and given Oxley notice to that effect. So here the defendants who have proposed by letter to sell this wool, are not to be held liable, even though it be now admitted that the answer did come back in due course of post. Till the plaintiffs' answer was actually received, there could be po binding contract between the parties; and before then the defendants had retracted their offer by selling the wool to other persons. But

THE COURT said, that if that were so, no contract could ever be completed by the post. For 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 defendants had received their answer and assented to it. And so it might go on ad infinitum. The defendants must be considered in law as making, during every instant of the 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. Then as to the delay in notifying the acceptance, that arises entirely from the mistake of the defendants, and it therefore must be taken as against them that the plaintiffs' answer was received in course of post. Rule discharged.

NYULASY v. ROWAN.

SUPREME COURT OF VICTORIA, MAY 7-JUNE 23, 1891.

[Reported in 17 Victorian Law Reports, 663.]

HIGINBOTHAM, C. J. This is an appeal from a judgment of MOLESWORTH, J. The statement of claim contains three alternative causes of action. The first of these, for shares bargained and sold,

was abandoned at the hearing. The second was founded on a verbal agreement alleged to have been made by and between the plaintiff and the defendant on 21st July, 1890, by which it was agreed, in consideration, that the plaintiff would not proceed at that time to sell 400 shares, which he held in the Melbourne Tramway and Omnibus Company, at the then market price, and would not place the shares at that time on the market for sale at that price, that the defendant should, on being requested by the plaintiff so to do, at any time within three months from 21st July, 1890, purchase from the plaintiff his said 400 shares at the price of 87. each. The plaintiff alleged performance of this agreement on his part a request made by him to the defendant to purchase the shares on or about 21st August, 1890, and a refusal by the defendant to purchase. The learned primary judge held that this agreement was made between the parties on 21st July, and that it was broken by the defendant, and he gave judgment for the plaintiff on this claim. The third alternative cause of action was founded upon a verbal offer alleged to have been made by the defend

ant to the plaintiff on or about 21st July to purchase the plaintiff's 400 shares at the price of 81. per share, such offer to remain open three months from that date; acceptance of the offer by the plaintiff on or about 21st August, within the three months, and while the defendant's offer was still open and unretracted, and refusal by the defendant to accept the shares. The learned judge found that the plaintiff had established by proof this claim as well as the second, and he gave judgment on it for the plaintiff.

The defendant now appeals against this judgment on both grounds. With regard to the second ground of claim it has been contended that there was no agreement between the parties on 21st July, as there was no consideration for the promise which it was was admitted the defendant gave on that day. The plaintiff's answer to this argument is that there is evidence of a request then made by the defendant that the plaintiff should not immediately sell his shares or place them on the market, and that such request, if complied with by the plaintiff, was a good consideration for the defendant's promise. Crears v. Hunter. The question, then, that is raised upon this part of the case is whether there was any evidence upon which the judge might reasonably act, that the defendant did at that time really, and not by way of banter only,' request the plaintiff not to sell his shares or place them on the market. We are of opinion that there was such evidence. The defendant's answer to the whole claim of the plaintiff was that, having been asked by a friend of the plaintiff, who was anxious and distressed by the falling state of the market, to comfort the plaintiff, he spoke to the plaintiff jocularly only, intending to comfort him, and that he gave him an unreal and false promise without intending to perform it. The defendant, however, admits that the plaintiff did not seem to take his words of comfort as a joke. Now, the judge has found upon evidence amply sufficient that this defence is untrue, that the defendant spoke to the plaintiff, not in joke, but in earnest, and influenced by a desire to protect the stock of which he was a large holder himself. Then, as regards a request, the plaintiff swore that the defendant said to him on 21st July: "Don't be foolish to sell now and lose money." The defendant, in answer to an interrogatory, stated that he did not, to the best of his knowledge, information, or belief, say to the plaintiff: "Your trams are all right; don't be so foolish as to sell them at a loss;" but he admits that he may have used words to that effect. Now, assuming, as we are bound to do, that the defendant spoke at

1 19 Q. B. D. 341.

2 Keller v. Holderman, 11 Mich. 248, was an action on a check given for a silver watch. The trial judge found "the whole transaction was a frolic and banter - the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn," but held the defendant liable. The Supreme Court reversed this judgment on the ground that "no contract was ever made by the parties." McClurg v. Terry, 21 N. J. Eq. 225; Bruce v. Bishop, 43 Vt. 161, acc. But see Armstrong v. McGhee, Add. (Pa.) 261.

this conversation seriously, and that he was using the opportunity then represented to him to make in his own interest and for his own advantage a bona fide offer to the plaintiff, who accepted his words seriously, what is the meaning that should be given to these words, or words to the like effect then uttered by the defendant? The judge has found that forbearance by the plaintiff to sell his shares was on account of an implied, though perhaps not an express, request by the defendant. I should be inclined to say that these words might be taken to convey an express request by the plaintiff not to sell. We are of opinion that they are evidence, either express or by implication, of such a request; that the judge was justified in concluding that a request was made by the defendant, and that it was in consequence of such request that the plaintiff forebore to sell his shares. The judgment, therefore, cannot be disturbed on this ground.

With respect to the third alternative ground of action, it has been contended, for the defendant, that there must be consideration for a continuing offer of this kind, that the plaintiff did not accept the offer at the time it was made, and that when he did accept it the defendant had changed his mind; so that, treating the transaction of 21st July as an offer only and not as a contract, the parties never were ad idem, and no contract was entered into between them subsequently to 21st July. In support of this view, Cooke v. Oxley1 was relied on. The effect and the authority of that case have been the subject of some controversy which is still unsettled. See Benjamin on Sales (4th ed.), p. 69; Pollock on Principles of Contract (5th ed.), p. 25, note. Cooke v. Oxley,' which was decided on a motion in arrest of judgment, may be supported on the ground that the declaration did not aver that the defendant actually left the offer open until the hour named, but only that he promised to do so. But if Cooke v. Oxley is to be supported upon this ground of pleading, it would not govern the present case, where it is alleged in the statement of claim and proved in evidence, that the plaintiff by letter accepted the offer while it was still open and unretracted. Unless, therefore, there is some distinction to be drawn between an offer by letter or telegram and an offer by word of mouth, and we are not aware of any reason or authority for such a distinction; see per LUSH, J., in Stevenson v. McLean; the present case comes within the artificial but convenient explanatory rule laid down in Adams v. Linsdell, and the offer of the defendant on 21st July, unsupported by any consideration,, must be considered in law as having been made by the defendant during every instant of the in

1 Ante, p. 2.

4

8

2 "The offer was not limited in time, and the presumption is, that it was open on the fifth day after it was made, nothing to the contrary appearing. The revocation of it, if it had been revoked, was matter of defence." Wilson v. Stump, 103 Cal. 255, 258. See also, Quick v. Wheeler. 78 N. Y. 300.

8 5 Q. B. D. 351.

4 Ante, p. 4.

tervening time until 19th August, when a contract was made between the parties by the plaintiff's letter, accepting the offer and tendering his shares to the defendant. The defendant has failed, in our opinion, on this ground also to show that the judgment was wrong. The appeal will be dismissed with costs.

SPENCER And Another v. HARDING and OtherS.

IN THE COMMON PLEAS, JUNE 29, 1870.

[Reported in Law Reports, 5 Common Pleas, 561.]

THE second count of the declaration stated that the defendants by their agents issued to the plaintiffs and other persons engaged in the wholesale trade a circular in the words and figures following; that is to say, "28 King Street, Cheapside, May 17th, 1869. We are instructed to offer to the wholesale trade for sale by tender the stock in trade of Messrs. G. Eilbeck & Co., of No. 1 Milk Street, amounting as per stock-book to 2,503l. 13s. 1d., and which will be sold at a discount in one lot. Payment to be made in cash. The stock may be viewed on the premises, No. 1 Milk Street, up to Thursday, the 20th instant, on which day, at 12 o'clock at noon precisely, the tenders will be received and opened at our offices. Should you tender and not attend the sale, please address to us, sealed and inclosed, Tender for Eilbeck's stock.' Stock-books may be had at our office on Tuesday morning. Honey, Humphreys & Co." And the defendants offered and undertook to sell the said stock to the highest bidder for cash, and to receive and open the tenders de-. livered to them or their agents in that behalf, according to the true intent and meaning of the said circular. And the plaintiffs thereupon sent to the said agents of the defendants a tender for the said goods, in accordance with the said circular, and also attended the said sale at the time and place named in the said circular. And the said tender of the plaintiffs was the highest tender received by the defendants or their agents in that behalf. And the plaintiffs were ready and willing to pay for the said goods according to the true intent and meaning of the said circular. And all conditions were performed, etc., to entitle the plaintiffs to have their said. tender accepted by the defendants, and to be declared the purchasers of the said goods according to the true intent and meaning of the said circular; yet the defendants refused to accept the said tender of the plaintiffs, and refused to sell the said goods to the plaintiffs, and refused to open the said tender or proceed with the sale of the said goods, in accordance with their said offer and undertaking in that behalf, whereby the plaintiffs had been deprived of profit, etc.

Demurrer, on the ground that the count showed no promise to accept the plaintiffs' tender or sell them the goods. Joinder.

Holl, in support of the demurrer.

Morgan Lloyd, contra.

WILLES, J. I am of opinion that the defendants are entitled to judgment. The action is brought against persons who issued a circular offering a stock for sale by tender, to be sold at a discount in one lot. The plaintiffs sent in a tender which turned out to be the highest, but which was not accepted. They now insist that the circular amounts to a contract or promise to sell the goods to the highest bidder, that is, in this case, to the person who should tender for them at the smallest rate of discount; and reliance is placed on the cases as to rewards offered for the discovery of an offender. In those cases, however, there never was any doubt that the advertisement amounted to a promise to pay the money to the person who first gave information. The difficulty suggested was that it was a contract with all the world. But that, of course, was soon overruled. It was an offer to become liable to any person who, before the offer should be retracted, should happen to be the person to fulfil the contract of which the advertisement was an offer or tender. That is not the sort of difficulty which presents itself here. If the circular had gone on "and we undertake to sell to the highest bidder," the reward cases would have applied, and there would have d there been a good contract in respect of the persons. But the question is, whether there is here any offer to enter into a contract at all, or whether the circular amounts to anything more than a mere proclamation that the defendants are ready to chaffer for the sale of the goods, and to receive offers for the purchase of them. In advertisements for tenders for buildings it is not usual to say that the contract will be given to the lowest bidder, and it is not always that the contract is made with the lowest bidder. Here there is a total absence of any words to intimate that the highest bidder is to be the purchaser. It is a mere attempt to ascertain whether an offer can be obtained within such a margin as the sellers are willing to adopt. Keating and Montague SmITH, JJ., concurred.

Judgment for the defendants.

1 See Warlow v. Harrison, 1 E. & E. 295; Mainprice v. Westley, 6 B. & S. 420; Harris v. Nickerson, L. R. 8 Q. B. 286; South Hetton Coal Co. v. Haswell, [1898] 1 Ch., 465; Johnston v. Boyes, [1899] 2 Ch. 73; Tillman v. Dunman, 114 Ga. 406; McNeil v. Boston Chamber of Commerce, 154 Mass. 277; 57 L. R. A. note.

2 In Rooke v. Dawson, [1895] 1 ch. 480, the announcement of an examination for a scholarship was held not to amount to an offer to award the scholarship to such applicant as should fulfil the requirements of the trust deed under which the scholarship fund was held. Compare Neidermeyer v. Univ. of Missouri, 61 Mo. App. 654.