Contracts/Intention to Bind
- 1 Intention to Bind is Essential
- 2 Necessity of Mutual Assent
- 3 Common Intention
- 4 Promissory Expressions
- 5 Statements of Intention
- 6 Invitations to Deal
- 7 Intention Must Refer to Legal Relations
- 8 Intention Must Be Serious
- 9 Preliminary Negotiations
- 10 Certainty Required
- 11 Intention Must Be Communicated
- 12 Representation on Which Another Acts--Estoppel
- 13 Agreement Results from Offer and Acceptance
- 14 Time of contract formation
- 15 References
Intention to Bind is Essential[edit | edit source]
This common intention can not be present where there is doubt or difference on either side. Thus if A offers B to sell him his horse and B replies, "I might purchase it at the price you asked," there is no agreement. Neither is there where A says, "I will sell you my horse for one hundred dollars," and B replies, "I will give you seventy-five for it."
A person's state of mind or intention can be ascertained only by outward expressions, such as words or acts. Therefore the law excludes all questions of intention unexpressed, and imputes to a person a state of mind or intention corresponding to the rational and honest meaning of his words and acts. Whatever a man's real intention may be, if he so conducts himself that a reasonable man would believe that he was assenting to what he proposed, and the latter on the faith of this contracts with him, the man so conducting himself is as much bound as if he had actually intended to agree to the other party's terms.
"If a man intends to buy, and says so to the intended seller, and he intends to sell, and says so to the intended buyer, there is a contract of sale; and so there would be if neither had the intention."
If a man writes a letter to another and its language shows an offer to contract, he will not be allowed to say, "I did not intend to make an offer in writing that letter. A person can not set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement.
And it does not matter how formal or informal the words used may be. A says to B, "I want you to send your wagon for my goods tomorrow to take them to the station." B replies, All right." This is an agreement.
Necessity of Mutual Assent[edit | edit source]
There can be no contract in the true sense, that is, as distinguished from quasi or constructive contracts, in the absence of the element of agreement, or of mutual assent of the parties. If this assent is wanting on the part of one who signs a contract, his act has no more efficacy than if it had been done under duress or by a person of unsound mind. A grumbling assent may be sufficient so long as it stops short of an actual expression of dissatisfaction with the terms.
Common Intention[edit | edit source]
In order that there may be an agreement, the parties must have a distinct intention common to both and without doubt or difference. Until all understand alike, there can be no assent, and, therefore, no contract. Both parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, or no mode is agreed on by which it may be settled, there is no agreement, although it is not necessary that all of the terms of the contract be settled by a single act, but the parties may settle on one term, at a time, and their contract becomes complete when the last term is agreed on. The fact that differences subsequently arise between the parties as to the construction of the contract is not in itself sufficient to show that the minds of the parties did not meet.
Expressed Intention and Secret Intention Differing[edit | edit source]
The apparent mutual assent of the parties, essential to the formation of a contract, must be gathered from the language employed by them, and the law imputes to a person an intention corresponding to the reasonable meaning of their words and acts. It judges of their intention by their outward expressions and excludes all questions in regard to unexpressed intention. If their words or acts, judged by a reasonable standard, manifest an intention to agree in regard to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of their mind on the subject. On the other hand, if one sought to be held as having agreed dissented in the ordinary language of business intercourse, it is an absurdity to say that he did agree merely because the other party insists that she did not understand the language.
Communication of Intention[edit | edit source]
Necessity for[edit | edit source]
To constitute an agreement, the intention of the parties must in some way or form be communicated, for a person's intention can be ascertained by another only by means of outward expressions, such as words and acts. An intention not expressed, not communicated, or withdrawn before communicated, is in general inoperative and immaterial to the question of agreement. The same is true of an intention communicated only to a third person.
Intention Communicated Informally[edit | edit source]
Where the intention is communicated, it does not matter what is the medium of communication, or how informal the words used may be. It may be orally or in writing, by an advertisement, placard, handbill, letter, messenger, or telegram. So a valid contract may be made by a telephone oonversation.
Promissory Expressions[edit | edit source]
The intention to bind oneself must appear, for all promissory expressions do not by acceptance constitute an agreement. They may have the form of an offer and yet not be such as the law will enforce. The case of a mere jest is clear. If A, for example, is riding a broken down horse and B in a spirit of badinage calls out, "I say, will you take $1,000 for your horse?" B's reply, "I will," could by no possibility be considered as the conclusion of a contract to sell the horse for $1,000. But suppose a man, who believes his life in danger from a disease or an injury, says to his physician, "O doctor, I will give all I have if you will save my life," and the physician says, "I'll try," and does, by his surgical skill, save his patient's life. Is this a contract?
The reports do not give much light; the few adjudicated cases are hard to reconcile. In a Tennessee case, where defendant and his family were in deep affliction over the murder of his son; he himself was laboring under the effect of severe wounds received from the person who had killed the son and when his arrest was spoken of, he said he would give two hundred dollars to have him arrested. Plaintiff, who was present, made the arrest and claimed the reward. But the Court held that there was no offer.
"What is called an offered reward was nothing but a strong expression of his feelings of anxiety for the arrest of those who had so severely injured him, and this greatly increased by the distracted state of his own mind, and that of his family; as we frequently hear persons exclaim, 'Oh! I would give a thousand dollars if such an event were to happen,' or vice versa. No contract can be made out of such expressions; they are evidence of strong excitement, but not of a contracting intention."
So in an old case where A told B that he would give $100 to anyone who married his daughter with his consent and B did so and sued for the $100, it was ruled not to be reasonable that a man should be bound by general words spoken to excite suitors. On the other hand, in a Wisconsin case, where a man standing in front of a burning building shouted to the crowd, "I will give $5,000 to any person who will bring the body of my wife out of that building dead or alive," this was held to be a binding agreement with one of the firemen who entered the house and brought out the woman; and in Illinois, where at a public meeting, during the war, a man declared that he would give $400 to get his sons relieved from the draft, this was held a binding promise · to pay that amount to anyone who should accomplish that object.
"If I have valuable property in imminent danger and I make proclamation that I will give $50 to save it and a stranger undertakes the labor and does save it, on what principle of law or justice is it that I should not pay. So here the defendant declared he would give $400 to save his sons from the draft and put the declaration in writing. The plaintiff incurred the expense and trouble necessary to save his sons and did save them, why th en should he not be paid the amount promised."
In an English case the defendants, the proprietors of a medical preparation called The Carbolic Smoke Ball, issued an advertisement in which they promised to pay £100 to any person who contracted influenza after having used one of their smoke balls in a certain specified manner and for a certain specified period. The plaintiff sued for £100 alleging that on the faith of the advertisement she purchased one of the smoke balls, used it in the manner and for the time specified, but nevertheless contracted the influenza. It was contended by the defendants that this was not an offer at all or at least not one that any any sensible person would take to be a bona fide offer. But all the judges of the Court of Appeals pointed out that the advertisement contained this clause: "£1,000 is deposited in the Alliance Bank, Regent street, showing our sincerity in the matter," and that this must have been for the very purpose of leading those who read the advertisement to believe that the defendants were serious in their proposal and intended to fulfill their promise.
"It may be, that of the many readers of the advertisement very few sensible ones would have entertained expectations that in the event of the smoke balls failing to act as a preventive against the disease the defendants had any intention to fulfill their attractive and alluring promise; but it must be remembered that such advertisements do not appeal so much to the wise and thoughtful as to the credulous and weak portions of the community; and if the vendor of an article, whether it be medicine smoke or anything else, with a view to increase its sale or use, thinks fit publicly to promise to all who buy or use it, that to those who shall not find it as efficacious as it is represented by him to be, he will pay a substantial sum of money, he must not be surprised if occasionally he is held to his promise."
It is not easy to state any definite rule by which such cases should be governed, but it may be said broadly that the question is whether the terms of the offer and the circumstances under which it is made are such as to give a person a right to act upon it as a real and intentional offer.
Statements of Intention[edit | edit source]
Of a similar character are mere statements of intention, though they be accepted or acted upon by the party to whom they are made. Where a father writing to a man who was going to marry his daughter said, "She will have a share of what I leave after the death of her mother," this was held not a promise. So where another parent, in answer to a suitor for his daughter, wrote, "I shall allow her the interest on £2,000, whether she remains single or marries. If the latter, I may bind myself to do it, and pay the principal at my death to her and her heirs," this was held not to create a contract, because it did not import an intention to make a binding promise. So there was no contract where a person to whom a proposal was made replied, "I am prepared to make the arrangements with you on the terms you name."
Here, as before, it is a question of fact whether what was said was a mere statement of intention or was intended as a definite offer or acceptance. Where A, on opening a number of bids, said to B, one of the bidders, "I guess it is up to you, yours is the lowest bid," it was held that this was acceptance of B's bid.
An advertisement of a sale by auction is not an offer, so as to bind the advertiser, to persons attending the sale, to sell the property or to sell it on the terms advertised. An announcement that an examination for a scholarship will be held does not imply a condition that the scholarship will be given to the competitor obtaining most marks; and consequently there is no contract.
Invitations to Deal[edit | edit source]
- Main Article: Invitation to deal
A mere invitation to deal is not such an offer as may be turned into an agreement by acceptance. Thus in Moulton v. Kershaw, A wrote to B: "We are authorized to offer Michigan fine salt in full carload lots of 80 to 95 barrels delivered in your city at 85 cents per barrel." B telegraphed: "Your letter of yesterday received and noted. You may ship me 2,000 barrels of Michigan fine salt as offered in your letter." This was held not a binding contract, A's letter was only a notice to those dealing in salt that he was in a position to supply that article for the prices named, and requesting offers from the person or persons addressed.
Where defendants sent out a circular: "We are instructed to offer to the wholesale trade for sale by tender the stock in trade of A", amounting to so-and-so, "and which will be sold at a discount in one lot. Payment to he made in cash," it was held that this did not amount to a contract or promise to sell to the person who made the highest tender, but was, "a mere proclamation that the defendants are ready to chaffer for the sale of the goods and to recieive offers for the purchase of them."
Business circulars sent by mail or distributed by hand and advertisements in newspapers of goods for sale, fall under this head. They are merely invitations to trade; they go no further than what occurs when anyone asks another what he will give or take for certain goods. Such inquiries may lead to agreements, but do not make them.
"A bookseller's catalogue, with prices stated against the names of the books, would seem to contain a number of offers. But if the bookseller receives by the same post five or six letters asking for a particular book at the price named, to whom is he bound? To the man who first posted his letter of acceptance? How is this to be ascertained? The catalogue is clearly an invitation to do business, and not an offer."
So where a person or a corporation advertises for bidders for property to be sold or for work to be done, the advertisement is simply an invitation to make offers and the advertiser is not bound to accept the highest, the lowest or any of the bids.
The mere statement of the lowest price at which a vendor will sell is not an offer to sell at that price to the person making the inquiry. A telegraphed, "Will you sell us B. H. P.? Telegraph lowest cash price." B telegraphed in reply, "Lowest price for B. H. P. 900l." and then A telegraphed, "We agree to buy B. H. P. for 900l. asked by you. Please send us your title-deed in order that we may get early possession," but received no reply. Here there was no contract, as the final telegram was not the acceptance of an offer to sell, for none had been made, but was itself an offer to buy, the acceptance of which must be expressed.
Exposing goods in the window of a store, with a price attached is generally merely an invitation to trade, while the displaying them on a stand in the street where the passerby may pick one up--as for example a fruit stand--would seem to be an offer.
If the proposal can be construed as a definite offer, then a communicated acceptance makes the contract. If A had written, "We will sell you all the Michigan salt you may order at the price named," the contract would have been complete upon B notifying him of the quantity he desired, as in a California case, where defendant had a crop of growing grapes and he offered to pick from the vines and deliver to plaintiff, at his vineyard, so many grapes then growing in said vineyard, as plaintiff should wish to take during the present year at ten cents per pound. When plaintiff, while the offer was in force, named the quantity, the contract was held to be complete and both parties bound as to the quantity named.
An invitation to deal is not an offer, but an indication of a person's willingness to negotiate a contract. It's a pre-offer communication. In the UK case Harvey v. Facey, an indication by the owner of property that he or she might be interested in selling at a certain price, for example, has been regarded as an invitation to treat. Similarly in the English case Gibson v Manchester City Council the words "may be prepared to sell" were held to be a notification of price and therefore not a distinct offer, though in another case concerning the same change of policy (Manchester City Council underwent a change of political control and stopped the sale of council houses to their tenants) Storer v. Manchester City Council, the court held that an agreement was completed by the tenant's signing and returning the agreement to purchase, as the language of the agreement had been sufficiently explicit and the signature on behalf of the council a mere formality to be completed. Statements of invitation are only intended to solicit offers from people and are not intended to result in any immediate binding obligation. The courts have tended to take a consistent approach to the identification of invitations to treat, as compared with offer and acceptance, in common transactions. The display of goods for sale, whether in a shop window or on the shelves of a self-service store, is ordinarily treated as an invitation to treat and not an offer.
The holding of a public auction will also usually be regarded as an invitation to treat. Auctions are, however, a special case generally. The rule is that the bidder is making an offer to buy and the auctioneer accepts this in whatever manner is customary, usually the fall of the hammer. A bidder may withdraw his or her bid at any time before the fall of the hammer, but any bid in any event lapses as an offer on the making of a higher bid, so that if a higher bid is made, then withdrawn before the fall of the hammer, the auctioneer cannot then purport to accept the previous highest bid. If an auction is without reserve then, whilst there is no contract of sale between the owner of the goods and the highest bidder (because the placing of goods in the auction is an invitation to treat), there is a collateral contract between the auctioneer and the highest bidder that the auction will be held without reserve (i.e., that the highest bid, however low, will be accepted). The U.S. Uniform Commercial Code provides that in an auction without reserve the goods may not be withdrawn once they have been put up.
Intention Must Refer to Legal Relations[edit | edit source]
The intention of the parties must refer to legal relations; it must have reference to the assumption of legal rights and duties. One may accept a proposal to dine with another or to take a walk or go to a baseball match with him, and may even incur trouble and expense in keeping the engagement, yet no action will lie for the breach of the mere social engagement. The reason in all these cases is that the promise was neither intended nor understood to create between the parties rights and duties enforceable by law. "If, at a ball a young lady promises a gentleman to dance with him, say the sixth dance on the program, and afterwards dances it with someone else, no one would suppose that he could sue her for breach of contract. So if A agrees to join B tomorrow at a certain hour to take a bicycle ride together, this is not a promise creating a contract. So if in the playing of a charade a man and a woman go through the form of a betrothal there is no promise creating a contract so as to furnish the foundation for an action of breach of promise of marriage. . . . It is only those promises which as between the parties to them create or alter rights and duties, which the law treats as of binding obligation, that constitute contracts."
Intention Must Be Serious[edit | edit source]
An offer cannot be the foundation of an agreement where it is made or accepted, not with the intention to contract, but as a mere jest or joke. Where one gave a three-hundred dollar check for a fifteen-dollar watch by way of mere frolic and banter, not expecting to buy the watch and the other not expecting to sell it, it was held that there was no contract; and where two young people went through the marriage ceremony before a person authorized to celebrate marriages without really intending to marry, it was held that there was no marriage. But one is not permitted to say that he was jesting if his conduct and words would warrant a reasonable person in believing that he was serious. Thus in an Australian case:
"The question is raised 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 plaintiff's claim 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 him, he gave him an unreal and false promise without intending to perform it. The defendant 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 defense is untrue."
Preliminary Negotiations[edit | edit source]
Where parties a re negotiating as to the terms of an agreement to be entered into between them, there is no meeting of minds while such agreement is incomplete. Where they intend that their verbal negotiations shall be reduced to writing and signed by them as the evidence of the terms of their agreement, there is nothing binding on them until the writing is executed. On the other hand if the parties intend that their oral agreement shall be put in writing simply as a memorial of it, the contract is binding, although it is never written out. An agreement is very often made by correspondence, but care must be taken not to construe as an agreement letters which the parties intended only as a preliminary negotiation. The question in such cases always is, did they mean to contract by their correspondence, or were they only settling the terms of an agreement into which they proposed to enter after all its particulars were adjusted, which was then to be formally drawn up and by which alone they designed to be bound.
The principle is well expressed in a .Maine case.
"From these expressions of courts and jurists it is quite clear that after all the question is one of intention. If the party sought to be charged intended to close a contract prior to the formal signing of a written draft or if he signifies such an intention to to other party he will be bound by the contract actually made, though the signing of the written draft be omitted. If on the other hand such party neither had nor signified such an intention to close the contract until it was fully expresed in a written instrument and attested by signatures then he will not be bound until the signatures are affixed. The expression of the idea may be attempted in other words: if the written draft is viewed by the parties merely as a convenient memorial or record of their previous contract its absence does not affect the binding force of the contract; if however it is viewed as the consummation of the negotiation there Is no contract until the written draft is finally signed."
Certainty Required[edit | edit source]
The promise must be certain in its terms, and not so indefinite and illusory as to make it impossible to say just what was promised. Therefore, where A bought a horse from B, promising that "if the horse was lucky to him, he would give $25 more for the buying of another horse," it was held that this was too loose and vague to be considered in a court of law.
"In another case A promised B to give up his business 'so far as the law allows'; it was held that parties must fix the limits of their agreement and not leave it to be fixed by the courts; in another B promised C that if satisfied with him as a customer, he 'would favorably consider' an application to renew the contract; this was ruled to create no legal obligation; in another where the parties attempting to make an agreement by a telegraphic code had, by using too few words, made it so ambiguous as to be unintelligible even to them, the Court said that it was for the plaintiff, in an action for breach of contract, to show that his construction was the true one, and to prove that his proposal was so clear and unambiguous that the defendant could not be heard to say that he misunderstood it."
So where A promised B that if she, a single woman, would live with him until her marriage, he would give her one hundred acres of land, without any reference to locality or value, it was held void for uncertainty. Where an employer engages a servant, promising to give him such remuneration as he, the employer, shall think right, there is no legal liability to pay anything. A promise by a school trustee to a teacher to pay "good wages" was held too indefinite to found an action upon, as was one to give a child a "good share" of property and a stipulation in a contract that it might be canceled by either party for "good cause" and one giving the "use" of land for a certain purpose.
Persons must make their own agreements and not leave it to the courts to make them for them from the language they have used.
If an agreement is uncertain, it is because the offer was so, because the acceptance must be identical with the offer or there is no meeting of minds. If the offeree sees the uncertainty and proposes a change that will make the agreement certain, this is a new offer which puts an end to the other.
An agreement, however, will not be considered uncertain if the court can see what the parties intended. Absolute certainty is not required, for that is certain which may be rendered certain, according to the maxim id certum est quod certum reddi potest. Thus a contract is not uncertain because it is silent as to the damages for its breach. An ambiguous contract is not necessarily uncertain.
Intention Must Be Communicated[edit | edit source]
The intention of the parties must be communicated, for one's intention can be ascertained by another only by means of outward expressions, as words and acts. "It is a trite law," said an old judge, "that the thought of man is not triable, for even the devil does not know what the thought of man is."
Telling an intention to a third person is of no more effect than noting it in one's memorandum book, which is no more than though it existed solely in one's mind. The communication is absolutely essential and is not sufficient that two minds coincide at the same moment.
But if the intention is communicated the mode is immaterial. It may be by mail, by telegraph, by special messenger or the like, as well as by words written or spoken or the acts or conduct of the one who makes it.
Thus where two letters, each containing an offer identical in terms, cross each other, there can be no contract.
Representation on Which Another Acts--Estoppel[edit | edit source]
A representation concerning a matter of fact may be made to another, without any expressed or intended warranty of the truth, yet with the intention of inducing him to act upon it; and if the latter acts upon it, and suffers loss by reason of it not being true, the party making the representation may be held responsible in law for the consequences; or he may be estopped from denying the truth of the representation.
"Where a person makes to another the representation, 'I take upon myself to say such and such things do exist,' and the other man does really act upon that basis, it seems to me that it is of the very essence of justice that between these two parties their rights should be regulated, not by the real state of facts, but by that conventional state of facts which the two parties agree to make the basis of their action."
Estoppel in contract law may be described as a rule of evidence which will not permit a person to deny an inference that a reasonable man would necessarily draw from his words and conduct.
Agreement Results from Offer and Acceptance[edit | edit source]
(a) At a sale by auction each bid is an offer of a price for the article put up for sale, which bids are successively. made until one is accepted by the fall of the hammer, when the agreement is complete.
(b) The time-tables published by a railroad company are an offer made to all persons who apply for carriage that the trains will run as advertised.
(c) The publication of an advertisement of a reward for information, respecting a loss or a crime, or an oral announcement to the same effect, is an offer to any person who is able to give the information asked, and on its acceptance by giving the information the agreement is complete.
(d) The sending of an order to a merchant or manufacturer is an offer to purchase and the sending of the goods is an acceptance of the offer and creates a contract of sale.
(e) An agreement by B to sell A his farm for $5,000, must be the result of an offer by B to sell it for that price and an acceptance by A or an offer by A to give that sum for it and an acceptance by B.
(f) The purchase of a book or a basket of fruit or other article displayed for sale i'! the result of the displaying his wares by the seller, who impliedly says, "Will you buy my goods at my price T" and the customer, taking up the article with his cognizance, says, "I will."
(g) The presence of a running street car is a constant offer by the company to perform a service upon its usual terms, and one who enters the car accepts the offer and agrees to pay the usual fare for the service.
(h) A person who takes a seat at the dining table of a hotel offers to take a meal for the usual price charged to guests, and the proprietor accepts the proposal by furnishing the meal.
(i) A man with the full knowledge of another does work for him, the latter knowing that he expects to be paid for it; the doing the work is a proposal and the receiving the service without dissent is the acceptance.
(j) A offers B to pay him a certain sum of money on a future day if B will promise to perform certain services for him before that day. When B makes the promise asked for he accepts the promise offered, and both parties are bound, the one to do the work, the other to allow him to do it and to make the payment.
(k) A sends goods to B's house and B accepts or uses the goods; B is liable on an implied contract to pay what the goods are worth. The offer is made by sending the goods, the acceptance by their use or consumption, which is in fact a promise to pay their price.
(l) A requests B to work for him for hire. On B going to work as requested, the offer is accepted unless A had prescribed in his offer some particular form of acceptance. Or A writes to B offering to reimburse him if he will pay the taxes on certain land. B pays the taxes. This is a sufficient acceptance of the offer.
(m) Whether the manager of a theater who advertises that at a certain time a particular piece will be performed, stating the price of admission, contracts with one who comes to the theater door that he will be admitted on payment of the price, and that the piece advertised will be performed, is a question on which there is no judicial authority.
From these examples it will be seen that a proposal may assume two forms, the offer of a promise and the offer of an act, and that acceptance may assume two forms also, the giving of a promise or the doing of an act. And that therefore an agreement may arise in three ways, being:
- In the offer of an act for a promise, as in illustrations (f), (g), (i), (k).
- In the offer of a promise for an act, as in illustrations (c), (d), (h), (l).
- In the offer of a promise for a promise, as in illustrations (a), (b), (e), (j).
The unusual case of an offer of an act for an act, may be seen in the continuing offer made by the proprietor of an automatic machine distributing candy, chewing gum, postage stamps, and other articles, to persons who put in a coin to obtain something contained in the machine.
Time of contract formation[edit | edit source]
A contract will be formed (assuming the other requirements for a legally binding contract are met) when the parties give objective manifestation of an intent to form the contract.
Because offer and acceptance are necessarily intertwined, in California (US), offer and acceptance are analyzed together as subelements of a single element, known either as consent of the parties or mutual assent.
References[edit | edit source]
- Bruce v. Pierson, 3 Johns. 534; Seoggtns v. U. S. 255, Fed. Rep. 825; Davis v . Wells, 8 5 Fed. 89 6.
- Harper v. Goldschmidt, 156 Cal. 245, 104 Pac. 451; Ross v. Savage, 6 6 Fla. 1 0 6 , 6 3 South 148; Ward v . Erie Co., 149 N. Y . S. 717, 215 N. Y. 629 ; C reecy v. Grief, 108 Va. 320, 61 S. E. 769; Kelly Asphalt Co. v. Barber Co., 211 N. Y. 68; Rodgers Co. v. Bell, 1 5 6 N. C. 378, 72 N. E. 817 ; Smith v. Faulkner, 12 Gray 251 (Mass.).
- Stagg v. Compton, 81 Ind. 171. "I guess I can ship it to you" is not an offer to ship. Topliff v. McKendree, 80 Mich. 148, 55 N. W. Rep. 109. Where, In answer to an order to a wholesale merchant of eight hundred pairs of shoes, the latter acknowledged by postal card the receipt of the order and said, "The same shall have prompt attention," the court said that this was not an absolute acceptance, but merely a courteous promise to give it consideration. Mannler v. Appl ing, 1 1 2 Ala. 663, 20 South. Rep. 978. And the same view was taken of a letter reading, "I am prepared to make the arrangements with you on the terms you name." Havens v. Ins. Co., 11 Ind. App, 315, 39 N.E. 40; Thurber v. Smith, 54 Atl. Rep. (R. I.).
- See Identical Acceptance and Offer
- Hudson v. Columbian Co., 100 N. W. Rep. 402 (Mich.) 9 Cyc. 246, 278; Smith v. Hughes, L. R. 6, Q. B. 607; Freeman v. Cooke, 2 Ex. 664; Hand v. Gas Engine, etc., Co., 167 N. Y. 142. 60 N. E. 425; Esterly Harvesting Mach. Co. v. Criswell, 58 Mo. App. 471; Mansfield v. Hodgdon, 147 Mass. 304.
- Brown v. Hare, 3 H. & N. 484; U. S. v. Richards, 149 Fed. 443.
- Harris v. Amoskeag Lumber Co., 97 Ga. 465, 25 S. E. 519; Dillon v. Anderson, 43 N. Y. 231.
- McKenzie v. Stretch, 53 Ill. App. 184, see Intention Must Be Serious
- Pitts., etc., R. Co. v. Racer, 10 Ind. (App.) 503, 38 N. E. Rep. 186.
- See Implied in Law or Quasi or Constructive Contracts
- U. S.- Fire Ins. Assoc. v. Wickham. 141 U. S. 564, 12 SCt 84, 35 !... ed. 860; Clark v. Great No rthern R. Co., 81 Fed. 282 ; Kleinhans v. Jones, 68 Fed. 742. 15 ·ccA 644.
Ala.-McGowin Lumber, etc .. Co. v . R. J. &: B. F. Camp Lumber Co., 192 AllL. SS, 68 S 263; Sanford v. H oward, !t AIL 684, 68 AmD 101. Ariz.-W adln v. Czuczka, 16 Ariz. !it, IU P 491.
Cal.-Harper v. Goldschmidt, 156 Cal. 245, 104 P 451. 184 AmSR 124, !! LRASS 689 ; German Sav., etc., Soc. v. McLellan, 154 Cal. 710. 99 P Ut; Jacks v. Est ee, 139 Cal. 507. 73 P U7; Morrill v. Night ingale , 93 Cal. t5%. %8 P 1068, 27 ArnSR 207; Jules Ltvy v. :Mautz. 16 Cal. A. 666, 117 P Ul; American Can Co. v. Agricultural IIlli. Co., 12 Cal. A. 133, 106 P 720.
Colo.-Grogan v. Travelers' Ins. Co., S5 Colo. A. 517, 139 P 1045.
Conn.-Hartford, etc., R. Co. v. Jack!on, %4 Conn. 514. 63 AmD 177.
D. C.-Patten v. Warner, 11 App. 149; Lyon v. Smith. 2 App. 37.
Fla.-Rou v. Savage, 66 Fla. 106, 63 s 148.
Ga-Martln v. Throw er, 8 Ga. A. iU, 60 SE 825.
Ill-Corcoran v. White, 117 Ill. 118, 7 NE 525. 57 AmR 858; MacKensle r. Barrett, 148 Ill. A. 414.
lnd.-caas C ounty v. Crockett, 111 Ind. SIS, 12 NE 486: Stagg v. Compton, II Ind. 171; Miller v. Sharp, 52 Ind. A. 1 1. 100 NE 108.
lowa- Nicho ll v. Wetmore, 156 NW a19; Stead v. Sampson, 155 NW 571; Alexandria Billiard Co. v. Mlloslowslry, 167 Iowa 395, 149 NW 504.
Ky.-8prlngfleld F. & M. Ins. Co. •.Snowden, 173 Ky. 817,191 SW 439; Arer, ete., Tie Co. v. O'Bannon, 164 Ky. U, 114 SW 783; Gilbert v. Gllbort. iol Ky. 58, 164 SW 316; RehmZelher v. F. G. Wa lker Co., 156 Ky. <. llt SW 777, 49 LRANS 694; Tucker r. Sbeeran, 155 Ky. 6701 160 SW 176.
La.-Holtzman v. Mlllaudon, 18 La. Ann. 2S.
Me.-cumberland Bone Co. v. At• ood Lead Co. , 63 Me. 167; Belfast, etc., R. Co. v. Unity, 6Z Me. 148.
Md.-Ktng v. Warfield, 67 Md. 246, , A 6U, 1 AmSR 884.
Mass.-Harlow v. Curtis, 121 Mass. 220.
Mich.-McCain v. Smith, 172 Mich. 1, 137 NW 616; Thomas v. Greenwood, 69 Mich. 215, 37 NW 195; McGraw v. Dole, 63 Mich. 1, 29 NW 477; Van Buren Dlv. Tol e do. etc., R. Co. '· Lamphear, 54 Mich. 675, 20 NW o_;_ lllehlgan College of Medlctne v. i'""'letworth, 54 .Hich. 522, 20 NW •A": Woods v. Ayres, 39 M ich. 345, 33 , mR Ull; Ferguson v. Hemingway, •I Micll. 158.
Minn.-Emerson v. Pacific Coaat, Paektnc Co., 98 Min n. 1, 104 NW I · lla ArnSR 603. 1 LRANS 445, :cv 973.
M0.- Hudson v. Browning, Z64 Mo. 68, 174 SW 393; O'Connor v. St. LouiR American League Baseball Co.. 193 Mo. A. 167, 181 SW 1167; Llndsly v. Kansas City VIaduct, etc.. Co., 152 Mo. A. 221, 133 SW 389; Jones v. Durgin, 16 Mo. A. 370.
Mont.-State v. State Prison Comrs .. 87 Mont, 378, 96 P 736.
Nebr.-McGavock v. Morton, 57 Neb r. 385, 77 NW 785.
N. J.-Potts v. Whitehe ad, 23 N. J. Eq. 512.
N. Y.-Livlngston v. Livingsto n, 173 N. Y. 877. 66 NE 123, 93 AmSR 600, 61 LRA 800; F it ch v. Snedaker. 38 N. Y. 248, 97 AmD 791; Narganes v. Madan, 161 App. Dlv. 663 , 146 NYS 922 [aff 213 N. Y. 659 mem, 107 NE 1082 mem]; Hooley v. Talcott, 12'9 App. Dlv. 233, 113 NYS 820; G allagher v. White, 31 Barb. 92; Berchorman v. M unk en, 2 E. D. Smith 98; Ward v. Erie R. Co . . 87 Misc. 365. 149 NYS 717; Balmford v. Peffer. 30 Misc. 117. 61 NYS 787; Law v. Pemberton, 10 Misc. 362, 31 NYS 21; Fuller v. Kemp, 16 NYS 158: Wood v. Edwards, 19 Johns. · 206· Keep v. Goodrich, 12 Johns. 39'1 ; Tucke r v. Woods, 12 Johns. 190, 7 AmD 305; Bru ce v. Pearson, 3 Johns. 534; LivIngston v. Rogers, 1 Cat. 487.
N. D.-Yetter v. Goolsby, 26 N. D. 403. 144 NW 1075.
Oh.-Dayton, etc.. Turn p. Cp, v. Coy, 1S Oh. St. 92; Niagara Fire Extinguisher Co. v. Dayto n Folding Box Co., 32 Oh. Clr. Ct. 631.
Okl.-Anderson v. Kell e y, 156 P 1167; Plante v. Fullerton, 46 Okt. 11. 148 P 87, 88 [cit Cyc]; Atw ood v. Rose, 32 Okl, 365, ·122 P 929, 932 [cit Cyc); Love v. Cavett, 26 Okt. 179, 109 P 558; Wm. J. Lemp Brewing Co. v. Secor, 21 Okl. 537, 96 P 636.
Pa.-CQrser v. Hale, 149 Pa. 274. 24 A 285 ; Powers v. Curti s , 147 Pa. 340. 23 A 450.
Phlllpplne.-Tuazon v. Goduco, 23 Pnlllpplne 842; Madrlal v. Stevenson. 15 Ph ilippine 38, 43 felt Cyc]; Roman v. Grtmalt. 6 PhH i pplne 96.
Porto Rlco.-Bigelow v. Porto Rico Planters Co., 7 Port o Rico Fed. 463.
Tenn.-Amerlcan Lead Pencil Co. v. Nashv i lle, etc .. R. Co . . 124 Tenn. 57, 134 SW 613, 32 LRANS 323.
Tex.-Harrls Millinery Co. v. Bryan. 59 Tex. Clv. A. 477, 125 SW 999; San Antonio, etc.. R. Co. v. Timon, 45 Tex. Clv. A. 47, 99 SW 418; Jones v. Gammel-Stateman Pub. Co., (Civ. A.) 94 SW 191; Hubbard City Cotton 011. etc., Co. v. Nichols, (Civ. A.) 89 SW 795.
Va.-Creecy v. Grief, 108. Va. 320. 61 SE 769; Innis v. Roane, 4 Call (8 Va.) 3o79.
Wis.- Teesdale v. Bennett, 123 Wis. 355, 359, 101 NW 688 [cit Cyc]· Mygatt v. Tarbell, 85 Wis. 467, 6 NW 1031.
Eng.--Bcriven v. Hindley, [1913) 3 K. B. 564; Jackson v. Ga lloway, 5 Bing. N. C(I.S. 71, 36 ECL 48, 132 Reprint 1031; Chinnock v. Ely, 4 De G. J. & S. 638 , 69 EngCh 488, 46 Reprint 1066; Hon eyman v. JY(arryatt, 6 H. L. Cas. 112, 10 Re pri nt 1236; Lazarus v. Calm SS. Line, 106 L. T. Rep. N. S. 378: Jordan v. Norton, -4 l\1. & W. 165, 160 Reprint 1382 , 6 ERC 142; Pay ne v. Cave, 3 T. R. 14 8, 100 Rep rin t 602.
Alta.- Larose v. Webster, 7 Al ia. L. 6. 14 DomLR 79,26 WestLR 617 [dlsm app 11 DomLR 319, 24 WestLR 3251: Nova Scotia Bank v. McDougall, 11 DomLR 646, 23 WestLR 753.
B. C .-Tucker v. Puget Sound Bridge, etc .. Co., 14 WestLR 468.
N. B.-Fishe r v. Woodstock. 39 N. B. 192.
Sask.-Langlots v. Amyot, 31 Dom LR 572.
[a] Mutual assent is assent to the same thing in the same sense and under a common understanding of the stipulations agreed to. Martin v. Thrower, 3 Ga. A. 784, 60 SE 325.
- Girad v. St. Louts Car-Wheel Co., 123 Mo. 368, 368, 27 SW 1148, 46 AmSR 656, 25 LRA 514 ( where the court said: "Those facts, when established, destroyed the substance of the agreement which the release form expressed. They took from the apparent contract what was essential to Its legal force and validity, namely, the element of assent by the plaintiff. That element Is a necessary part of every contract. Without it. a mere writing, expressing some formula of words, Imposes no obligation. The signature of plaintiff, obtained to such a paper, without the assent of his mind to the act, deprived him of no legal right").
- Johnson v. Federal Union Surety Co., 1 87 Mich. 454, 163 NW 788 [quot Pollock Contr. p 40}.
- Fla.-Ross v. Savage, 66 P'ls. 106, 63 8 148.
Mass.-Smith v. Faulkner, 12 Gray 251· Anson Contr. p 2.
N. Y.-Consumers' Ice Co. v. Web ster, 79 App. Dlv. 860, 79 NYS 386; Koenigsberg v. Blau, 127 NYS 602.
N. C.-Rankin v. Mitchem, 141 N. C. 277, 53 SE 854.
S. D.-Kelly v. Wheeler, 22 8. D. 611, 119 NW 994.
Ont.-Hoener v. Merner, 7 Ont. 819; McF arren v. Johnson, 6 Ont. 161.
See Havens v. American F. Ins. Co., 11 Ind. A. 315, 39 NE 40 (holding that there was no contract where a person to whom a proposal was made replied: "I am prepared to make the arrangements with you on the terms you name"); Wills v. Carpenter, 76 Md. 80, 83, 26 A 415 (holding that there was no contract where a person wrote another, "My brother, F. A. Carpenter, has some idea of renting your farm. If you and he can agree upon terms of third share as your rent, I will become the renter and enter into contract with you; he to work the farm," and the other replied: "I would agree to terms of one-third rent . . . and that I would be at home to negotiate with Mr. Frank Carpenter).
[a] Doubt Illustrated.-There s doubt where a person says to another, "Will you buy my horse if I am inclined to sell?" and the other says, "Possibly I will." Stagg v. Compton, 81 Ind. 171; Marschall v. Elsen Vineyard Co., 7 Misc. 674, 28 NYS 62.
[b] Difference Illustrated.-There is a difference where a person says to another, "Will you buy my horse for one hundred dollars?" and the other says, "I will give you seventy-five for it." See Bruce v. Pearson, 3 Johns. (N. Y.) 534 (where a person sent an order to another for six hogsheads of rum and other articles at a credit of six months, and the other sent only three hoghsheads, and omitted part of the other articles, charging those sent at a credit of three months, and it was held that there was no agreement).
- U. S.-Wheeler v. New Brunswick, etc., R. Co., 116 U. S. 29, 5 SCt 1160, 29 L. ed .. 3U; Quincy First Nat. Bank v. Hall, 101 U. S. 43, 25 L. ed. 822; New York Mut. L. Ins. Co. v. Young, 23 Wall, 85, 23 L. ed. 152.
Ala.-Hodges v. Sublett, 91 Ala. 688, 8 s 800.
Cal.-Golden State, etc., Iron Works v. Angell, 89 Cal. 643, t7 P 66.
Ill.-Rupley v. Daggett, H III. 361.
Ind.-Winnemucla Water, etc., Co. v. Model Gas Engine Wks .. 179 Ind. 5.«2, 101 NE 1007; Coppage v. Gregg, 127 Ind. 359. 26 NE 903; Miller v. t:lharp, 52 Ind. A. 11, 100 NE 108.
Me.-Belfast, etc., R. Co. v. Unity, 62 Me. 148.
Mass.-Patton v. Taft, 143 Mass. Hp, 9 NE 577; Kyle v. Kavanagh, 103 Mass. 356, AmR 560; Rice v. Dw'lght Mfg. Co., 2 Cush. 80.
Mich.-Ahearn v. Ayres, 38 Mich. 69; Crane v. Partland, 9 Mich. 493.
N. Y.-Booth v. Bierce, 38 N. Y. 468, 98 AmD 73; First Baptltlt Church v. Brooklyn F. Ins. Co., 28 N. Y. 153; Sidney Glass Works v. Barnes, 86 Hun 374. 33 NYS 508; Fraser v. Small, 13 NYS 468;, Saltus y. Pruyn, 18 HowPr 512; l.:Oies v. Sowne, 13 Paige 526.
Pa.-Powers v. Curtis, 147 Pa. 340, aa A 460.
Tex.--Q'Neal v. Knippa, 19 SW 1020; Gulf, etc., R. Co. v. Dawson, 24 SW 566; Skeeters v. Slater Milling Co .. 4 Tex. Clv. A. 665, 23 SW 1000.
Vt.-Bedell v. Wilder, 65 Vt. 406, Z6 A 589, 36 AmSR 871.
Wis.-.Greve v. Ganger, 38 Wis. 369.
Eng.-Appleby v. Johnson, L. R. 9 C. P. 168; Chinnock v. Ely, 4 De G. J. &: S. 638, 69 EngCh 488, 46 Reprint 1066; Raffles v. Wlchelhaus, 2 H. &: C. 906, 159 Reprint 375, 6 ERC 1'98; calverly v. Williams, 1 Vee. Jr. Z,!O, 30 Reprint 306.
Effect of mistake see Consent § Mistake.
- 80. U. S.-Lewls v. Wells, 85 Fed. 896; Hazard v. New England Mar. Ins. Co., 11 F. C&s. No. 6,282, 1 Sumn. 218.
Cal-American Can Co. v. Agricultural Ins, Co .. 12 Cal. A. 133, 106 P 720.
Conn.-Hartford, etc., R. Co. v. Jackson, 24 Conn. 614. 63 AmD 177.
Ill.-Burchard-Hulburt Inv. Co. v. Hanson, 143 Ill. A. 97.
Ind.-Winnemucca Water, etc., Co. v. Model Gas Engine Wks., 179 Ind. 5Ui lOt NE 1007; Miller v. Sharp, li3 nd. A. 11, 100 NE 108.
Mich.-Durgin v. Smith, 133 Mich. 331, 94 NW 1044; Van Buren Dlv. Toledo, etc.. R. Co. v. Lamphear, 54 Mich.· 575, 20 NW 590.i Eggleston v. 'Wagner, 46 Mich. 61u, 10 NW 37; Davfs v. Bush, 28 Mich. 432; Peo. v. Auditor-Gen., 17 Mich. 161.
N. C.-Roberta Mfg. Co. v. Royal Exch. Assur. Co., 161 N. C. 88, 76 SE 865.
Tex.-Harris Millinery Co. v. Bryan, 59 Tex. Clv. A. 477, 125 SW 999.
- U. S.-Lord v. U. S .. 217 U. !'1. uo. so set 568, 54 L. ed. 790; r.n. Campania Bllbalna de Navlgaclon de Bilbao v. Spanish-American Light, etc., co .. 146 u. s. 483. 13 set 142. 36 L. ed. 1054; Fire Ins. Assoc. v. Wickham. 141 u. s. 664, 12 set 84, 35 L. ed. 860; Minneapolis, etc., R. Co. v. Columbus Rolling-Mill, 119 U. s. 149. 7 set 168, 30 L. ed. 376: Tilley v. Chicago, 103 U. S. 165, 26 L. ed. 374; New York Mut. L. Ins. Co. "· Young, 23 Wall. 85, 23 L. ed. 152; Ellai!Pn v. Henshaw, 4 Wheat. 226, 4 L. ed. 556; National Electric SignalIng Co. v. Fessenden, 207 Fed. 915, 126 CCA 363; Locomoblle Co. v. Bergdoll. 192 Fed. 447; Bowen v. Hart. 101 Fed. 376, 41 CCA 390; Crabtree v, St. ·Paul Opera-House Co., 39 Fed. 746; Shuenfeldt v. Junkermann. 20 Fed. 367; Ellicott Mach. Co. v. U. S., 44 Ct. Cl. 127.
Ala.-Phllllps-Boyd Pub. Co. v. McKinnon, 73 S 43.
Ark.-Crane Co. v. Hempstead, 191 SW 234; Somers v. Musolf, 86 Ark. 97, 109 SW 1173.
Cal-Peerless Glass Co. v. Pacific Crockery, etc., Co., 121 Cal. 641, 54 p 101.
D. C.-Rankin v. Collins, 40 App. 211; Cunningham Mfg. Co. v. Rotagraph Co., 30 App. 624, 15 LRANS 368, 13 AnnCas 1H7; Patten v. Warner, 11 App. 149.
Ga.-Singer v. Grand Rapids Match Co., 117 Ga. 86, 43 SE 756.
Ill.-Illlnols L. Ins. Co. v. Beifeld, 184 Ill. A. 582; Sears v. Winchester Repeating Arms Co., 178 Ill. A. 318; Beard v. Chicago Home for Convalescent Women &: Children, 171 Ill. A. 268; Newlin v. Prevo, 90 Ill. A. 615. Ind.-Prather v. State Bank, 3 Ind. 356.
Iowa.-Foshler v. Fetser, 154 Iowa 147, 134 NW 556; Sheldon v. Crane. 146 Iowa 461, 125 NW 238; Steel v. Miller, 40 Iowa 402.
Kan.-Mooney v. Merriam, 77 Kan. 305. 94 p 263.
Ky.--8prlngfteld F. &: M. Ins. Co. v. Snowden, 173 Ky. 664, 191 SW 439;· Tucker v. Sheeran, 155 Ky. 670, 160 SW 176: Henry v. Reeser, 163 Ky. 8. 154 SW 37l; T,11nnell's Mill, etc., Turnp. Road l.:O. v. Selectman, 14 KyL 174.
Mass.-Stroock Plush Co. v. New England Cotton Yam Co., 213 Mass. 354, 100 NE 617: Sibley v. Felton, 166 Mass. 273. 31 NE 10.
Mich.-Orand Haven Bd. of Trade v. De Bruyn, 138 Mich. 187, 101 NW 262; Sheridan v. Peninsular Sav. Bank, 116 Mich. 546, 74 NW 874; Whiteford v. Hitchcock, 74 Mich. 208, U NW 898.
Mo.-Sutter v. Raeder, 149 Mo. 297, 50 SW 813; Taylor v. Von Schraeder, 107 Mo. 206, 16 SW 675; Green v. Cole, 103 Mo. 70, 15 SW 317; Luckey v. St. Louis, etc., R. Co., 133 Mo. A. 589, 113 SW 703; Robinson v. Estes, 53 Mo. A. 582; Falls Wire Mfg. Co. v. Broderick, 12 Mo. A. 378. 1
Mont.-Brophy v. Idaho Produce, etc .. Co., 31 Mont. 279, 78 P 493.
N. C.-Elks v. North State L. Ins. Co., 159 N. C. 619, 75 SE 808; Trollinger v. Fleer, 157 N. C. 81, ?2 SE 795.
N. D.-Krause v. Krause, 30 N. D. 54. 151 NW 991.
Oh.-Standard Tobacco, etc .. Co. v. Loeb, .24 Oh. Clr. Ct. N. S. 385b· Niagara Fire Extinguisher Co. v. ayton Folding Box Co., 32 Oh. Clr. Ct. 631.
Okl.-McCormlck v. Bonftls, 9 Okl. 605. 60 p 296.
Philippine.-Roman v. Grlmalt, 6 Philippine 96.
R. I.- Clary v. Wolf, 84 R. I. 263. 83 A 115.
S. C.-Farmers' Bank, etc., Co. v. Southern Granite Co., 96 S. C. 106, 79 SE 986, 995 rcit Cyc].
S. D.-Babcock v. Ormsby, 18 S. D. 368. 100 NW 759.
Tex.-san Antonio, etc .. R. Co. v. Timon, 45 Tex. ctv. A. 47, 99 SW 418.
Va.-Belmont v. McAutster, 116 Va. 286, 81 SE 81.
Wash.-Watson v. Bayliss, 71 Wash. 499. 128 P 1061.
Wis.-Zitske v. Grohn, 128 Wis. 159. 107 NW 20.
Man.-Jones Stacker Co. v. Green, 14 Man. 61, 22 CanLTOccNotes 264.
Ont.-Hennlng v. Toronto R. Co., 11 Ont. L. 142, 7 OntWR 1.
[a] Where copies of contracts differ.-A contract employing an attorney failed as to the amount of compensation for want of meeting of minds, where the copies of the agreement held by the parties respectively stated different amounts, and the attorney is entitled to recover the reasonable value of his services. Thayer v. Harblean, 71 Wash. 278, 126 P 625.
[b] Change after signature. Where a written instrument was signed by one party, with the intention that the other should later sign it, and a stranger changed some its terms, and it was signed in its altered condition, it was held not binding on the ftrst signer. McGavock v. Morton, 57 Nebr. 385, 77 NW 785.
- U. S.-Kielnhans v. Jones, 68 Fed. 742, 15 CCA 644; Gill Mfg. Co. 't". Hurd, 18 Fed. 873.
Ala.-Feore v. Avent, 4 .A1&. A.. 551, 58 s 727.
Fla.--strong v. Baars, flO FlA. US. 54 s 92.
Ida.-Phelps v. Good, 16 Ida. 76, 77, 96 P 216 [cit Cyc].
La.-Peet v. M:e:rer, 41 La. Ann. 1034, 8 s 534.
Mass.-Sibley v. Felton, Uil M&SB. 273. 31 NE 10.
Mich.-Central Bltullthlc Pav. Co. v. Highland Park, 164 Mich. IZll. 1%! NW 46, AnnCas1912B 719; Wardell v. Williams, 62 Mich. 60, 28 NW 716, 4 AmSR 814.
Minn.-Lombard v. Rahilly. l!T Minn. 449, 149 NW 950.
N. Y.-Barrow SS. Co. v. Mextcaa Cent. R. Co .. 134 N. Y. 15, U NE IlL 17 LRA 359; Mayer v. McCreery, ' NYSt 114 [atr 119 N. Y. 434, U NE 1046].
Oh.-Columbus, etc., R. Co. •· Gatrney, 65 Oh. St. 104, 61 NE l&ll.
Pa.-Zoeblsch v. Rauch. US Pa. 632, 19 A 415.
S. C.-Burns v. Mills, 31 S. C. 51. 9 SE 689.
Tex.--o'Neal v. Knippa, 19 SW 1020; Wade v. Cohen. (Ctv. A.) 173 SW 1168; Hubbard City Cotton OU. etc., Co. v. Nichols. (Civ. A.) 89 SW 795.
Wash.-Weldon v. Degan, 86 Wash.. 442, 150 P 1184, 1187 [cit Cyc); Watson v. Bayliss, 71 Wash. 499, 1!8 P 1061, 1063 [quot Cyc].
Can.--Oppenheimer v. Brackman, etc., Milling Co., 32 Can. S. C. 199.
B. C.-Frewen v. Hayes, 16 B. C. 143, 14 WestLR 632; Llttle v. Hanbury, 14 B. c. 18.
Man.-Pearson v. O'Brien. 22 llan. 175. t DomLR 413.
Ont.--Gnam v. McNeil, 6 OutWN 223.
Kleinhans v. Jones, 68 Fed. 742, 749, 15 CCA 644.
Where it is apparent that one party has not consented to the several terms to which the other bu agreed, no contract is formed. If the divergence is of anything which partakes of the substance of the contract at all, there is no legal agreement; and the court is not at liberty to speculate upon the question whether some stipulation which it might think of minor importance, or some variation which it might think would not have influenced the parties in making the contract, can be dispensed with, and the parties held, in disregard of them.
[a] Application of rule.--A declaration framed on the theory that an agreement which looked to a permanent unity of the interests of the parties, but left the plan therefor to be prepared, was a completed contract was bad on demurrer. Sibley v. Felton, 156 Mass. 273. 31 NE 10.
[b] Price.--Since an offer to form the basis of a legal obligation must be so complete that on acceptance an agreement is formed which contains all the terms necessary to determine whether the contract has been performed or not, there is no contract where the price is not determined. Butler v. Kemmerer, 218 Pa. 242. 67 A 332.
- C. W. Hull Co. v. Marquette Cement Mfg. Co., 208 Fed. 260, 125 CCA 460.
- Southern Oil Co. v. Wilson, 22 Tex. Civ. A. 534, 56 SW 429.
- Williams v. Burdick, 63 Or. 41. 125 P 844, 126 P 603.
- Dybvig v. Minneapolis Sanatorium 128 Minn. 292, 294. 150 NW 05 (eft Cyc]; Coleman v. Roberts, o. 97; Wilbur Stoc k Food Co. v. BrUges. 160 Mo. A. 122, 131, 141 SW 105 [cit Cyc]; Embry v. Hargadlne, 1!7 Mo. A. 383, 38 9 , 105 SW 777 quot Cyc]; Haubelt v. Rea, etc 'fOI Co .• 77 Mo. A. 672: Esterly Har; estlcg :Mach. Co. v. Criswell, 58 Mo. 471; Brewington v. Meskeer. 51 Ko. ..... 348; In re East Engl and Ranking Co., L. R. 4 Ch. 14: S hepra v. Glllespie, L. R. 3 Ch. 764: Cox v. Troy, 6 B. & Ald. 474, 7 ECL .5 . 1()6 Reprint 1264: Cornish v.' bill«ton. 4 H. & N. 649. 157 Reprint 956; Browne v. Hare, 3 H. & N 484 157 Reprint 561; Leake Contr. -· And see Smith v. Hughes, L. R. Q. B. 597. 607 (where Blackburn, said: "The rule of law is that stated In Freeman v. Cooke, 2 Exch. 654, 154 Reprint 652, 11 ERC 82. If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms").
[a] An undisclosed purpose or intention of one party to a contract, not embodied in the contract, and not communicated to the other party, cannot affect the rights or obligations of the parties under the contract. Delaware, etc., R. Co. v. Monroe County Water Power, etc., Co., 227 Pa. 639, 76 A 425.
- [a] Conflicting views.-Holland, criticizing Savigny's analysis of contract in including "an agreement of the wills" of the parties as a necessary element, maintains that the law does not require that contracting parties have a common intention, but only that they shall seem to have one; that the law looks not at the will itself but at the will as voluntarily manifested. He holds that the law does not require a union of wills but only that it shall appear so. Holland EL Jur. p 228. On the other hand, English and American writers generally, in defining agreement as the meeting of minds, require the wills of the parties to be the same. But if either party has manifested his agreement either by words or by conduct, he is not allowed to say that he did not really agree. "A contract," says Anson,
Anson Contr. p 11.
as a legal transaction, can exist only in such a form as may be perceptible to a court of law. It is only from the words and conduct of the parties that a court can form any conclusion as to their intention. If their words or their acts are inconsistent with any supposition but that they meant to agree, or if one has so spoken or acted as to lead the other necessarily to that conclusion, the court will not permit the obvious construction of words or conduct to be denied. But, after all, it is the intention of the parties which the courts endeavour to ascertain; and it is their intention to agree which is regarded as a necessary inference from words or conduct of a certain sort.
- Dunning v. Thomas, 10 Colo. 84, 14 p 49.
- Cal-American Can Co. v. Agricultural Ins. Co . . 12 Cal. A. 133, 106 p 720.
Conn.-McGarrigle v. Green, 76 Conn. 3 98, 56 A 609.
Kan.-Troustlne v. Sellers, 35 Ka.n. 447. 11 p 441. . Mass.-Farnum v. Whitman, 187 Mass. 381, 73 NE 473; Stoddard v. Ham, 129 Mass. 38 3, 37 AmR 369.
Mo.-Coleman v. Roberts. 1 i1!2' Stone v. St. Louis Trust Co .. 150 Mo. A. 331. 333. 130 SW 825 Jclt Cyc]; Haubel t v. Rea, etc . . Mill o .. 77 Mo. A. 672; Cangas v. Rumsey Mfg. Co.·, 37 Mo. A. 297: Lancaster v. Ellliott, 28 Mo. A. 86.
N. H.-Prescott v. Jones, 69 N. ·H. 305, 41 A 352.
Tex.-Bolt v. Manchester State Sav. Bank, (Civ. A.) 179 SW 1119.
Eng.-Leake Contr. p 2.
Communication of offer see Offer § Communication of Offer.
Communication of acceptance see Acceptance § Communication of Acceptance.
- Harvey v. Du!Tey, 99 CaL 401, 33 P 897; Horton v. New York L. Ins. Co .. 151 Mo. 604, 52 SW 356; Fiedler v. Tucker, 13 HowPr (N. Y . ) 9; fn re National Sav. Bank Assoc. , 4 Eq. 9; Felthouse v. BlndleyL, . R.11. C. B. N. S. 869, 103 ECL 869, 142 Reprint 1037; Browne v. Hare; 3 H. & N. 484, 157 Reprint 561. See also Acceptance § Acceptance by Promise.
- Pendill v. Neuberger, 67 Mich. 562, 35 NW 249; Stobie v, Earp, ItO Mo. A. 73, 83 SW 1 0 97. See Tyler v. Stone, 81 Cal. 236. 22 P 598 (holding promise established); Taylor v. Hotchkiss, 81 App. Div. 470. 80 NY·s 1042 [aff 179 N. Y. 546 mem, 71 NE 1140 mem] (holding that the finding of a promise is justified); Zitske v Grohn, 128 Wis. 159, 107 NW 20 (holding that, although to constitute a contract the minds of the parties must meet on the same proposition, it is not necessary that they meet "on express words clearly expressed").
- The Palo Alto, 18 F. Cas. No. 10,700, 2 Ware 344; Whaley v. Hinchman, v. 22 Mo. A 483; College Mill Co. v. Fidler, (Tenn. Ch.) 58 SW 382; Dubie v. Batts, 38 Tex. 3f2; Short v. Treadglll, 3 Tex . A. Civ. Cas. § 267. See Purdom Naval Stores Co. v. Western Union Tel Co., 153 Fed. 327 (telegrams); Francis v. Barry, 69 Mich. 311, 37 NW 353 (letters or other writings); Bradley v. Bower, 5 Nebr. (Unoff.) 542, 99 NW 490 (letters); Beggs v. James Hanley Brewing Co., 27 R. I. 385, 62 A 373, 114 AmSR 44 (letters and telegrams).
"It is now well-settled law that binding contracts for the sale and delivery of property may be entered into by letters sent through the mall, or by correspondence by means of the telegraph, or by the conjoint use of both these agencies." College Mill Co. v. Fidler, (Tenn. Ch.) 58 SW 382.
Offer and acceptance by mail or telegraph see Offer § Offer by Post, Telegraph, or Telephone and Acceptance § Acceptance by Post, Telegraph, or Telephone.
- St. Louis Maple, etc., Flooring Co. v. Knost 148 Mo. A. 563, 128 SW 532.
- Carson v. Lucas, 13 B, Mon. 213; Stagg v. Compton, 81 In. 171; Westervelt v. Demarest, 46 N. J. (L.), 37, 60 Am. Rep. 409, 9 Cyc. 276; 13 c. J. 287.
- Intention Must Be Serious
- Stamper v. Temple, 6 Humph. 296, and see Higgins v. Lessig, 49 Ill. (App.) 461, where as to similar language as to one whom he suspected of having stolen an old harness from him, the court said: "It was indicative or a state of excitement so out of proportion to the supposed cause of it that it should be regarded rather as the extravagant exclamation of an excited man than as manifesting an intention to contract."
- Weeks v. Tybald, Noy 11
- Relf v. Page, 55 Wis. 731.
- McClure v. Wilson, 43 Ill. 356, 50 III. 366; Patton v. Hassinger, 69 Pa. St. 311.
- Carlill v Carbolic Smoke Ball Co., L.R.Q. B.D. (1892-1893) 484, 260.
- Lakeside Land Co. v. Dromgoole, 89 Ala. 505, 7 So. 444; Erwin v. Erwin, 25 Ala. 236; Miller v. Mackay, 204 Pa. St. 345, 54 Atl. 171. Statements of intention made to third persons cannot be considered as offers. Kenan v. Holloway, 16 Ala. 53, 50 Am. Dec. 162; Dunning v. Thomas, 10 Colo. 84, 14 Pac. 49; Crane v. Critton, 54 Iowa 738, 6 N. W. 79, 7 N. W. Rep. 138; Morris v. Brightman, 143 Mass. 149, 9 N. E. 512; Henderson Bridge Co. v. McGrath, 134 U. s. 260.
- Farina v. Ficus, 1 Ch. 331 (1900).
- Randall v. Morgan, 12 Vesey, Jr. 67.
- Havens v. Ins. Co., 11 Ind. App. 315, 39 N. E. 40.
- Thurston v. Thornton, 1 Cush. 79; Henderson Bridge Co. v. MeGrath, 134 U.S. 260.
- Lane v. Warren, 53 Tex. Civ. App. 122, 115 S. W. 903.
- Hanes v. Nickerson, L. R. 8. Q. B. 280, 9 Cyc. 280.
- Rooke v. Dawson, 1 Ch. 489.
- Wis. 3 1 6 ; 48 Am. Rep. 5 1 6 ; 18 N. W. Rep. 172; Clark v. Atlantic S . Co . • 163 Fed. 423.
- Spencer v. Harding, L. R. 5 C. P. 561.
- Zeltner v. Irwin, 25 N. Y. App. Dlv. 228, 49 N. Y. Suppl. 337; Spencer v. Hard ing, L. R. 5 C. P. 561; Walsh v. St. Louis Ex. Co., 90 Mo. 457. 1 6 Mo. (App.) 502; Anson, Contr. 10; Ward v. Johnson, 209 Mass. 89, 95 N. E. 290.
- Anson , Contr. 40. A circular sent out by a manufacturer of arms setting forth the terms and con ditions on which orders will be filled Is n o t a n offer; Montgomery Ward Co. v . Johnson, 209 Mass. 89.
- Spencer v. Harding , L. R. 5 C. P. 661 ; Leskle v. Hazeltine, 165 Pa. St. 98, 25 At!. Rep. 866; Anderson v. Public Schools, 122 MD. 65, 27 S. W. 610. But where an Exposition Company asked certain architects to submit plans for a building, each architect except the suc cessful one to receive $500, but the latter to be employed as architect and superintendent, the one having been declared the most meritorious, was held entitled to recover on a contract to make him architect and superintendent; Walsh v. St. Louis Ex. Co., 90 Mo. 459.
- Harvey v. Facey, A. C. 552 (1893), 211 Mass. 398. 97 N. E. 780.
- Kellar v. Ybarru, 3 Cal. 147; U. S. v. P. J. Carlin Cons. Co., 224 Fed. 859, 138 C. C. A. 449.
- Harvey v. Facey  A.C. 552
- Gibson v Manchester City Council  1 W.L.R. 294
- Storer v. Manchester City Council  3 All E.R. 824
- British Car Auctions Ltd v. Wright  1 W.L.R. 1519.
- the British Sale of Goods Act 1979 s.57(2).
- Warlow v. Harrison (1859) 1 E. & E. 309.
- U.C.C., s2-328(3)
- Pollock, Contr. 2; Anson, Contr. 19; Erwin v. Erwin. 25 Ala. 236; Topping v. Swords, 1 E. D. Smith 609; Tucker v. Sheeran, 155 Ky. 670, 160 S. W. 176.
- Wald (G. H.) Lecture Introductory to the Study of the Law of Contract, Cincinnati, 1896.
- Theiss v. Weiss, 166 Pa. St. 9, 31 At!. 63; Armstrong v. McGhee, Add. (Pa.) 261; Bruce v. Bishop, 43 Vt. 161.
- Keller v. Holderman, 11 Mlch. 248, 83 Am. Dec. 737.
- McClung v. Terry, 21 N. J (Eq.) 225.
- McKenzie v. Stretch, 53 Ill. (App,) 184; Plate v. Durst, 42 W. Va. 63, 24 S. E. 580.
- Nyulasy v. Brown, 7 Viet. L. R. 663, 1 Willst, Cas. 57.
- 9 Cyc. 280 ; 13 C. J. 289: Hammon v. Winchester, 82 Ala. 470, 2 South. Rep. 892; Edge Moor Bridge Works v. Bristol County, 170 Mass. 528, 49 N. E. Rep. 918; Sanders v. Pottlizer Bros. Fruit Co., 144 N. Y. 209, 39 N. E. Rep. 75. 43 Am. St. Rep. 757; Nolan v. O'Sullivan, 148 Ill. App. 316: N. E. Lumber Co. v. Gray's Harbor & Ry. Co., 221 Fed. 8071 137 C. C. A. 365.
- Jenkins Co. v. Alpena Co., 147 Fed. 641. 77 C. C. A. 625; Conner v. Plank, 25 Cal. App. 516, 144 Pac. 295; U.S. v. Carlin Con. Co., 224 Fed. 859; Green v. Cole, 127 Mo. 587, 30 S. W. 135.
- Lyman v. Robinson, 14 Allen 242; Strobridge Lithographing Co. v. Randall, 73 Fed. Rep. 619, 622; Lynn v. Richardson, 151 Ia. 284, 130 N. W. 1097.
- Miss. etc. Steam Co. v. Swift, 86 Me. 248.
- Cyc. 248, 249; 13 C. J. 266; Bauman v. Binzen, 16 N. Y. S. 342; Woods v. Evans, 113 Ill. 186, 55 Am. Rep. 419: Erwin v. Erwin, 25 Ala. 236; Wall's App., 111 Pa.. St. 460, 56 Am. Rep. 258; U.S. v. McMullen, 222 U. S. 460; Wineburgh v. Gay, 27 Cal. App. 603; 105 Pac. 1003; De Bearn v. De Bearn, 126 Md. 629; 95 A. 476; Rhyne v. Rhyne, 151 N. C. 400: 66 S. E. 348; Natl. E. Signaling Co. v. Fessender, 207 Fed. 915. 125 C. C. A. 363.
- Guthlng v. Linn, 2 B. & Ad. 232; Burks v. Stam, 65 Mo. (App.) 455 .
- Davies v. Davies, 36 Ch. Dic. 359.
- Montreal Gas Co. v. Vasey, A. C. 595 (1900).
- Falck v. Williams, A. C. 176 (1900); Gale v. Kennard, 182 Mo. App. 498, 165 S. W. 842.
- Sherman v. Kitsmiller, 17 Serg. & R. 45; Cheney, etc. Wks. v. Sorrell, 142 Mass. 442, 8 N. E. 332.
- Taylor v. Brewer, 1 Maule & S. 290; Roberts v. Smith, 4 Hurl. & N. 315, 28 L. J.; Ex. 164; Parker v. Ibbetson, 4 Com. B. (N. S.) 346, 27 L. J. Com. P. 236.
- Fairplay School Tp. v. O'Neil, 127 Ind. 95, 26 N. E. Rep. 686; Smith v. Crum & Co., 208 Pa. 462, 57 A. 953.
- Adams v. Adams, 26 Ala. 272.
- Cummer v. Butts, 40 Mich. 322, 29 Am. Rep. 530. A written agreement may be void for uncertainty because of blanks left therein, or failure to name the parties, or because it is so misspelled or ungrammatical, etc., that it has no meaning at all. Chumasero v. Gilbert, 24 Ill. 293; Atkins v. Van Buren School Tp., 77 Ind. 447; Shepard v. Carpenter, 54 Minn. 153, 55 N. W. 906.
- Carr v. Aco, 141 Ga. 219, 80 S. E. 716.
- Meixel v. Meixel, 161 App. Div. 518, 146 N. Y. S. 687.
- Enshwiller v. Tyner, 54 Ohio St. 214, 44 N. E. 84; Caldwell v. School Dist., 55 Fed. Rep. 372; Leffler Co. v. Dickerson, 1 Ga. App. 63, 57 S. E. 911; Lewis v. Creech, 162 Ky. 763, 173 S. N. 133; Voorhees v. Louisiana Purchase Co., 243 Mo. 418, 149 S. W. 783; Ramey Lbr. Co. v. Schrader Lbr. Co., 237 Fed. 39, 150 C. C. A. 241.
- Dugger v. Kelly, 168 Ia. 129; 150 N. W. 127
- Wisconsin Farm Co. v. Watson, 160 Wis. 638, 152 N. W. 449; Ramey Lbr. Co. v. Schroeder Lbr. Co., 237 Fed. 39, 150 C. C. A. 241.
- 9 Cyc. 246; 13 C. J. 265; Troustine v. Sellers, 35 Kan. 447, 11 Pac. Rep. 441; Prescott v. Jones, 69 N. H. 305, 41 Atl. Rep. 352; James v. Marion Fruit Jar Co., 69 Mo. (App.), 207.
- Brian, C. J., quoted in Brogden v. R. Co., 2 App. Cas. 692; Farnum v. Whitman, 187 Mass. 381, 73 N. E. 473.
- Bramwell, B., in Browne v . Hare, 3 H. & N. 484, 27 L. J. Exch. 372.
- Communication of Offer
- Howard v. Daly, 61 N. Y. 362; Trevor v. Wood, 36 N. Y. 307; Perry v. Iron Co., 15 R. I. 12, 2 Am. St. Rep. 903; Stoble v. Earp, 110 Mo. App. 73, 83 S. W. 1097.
- Broadnax v. Ledbetter, 100 Tex. 375, 99 S. W. 1111; Kleinhaus v. Jones, 68 Fed. 742. Thus where two letters. each containing an offer identical in terms, cross each other, there can be no contract. James v. Marion Fruit Jar Co., 69 Mo. App. 207; see Tim v. Hoffman & Co., (1873), 29 L. T. R. ( N. S.) 271; Contra. Asinoff v. Freudenthal, 186 N. Y. S. 383. See an interesting case of lack of communication where the parties were in the presence of each other, but one did not hear what the other said at Acceptance by Silence .
- Lord Blackburn, in Burkinshaw v. Nicolls, 36 L. T. Rep., N. S. 312; 3 App. Cas. 1026.
- White v. Corlies, 46 N. Y. 467; Connor v. Renneker, 25 C. S. 514.
- Crook v. Cowan, 64 N. C. 763; Fogg v. Portsmouth Atheneum, 44 N. H. 115, 82 Am. Dec. 191; Banning Co. v. California, 240 U. S. 142, 36 Sc. T. 388.
- Payne v. Cave, 3 Term. Rep. 148; Ives v. Tregent, 29 Mich 390. An auctioneer who advertises a sale of certain goods does not by that advertisement alone enter Into any contract or warranty with t hose who attend the sale that the goods shall be actually sold. Harri s v. Nickerson, 8 Q. B. 286. But where a sale Is advertised as without reserve, and a lot Is put u p and bid for, there Is a binding contract between the auctioneer and the highest bidder that the goods shall be knocked down to him. Warlow v. Harrison, E. & E . 295 ; Davis v. Petway, 3 Head. 664. An auctioneer may refuse a bid tendered in bad faith or proffered b y a person who is insolvent or otherwise disabled from completing the purchase; or refuse to accept trifling advances offered by bidders, especially where that kind of bidding is initiated at the outset and the sum so offered Is utterly incommensurate with the actual known value of the property. It Is reasonable to In fer that bidding of that kind would have a depressing effect on the sale and tend to induce a belief on the part of others In attendance that the value of the property had been approximately reached. It Is within the legitimate bounds of the discretion of the auctioneer to refuse to accept a bid which is little more than a nominal advance, and. considering the surrounding circumstances, is, in hi s judgment, l ikely to affect the sale lnjuriously. Taylor v. Harnett, 26 N. Y. (Misc.) 36 .
- 9 Cyc. 279 ; Denton v. Great North. R. Co., 6 E. & B. 860 ; Sears v. R. Co., 14. Allen 433, 92 Am. Dec. 780.
- Williams v. Cawardine, 4 B. and Ad. 621 ; Reif v. Page, 56 Wis. 476, 42 Am. Rep. 7 3 1 ; Ryer v. Stockwell, 1 4 Cal . 134, 73 Am. Dec. 634 ; Janvrin v. Exeter, 4 8 N. H. 83, 2 Am. Rep. 186 ; Hayden v. Souger, 56 I n d . 4 2 , 26 Am' Rep. 1. The terms of the offer must all be compiled with or there can be no recovery. Wllliams v. West Chicago R. Co., 191 Ill. 610.
- Harvey v. Johnson, 6 C. B. 295 ; Briggs v. Sizer, 30 N. Y. 652; Dent v. Steamship Co., 49 N. Y. 370 ; Crook v. Cowan, 64 N. C. 743.
- DeWolf v . Chicago, 26 Ill 443; Huck v . Flentye, 80 Ill. 262; Day v. Caton, 119 Mass. 513; Painter v. Ritchey, 43 Mo. (App.) 111.
- Allen v. Chouteau, 102 Mo. 302; Agricultural Soc. v. Bromfield, 102 Ind. 146.
- See Pearce v. Spaulding, 12 Mo. App. 114.
- Lopez v. Charles Schwab & Co., Inc., 118 Cal. App. 4th 1224] (2004).