It may be that B. has lent me 507.: here is a consideration by way of advantage to me.

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his part accepts such promise." Hence is assent or acceptance indispensable to the validity of every contract; for "as I cannot," continues Pothier, "by the mere act of my own mind transfer to another a right in my goods, without a concurrent intention on his part to accept them, neither can I by my promise confer a right against my person until the person to whom the promise is made has, by his acceptance of it, concurred in the intention of acquiring such right.” (See Grotius, lib. ii. c. 2.) Wherever there is not an assent, express or implied, to the terms of the proposed contract by both parties, there is no mutuality, and no contract.

The editors of "Saunders" and Mr. Chitty are at issue on this point. Mr. Chitty says that "every agreement ought to be so certain and complete, that each party may have an action upon it, in regard to matters to be performed for his benefit by the other contracting party;" and "that if the one party never were bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality." (Chit. Contr. 15.) This is denounced in 2 Wms. Saund. 186 (i), as "stated too broadly, and must be confined, it should seem, to those cases where the want of mutuality would leave one party without a valid consideration for his promise." This suggestion is founded on a remark by Tindal, C. J., in Arnold v. The Mayor of Poole, 4 M. & Gr. 896, 43 E. C. L. R.; that case, however, referred to peculiar rights of suit by and against a corporation. It is difficult to conceive a case where there should be a valid consideration on both sides, and yet a want of mutuality. The note goes on to state that "there are many cases of contracts not mutually binding at the time when made; as where A. says to B., 'If you will furnish goods to C., I will guarantee the payment;' there B. is not bound to furnish them; yet if he does, he may sue on the guarantee." (Morton v. Burn, 7 Ad. & Ell. 19, 23, 34 E. C. L. R.; Kennaway v. Treleaven, 5 M. & W. 498, 501.) "So a contract signed by the defendant only, and not by the plaintiff, has been allowed to be enforced by action, notwithstanding the objection of a want of mutuality." (Laythoarp v. Bryant, 2 B. N. C. 735, 29 E. C. L. R.) It is submitted that there was no want of mutuality in these cases. The judgment in Laythoarp v. Bryant went entirely on the point that it was not necessary that both parties should sign a note of the contract under the Statute of Frauds; it is expressly stated that "the agreement in

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may be that he has performed or has agreed to perform some laborious service for me; if so, truth is made before any signature;" and the agreement was mutual. In Morton v. Burn it is expressly said in the judgment, "there is sufficient mutuality." Kennaway v. Treleavan is one of the many cases of a conditional contract,-of an inchoate guarantee-not binding nor intended to be binding when made, but to take effect subject to a stated contingency: the terms of it were, "I agree to be security for T. C. for whatever, while he is in your employ, you may trust him with." It was held in the judgment, that the consideration for the promise was the employment of T. C., and that the guarantee attached as soon as the employment began. If so, the mutuality and implied assent were complete. It is true, however, that no action could have accrued to the guarantor upon this agreement, and therefore is it that the test of mutuality, as laid down by Mr. Chitty, is too large; for there are binding contracts which from their nature neither bind nor admit of any breach by one of the parties, but to which assent is nevertheless a requisite; for in the case just put, had the party who received the guarantee failed to employ T. C. and accept the guarantee, he could not have enforced the promise of the guarantor, and there would have been no contract.

It is humbly submitted that the law lies between the two extremes of opinion held by Mr. Chitty on the one side, and the note to "Saunders" on the other: and is thus tersely stated by Tindal, C. J., in Jackson v. Galloway, 5 B. N. C. 75, 35 E. C. L. R. :-"Every contract consists of a request on one side, and an assent on the other.” These are the terms of mutuality: if either are absent, there is no

contract.

The request may be either express or implied, and likewise the promise or assent. Both are far oftener implied than expressed in simple contracts. The cases in which the request or the promise are express require little comment. The ordinary meaning of the words used will determine the legal effect, according to the established rules of construction.

The assent to a contract must be to the precise terms offered. Where one party proposes a certain bargain, and the other agrees, subject to some modification or condition, there is no mutuality of contract until there has been an express assent to it so modified; otherwise it would not be obligatory on both parties, and would therefore be void. See instances of contracts defective on this ground in the cases of Jordan v. Norton, 4 M. & W. 155; Cook v.

here is a consideration by way of inconvenience to him, and of advantage to me at the [92]

Oxley, 3 T. R. 653, where a distinction is taken between a mere proposal and an agreement to sell. (See also Adams v. Lindsell, 1 B. & Ald. 681.) The case of Routledge v. Grant, 4 Bing. 660, 15 E. C. L. R., is also a good example of this principle. Grant offered to purchase Routledge's house, requiring possession on the 25th of July, and a definite answer in six weeks; Routledge accepted the offer, with possession on the 1st of August; Grant afterwards, within the six weeks, retracted his offer, and it was held that he had a right to do so.

The party who made the offer has a right to say, "Non in hæc fadera veni ;" and decline any other bargain than that which he offered. Where an offer is accepted in the terms in which it was made, and within a specified period-or if none be specified, then within a reasonable time-the contract is binding on both parties. At any time before it is accepted the offer may be rescinded; but not afterwards. A familiar illustration of the doctrine of assent is afforded by the recent letters allotting railway scrip. Many of these letters were in reply to a simple request for shares, and after complying with this request, they went on to stipulate that the allotment should be void unless the deposit money were paid at a certain specified place within a specified time. Thus the allottee offered to buy and to pay for his shares; but the allotters added the provision that the shares should be void in default of a mode of payment prescribed by themselves; whereas without such stipulation mere default of payment would not have voided the contract: to this additional stipulation there was often no assent, and the contract was therefore null and void, and no such allottee could have been sued upon the transaction, for the stipulation was clearly not implied in the agreement to take the shares. Pothier says, "the allowance of a certain time for paying money due, the liberty of paying it by instalments, &c., and the like, are accidental to the contract, because they are not included in it without being particularly expressed." 1 Evans's Pothier, 7. And expressed assent is obviously requisite, for as its subject-matter is not implied in the primary contract, neither is the assent to it.

Where a request is not expressed it is often implied from the circumstances of the transaction. Thus, wherever one party derives benefit from a consideration, it is equivalent to and implies a request on his part: the acceptance of goods or money lent, for instance, is

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same time. It may be that he is to labour for a third person at my request; here will be in

an assent from which the law implies a request. Where the consideration is already performed before a promise is given, the previous request becomes of more importance, and must be proved, except where the law implies it from the nature of the contract; but this subject is amply discussed in the next lecture, where the cases are cited. Where there is an actual acceptance of the subject-matter of the contract, the assent is complete without proof of the request. There are various ways in which the mutual assent of both parties to a contract may arise by reciprocal request, performance, promise, and acceptance, but the test in all cases seems to be, in the first place, whether the assent be mutual.

The law implies a promise in like manner with requests where the promise is of the nature of the contract. Thus, where goods are sold, it implies a promise to pay for them: where they are lent, it implies a promise to take care of, and to return them: where hired, to avoid negligence of them, and to pay the hire. Certain promises are implied from the peculiar functions with which a man is invested. An executor, for instance, impliedly promises to pay the expenses of the testator's funeral. The distinction between implied and express promises is seen in such an agreement as waives or modifies the promise which the law would otherwise import into the contract; as for instance, that the borrower shall not be answerable for the loss of the thing borrowed; this is an express promise waiving the implied promise, for expressum facit cessare tacitum. Implied promises arise also from custom, and from the established and known mode of dealing in vogue between the parties. (See More v. Houghton, 1 Stark. 487, 2 E. C. L. R.; Stewart v. Aberdeen, 4 M. & W. 211; Roberts v. Havelock, 3 B. & Ad. 404, 23 E. C. L. R.) Assent is sometimes implied from the absence of dissent, where a person knowingly permits services to be rendered for him, or those in whom he is interested, without objecting: in some of these cases the law infers a previous request from the subsequent assent. (See the next Lecture, p. 111.)

Pothier enumerates another class under the title of quasi contracts, which he defines as "acts of a person permitted by the law which obliges him in favour of another, without any agreement intervening between them ;" and one of the instances he gives is that of an heir's acceptance of a succession, which obliges him to the payment of the legacies "without the intervention of any agreement." This seems

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convenience to him without advantage to me: or it may be that he has become surety for some one at my request; *here is a charge imposed upon him. Any of these will be a good consideration to sustain the promise on my part. That this is the true rule of the law of England, you may collect from various instances, among which I will refer you to Williamson v. Clement, 1 Taunt. 523; the judgment of the L. C. J. in Willatts v. Kennedy, 8 Bing. 8, 21 E. C. L. R.; and the observations of Lord Ellenborough in Bunn v. Guy, 4 East, 194.

Provided there be some benefit to the contractor, or some loss, trouble, inconvenience, or charge imposed upon the contractor so as to constitute a consideration, the Courts are not willing to enter into the question whether that consideration be adequate in value to the thing which is promised in exchange for it. [96]

to be a somewhat doubtful distinction: there is an agreement; namely, the implied one attaching to the acceptance of any station or emolument, to discharge the duties and claims which belong to it. There is doubtless a legal obligation; but there is not less on that account an implied promise to perform it. The cases in which actions for tort and assumpsit are concurrent remedies involve both legal obligations and implied promises. In these cases, where the default is tortious (as where a man hires a horse, and negligently injures him), the promise flows from the obligation; in the case of contracts, the obligation flows from the promise. The implied promise, as well as the obligation exist in both cases; and an action lies in both on the breach of promise; but it lies for the breach of obligation only in the former case; and this appears to be the main practical distinction between them.

'Hubbard v. Coolidge, 1 Metcalf, 93; Osgood v. Franklin, 2 Johns. Ch. 23, S. C. 14 Johns. 527; Bedel v. Loomis, 11 New Hamp. 9. "If a contract is deliberately made without fraud," said Wilde, J., in Train v. Gold, 5 Pick. 384, "and with a full knowledge of all the circumstances, the least consideration will be sufficient."