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(when a vice chancellor), who, both on that ground and on the nature of the judge's order, refused specific performance.(b) ance. (b) The opposite view has been taken in some cases at common law, and it has been said that a contract is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of a judge.(c)'

(2) Are instructions for a settlement a contract for a settlement, or only instructions for a contract? This was a question on which the House of Lords was in one case much divided. (d)

(3) Are articles of association a contract between the company and a third person named in them? This is a question which, under special circumstances, has been answered in the affirmative. (e)

(4) Is the recital in a deed evidence of a contract?-is a question which also has been answered in the affirmative. (ƒ)

§ 269. A much more common question is whether negotiations have passed from that state and resulted in actual contract.' If it were only doubtful whether the contract was concluded or negotiations still remained open, the court of chancery used to refuse specific performance, and leave the parties to their common law rights if any.(g)

§ 270. A binding contract, enforceable in equity, may be constituted by the proposal of one party and the acceptance of the other. (h) But as the proposal has no validity with

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(f) Wilson v. Keating, 27 Beav., 121; aff'd 4 De G. & J., 588

(g) Huddleston v. Briscoe, 11 Ves., 583, 591; Stratford v. Bosworth, 2 V. & B., 341; Skelton v. Cole, 1 De G. & J., 587.

(h) The acceptance must be by the other party. An offer by A. to B. and acceptance by C. constitutes no contract. Meynell v. Surtees, 3 Sm. & Gif., 101, 117.

1 A party wrote to the owner of land inquiring the price. Held, that the reply of the latter stating the price, does not constitute a proposition to sell. Knight v. Cooley, 34 Iowa, 218; Erwin v. Erwin, 25 Ala., 236. Construction of the word immediately. Bruner v. Wheaton, 46 Mo., 363.

Rule as to acceptance of terms.] In order that an acceptance may be binding, it must be distinct, unconditional; it must not vary the terms of the offer, and it must be communicated without unreasonable delay. Thomburry v. Bevill, 1 Y. & C. C. C., 554; Eads v Carondolet, 42 Mo., 113; Bruner v. Wheaton, 46 id., 363; Bethel v. Hawkins, 21 La. An., 620; Wilson v. Clements, 3 Mass., 1; Peru v. Turner, 10 Me., 185; Johnson v. Fisher, 7 Watts, 48; Hazard v. New England Mar. Ins. Co., 1 Sumn., 218; Carr v. Duval, 14 Pet., 77; Hartford and New Haven R. R. Co. v. Jackson, 24 Conn., 514; Solomon v. Webster, 4 Colorado, 353; Carter v. Shorter, 37 Ala., 253.

2 Carr v. Duval, 14 Pet., 77.

out the acceptance, a memorandum of offer differs essentially from a memorandum of agreement. "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 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.'

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§ 271. In order that an acceptance may be operative, it must be plain, unequivocal, unconditional and without variance of any sort between it and the proposal, and it must be communicated to the other party, and that without unreasonable delay.(j)

§ 272. The proposition that the acceptance must be plain, unequivocal, unconditional and without variance, is supported and illustrated by a great variety of decisions. In the case of Kennedy v. Lee, (k) the subject was much discussed; it was there unsuccessfully argued that the acceptance introduced a term respecting the good-will of a business not included in the proposal.

§ 273. The unequivocal character of the acceptance that is requisite is well illustrated by a case in which A. made an

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In the case of the Canal Co. v. Railroad Co., 4 Gill & J., 1, a contract, valid and binding at law, is defined to be a mutual consent of the parties concerned, respecting some property or right that is the object of the stipulation, or something that is to be done or forborne; a transaction between two or more persons, in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised or disputed by the other; and any words manifesting a congregatio mentium, are sufficient to constitute a contract. But this mutual consent-the congregatio mentium-cannot, of course, be attained without the assent of both parties. Therefore, if A. sign a writing that he will sell B. a house on certain terms, it is a mere proposition, and not an agreement, unless accepted by B. Tucker v. Wood, 12 John., 170. Nor is a paper, filed in a cause by one party, offering to be bound by certain terms, if the verdict should be in his favor, but not accepted by the other party, binding on the party who filed it. Bower v. Blessing, 1 S. & R., 243.

offer to B., by letter, to sell a lot of land; B. filed a bill against A., alleging a contract in writing for the sale of this estate, and the answer offered to sell the estate; the decree was in the alternative for a conveyance on the payment of the purchase money into the bank, or in default for the dismissal of the bill; the money was paid. The question arose between the heirs and devisees of B. as to the time when the contract became binding; it was held that the bill did not amount to an acceptance so as to bind B.; for he as plaintiff might have dismissed his bill; the decree did not, for it left an election to the plaintiff; but the payment of the money into the bank did, for that was unequivocal. (7) In another case, where the plaintiff had made an offer to take a farm, and had referred to certain persons as to his capabilities and capital, and in consequence of this offer the agents of the proposed lessor had, by his direction, prepared and sent to the proposed lessee a lease which they considered to be in pursuance of the proposal; Kindersley, V. C., held this not to be an acceptance, (m) on the ground that the act was ambiguous and conditional-ambiguous, because the lease might have been sent in order to save time, and without any intention of departing from the right of accepting or refusing the offer of the plaintiff, according to the result of his communication with the referees; and conditional, because the sending the draft lease, if an acceptance at all, was an acceptance upon condition that the defendant accepted the draft lease. The case of Thomas v. Blackman, (n) before Knight Bruce, V. C., may also be referred to as illustrating this doctrine. Here there had been a long correspondence, and the vice chancellor held that there never had been, in any part of it, a clear accession on both sides to one and the same set of terms; and accordingly he decreed the dismissal of the bill, unless the plaintiff accepted the terms of the defendant's original offer, which the plaintiff acceded to.'

(1) Gaskarth v. Lord Lowther, 12 Ves., 107. Cf. Horsfall v. Garnett, 6 W. R., 387. (m Warner v. Willington, 3 Drew., 523. (n) 1oll., 301.

1 The assent must be to the same subject matter, and in the same sense that is offered. Hazard v. New England Mar. Ins. Co., 1 Sumner, 218. And the proposition must be accepted according to its terms; any qualification of, or departure from, them invalidates the offer, unless afterwards agreed to by the person making it. Carr v. Duval, 14 Pet., 77. Thus in Peltier v. Collins, 3

§ 274. In illustration of the unconditional nature of the acceptance required, the case of Crossley v. Maycock (0) may be referred to. There vendors wrote, in answer to an offer, "which offer we accept, and now hand you two copies of conditions of sale," and inclosed a form of contract con(0) L. R. 18 Eq., 180. See, too, Lewis v. Brass, 26 W. R., 152.

was.

Wend., 459, it is said that there is no contract, if there be a material difference between the note of the bargain delivered by a broker to a vendee and that delivered to the vendor. In Corning v. Colt, 5 Wend., 253, where manufacturers in the country sent an order to merchants in the city for a quantity of plough castings, to be forwarded by canal, only a part of which were forwarded, and those by land carriage, by means whereof the expense of transportation was increased; it was held, in an action for the price of the property forwarded, that the plaintiffs were not entitled to recover without showing an acceptance of the goods by the defendants It is said in Firth v. Lawrence, 1 Paige, 434, that a conditional acceptance of an offer by letter, never assented to by the party making the offer, is not binding upon either party; and the party having once declined the offer as proposed, cannot, by any subsequent assent, ratify such original offer. The rigidity of the rule was displayed in the case of Eliason v. Henshaw, 4 Wheat., 225. In this case A. offered to purchase of B. two or three hundred barrels of flour, to be delivered at Georgetown by the first water, and to pay for the same a stated price; and, to the letter containing the offer, required an answer by the return of the wagon by which the letter was sent. This wagon was at the time in the service of B., and employed by him in conveying flour from his mill to Harper's Ferry, near which place A. then His offer was accepted by B in a letter sent by the first regular mail to Georgetown, and received by A. at that place; but no answer was sent to Harper's Ferry. Held, that this acceptance, communicated at a place different from that indicated by A., imposed no obligation binding upon him. See Glaymaker v. Sawin, 4 Whart., 369. The principle upon which these cases proceed is, that no person shall be held upon the terms of a contract which he has never made, nor even intended to impose upon himself. And therefore if one party does not accede to a promise as made, the other party is not bound by it. Tuttle v. Love, 7 John., 470; Bruce v. Pearson, 3 id., 534. And where R. agreed to pay for a quantity of hay, provided L. should pronounce it merchantable, and L. pronounced it "a fair lot, say merchantable, not quite so good as I expected; the outside of bundles somewhat damaged by the weather." Held, that R. was not bound. Crane v. Roberts, 5 Greenl, 419. Where a contract is made by a broker, and no sale-note is delivered, and the entry by him made in his sale-book varies from the contract as actually concluded, neither party is bound, inasmuch as no note or memorandum of the contract has been reduced to writing. Thus, when a contract is made for a quantity of iron expected from abroad, and the purchaser stipulates for six months' credit, and for the arrival of the iron in a reasonable time, and the broker omits to make an entry of those conditions, the vendors are not bound, although the conditions primarily were for the benefit of the purchaser, and he elects to waive them. Davis v. Shields, 26 Wend., 341; see Hutchinson v. Boker, 5 M. & W, 535; Brodie v. St. Paul, 1 Ves., 326; Gordon v. Norton, 4 M. & W., 155. But where the parties agree upon the terms of a contract it is binding upon them, though their understanding of the terms be not precisely the same: as where one party understood a particular installment to bear interest, while the other party did not so understand it Neufeille v. Stuart, 1 Hill Ch., 109. But this rule is to be applied in a limited sense; and if there has occurred any error or mistake in reference to the obligations which the contract entails, the case will be otherwise. Thus, in the case of the Hartford and New Haven Railroad Company v. Jackson, 24 Conn, 514, it was said that where an application made by the defendant to the agent of a railroad company, to know at what price he would carry 50,000 laths to a specified place; the agent inquired how many bundles that

taining sundry special stipulations; and it was held that the acceptance was conditional only. "If," said Jessel, M. R.,(p) "there is a simple acceptance of an offer to purchase, accompanied by a statement that the acceptor desires that the arrangement should be put into some more formal terms, the mere reference to such a proposal will not prevent the court from enforcing the final agreement so arrived at. But if the agreement is made subject to certain conditions then specified or to be specified by the party making it, or by his solicitor, then, until those conditions are accepted, there is no final agreement such as the court will enforce."

§ 275. Where there is any variance between the terms of the proposal and those of the acceptance, no contract arises; as where A. offered to purchase a house on certain terms, possession to be given on or before the 25th of July, and B. agreed to the terms, and said he would give possession on the 1st of August. (9) And where A. made the promoters of a railway an offer of a way-leave for the purpose of their railway, which was one for mineral traffic only, and it was subsequently accepted, but for the purpose of constructing a public railway for general traffic, this was held to be such a variation in the subject-matter as prevented any contract from arising.(r)

§ 276. The introduction of a term in the acceptance which is not in the proposal is a variance which prevents their constituting a contract. Therefore, where the defendant offered certain terms for a lease, and the plaintiff accepted the terms and offered an under-lease, there was held

(p) L. R 18 Eq, 181.

(9) Routledge v. Grant, 4 Bing., 653.

(r) Meynell v Surtees, 3 Sm. & Gif., 101;

affirmed by Lord Cranworth, 1 Jur. (N. S.), 737, 3 W. R., 535, sanctioning this argument.

would make, and a companion of the defendant, to whom the inquiry was referred, replied 500; but the agent understood him to say 100, and thereupon gave the defendant the price for carrying 100 bundles, instead of 500 bundles, which he agreed to pay; and the railroad company having carried 500 bundles, sued the defendant for carrying them at the usual rates, the court held that the plaintiffs were not bound by the transaction. Where letters passing between tenants in common of real estate are mere proposals from one to another of sale, and a sale accordingly is made, which is ratified by the parties by signing deeds, it is too late to object that the terms of the first agreement have not been complied with as agreed. Hunt v. Johnston, 24 Miss. (3 Jones), 509. As to the distinction between propositions, the acceptance of which amounts to a valid contract, and proposals to render a gratuitous kindness, which are not designed to create legal obligations on the parties. See Erwin v. Erwin, 25 Ala., 236.

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