which "unless interrupted in its progress" concludes the contract as from the date of the posting. Then comes Dunlop v. Higgins, 1 H. L. C. 381, a Scotch appeal Dunlop v. decided by Lord Cottenham. Here the proposal did not prescribe Higgins. any time, but the nature of it (an offer to sell iron) implied that the answer must be speedy. The acceptance was posted, not by the earliest possible post, but in business hours on the same day when the proposal was received. The post was then delayed by the state of the roads, so that the acceptance was received at 2 p.m. instead of 8a.m., the hour at which that post should have arrived. The decision was that the contract was binding on the proposer; and it might well have been put on the ground that the acceptance in fact reached him within a reasonable time. Lord Cottenham however certainly seems to have thought the contract was absolutely concluded by the posting of the acceptance (within the prescribed or a reasonable time) and that it mattered not what became of the letter afterwards. And in Duncan v. Topham, 8 C. B. 225, not long afterwards, Wilde, C. J., Maule, J., and Cresswell, J., seem to have so understood it, so that the contract would be binding though the letter did not arrive at all but the decision was on other grounds (a). and Reid path's ca. The later cases have arisen out of applications for shares in com- Hebb's ca. panies being made and answered by letter. Hebb's case, 4 Eq. 9, decides only that an allotment of shares not communicated at all will not make a man a shareholder; for the letter of allotment was sent to the company's local agent, who did not deliver it to the applicant till after he had withdrawn his application. The M. R. however said in the course of his judgment: "Dunlop v. Higgins decides that the posting of a letter accepting an offer constitutes a binding contract, but the reason of that is that the Post Office is the common agent of both parties." But the same judge held in Reidpath's case, 11 Eq. 86, that the applicant was not bound if he never received the letter. v. Colson. In British and American Telegraph Company v. Colson, L. R. 6 British & Ex. 108, it was found as a fact that the letter of allotment was never Amer. Telegraph Co. received. The Court held that the defendant was not bound, and endeavoured to restrict the effect of Dunlop v. Higgins. The judgments of Kelly, C. B., (in which Pigott, B., concurred) and of Bramwell, B., are rather differently expressed on this point. On the whole they seem to interpret Dunlop v. Higgins thus:-When a proposal is to (a) S. C. 18 L. J. C. P. 310, where this point does not appear; see L. R. 6 Ex. 115, 120, 7 Ch. 596. Townsend's ca. Harris' ca. Wall's ca. be answered by post (which is generally to be inferred from the fact of the proposal itself being sent by post), the time allowed for the answer is to be taken as subject to unavoidable delays in the course of the post; but it does not follow that an answer not delivered at all is an effectual acceptance. In Townsend's case, 13 Eq. 148, the letter of allotment miscarried and was delayed some days by the applicant's own fault in giving a defective address. By a simple application of Adams v. Lindsell (expressly so treated in the judgment, p. 154) it was held that the applicant was bound, and that a withdrawal of his application, posted (and it seems delivered, p. 151) before he actually received the letter of allotment, was too late. The case in the Exchequer was incidentally recognised as an authority. In Harris' case, 7 Ch. 587, the letter of allotment was duly received, but in the meantime the applicant had written a letter withdrawing his application on the ground of the delay (ten days) in answering it. These letters crossed. The Lords Justices held that the applicant was bound, on the authority of Dunlop v. Higgins, with which they thought it difficult to reconcile British and Amer. Telegraph Co. v. Colson (a). On this, however, no positive opinion was given, "because although the contract is complete at the time when the letter accepting the 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" (per Mellish, L. J., at p. 597). This would secure the proposer against hardship; but still a revocation of the acceptance by telegram would be inoperative, contrary to our former proposition (4). However, this must probably be taken as the best expression of the existing law that can be arrived at. In Wall's case, 15 Eq. 18, the Court held that as a fact the letter had been received, inclining, however, to think Harris' case an authority for the extreme construction of Dunlop v. Higgins-viz., that the contract is absolute and unconditional by the mere posting. Ex parte Cote, 9 Ch. 27, although the particular case is on quite different points from the present, is worth consulting on the general question of the legal character of the Post Office as an agent of senders and receivers of letters. It will be seen that, as we have above said, the apparent conflict (a) It seems not to have been disputed that the letter of allotment was in fact sent within a reasonable time. between these authorities arises from the assumption that some one moment of time must be fixed from which both parties are bound absolutely; an assumption, however, which is so much involved in the language of the decisions, that it cannot in practice be disregarded, though there is nothing to prevent a Court of Appeal, at any rate, from sweeping it away. It will further be seen that in any view of the results there is nothing to prevent the proposer of a contract from guarding himself by making the proposal expressly conditional on the arrival of an answer, not by return of post or in course of post, but within some definite time. In such a case it is apprehended that an answer arriving later, from whatever cause, would not constitute a contract. Fire Insce. Besides these we have an important American case, Tayloe v. Tayloe v. Merchants' Fire Insurance Co., 9 How. S. C. 390, decided by the Merchts. Supreme Court in 1850. The insurance company's agent wrote to Co. (Sup. the plaintiff offering to insure his house on certain terms. The Court U.S. plaintiff wrote and posted a letter accepting these terms, which was duly received. The day after it was posted, but before it was delivered, the house was burnt. The objection was made, among others, that there was no complete contract before the receipt of the letter, an assent of the company after the acceptance of the proposed terms being essential. But the Court held that such a doctrine would be contrary to mercantile usage and understanding, and defeat the real intent of the parties. This decides that a contract is complete as against the proposer by posting a letter which is duly delivered. It may be useful to cite part of the judgment "The fallacy of the argument, in our judgment, consists in the assumption that the contract cannot be consummated without a knowledge on the part of the company that the offer has been accepted. This is the point of the objection. 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. . . It is obviously impossible 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. .. It seems to us more consistent with the acts and declarations of the parties to consider it complete on the transmission 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 C Indian Contract part after an unconditional acceptance by the party to whom it is addressed?" (a). (pp. 400, 401.) This decision seems to add little if anything to Adams v. Lindsell, unless the narrowest possible view be taken of that case. The Indian Contract Act deals with the subject in the following manner: Chapter I. Of the Communication, Acceptance and Revocation of Proposals. "3. The communication of proposals, acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting, or revoking, by which he intends to communicate such proposal, acceptance, or revocation, or which has the effect of communicating it." [It would be difficult to find any such general statement in the English authorities; and the language of this section is perhaps open to criticism. A little reflection will show, however, that the substance of it is taken for granted in the whole treatment of questions of contract in our books.] "4. The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer. The communication of a revocation is complete as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it; as against the person to whom it is made, when it comes to his knowledge. Illustrations. (a) A. proposes by letter to sell a house to B. at a certain price. The communication of the proposal is complete when B. receives the letter. (b) B. accepts A.'s proposal by a letter sent by post. The communication of the acceptance is complete as against A. when the letter is posted; as against B. when the letter is received by A. (c) A. revokes his proposal by telegram. The revocation is complete as against A. when the telegram is despatched. It is complete as against B. when B. receives it. (a) Another extract (partly coinciding with this) will be found in Mr. Benjamin's work (56-7). Other American cases are collected in an article on Contract by Letter, 7 Amer. Law Review, 433. B. revokes his acceptance by telegram. B.'s revocation is complete as against B. when the telegram is despatched, as against A. when it reaches him. "5. A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. An acceptance may be revoked at any time before the communication of the acceptance is completed as against the acceptor, but not afterwards. Illustration. A. proposes, by a letter sent by post, to sell his house to B. B. accepts his proposal by a letter sent by post. A. may revoke his proposal at any time before, or at the moment when B. posts his letter of acceptance, but not afterwards. B. may revoke his acceptance at any time before or at the moment when the letter communicating it reaches A, but not afterwards. "6. A proposal is revokel (1.) By the communication of notice of revocation by the proposer to the other party; (2.) By the lapse of the time prescribed in such proposal for its acceptance, or if no time is so prescribed, then by the lapse of a reasonable time, without communication of the acceptance [this seems intended, notwithstanding the unqualified language of s. 5, to cover the case of an acceptance sent by post being lost or seriously delayed]. (3.) By the failure of the acceptor to fulfil a condition precedent to acceptance; or (4.) By the death or insanity of the proposer, if the fact of his death or insanity comes to the knowledge of the acceptor before acceptance.” [Of this presently: the words in italics do not represent English law.] In the modern civil law the subject has apparently been found no Modern less troublesome than with us. Pothier's and Vangerow's opinions Civil Law have been referred to. From the last-named author it appears that there is much conflict among German writers of repute; one or two seem to have arrived (though in one case by a highly artificial course) at results equivalent to those of the Indian Act (Vangerow, Pand. § 603, 3. 248, 251). Savigny holds that, as a matter of private international law, the place where a contract by correspondence is concluded is that from which the acceptance is despatched (Syst. 8. 235, 257) (a): but he does not further enter on the question. (a) So, where a proposal was written and posted in one county court district, and received and accepted in another, the court of Q. B. held that the whole cause of action |