WAREHAM, 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 "WASHINGTON IRON COMPANY, per JOHN THOMAS, Agent;" and addressed to the plaintiffs.]

On the 6th of April, 1836, the plaintiffs addressed a letter to the defendant'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 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 19th or 21st, both which came together in the same mail on 23d. 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 plaintiff's answer to the letter, dated the 19th of March, was postmarked 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 Wareham at the same time, viz., on the 23d of March.

The plaintiffs claimed that during said month of March the price of the articie, which was the subject of controversy, was constantly advancing 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 Providence, and would reach that place on the evening of the day after leaving Hartford, - but might be sent by Boston; although, when sent by Boston, 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 postoffice 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 plaintiff's claimed that the proposal of the defendant, in his letter of the 2d of March, to furnish the plaintiffs with rods, shapes, and bandiron, was renewed by his letter written 16th of March, and dated 14th; and that the plaintiffs, by their answer of the 19th of March, in due time signified their assent to the proposal therein contained; and thus was the contract stated in the declaration completed.

These claims of the plaintiffs were all resisted and denied by the defendant.

The Court charged the jury, that in mercantile transactions of this character, affected as they must be by the constant fluctuations of markets, the utmost promptitude must be exacted consistent with a due regard to ordinary business; and that if the letter written by the plaintiffs, accepting the proposal of the defendant relative to said rods, bands, &c., was not delivered into the post-office in Hartford before the day it was post-marked, viz. the 20th of March, it was not sent in such reasonable time as to make their acceptance obligatory upon the defendant.

A verdict was thereupon returned for the defendant; and the plaintiffs moved for a new trial.

Hungerford, in support of the motion.

T. C. Perkins, contra.

BISSELL, J. From the correspondence between these parties, and which is made a part of the case, it appears, that on the 29th of February, 1836, the plaintiffs inquired of the defendant upon what terms he would supply them with ten or fifteen tons of rods, shapes, and band-iron. To this communication the defendant replied on the 2d of March, specifying the terms on which he would furnish the articles in question. On the 14th the plaintiffs wrote to the defendant on other business; but took no notice of his offer. The defendant replied on the 16th; and at the close of his letter he inquires of the plaintiffs whether they accept his proposal regarding the rods, shapes, and bands. This letter, it appears, arrived at Hartford on the 18th, about 2 o'clock afternoon. The plaintiffs accept the defendant's proposals in a letter dated on the 19th, but which the jury have found was not delivered into the post-office at Hartford until the 20th; and the 20th being Sunday, and no mail leaving Hartford on that day, the letter was not actually sent until the morning of the 21st. And it further appears that this letter, and also another from the plaintiffs, dated the 21st, reached the defendant on the 23d. It also appears that the defendant

having waited for the plaintiffs' answer until the 22d, and having heard nothing from them, then made such arrangements as rendered it impossible for him to comply with their order. It is further found, that on the 19th of March the Providence mail left the office at Hartford at 25 minutes past 5 o'clock; and that a letter forwarded by that mail would have reached the defendant on the evening of the following day.

The great question in the case is, whether upon these facts there has been such an acceptance of the defendant's offer as that he is bound by it.

The jury were instructed that if the letter written by the plaintiffs, accepting the proposal of the defendant, was not delivered into the post-office at Hartford until the 20th of March, it was not sent in such reasonable time as to make their acceptance obligatory on the defend

ant.

Several questions, not immediately growing out of the charge, but which, if decided in favor of the defendant, make an end of the case, have been much discussed at the bar.

1. It has been contended that the proposal of the defendant, in his letter of the 2d, was not renewed by his letter of the 16th of March Upon this point no opinion was given by the judge on the circuit, unless an opinion may be inferred from the ground on which he rested the case in his instructions to the jury. Nor is it essential that a decided opinion on the question should be expressed by this Court; because there are other grounds on which we are unanimously of opinion that the ruling of the judge below must be sustained.

Were this, however, a turning point in the case, we should probably be prepared to say that the defendant's letter of the 16th of March does contain a distinct renewal of his former proposal. His language is 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 band-iron; and if so, what quantity of each shall we send you?" Now we cannot but think that the fair and obvious construction of this language is that the defendant then stood ready to supply the articles upon the terms already specified. 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 undeniable. 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 supply 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.. anless you signify your acceptance thereof by return of mail;" and be

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, &c., 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 plaintiffs' claim, a decision upon this point is unnecessary. Any further discussion of it is therefore waived.

3. We come then to the inquiry, whether the instruction actually given to the jury is correct in point of law. And here it may be remarked, that it is very immaterial when the letter of the plaintiffs was written until sent, it was entirely in their power and under their control, and was no more an acceptance of the defendant's offer than a bare determination, locked up in their own bosoms and uncommunicated, would have been. And it surely will not be claimed that mere volitions, a mere determination to accept a proposal, constitute a contract. The plaintiffs then did not accept the defendant's proposition until the 20th, and for aught that appears [not] until the evening of that day. That they were bound to accept within a reasonable time was distinctly admitted in the argument; and if not admitted, the position is undeniable. The case of the plaintiffs then comes to this, and this is the precise ground of their claim: That they had a right to hold the defendant's offer under advisement for more than forty-eight hours, and to await the arrival of three mails from New York, advising them of the state of the commodity in the market; and having then determined to accept, the defendant was bound by his offer; and that this constitutes a valid mercantile contract. Now, in regard to such a claim, we can only say, that it appears to us to be in the highest degree unreasonable; and that we know of no principle, of no authority, from which it derives the slightest support.

Indeed, it seems to us to be subversive of the whole law of contracts. For it is most obvious, that, if during the interval the defendant was bound by his offer, there was an entire want of mutuality: the one party was bound, while the other was not. Had the proposition been made at a personal interview between the parties, there can be no pretence that it would have bound the defendant beyond the termination

of the interview. The case of Cooke v. Oxley, 3 Term Rep. 653, is decisive on this point, and goes much further. There, A., having proposed to sell goods to B., gave him, at his request, a certain time to determine whether he would buy them or not; and it was held, that although B. determined within the time, A. was not bound. And Lord Kenyon there says: "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." So also in the case of Payne v. Cave, 3 Term Rep. 148, it was decided that the bidder at an auction, under the usual conditions that the highest bidder shall be the purchaser, may retract his bidding at any time before the hammer is down.

Now, it is most manifest, that if the principle of these cases is to be applied to and govern the present, they are entirely decisive of it in favor of the defendant. It is however claimed, and perhaps justly, that the case of Cooke v. Oxley has been disregarded, if not overruled, by the more modern decisions; or at least that it has been holden not to apply to mercantile contracts, negotiated through the medium of the post-office. Thus, in the case of Adams v. Lindsell, 1 B. & A. 681, there was an offer to sell goods on certain specified terms, provided an acceptance of the offer was signified by return of mail. This was done; and it was held (the defendant not having retracted his offer in the mean time), that the contract was complete. It is not easy to reconcile this decision with that of Cooke v. Oxley, unless it can be distinguished on the ground that, as the offer was made through the mail, the party is to be considered as repeating the offer at every moment until the other party has had an opportunity of manifesting nis acceptance. And this seems to have been the ground on which the case was placed by the Court of King's Bench. They say: "If the defendants were not bound by their offer, when accepted by the plaintiffs, till the answer was received, then the plaintiffs ought not to be bound till after they had received the notification that the defendant had received their answer, and was bound by it; and so it might go on ad infinitum. The defendants must be considered in law as making, during every instant of 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."

These positions are questioned, if not directly controverted, by Best, C. J., in the case of Routledge v. Grant, 4 Bing. 653. He says, 6. If they are to be considered as making the offer till it is accepted, the other may say, 'Make no further offer, because I shall not accept it;' and to place them on an equal footing, the party who offers should have the power of retracting, as well as the other of rejecting; therefore I cannot bring myself to admit that a man is bound when he says, 'I will sell you goods on certain terms, receiving your answer in course of post."" He does not, however, profess to overrule the case of Adams v. Lindsell; nor was it necessary, as there were other grounds on which the rule in Routledge v. Grant was discharged.