of another. Thus, a man may agree, in consideration of $25 paid to him, to sell another a house and lot for $1000 at any time within thirty days, if the other elects to buy. This is a contract, not an offer. The mutuality is supplied by the papment of the $25.

Manner of making an offer.-An offer may be made in person, by mail, telegraph, through an agent, or in any other manner that it is possible to communicate it to another. It may be made without any words at all, if the party to whom it is made understands it. An offer may be made by advertisement, such as offering a reward, but every advertisement is not an offer. The question here is whether it is an offer intended to be capable of acceptance, or a mere praising of goods. A letter stated "In consequence of a rupture in the salt trade, we are authorized to offer Michigan fine salt in full carload lots... delivered in your city at eighty five cents per barrel. . . . At these prices it is a bargain.... Shall be pleased to receive your order. . . ." The reply was "Your letter received and noted. Ship me 2000 bbls. as offered in your letter." It was decided there was no contract, inasmuch as the letter was in the nature of an advertisment, and not an offer which could be accepted.

A common way of making an offer is by mail. An important point about making an offer in this way is, that the party making it constitutes the mail his agent for the purpose of receiving a reply. Generally, the party assenting to an offer has a right to deliver his acceptance to the same source from which he received the offer. For instance, if S in Chicago writes B in Milwaukee that he will sell him a certain horse for $100, B can accept this offer by mailing a letter in Milwaukee, signifying his acceptance. The moment the acceptance is dropped into the mail box, the contract is complete, as the acceptance was delivered to A's agent, the mail. If A should attempt to revoke his offer after B had mailed his letter, he would be too late, as the contract had already been formed. It has been decided by the courts generally, and also in Wisconsin, that if the letter of acceptance never reached A, he would still be bound by the contract. This is on the principle that a man is responsible for the acts and neglect of his agent. If A in this case wished to protect himself against such a contingency, he could have added in his letter, offering the horse, "provided your

acceptance reaches me." In a case decided by the Wisconsin Supreme Court, A sent a letter to B, offering him certain lands for sale. B deposited in the post-office a letter, postage prepaid, accepting the offer, adressed to A at the proper place, which never reached A. The Supreme Court says: "It is well settled in England and this country that when a proposal for a contract is made by letter sent by mail, the deposit of a letter of acceptance in the post-office by the person to whom the proposal is made, addressed to the person making it, at the proper place, completes the contract, even though the latter never receives the letter accepting his offer."

An acceptance made by delivering it to an agent or messenger who transmits the offer would also be good, although it never reaches the party making the offer.

Manner and time of acceptance.-As already stated, the acceptance must be unconditional. Every condition stated by the offer must be complied with, otherwise there will be no contract. The acceptance must be communicated to the person making the offer. It can also be accepted by performing the offer, as an act is as clear an indication of acceptance as words. The act, however, must be brought to the attention of the party making the offer as soon as an acceptance ordinarily would have to be. Thus, in a celebrated case in Wisconsin the facts were as follows: Defendant's wife was in the fourth story of a hotel which was burning. After a rescue was attempted the defendant arrived and offered to pay $5,000 to any person who would rescue his wife, dead or alive. The plaintiff, one of the members of the fire department, at the peril of his own life, secured the body of defendant's wife and claimed the reward. The Supreme Court, in deciding that he was entitled to the reward, says: "The offer of a reward by the defendant for rescuing the body of his wife, and the rescue of her remains by the plaintiff with knowledge of such offer, and with a view to obtaining the reward offered, constituted a contract between the parties, which was fully and completely executed by the plaintiff."

A mere mental determination to accept an offer is not sufficient. For example: A wrote B "Upon an agreement to finish the fitting up of my office in two weeks, you can begin at once." B determined to accept the offer and purchased

materials to be used in the work. Before he notified A that he would accept and do the work, A withdrew his offer. It was decided that no contract was made.

An offer must be accepted within a reasonable time, unless a different time is specified by the offer itself; otherwise it is deemed withdrawn. What is a reasonable time depends on circumstances. What would be reasonable in one case might not be so in another. For instance, an offer to sell wheat on the board of trade, where prices fluctuate, would have to be accepted practically instantly, whereas an offer to sell wheat made by mail would probably have to be accepted by return mail. If a party to whom an offer is made orally go away and come back later, the next day, or possibly the next hour, he would probably be too late. Usually the party making an offer specifies a time for acceptance, when of course that period will govern. If an offer is made and instantly recalled before it can be accepted, the offer is effectively withdrawn. Thus, if a man bids a certain sum at an auction and changes his mind and revokes his offer before the auctioneer says "sold" he cannot be held to his purchase.

Assent apparently obtained.-There can be no agreement between parties unless their minds act freely and without coercion, and free from misapprehension as to the facts. Therefore, if the agreement is not the voluntary, intelligent act of the parties making it, it cannot result in a contract. The lack of ability to assent may result either from temporary disability in a person otherwise normal, or disability which is more or less permanent. Where it is more or less permanent, as in the case of infants, lunatics, spendthrifts, aliens, etc. it will be discussed in the next section. The usual cases in which disability is of only short duration are those of duress, fraud, mistake and intoxication.

Duress of a person is that condition of his mind, caused by fear of personal injury or loss of limb or liberty, injury to such person's property, wife, child, or husband, or their liberty, produced by the wrongful conduct of another, rendering such person incompetent to contract with the exercise of his free will power. Our Supreme Court says in a late case: "The making of a contract requires the free exercise of the will power of the contracting parties, and the free meeting and blending of their minds. In the absence of that, the essen

tial of a contract is wanting; and if such absence de produced by the wrongful conduct of one party to the transaction, or conduct for which he is responsible, whereby the other party for the time being, through fear, is bereft of his free will power, for the purpose of obtaining the contract, and it is thereby obtained, such contract may be avoided on the ground of duress. There is no legal standard of resistance which a party so circumstanced must exercise at his peril to protect himself. The question in each case is, was the alleged injured person, by being put in fear by the other party to the transaction for the purpose of obtaining an advantage over him, deprived of the free exercise of his will power, and was such advantage thereby obtained. If the proposition be determined in the affirmative, no matter what the nature of the threatened injury to such person, or his property, or the person or liberty of his wife or child, the advantage thereby obtained cannot be retained. The idea is that what constitutes duress is wholly a matter of law and is simply the deprivation by one person of the will power of another by putting such other in fear for the purpose of obtaining, by that means, some valuable advantage of him. The means by which that condition of mind is produced are matters of fact, and whether such condition was in fact produced is usually wholly matter of fact, though of course the means may be so oppresive as to render the result an inference of law. It is a mistaken idea that what constitutes duress is different in case of an aged person or a wife or child than in the case of a man of ordinary firmness. .... The condition of mind of a person produced by threats of some kind, rendering him incapable of exercising his free will, is what constitutes duress. The means used to produce that condition, the age, sex, and mental characteristics of the alleged injured party, are all evidentiary, merely, of the ultimate fact in issue, of whether such person was bereft of the free exercise of his will power. Obviously, what will accomplish such result cannot justly be tested by any other standard than that of the particular person acted upon. His resisting power, under all the circumstances of the situation, not any arbitrary standard, is to be considered in determing whether there was duress."

Fraud. As to what constitutes fraud, and its effect on contracts, see the chapter on Fraud and False Representations. Mistake. Mistakes are of two kinds, mistakes of law

and mistakes of fact. A mistake of law occurs when a party has full knowledge of all the facts, but comes to a wrong conclusion as to their legal effect. It is a principle of law of general application that all persons are presumed to know the law; that is, the law will treat them as though they knew the law. This principle of law, while it works injustice sometimes, cannot be changed. If it were otherwise, people could avoid their legal obligations in all cases by pleading misapprehension of the law. A mistake of law on the part of one making a contract therefore has no effect on the contract. It follows, also, that no misstatement of law in making a contract can have any effect, or amount to a fraud. Thus, if one man sell another a note bearing the legal rate of interest, a statement on the part of the seller that the legal rate is double what it really is, will not be a fraud, nor effect the sale in any way.

A mistake of fact exists either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist. For instance, two men may make a contract for the sale of a horse, supposing it to be alive, when it is dead. They are both ignorant of the material fact of death, and therefore there is no contract. Our Supreme Court says on the subject of mistake: "An error of fact is ordinarily said to take place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist. The most frequent, familiar and striking examples of such errors, are found in those cases in which the books abound, and to which we need not here particularly refer, where the parties are deceived or mistaken as to the existence or non-existence of certain facts, materially affecting the transaction, and which are present in their minds at the time of entering into the agreement, and directly influence their conduct in so doing. .. Ignorance of the existence or non-existence of a material fact, precludes the idea that the party, at the time of the transaction, should have been influenced by it, for it is impossible that the mind should be moved by that of which it knows nothing. This ignorance of facts must be excusable, that is, it must not arise from the intentional neglect of the party to investigate them.... Whenever there is a clear bona fide mistake, ignorance or forgetfulness of facts, the contract may, on that account, be avoided."