any manner before acceptance, by adding, omitting, or altering terms, and in either case the transaction continues to be mere negotiation until the point is reached where an offer as made on one side is accepted on the other, and a contract is thereby concluded.(1) By delay. The offer is, also, terminated by unreasonable delay on the part of the person to whom it is made. This proposition is identical with the rule that the acceptance must be made within a reasonable time, the discussion of which is found in a subsequent paragraph.(2)

SEC. 63. Nature and incidents of the acceptance.-As the acceptance is the means by which the minds of two parties are brought to an agreement, it must be so expressed as to show that there is an actual assent, a meeting of the two minds, and that there is an assent upon exactly the same matters. To produce a concluded contract the

(1) Honeyman v. Marryatt, 21 Beav. 14; 6 H. L. Cas. 112, illustrates such a variation by the vendor. Marryatt advertised an estate for sale. Honeyman proposed to purchase it and offered to pay a certain price. M's agent wrote, April 4th, to H's solicitor: “Mr. M. has authorized us to accept the offer, subject to the terms of a contract being arranged between his solicitor and yourself. Mr. M. requires a deposit of from 1,2007. to 1,5001., and the purchase to be completed at midsummer day next." A correspondence followed, H. objecting to the deposit. M., thereupon, before any acceptance, required 15007. deposit, and the purchase to be completed on April 27th, and that the deposit should be paid and the agreement signed before a given day or the treaty would be at an end. H. did not comply with these terms, but subseqnently offered to pay the deposit and sign the agreement, which M. refused. On a bill filed by H. the M. R. held that the words, "subject to the terms of a contract being arranged between his solicitor and yourself," prevented the letter of April 4th from constituting an absolute contract, and that M. had a right afterwards to add the terms as to the deposit and the day for completing the contract; and so dismissed the bill. This decision was affirmed in the House of Lords.

(2) See infra, § 65.