in the agreement, this annuls the contract, though if the contracting party would equally have made the contract with any other person, the contract will be valid (b). CH. II. s. 1. Requisites of Simple Contract (Assent). No contract discourse. There cannot be a binding simple contract, unless there be a definite promise by the party charged, accepted by the person by mere claiming the benefit of such promise (c). Accordingly, no contract affirmation in is raised by a mere ex parte affirmation in discourse, or by a mere overture or offer to enter into an agreement, not definitively and expressly assented to by both parties (d). Thus-" If there be a communication between the father of A., and B., respecting a marriage between A. and the daughter of B., and B. then affirms and declares to the father of A., that he will give to him who marries his daughter with his consent 100l., and afterwards A. marries the daughter of B. with his consent: yet this declaration of B. does not raise a promise upon which assumpsit lies, because these words do not include a promise." This is laid down in Rolle's Abridgment (e); and there are many modern decisions to the same effect. Thus, where the defendant wrote a paper, con- Mere propositaining assurances to the plaintiff that a third person was worthy to be trusted to a certain amount, and adding that he, the defendant, had no objection to guarantee the plaintiff against any loss which might accrue from giving the third person credit upon an order he had sent to the plaintiff; it was held, that the paper did not amount to a guarantee,—there having been no notice by the plaintiff that he accepted it as such; nor any consent by the defendant to convert it into a conclusive guarantee (f). There is an overwhelming stream of judicial authority, from Cooke v. Oxley (g) in 1790 down to Bristol Bread Co. v. Maggs (h) in 1890, to the effect that an offer giving a limited time for acceptance may be revoked, on the revocation being communicated, at any moment before the time for acceptance has arrived, on the ground that the stipulation for time within which to consider the offer is void for want of consideration. (b) See Smith v. Wheatcroft (1878), 9 Ch. D. 223, 230; Boulton v. Jones (1857), 2 H. & N. 564; British Waggon Co. v. Lea (1880), 5 Q. B. D. 149. (c) See Raffles v. Wichelhaus (1801), 2 H. & C. 906; Stanley v. Dowdeswell (1874), L. R., 10 C. P. 102. (d) Sec per Tindal, C.J., Jackson v. Galloway (1838), 6 Scott, 786, 792. (e) Trin. Term, 3 Jac. B. R., per Cur. Week v. Tibold, Roll. Abr. Action sur case (M.), pl. 1. In Com. Dig. Action upon the case upon Assumpsit, (T. 2), this case is thus cited-" Assumpsit does not lie upon a speech in discourse; as, if a man in discourse say that he will give so much money with (f) M'Iver v. Richardson (1813), 1 M. (9) Cooke v. Oxley (1790), 3 T. R. 653; 1 R. R. 783, Ex. Ch., as explained, on the point of communication, by Lush, J., in Stevenson v. McLean (1880), 5 Q. B. D. 346. (h) Bristol Bread Co. v. Maggs (1890), 44 Ch. D. 616. tions. Invalidity of promise of acceptance. Cooke v. time for Oxley. CH. II. s. 1. Invalidity of Cooke v. Dickinson v. In Cooke v. Oxley, which was decided by a strong Court without calling on counsel to support the opposite view, and affirmed in the Exchequer Chamber in unanimous but unreported judgments, the declaration was to the effect that on the defendant proposing to sell and deliver 266 hogsheads of tobacco to the plaintiff, the parties agreed at the request of the plaintiff that the defendant should give the plaintiff time to agree to or dissent from the proposal till 4 p.m.; that the defendant proposed to sell and deliver on these terms if the plaintiff would give notice of acceptance before 4 p.m.; that the plaintiff gave the notice before that time, but the defendant refused to sell and deliver the tobacco. The report is silent as to the course of the trial, but it must be assumed that judgment was given for the plaintiff. A rule to show cause why judgment should not be arrested was made absolute, the short judgments being merely that Lord Kenyon, C.J.: 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. Buller, J. It is impossible to support this declaration in any point of view. In order to sustain a promise there must be either a damage to the plaintiff or an advantage to the defendant; but here was neither when the contract was first made. Then as to the subsequent time, the promise can only be supported on the ground of a new contract made at four o'clock; but there is no pretence for that. It has been argued that this must be taken to be a complete sale from the time when the condition was complied with; but it was not complied with, for it is not stated that the defendant did agree at four o'clock to the terms of the sale; or even that the goods were kept till that time. Grose, J. The agreement was not binding on the plaintiff till four o'clock; and it is not stated that the parties came to any subsequent agreement; there is therefore no consideration for the promise. Of the numerous cases (j) in which this judgment has been approved, Dickinson v. Dodds is the most characteristic. There (1) Routledge v. Grant (May, 1828), 4 Bing, 653. In this case Burrough and Gaselee, JJ., concurred with the judg ment of Best, C.J. solely on the ground of a varied acceptance. Head v. Diggon (Nov., 1828), 7 L. J., K. B. 36 (here the head-note is :-" An offer made by one party to an intended contract, allowing a given time to the other to accept or refuse it, does not bind the person who offers, until it has been accepted; and he may therefore withdraw his offer within the limited time; and semble if the acceptance of such an offer and withdrawing of it be simultaneous, the withdrawing shall be preferred, and neither party will be bound "). Dickinson v. Dodds (1876), 2 Ch. D. 463, C. A. See text. Byrne v. Van Tienhoven (1880), 5 C. P. D. at p. 347, per Lindley, J. Stevenson v. McLean (1880), 5 Q. B. D. 346, per Lush, J., approving the rule of Cooke v. Oxley, but upholding a time offer on the ground that a revocation of it had not been communicated. Henthorn v. Fraser, [1892] 2 Ch. 27, C. A., reversing decision of Palatine Court, and not citing Cooke v. Oxley. Bristol Aerated Bread Co. v. Maggs (1890), 44 Ch. D. 616. Here the defendants signed an offer " to hold good for ten days to sell his business and lease to the plaintiffs, who quickly and briefly accepted it. A dispute arising as to the terms of a more formal contract, the defendant within the ten days declined to proceed further, and the plaintiffs failed in an action for specific performance, Kay, J., observing that the defendant, on Wednesday, a 10th of June, handed to the plaintiff a signed memorandum by which he agreed to sell to the plaintiff his house and garden at Croft for 800l., adding a signed P.S.: "This offer to be left over until Friday, 9 o'clock a.m. 12th June." On Thursday the defendant sold the property to another person, and on Friday about 7 a.m. both the plaintiff's agent and the plaintiff handed notices of acceptance to the defendant. Bacon, V.-C., gave judgment for specific performance by the defendant and restrained conveyance to the Thursday purchaser, but the Court of Appeal reversed that judgment, James, L.J., observing that There was no consideration for the promise, to whatever extent it may be considered binding, to keep the property unsold until nine o'clock on Friday morning; but apparently Dickinson was of opinion, and probably Dodds was of the same opinion, that he (Dodds) was bound by that promise until nine o'clock on Friday morning. But it is settled law that this promise, being a mere nudum pactum, was not binding, and that any moment before a complete acceptance by Dickinson of the offer, Dodds was as free as Dickinson himself. It is submitted that the rule so affirmed as above in Dickinson v. Dodds is too firmly settled for the House of Lords to overrule it (k), however clear may be the power of that House to do so. But it is submitted also that the rule (which no Judge has yet stigmatized as unbusinesslike and dishonest) is legally unsound, on the grounds (1) as stated by Bacon, V.-C., in Dickinson v. Dodds, that "the inducement for the plaintiff to enter into the contract was the defendant's compliance with the plaintiff's request that there should be some time allowed him to determine whether he would accept it or not," and (2) that an offeror has just as much right to fix the time for acceptance as he undoubtedly has to fix the mode of it and designate the post as a mode. The rule differs from that of the civil law and of Scotland (1), and has been disapproved of by many writers (m); and it is material to point out that two questions-(1) the question of consideration or no consideration, and (2) the question of communicating that "the offer was not a contract, that the term that it should remain open for ten days was therefore not binding, and that it had often [citing Routledge v. Grant, Cooke v. Oxley, and Dickinson v. Dodds] been held that such an offer might notwithstanding be withdrawn within the time limited." (k) See, e.g., Foakes v. Beer (1884), 9 App. Cas. at p. 612; Tancred v. Steel Co. of Scotland (1890), 15 App. Cas. 125. (7) See Bell on Sale, p. 38. (m) See Pollock on Contracts, 7th ed., at p. 26 (e), citing with approval, Lang- ever, after full examination of the CH. II. s. 1. CH. II. S s. 1. of Simple Contract (Assent). Option. Answer to be a simple acceptance of offer. These an offer was revoked-arose in the majority of the cases. The best practical solution of the difficulty may be for the party who desires a limited time within which to consider an offer to give an express consideration for the time being given him, as is done in the case of mining and patent rights (m) "options." Again on the principle that mutual assent is necessary in order proposal must to there being a binding contract, it is held that, where an agree ment is sought to be established by means of letters the Court must take into consideration the whole of the correspondence which has passed between the parties; and that the letters will not constitute an agreement, unless they show a simple acceptance by the one party, of the proposal made by the other, without the Introduction introduction of any new term (n). Thus, where the correspondence between two parties, with reference to the sale of a mare, showed that the defendant agreed to give twenty guineas for her if there were a warranty of her being sound and quiet in harness; but the plaintiff wrote in reply, warranting her to be sound and quiet in double harness only: it was held, that there was no complete contract in writing between the parties (0). of new term. Mistake as to person contracted with. Communica 66 A. dealing with A. on the supposition induced by A. that he is B. is void and no contract, as where the dealing was with Blenkorn" on the supposition that he was Blenkiron (p), and shares were taken in the Institute of Auctioneers and Valuers on the supposition that it was the Auctioneers' Institute of the United Kingdom (q). It is also essential to a contract resulting from the acceptance of tion of accept an offer, that the acceptance should be communicated to the party offering; the mere mental assent of the acceptor, uncommunicated to the offeror, is not enough (r). ance. Brogden v. Met. R. Co. Acceptance subject to the preparation of a formal agreement. If, by the terms of the proposal, it is stipulated that the acceptance is to be in a particular manner,―e.g., in writing, an acceptance in any other manner will not form a binding contract (s). If the terms in which the proposal is accepted, show that the parties intended that a formal instrument should be prepared and agreed upon between them, and that, until that be done, no contract should arise: they will not be bound, until such formal (m) See e.g., Bruner v. Moore (1903), . 73 L. J. Ch. 377. (n) See Hussey v. Horne Payne (1879), 4 App. Cas. 311; Jones v. Daniel, [1894] 2 Ch. 332. (0) Jordan v. Norton (1838), 4 M. & W. 155. (p) Cundy v. Lindsay (1878), 3 App. Cas. 459. (q) International Society of Auctioneers, In re, Baillie's case, [1898] 1 Ch. 110. (r) Brogden v. Metropolitan R. Co. (1877), 2 App. Cas. at p. 692, per Lord Blackburn. (s) Kingston-upon-Hull (Governors, &c.) v. Petch (1854), 10 Exch. 610. instrument has been agreed upon (t). But where certain terms have been mutually assented to, the mere fact that the parties have expressly stipulated that a formal instrument shall be prepared, embodying those terms, does not, by itself, show that they have not come to a final agreement (u), nor does the fact that the acceptance contains a statement that the acceptor has instructed his solicitor to prepare the necessary documents (x). CH. II. s. 1. of Contract Requisites (Assent). Hussey v. Horne Payne. The better opinion seems to be that if a contract to buy land Contract is made subject to the title being approved by the purchaser's subject to solicitor, the intending purchaser will be bound unless his solicitor reasonably disapprove of the title (y). approval by solicitor. Where a draft has been prepared and agreed upon, as the basis Draft. of a deed or contract between the parties, and they, without waiting for the execution of the more formal instrument, proceed to act upon the draft, and treat it as binding upon them, both parties will be bound by it (2). a contract of insurance. A corresponlooked at as a whole, to see contract. dence must be A "slip" initialled by underwriters at Lloyd's in England Slip, whether forms a complete and binding contract of goods in New Zealand against fire, and is not subject to an implied condition that a policy should be put forward for signature within a reasonable time (a). Negotiations and correspondence must be looked at as a whole to see whether the parties to them have concluded a binding contract or not (b). Even letters subsequent to letters which, if they had not been followed by such subsequent letters, would of themselves constitute a contract, may be referred to for this purpose (c); but of course, if the original letters are so unambiguous as to form a complete contract not capable of or requiring further explanation, further negotiations between the parties cannot, without the consent of both, get rid of such contract (d). (t) See Rossiter v. Miller (1878), 3 App. Ca. 1124, 1139, 1151; Chinnock v. Marchioness of Ely (1865), 4 D. J. & S. 638, 645, 646, App.; Winn v. Bull (1877), 7 Ch. D. 29, per Jessel, M.R.; Harvey v. Barnard's Inn (1881), 50 L. J., Ch. 750; May v. Thomson (1882), 20 Ch. D. 705, C. A.; Hawkesworth v. Chaffey (1886), 55 L. J., Ch. 335; Gray v. Smith (1889), 43 Ch. D. 208. (u) See Rossiter v. Miller, supra; Bonnewell v. Jenkins (1878), 8 Ch. D. 70, C. A.; Lewis v. Brass (1877), 3 Q. B. D. 667, C. A. (x) Bolton Partners v. Lambert (1888), 41 Ch. D. 295, C. A. (y) See per Lord Cairns, C., in Hussey v. Horne Payne (1879), 4 App. Cas. 311; Clack v. Wood (1882), 9 Q. B. D. 276, C. A.; Chipperfield v. Carter (1895), 72 L. T. 487, where an offer to take a lease "to be approved in the customary way by my solicitor" was said by Wright, (z) Per Lord Blackburn, Brogden v. (a) Thompson v. Adams (1889), 23 Q. B. D. 361, per Mathew, J. See further, Ch. XX., sect. 3, "Contracts of Insurance,' where the effect of Mackenzie v. Coulson (1869), L. R., 8 Eq. 368, is considered. (b) Hussey v. Horne Payne (1879), 4 App. Cas. 311. (c) Bristol, &c., Bread Co. v. Maggs (1890), 44 Ch. D. 616, per Kay, J. (d) Bellamy v. Debenham (1890), 45 Ch. D. 481, per North, J.; and see post, Ch. XIII., sect. 2. if there is a |