9 10 to buy its works, is a standing offer; and a vote of the town to buy, an acceptance. An offer may be made by a city ordinance,' or a vote of a corporation." An offer made in writing may be accepted by telegram,12 or by signing and returning a written offer or order blank.13 An agreement may be partly written and partly oral,14 as where a written offer is accepted by telephone,15 or orally;16 9. Braintree, etc., Co. v. Braintree, 146 Mass. 482. 10. Vincennes v. Gas Light Co., 132 Ind. 114, 16 L. R. A. 485; Dunham v. Boston, 94 Mass. (12 Allen) 375; Bridge Works v. Bristol, 170 Mass. 528; Eads v. Carondelet, 42 Mo. 113. 11. Sears v. R. R. Co., 152 Mass. 151, 9 L. R. A. 117. "For the purposes of the law, however, an offer is communicated when it is brought to the attention of the adversary party in such a manner that by the use of ordinary intelligence, he cannot help knowing its terms." 1 Page on Contracts, § 30. 12. Tayloe v. Ins. Co., 50 U. S. (9 How.) 390; Patrick v. Bowman, 149 U. S. 411; McCleskey v. Howell Cotton Co., 147 Ala. 573; Cochrane v. Mining Co., 16 Cal. 415; Bennett v. Cummings, 73 Kan. 647; Whiteford v. Hitchcock, 74 Mich. 208; Kibler V. Caplis, 140 Mich. 28; Northampton, etc., Co. v. Tuttle, 40 N. J. L. 476; Trevor v. Wood, 36 N. Y. 307; Stevenson v. McLean, 5 Q. B. D. 346; Henthorn V. Fraser (1892), 2 Ch. 27. 13. Morris V. Brightman, 143 Mass. 149; Putnam v. Macleod, 23 R. I. 373; Taylor Co. v. Bannerman, 120 Wis. 189; Engeldinger v. Stevens, 132 Wis. 423. An offer may be accepted by conduct. Minneapolis Threshing Co. v. Zermanek, 130 Ia. 120; Zeihne v. Parish, 74 Kan. 542; Nat. Cash Register Co. v. Dehn, 139 Mich. 406. 14. Gorden v. Gorden, 96 Ind. 134; St. Louis Ry. Co. v. Maddox, 18 Kan. 546; Wharton v. Stoutenburgh, 35 N. J. Eq. 266. "It is difficult to see how a contract can be partly oral and partly in writing." Mullain v. Thomas, 43 Conn. 252, 254. The vendor of a horse represented him to be six years old and sound, and at the same time made other representations as to his qualities. The vendee demanded a written warranty as to his age and soundness, and the vendor gave it. In the absence of fraud in making the other representations, they were merged in the written contract, and were inadmissible to vary it. Mullain Thomas, 43 Conn. 252, 254. V. An offer was made in writing and accepted orally. Held, that the written proposals were not the entire evidence of the contract, but that the contract was to be regarded as a parol one. Pacific Iron Works Newhall, 34 Conn. 67, 76. V. "The object of a bill of sale is to pass the title, not to describe the purpose for which the title is passed. That may be shown by parol." Where the bill of sale was given in pursuance of a parol agreement, by which the goods were to be restored on certain conditions and the vendee takes possession under the bill of sale, he is bound by the terms of the parol agreement. Lovell v. The Hammond Co., 66 Conn. 500, 510. See Post v. Gilbert, 44 Conn. 9, 18. 15. Smith v. Ingram, 90 Ala. 529; Bank of Yolo v. Flour Co., 141 Cal. 314. or an oral offer is accepted by mail;17 or where the contract is in writing as to one party and oral as to others.18 WHEN CONTRACT COMPLETED.-Acceptance by mail or telegraph, if a proper means of communication, completes the contract the moment of its transmission,19 on the ground that it is 16. Cobb v. Foree, 38 Ill. App. 255; Watkins v. Rymill (1878), 10 Q. B. D. 178, 188; Lockett v. Nicklin (1848), 2 Exch. 93, 19 L. J. Ex. 403. 17. Henthorn v. Fraser (1892), 2 Ch. 27. 18. Grove v. Hodges, 55 Pa. St. 504. Where a memorandum of sale is signed only by the vendee, the vendor's agreement may be shown by parol to be a sale by sample with warranty. Curtis v. Soltau, 16 Daly (N. Y.) 490, 496. A bill of sale is not conclusive as to the terms, which may be shown by parol. Sutton v. Crosby, 54 Barb. (N. Y.) 80. A parol warranty at time of sale of a ship by a bill of sale will not mantain an action. Mumford v. McPherson, 1 Johns. (N. Y.) 414; Wil-. son v. Marsh, 1 Johns, (N. Y.) 503. 19. Averill v. Hedge, 12 Conn. 424, 436; Falls v. Gaither, 9 Port. (Ala.) 614; McCleskey v. Howell Cotton Co., 147 Ala. 579; Levy v. Cohen, 4 Ga. 1; Haas v. Myers, 111 Ill. 421; Moore v. Pierson, 6 Iowa, 279; Ferrier v. Storer, 63 Iowa, 484; Hunt v. Higman, 70 Iowa, 406; Hutcheson v. Blakeman, 60 Ky. (3 Met.) 80; Wheat v. Cross, 31 Md. 99; Brauer v. Shaw, 168 Mass. 198; Conn, Ins. Co. v. Hallett, 27 N. J. L. 645; Northampton Ins. Co. v. Tuttle, 40 N. J. L. 476; Potts v. Whitehead, 20 N. J. Eq. 55; Abbott v. Shepard, 48 N. H. 14; Sanders v. Fruit Co., 144 N. Y. 209, 29 L. R. A. 431; Perry v. Iron Co., 15 R. I. 380; Washburn v. Fletcher, 42 Wis. 152; Durkee v. Vt. Cent. R. R. Co., 29 Vt. 127; Mueller Furnace Co. v. Meiklejohn, 121 Wis. 605; Stocken v. Collin, 7 M. & W. 515. When an offer is made and accepted by the posting of a letter of acceptance before notice of withdrawal is received, the contract is not impaired by the fact that a revocation had been mailed before the letter of acceptance. Patrick v. Bowman, 149 U. S. 411; Merchants Exch. Co. v. Sanders, 74 Ark. 16; Main v. Tracey, 76 Ark. 371; Wm. Fait Co. v. Anderson, 76 Ark. 237; Averill v. Hedge, 12 Conn. 436; Potts V. Whitehead, 20 N. J. Eq. 55. A contract by correspondence is completed when the letter of acceptance is mailed. Byrne v. Van Tienhoven, L. R. 5 C. P. D. 344; Stevenson v. McLean, L. R. 5 Q. B. D. 346; Adams v. Lindsell, 1 B. & Ald. 681; Dunlop v. Higgins, 1 H. L. Cas, 381; Henthorn v. Fraser (1892), 2 Ch. 27; Tayloe v. Ins. Co., 50 U. S. (9 How.) 390; Patrick v. Bowman, 149 U. S. 411; Wheat v. Cross, 31 Md. 99. Where the parties agree to deal by telegram, an offer made by one, and acceptance in the same manner by the other is a binding agreement, though, in consequence of a derangement of the line of telegraph, the acceptance be not received in time to enable such party to comply with its proposal. "The usual mode of acceptance is the sending of a letter announcing a consent to accept; where it is made by a messenger, a determination to accept returned through him, or sent by another, would seem to be all the law requires, if the contract may be consummated without writing. There are other modes equally conclusive upon the parties; keeping silence under certain circumstances is an assent to a proposition. Anything that 21 beyond the sender's control." This is so although the letter is lost and the offerer has no actual knowledge of the acceptance, or attempts revocation after the mailing of the letter or the sending of the telegram,22 or the offerer dies after the sending and before the receipt of the acceptance,23 or the acceptor dies. The receipt shall amount to a manifestation of a formal determination to accept communicated, or put in the proper way to be communicated to the party making the offer would doubtless complete the contract. But a letter written would be no acceptance so long as it remained in the possession or under the control of the writer." Mactier v. Frith, 6 Wend. (N. Y.) 103. "Where the negotiations between the contracting parties residing at a distance from each other is conducted, as it usually is, by letters, it is necessary, in order that their minds may meet, that the will of the party making the proposition to sell should continue until his letter shall have reached the other and he shall have signified or at least had an opportunity to signify, his acceptance." Mactier v. Frith, 6 Wend. (N. Y.) 103, 115. "The sending of a letter, accepting the proposition is regarded as an acceptance because it is an overt act, clearly manifesting the intention of the party sending it to close with the offer of him to whom it is sent and thus marking the aggregatio mentium which is necessary to constitute a contract." Trevor v. Wood, 36 N. Y. 307, 309; Howard v. Daly, 61 N. Y. 363; White v. Corlies, 46 N. Y. 467. In the absence of express stipulations that the contract shall not be binding until the receipt of acceptance, depositing a letter of acceptance in the post office, addressed to the offerer from that moment completes the contract though it never be received. Vassar v. Camp, 11 N. Y. 441; Boyd v. Brisbane, 1 Paige (N. Y.), 17; Hamilton v. Ins. Co., 5 Barr. 339. 20. Duncan v. Topham, 8 C. B. 225; Potter v. Sanders, 6 Hare, 1; Ins. Co. v. Grant, 4 Exch. D. 216; Brogden v. Metropolitan R. Co., 2 App. Cas. 666. U. S. post office regulations allowing the sender to recover a letter at any time before delivery (U. S. post office regulations, 487, 489) may affect this rule. Ex parte Cote, L. R. 9 Ch. 27. 21. Levisohn v. Waganer, 76 Ala. 412; Linn v. McLean, 80 Ala. 360; Falls v. Gaither, 9 Port (Ala.), 614; Hunt v. Higman, 70 Iowa, 406; Bishop v. Eaton, 161 Mass. 496; Brauer v. Shaw, 168 Mass. 198; Lungstrass v. Ins. Co., 48 Mo. 201; Conn. Ins. Co. v. Hallett, 27 N. J. L. 645; Trevor v. Wood, 36 N. Y. 307; Howard' v. Daly, 61 N. Y. 307; Mactier v. Frith, 6 Wend. (N. Y.) 103; Washburn v. Fletcher, 42 Wis. 152; Duncan v. Topham, 8 C. B. 225; Ins. Co. v. Grant, 4 Exch. D. 216 C. A.; Byrne v. Van Tienhoven, 5 C. P. D. 346. But see Lewis v. Browning, 130 Mass. 173. 22. Patrick v. Bowman, 149 U. S. 411; Kempner v. Cohn, 47 Ark. 519; Gartner v. Hand, 86 Ga. 558; Ferrier v. Storer, 63 Iowa, 484; Hand v. Marble Co., 88 Md. 226; Brauer v. Shaw, 168 Mass. 198; Henthorn v. Fraser, 2 Ch. 27; Byrne v. Van Tienhoven, 5 C. P. D. 344; Stevenson v. McLean, 5 Q. B. D. 346. 23. Death of the offerer, or his insanity before acceptance revokes offer. Gilbert v. Holmes, 64 Ill. 548; Bissell v. Terry, 69 Ill. 184; Walker v. Denison, 86 Ill. 142; Coleman v. Applegarth, 68 Md. 21; Haarstick v. Fox, 9 Utah, 110. Horse was delivered on trial August 23rd. September 12, the vendee of the letter or telegram of acceptance has been held necessary to complete the contract in some cases, 25 and is sufficient in any event. Mail or telegraph is a proper means of communication when the offerer has used them," or expected an acceptance or revocation when the parties were apart," although the offer was made orally;29 but not where the sender retains control of the letter and stops it in transit.30 Depositing a properly stamped31 and addressed letter32 in the post office or letter box, personally, or by messenger,35 is a sufficient mailing; but delivery to a postman not under the control of the postal authorities is not. Receipt of the acceptance," or acceptance in a prescribed manner as in writing,33 or by telegram, or orally," or transmission by certain means as by mail or telegraph," or messenger, 38 wrote offering $140, to be paid by sight draft. The vendor immediately drew, and, on the same day, the vendee wrote that the horse had farcy and refused to pay the draft. Held that the acceptance completed the contract. Wheat v. Cross, 31 Md. 99. To the same effect are Stockham v. Stockham, 32 Md. 196, 208; Rice v. Forsythe, 41 Md. 389, 405; Dickinson v. Dodds, 2 Ch. D. 463, 475; 1 Mechem on Sales, § 257. 24. Mactier v. Frith, 6 Wend. (N. Y.) 103. 25. McCullock V. Ins. Co., 18 Mass. (1 Pick.) 278; Thayer v. Ins. Co., 27 Mass. (10 Pick.) 326; Lewis v. Browning, 130 Mass. 173. (This rule is now changed in Massachusetts by Brauer v. Shaw, 168 Mass. 198.) 26. Summers v. Hibbard, 153 Ill. 102 (letter); Haines v. Dearborn, 198 Pa. St. 474 (letter); Perry v. Iron Co., 15 R. I. 380 (telegram). 27. Patrick v. Bowman, 149 U. S. 411; Moore v. Pierson, 6 Iowa, 279; Trounstine v. Sellers, 35 Kan. 447; Wheat v. Cross, 31 Md. 99; Perry v. Iron Co., 15 R. I. 380; Hartford, etc., Co. v. Lasher, etc., Co., 66 Vt. 439; 1 Mechem on Sales, § 248. 28. Henthorn v. Fraser, 2 Ch. 27. 29. Henthorn v. Fraser, 2 Ch. 27. What is a proper means of communication is a question of fact for 39 33 36 34 42 or at a the jury. Perry v. Mt. Hope Iron Co., 15 R. I. 380. 30. Mort. Co. v. Davis, 96 Tex. 504. See Ex parte Cote, L. R. 9 Ch. 27. 31. Blake v. Ins. Co., 67 Tex. 160; Washburn v. Fletcher, 42 Wis. 152. 32. Bryant v. Booze, 55 Ga. 438; Maclay v. Harvey, 90 Ill. 525; Thayer v. Ins. Co. 27 Mass. (10 Pick.) 326; Washburn v. Fletcher, 42 Wis. 152. 33. Wood v. Callaghan, 61 Mich. 402; Howard v. Daly, 61 N. Y. 362; Watson v. Russell, 149 N. Y. 388. 34. Blake v. Ins. Co., 67 Tex. 160. 35. Maclay v. Harvey, 90 Ill. 526; Blake v. Ins. Co., 67 Tex. 160. 36. In re London, etc., Bank, 1 Ch. 466. 37. Haas v. Myers, 111 Ill. 424; Lewis v. Browning, 130 Mass. 173; Vassar v. Camp, 11 N. Y. 441; Union Bank v. Miller, 106 N. C. 347; Atlee v. Bartholomew, 69 Wis. 43; 1 Mechem on Sales, § 250. 38. Wiswell v. Bresnahan, 84 Me. 397. 39. Watson v. Coast, 35 W. Va. 463. 40. Watson v. Coast, 35 W. Va. 463. 41. Lewis v. Browning, 130 Mass. 173. 42. Eliason v. Henshaw, 17 U. S. (4 Wheat.) 225. 43 definite place, or within a certain time" may be expressly conditioned in the offer, as the consummation of the contract.45 In the absence of such express condition, an offer made in any of these ways may be accepted in the same or any other proper mode.* If the parties intend an agreement reached by negotiations communicated orally, or by letters, telegrams, telephone, or any other means to be binding, but to have the contract reduced to writing in order to have all the terms of the whole contract definitely evidenced, the contract is valid and may be proved by the means used in the negotiations until it is written, and then all other evidence is merged in the writing." But if the parties intend the negotiations, however communicated, to be merely the means of arriving at the terms of an agreement which shall not be binding until reduced to writing, there is no contract until the writing is made, duly executed and delivered.48 43. Eliason v. Henshaw, 17 U. S. (4 Wheat.) 225 44. Maclay v. Harvey, 90 Ill. 525; James v. Marion Fruit Jar Co., 69 Mo. App. 207; Taylor v. Rennie, 25 Barb. (N. Y.) 272; Union Nat. Bank v. Miller, 106 N. C. 347; Dunlop v. Higgins, 1 H. L. Cas. 387; Minn. Linseed Oil Co. v. Collier White Lead Co., 4 Dillon (U. S. C. C.), 431. 45. Bosshardt & Wilson Co. v. Crescent Oil Co., 171 Pa. St. 109; 1 Mechem on Sales, § 249; 1 Page on Contracts, § 49. 46. 1 Mechem on Sales, § 248; 1 Page on Contracts, § 49. 47. Cochrane v. Mining Co., 16 Col. 415; Arnold v. Malsby, 120 Ga. 586; Steamship Co. v. Swift, 86 Me. 248; Rankin v. Mitchem, 141 N. C. 277; Sanders v. Fruit Co., 144 N. Y. 209. 29 L. R. A. 431; 1 Page on Contracts, § 154. A contract for the sale of personal property, unnecessarily sealed, does not affect the rights of the parties. Bridger v. Goldsmith, 143 N. Y. 424. 48. Spinney v. Downing, 108 Cal. 666; Crittendon v. Armour, 80 Iowa, 221; Ehrsam v. Brown, 64 Kan. 466; Canal Co. v. Burgin, 106 La. 309; Bridge Works v. Bristol, 170 Mass. 528; Starkey v. Minneapolis, 19 Minn. 166; Rankin v. Mitchem, 141 N. C. 277. (All persons must take notice that contracts under city charter must be in writing.) Comrs. v. Brown, 32 N. J. L. 504; Runyon v. Wilkinson, 57 N. J. L. 420; Donnelly v. Hardware Co., 66 N. J. L. 388; Wood v. Edwards, 19 Johns. (N. Y.) 212; Hughes v. Clyde, 41 Ohio St. 339; Sparks v. Pittsburgh Co., 159 Pa. St. 295; Congdon v. Darcy, 46 Vt. 478; Mixer v. Williams, 17 Vt. 457; Governor, etc., v. Petch, 10 Exch. 610; 1 Page on Contracts, § 54. "If it appears that the parties, although they have agreed on all the terms of their contract, mean to have them reduced to writing and signed before the bargain shall be considered as complete, neither party will be bound until that is done so long as the contract remains without any acts done under it on either side." Water Comrs. v. Brown, 32 N. J. L. (3 Vroom) 504, 510. Quoted with approval in Donnelly v. Currie Hardware Co., 66 N. J. L. (37 Vroom) 388. The fact that the parties contemplated that a formal contract should be prepared and signed is some evidence that they did not intend to bind themselves until it was made |