RAMSGATE VICTORIA HOTEL COMPANY LIMITED V. MONTEFIORE.
  SAME v. GOLDSMID.
   Company--Allotment of Shares--Reasonable Time.
The defendant in one of the above actions for non-acceptance of shares, applied
for shares on June 8, but no allotment was made till Nov. 23.  On Nov. 8, he
withdrew his application.
The facts in the other action were the same, except that the defendant had
never withdrawn his application:--
Held that the allotment must be made within a reasonable time, that it was
not so made, and, therefore, that neither defendant was bound to accept the
shares alloted.
  THESE were actions for non-acceptance of shares, and for calla,
and cross-actions for recovery of deposit, and for damages for
not duly allotting shares, turned into a special case
  The company was completely registered 6th June, 1864.  By the
2nd article of association it was provided that the company should
continue incorporated, notwithstanding that the whole number of
shares in the company might not be subscribed for or issued, and
might commence and carry on business when, in the judgment of
the board, a sufficient number of shares had been subscribed to
justify then in so doing.
  The prospectus of the company contained the following words
   "Deposit on application 11 per share, and 4% on allotment."  And
it was further stated that if no allotment were made the deposit
would be returned.
  The defendant Montefiore, on the 8th June, 1864, filled up,
signed, and sent to the directors the printed form of applica-
tion annexed to the prospectus, which was as follows ---
  --Having paid to your bankers the sum of 50%., I
  hereby request you will allot me 50 shares of 20% each in the
  Ramsgate Victoria Hotel Company (Limited); and I hereby agree
  to accept such shares, or any smaller number that may be allotted
  to me, to pay the deposit and ceds thereon and to sign the
  articles of association of the company at such times and in such
  manner as you may appoint.
  The defendant had so paid the sum of 50%., and had taken from
  the bankers the followmg receipt ---
  'Received, the 8th June, 1864 on account of the directors of
  the Ramsgate Victoria Hotel Company (Limited), the sum of
  50%., being the deposit paid in accordanos with the terms of the
  prospectus, on an application for an allotment of 50 shares in the
  same undertaking."
  On l7th August the secretary made out and submitted to the
  directors a list of applicants for shares up to that time, in which
  appeared the name of the defendant for 50 shares.  The list was
  headed "List of subscribers, August 17, 1864."
  On the 2nd November the secretary again  submitted a list of
  subscribers to the directors, but they did not deem it advisable to
  proceed to an immediate allotment and entered a minute to that
  effect.  On the 8th November defendant, having received no
  communication from the company withdrew his application.
  On the 23rd November the secretary prepared another list of
  subscribers, including the defendent's name. The directors made
  the first call, and by their direction the secretary wrote the
  following letter to the defendent:--
  "SIR,--I am instructed by the directors to aquaint you that, in
  compliance with your application they have allotted to you 50
  shares in this company, and have entered your name in the
  register of shareholders for the same; and I have to request that
  you will pay the balance of the first call, as noted below, on or
    THE BRITISH & AMERICAN TELEGRAPH COMPANY, LIMITED
    Jan 31  v COLSON
  Company--Allotment of Shares--Letter of Allotment pasted but not received
The defendant applied for shares in the plaintiffs company shares were alloted
  to him and a letter of allotmen was posted to his address, but was never received
  by him--
  Held  That the defendant was not a shareholder
  Dunlop v Higgins(1 H. L. C. 881) commented on.
  ACTION for a sum of money alleged to be due from the defend-
  ant to the plaintiffs, on an allotment of shares in their company
  The first count stated a promise by the defendant that, in consi-
  deration the plaintuffs would allot him fifty sharee, he would pay
  2l upon each of the said shares, and alleged the performance of
  conditions precedent, and breach by non-payment  In the second
  count the defendant was sued as a shareholder of fifty sharee, for
  a call of 2l due thereon, with interest.
  The defendant (amongst other pleas) pleaded to the first count,
  denial of the allotment,  to the second count, never indebted.
  Issue.
  The cause was trued before Bramwell, B, at Westminster, on the
  28th of June 1870. It was proved that the defendant on the 13th
  of February 1867, sent an application to the plaintuffs for fifty
  shares, the letter of application containing an undertaking to pay
  on allotment the deposit of 2l per share, 'that on the 14th, fifty
  shares were allotted to him at a meeting of directors, and notice
  of the allotment posted to his address (31 Charlotte Street, Fitzroy
  Square),  and that his name was entered on the registrars holder
  of the fifty shares.
  The defendant, however, swore that he had never received the
  notice that another person of the same name lived opposite to
street were changed (his own number being changed from 31
to 87), and that several letters then sent to him had never reached
him.
  On the 28th of February the plaintiffs on being informed that
the notice had not reached the defendent, sent hum a duplicate
notice, which he refused to accept.
  The jury found that the letter of allotment was posted to the
defendent on the 14th of February, but that he never received
it and that the second notice was not sent in reasonable time
The learned judge, acting on Dunlop v Higgins(l), thereupon
directed the verdict to be entered for the plaintiffs, reserving leave
to the defendent to move to enter the verdict for him, upon the
authority of Finucane's Case. (2)  A rule having been obtained
accotdingly.
  Nov 17  Pollock, Q C, and Lewis, shewed cause.  The case is
concluded by the authority of Dunlop v. Higgins (l), which shews
that a contract is completed by the posting of a letter accepting the
offer. The same doctrine was recognised in Duncan v Topham (3)  ;
which is directly in  point, because there the letter of acceptance
never reached its destination.  In Finucane's Case (2) neither of
these cases was cited, and the case is not a considered one
  [They proceeded to argue upon some clauses of the com-
pany's articles of association, but the Court observed that if the
defendant was not in fact a shareholder, he could not be bound by
them.]
Gill, in support of the rule. Finucane's Case (4) lays down a
  sensible rule, namely, that if the defendant not only denies
 receipt of a posted notice but also gives a reasonable account of
 its not reaching him he will not be liable as if he had received it.
 The defendant has here satisfied that condition  In Duncan v
 Topham (1), the point was not argued at length , the case of
 Harvey v Johnston (2) there referred to, is no authority on the
 question, and the point now suggested was not raised It was
 laid down by Wood, V C, in Fletcher's Cage (3), that to complete
 a shareholder's contract it is necassary 'that the allotment should
 be communicated and acquiesced in.  It is true the point did
 not arise there, but in Hobb's Case (4), where, after the allotment
 had been made, but before it was communicatsd to the applicant,
 he withdrew his application, it was held that this was no contract
 to accept the shares
 Cur. adv. vult.
 Jan. 31.  The following judgments were delivered ---
 KELLY, C.B.  This was an actuon to recover 100l, or 2l per
 share upon fifty shares in the above company.  The defendant
 denied his liability and the question reserved at the trial is,
 whether the plaintiffs are entutled to recover or not.
  On the 13th of February the defendant applied to the plaintiffs
  for firty shares in the company, by the following letter---"To
  the directors of the British and American Telegraph Company
  Limited ---Gentlemen,---I request that you win allot me fifty
  shares in the above company, subject to the memorandum and
articles of association, and I hereby agree to become a member
of the company in respect of such shares, or in rsspect of any less
number you may allot me, and to pay on allotment the deposit of
2l. per share thereon; and I request that my name may be placed
-on hte register of members for the shares so allotted".
  --To which, on the 14th of February, the plaintiff replied, through
their secretary, by the following letter of allotment:---" British
and American Telegraph Company Limited.---Sir,---The  directors
having considered your application, have alloted you fifty shares
in the company, and I have to request that you will pay the sum
of 100l., being an allotment deposit of 2l. per share, on or before
Wednesday the 20th instant, to the account of the company.
either at Messrs. Dimsdale, Drewitt, Fowler, & Barnard, Bankers,
50, Cornhill, E.C., or at the London and County Bank, Lombard
Street.
  This letter was put into the post on the 14th of February, and
should have reached the defendant on the following day, but from
some confusion arising from the manner in which the houses were
numbered in the street in which the defendant resided, the  letter
was not delivered to him. A fortnight afterwards upon some
communication between the two parties, the letter of allotment first
became known to the defendant and the jury have found that this
authority of the case of Dunlop v. Higgins (1), directed a verdict
for the plaintiffs, reserving leave to the defendant to move to enter
a nonsuit; and I am of the opinion that the rule should be made.
  It appears to me, that if one proposes to another, by a letter
through the post, to enter into a contract for the sale or purchase
of goods or, as in this case, of shares in a company, and the
proposal is accepted by letter, and the letter put into the post,the
party having proposed the contract is not bound by the acceptance
of it until the letter of acceptance is deliversd to him or otherwise
brought to his knowledge, except (in some cases) where the non-
receipt of the acceptance has been occasioned by his own act
or default.
  The consequences if the law were as contended for on the part
  of the plaintiffs, would be such as to work great and obvious
  injustice in a variety of mercantile  transactions of constant
  occurrence.  A merchant in London writes to another merchant
  at Bristol offering to sell him a quantity of merchandise at the
  price of 1000l. and the Bristol merchant by return of post accepts
  the offer and agrees to become the purchaser; but the letter mis-
  carries and is never received.  Would the Bristol merchant be
  entitled a week afterwards to bring an action for the non-delivery
  of the goods, when the London merchant, from having received
  no answer to his letter, hss sold them to another person?  There
  suppose that A., a stockbroker in London, who has been in the
  habit of making purchases of stock for B. in Liverpool, writes to B.
  on the 1st of January, "I can offer you 1000Ul, in 5-20 bonds
  at 90, but I must require your answer by return of post."  B.,
  receives the letter at Liverpool on the morning of the 2nd, and
  writes by the post of that night to A. in London, "I accept the
  10,000l. 5-20 bonds at 90, and request you will hold them for me
  until further instructions ;"  the letter by some accident miscarries
  and never reaches the hands of A., whe, receiving no  reply
  throughout the 3rd of January, sells the stock on the morning 0f
  the 4th to another purchaser. B. applies to him ten days after,
  when the stock has risen 50 per cent and directs him to sell.  If
  the putting of the letter into the post by B. at Liverpool on the
  2nd is equivalent to the delivery of it to A. on the 3rd B. is
  entitled to maintain an action as if it had been delivered, and
  recover the 50 per cent. upon the stock.  It is absolutely impos-
  sible that such can be the law of this country.  Numberless cases
  of thus nature might be put, in which the principle which regulates
  the making of contracts among mercantile men would be set at
  nought, if the law be as contended for on the part of the plain-
  tiffs; that principle being that a contract is complete only when a
  proposal is made by one party, accepted by the other, and the
  acceptance notified to the maker of the proposal.
  The learnned judge in this case directed a verdict for the
  plaintiffs chiefly, if net wholly, upon the authority of Dunlop v.
  Higgins1 (1).  But it will be found that this case is no authority
  at all for the proposition contended for by the plaintiffs, that the
putting a letter into the post accepting a contract is equivalent to
the delivery of the letter to the persn written to, and binds him
by the acceptance although it should never have been delivered
The facts of the case of Dunlop v. Higgins (1) were these: on the
28th January, Dunlop & Co., merchants at Glasgow, wrote to
Higgins at Liverpool, and put the letter in the post, offering to
sell to him 1000 tons of iron at 65s his letter was delivered at
Liverpool & Higgins at 8 A.M. of the 30th of January; the first
post for Glasgow left Liverpool on that day at 3 P.M. and the
second at 1 A.M. of the 31st.  Higgins wrote a letter on the same
day, the 30th, accepting the iron, and put into the post during
business hours on that day, that is to say a little after 3 P.M.
which it was not denied was in proper time.  This letter should
have been delivered in Glasgow about 8. A.M. on the 1st  of
February, but owing to the bad state of the rcads, there being a
railway only for a part of the journey, the noail did not arrive at
Glasgow till some hours later, and the letter was not delivered to
Dunlop & Co. till about 2 P.M. They afterwards renounced the
contract, on the ground that the acceptance had not reached them
at 8 P.M., and alleging that in the meantime they had sold the
iron to  another purchaser.  Higgins, thereupon, brought his
action for the non-delivery of the iron pursuant to the contract,
and he was held entitled to recover.  In this decision of the
Court of Session, and the affirmance of it by the House of Lords,
I entirely concur, on the plain ground that the acceptsnce of the
contract reached Dunlop & Co. in time; and the judgment which
I am about to pronounce is in perfect accordance wuth it.
  It is said, however that the ground upon which the case was
decided was, that the contract was complete and binding upon
Dunlop & Co., not upon the acceptance of it by Huggins coming
to hand, but upon the putting of the letter into the post by
Higgins upon the 30th of January; and it is further insisted that
Lord Cottenham laid it down as law, that the putting of a letter
into the post accepting a contract is equivalent to the delivery of
that letter, although it should never in fact be delivered at all to
the person to whom it is addressed.
  No such proposition was laid down by Lord Cottenham, or by
  any other judge, either in the Court of Session or in the House of
  Lords.  The points, indeed, that were taken in argument seem to
  be quite apart from any just legal view of the case It was
  insisted by Dunlop & Co. that, Higgins' letter of acceptance
  being by mistake dated on the 3lst, they had a right to assume,
  and Higgins had no right to disprove, that it was actually written
  on the day, and so too late to bind them to the contract.  But this
  objection to the action was rightly overruled in the House of
  Lords ; and it was held that Higgins was at liberty to shew, as the
  fact was, that the letter was written and put into the post on the
  30th.  It was undoubtedly argued, that the putting of the letter
  into the post by Higgins on  the 30th amounted then and at once
  to an acceptance of the contract binding upon Dunlop & Co.,
  without reference to the time at which it was delivered, or even if
  it had never been delivered at all;  and upon this point Lord
  Cottenham treats it as a question of fact, whether the pcating of
  the letter by Higgins on the 30th was or was not a compliance
  with the duty of the party.  He rightly holds that it was; and in
  his judgment he observes, not that the posting of a letter is
  equivalent to its delivery; no such doctrine is to be found
  throughout his Lordship's judgment; but that Higgins was not
  responsible for the delivery according to the course of the post by
  the post office, over which he had no control.  And this, no
  doubt, is true; not merely as a general, though somewhat vague
  and indefinite proposition, but as strictly applicable to the facts of
  that case, Higgins having been in no wise responsible for the
  letter, which he posted at Liverpool at a little after 3 p.m. on the
  30th, not having reached Glasgow until 2 p.m. instead of 8 a.m.
  on the 1st of February.  This, however, is very different from the
  proposition that the contract was completed and binding upon
  Dunlop & Co., not by the delivery to him of the letter of
  acceptance on the 1st of February, but by the putting it in the
  post by Higgins at Liverpool on the 30th.  Nothing like this was
  ever said or suggested by Lord Cottenham, or any other judge,
  and the supposition that such had is the decision of the House
  of Lords is only to be accounted for by the vague and inaccurate
  terms of the marginal note to the report of the case.
  The other case relied upon for the plaintiffs is Dunlop v. Top-
ham. (1) There, in an action for non-delivery of goods purchased,
in which the contract was alleged to be,to deliver within a reason-
able time, the proof was of a contrect " that the goods must be put
on board directly;" and the judge at the trial having ruled that
this evidence supported the declaration, the defendant obtained a
rule for a new trial on the ground of variance, and the rule was
afterwards made absolute. This decision, therefore, has no appli-
cation to the present case; but it certainly appears that, upon the
trial of the cause, Mr. Justice Cresswell had directed the jury that
the contract was complete on the posting of the plaintiff's letter
accepting the offer of the goods, notwithstanding it might never
have come to the defendant's hands.  It does not appear how far
this ruling was material in the cause; but, the counsel for the
defence, having referred to it as one of the grounds upon which
he claimed a rule nisi for a new trial, no express judgment is given
upon that point; but upon the statement of it Maule, J.,  observed,
"I think it was the mode of prof in Harvey v. Johnston." (2) And
Wilde,C.J., observed, "There is also a case of Dunlop v. Hig-
gins (3), in the House of Lords, where the same point was decided."
Now, upon looking at the case of Harvey v. Johnston (2), it will be
found that no such point arises, and that the decision had no rela-
tion to any such question; and all that appears is, that upon an
argunent as to whether an offer made can be retracted at any time
before acceptance, Wilde, C.J., observed, " An order for goods is
binding upon the party sending it before the letter accepting the
contract is received by him."  This case, therefore, of Harvey v.
Johnston (2), is no authority whatever in support of the proposition
contended for; nor, for the rsasons before assigned, is the case of
Dunlop v. Higgins. (3)  All that fell from the Court, therefore, in
Duncan v. Topham (1), as far as relates to this point, is founded
entirely on an erroneous reference by two of the judges to these
two cases.  There is certainly the opinion of Mr. Justice Cresswell
at nisi prius, which seems to support this doctrine ; but I cannot
acceede to it, notwithstanding the high authority of that learned
judge.
  It may be that in general, though not in all cases, a contract
  takes effect from the time of acceptance, and not from the subse-
  quent notification of it.  As in the case now before the Court,if
  the letter of allotment had been delivered to the defendant in the
  due course of the post, he would have become a shareholder from
  the date of the letter.  And to this effect is Potter v. Sanders. (1)
  And hence, perhaps, the mistake has arisen that the contract is
  binding upon both parties at the time when the letter is written and
  put into the post, although never delivered ; whereas, although it
  may be binding from the time of acceptance, it is only binding
  at all when afterwards duly notified.
  On the other hand, the authorities are numerous to shew that a
  contract is not complete until the acceptance of it is made known
  by the one party to the other.  In Pellatt's Case (2) Lord Cairns,
  and Turner, L.JJ., lay it down that, upon  an application  for
  shares to be allotted, the registration of the shares by the company
  does not make the applicant a shareholder; and Lord Cairns
  expressly  says  (3), "I cannot, therefore, consider an application for
  shares, followed by registration not communicated to Mr. Pellat,
  to constitute a completed contract."
  In Gunn's Case (4) it was held by Stuart, V.C., and confirmed
  on appeal by Rolt, L.J., that upon an application for shares, and
  on allotment and registration of shares in the name of the appli-
  cant he does not become a shareholder unless he has notice of the
  allotment; and the Lord Justice, in his judgment, treats an appli-
  cation for an allotment of shares and an ordinary comercial con-
  tract as identical.  His language (5) is directly applicable to the
  present case; "There must be the consent of two parties to a con-
  tract.  One man may make an offer to another and say: I agree to
  buy your  estate ;' but the person to whom he has made this offer
  must say: 'I agree to sell you the estate or he must do something
  equivalent to an acceptance, something which satifies the Court
  either by words or conduct, that the offer has been accepted to the
  knowledge of the person who made the offer."
  Sahlgreen & Carrall's Case (6) is to the same effect.  There,where
  there had been a contract to accept shares on allotment of shares,
and the allotment had been made but not communicated, Lord
Cairns, L.J., observes (1), 'But to complete this appropriation, to
it must be because it is so as a general rule.  That is to say, there
is nothin peculiar in this case; there is nothing peculiar in appli-
cations for shares and in the acceptance of the application. To
hold therefore, that the plaintiffs are right, it seems to me that we
must lay it down as a general proposition, that in cases where the
post may be used, wherever a person posts a letter, he does that
which is equivalent to delivering it to the person to whom it is
directed.  So that if an offer is made by letter, and a letter is
posted accepting it, the offer or is bound. That if a man orders his
broker to buy stock or shares, and hold them to the  orders of the
principal, and the principal posts a letter ordering the broker to
sell, the broker not selling would be liable to damage, though the
letter never reached him.  So of a warehouseman bound to forward
goods on an order from their owner;  so of a notice to quit; so if a
man proposed marriage, and the woman was to consult her friends
and let him know, would it be enough if she wrote and posted a
letter which never rcached him? I put this case, not to raise a
smile, but to show an extravagant consequence of such a general
rule.
  In all the cases I have put it would be elxtremely hard to make
liable the person who had never received the letter; it would be
wholly unjust and unreasonable.  It may be said that it would be
hard to leave the sender of the letter without remedy. It there
is this to he said;  the sender of the letter need not use the public
post. If he dcas, he may guard against mistake by sending two
letters, or requesting an answer and sending another on non-receipt
of the answer, or by taking other steps to ascertain the arrival or
non-arrival of the letter, and to remedy the mischief of the latter
event. But the person to whom it is addressed can do absolutely
nothing; for by the hypothesis he does not know it has been
sent.
  When these censiderations are borne in mind, when it is remem-
bered that it is open to the sender to adopt other means of sending,
when it is certain that if he does he is responsible for the due
arrival of the letter, it seems to me right to hold that as a rule the
post is the agent of the sender of a letter and that the delivery of
a letter to the post not followed by delivery by the post to the
person to whom it is sent, is no delivery to the latter and has no
more effect than if the letter had been given to a hand messenger
and not delivered, or had been kept in the pocket of the sender.
In the absence of authority, therefore I should hold, and confi-
dently hold, that in this case the defendant's offer had not been
accepted, and that he was not liable.  Of course if the person
and had agreed that posting a letter should suffice like a
delivery of goods to a carrier, he would be bound.  But itseems to
me that when nothing more appesrs than that the post may be
resorted to, the mere posting should not bind the person written
to; because, in all cases, unless the contrsry appears by express
stipulation, the post may be resorted to.  If it should be argned
that convenience requires such a rule, as otherwise persons might
untruly deny the receipt of letters, the answer is, that if such
a rule preailed persons would untruly assert the posting of
them.
  But there are many authorities that it is necessary to examine ;
the first and most important is Dunlop v. Higgins. (1)
The short facts of that case are, that Dunlop at Glasgow had
made an offer by post to Higgins at Liverpool ;  that Higgins was
bound, according to the usual practice of merchants, to post his
answer of acceptance on a certain day, the 30th of January; that
Higgins did on that day post an answer accepting the offer; that
in ordinary course of post that letter would reach Glasgow at
8 A.M., the 1st of February ; but that, owing to the slippery state
of the rcads, the train at Warrington was missed by the postman
from Liverpool, and the letter was not delivered to Dunlop till the
next delivery at 2 P.M.; it was held he was bound.  Now, one
might say of this case, that it was on an appeal from Scotland,
snd perhaps not intrinsically binding on us.  But it certainly was
not dealt with by Lord Cittenham as a question of Scotch law.
It may also be justified on this ground; the parties by their cor-
respondence recognize the post as a proper medium of communica-
tion; then that must be subject to inevitable circumstances.  I
do not say accidents, because the delay was occasioned by frost.
And, certainly, it would seem strange that if the ordinnary delivery
of letters was at ten, and a frost or fog delayed the delivery till
eleven, the person receiving the letter could say he was not bound.
If the answer were to be sent by hand, surely it would be enough
to send it by hand as fast as the state of the rceds would admit-
The difficulty of the case is not so much its facts, as what Lord
Cottenham said.  He seems to me correctly represented in the
head-note,-- "a contract is accepted by the posting of a letter de-
claring its acceptance." He says (1), " Then comes the question,
whether under those circumstances, that, by the usage of trade,
the fact of the letter being delayed, not by the act of the party
sending it, but by an accident connected with the post, the party
so putting the lettsr in on the right day is to lose the benefit
which would have belonged to him if the letter had arrived in due
course."  He speaks of an "accident."  He further says (2), "If a
party does all that he can do, that is all that is called for. If
there is a usage of trade to accept such an offer, and to forward it
by means of the post, and if the party accepting the offer puts his
letter into the post on the correct day, has not done everything he
was bound to do ?  How can he be responsible for that over which
he has no control ?"  .  .  .  "It is not disputed--it is a very frequent
occurrence,  that a party having a bill of exchange, which he tenders
for payment to the acceptor, and payment is refused is bound to
give the earliest notice to the drawer.  That person may be resi-
dent many miles distant from him; if; he puts a letter into the
post at the right time, it bee been held quite sufficient; he has
done all that he is expected to does for as he is concerned; he
has put the letter into the post, and whether that letter be de-
livered or not is a matter quite immaterial, because for accidents
happening at the post office he is not responsible.  It seems to
me that the correct way to deal with these expressions is, to refer
them to the subject matter, and not to consider them as laying
down such a proposition as the plaintiffs here contend for; If
that, where the postman be used betweeen two parties, it must be
subject to those delays which are unavoidable.
  The next case is Duncan v. Topham(3), that certainly is directly
in favour of the plaintiffs as reported in the Common Bench Reports
But I doubt the accuracy of that report.  The point is not mentioned
in the report in the Law Journal(4), and in the report in 8 C.B. at
           SMITH v. HUGHES
Vendor and Vendee--Sale of Chattels--Passive Aquiescence of a Seller in the
 self-deception of the Buyer does not entitle the latter to avoid the Contract

of these oats to Hughes, who manages for the defendant, and asked
him if he was a buyer of oats.  He replied he was always a buyer
of good oats.  I said I had some good oats for sale; he asked me
  how many ?  I told him from forty to fifty quarters; he said he
  would have them all if they were good.  I shewed him my sample,
  and asked 35s. a quarter; he took the sample, and said he would
  give me an answer next day.  On the following Monday he wnote
  to me to say he would take the cats at 34s. a quarter, nod I then
  sent in sixteen quarters.  Soon afterwards I met the defendant,
  and  he said, 'Why, those were new oats you it me.'  I replied,
  'Well, I knew they were, and had none others.'  He said 'I thought
  I was buying old oats.  Now oats are useless to me; you must
  take them back again'  I refused to take them back."  On cross
  examination, the plaintiff said :  " I was not aware that the defend-
  ant never bought new oats.  I do not know that trainers never use
  new oats; a trainer has since this transaction offered me mmoney
  foe new oats.  I never told defendant that they were old oats
  Nothing was said about it: the word 'old' was not mentioned by
  either of us."
  Hughes, the defendant's manager, stated :  "The plaintiff asked me
  if I was a buyer of oats.  I said I was always a buyer of good old oats
  He said, 'I have some good old oats for sale,' and gave me a sample,
  and asked me 35s. a quarter.  I ssid I would let him know.  I
  wrote to say I would give him 34s.  When I found they were new
  oats, I refused to have them, and they were immediately returned
  to the plaintiff on his refusal to fetch them back.  I never buy new
  oats if I can get old.  Trainers, as a rule, use old oats" On cross-
  examinatien, witness hesitated and contradicted himself somewhat
  as to whether the word "old" was used at the time of making the
  contract.
  Evidence was also given for the defendant, that at the time of
  the contract 34s. a quarter was a very high price for new oats and
  such as a prudent man of business would not have given; but that
  oats were then very scarce.
  In summing up, the judge told the jury that the first question
  for their consideratien was, whether the word 'old' had been used
  by the plaintiff or defendant in making the contract, and that the
  inclination of his opinion was that the word "old" had not been
  might by proper diligence have discovered, and which is open to
  his examination is not fraudulent unless a special trust or con-
  stance of the case. . . . In respect to extrinsic circumstances, the
  rule is that neither party is ordinarily bound to notify them to the
  other, and mere concealment will not nullify the contract.  But
  the party concealing a fault must be careful to do no act and say
  no word indicative of his assent to any mistaken proposition by
  the other; and must play an entirely negative part, for if he do
  anything positive he will render himself liable."  If, therefore the
  plaintiff believed that the defendant was under the impression that
  he was buying old oats, and did nothing by word or act to produce
  this impression on the mind of the defendant, but merely allowed
  him to remain under that impression, the plaintiff's conduct is not
  such as would avoid the contract. According to Paley (1), a promise
  is to be interpreted "in the sence in which the promiser appre-
  hended at the time that the promisee received it."  The judge's
  direction ought to have been, that if the plaintiff believed the
  defendant to believe that the plaintiff had contracted to sell to
  to the defendant old oats, then they should find their verdict for the
  defendant.  The question as to the difference between concealment
  and mere silence is discussed by Cicero (2) He puts the case of
  a merchant at Rhodes selling corn in time of scarcity, and asks
  the question whether the seller is bound to inform the buyer of
  what he is aware but the buyer is not, viz., that there are other
  ships laden with corn on their way to Rhodes.  The conclusion
  arrived at appears to be that he is not acting dishonestly in not
  giving the information.
  Arthur Wilson, for the defendant. The judge's direction, in sub-
  stance, amounts to this:  If the defendant contracted to buy old oats,
  he is not bound to accept new oats. And in that sense the directon
  is correct.  If the plaintiff was selling new oats, and the defendant
  was buying old oats, the parties were not ad idem, and there was
  no contract;  and that is what the jury have found.  That the sale
  was by sample is immaterial; the sample only affects the quality,
  provided the subject-matter is the thing contracted for: Azemar
 plaintif denied that any reference had been made to the oats being
 old or new.
    The plaintiff having sent in a portion of the oats, the defendant,
  on meeting him afterwards said, " Why, those were new oats you
  sent me;" to which the plaintiff having answered, "I knew they
  were; I had none other."  The defendant replied " I thought I was
  buying old oats:  new oats are useless to me; you must take them
  back.' This the plaintiff refused to do, and brought this action.
    It was stated by the defendant's manager that trainers as a rule
  always use old oats, and that his own practice was never to buy
  new oats if he could buy old.
  But the plaintiff denied having known that the defendant never
  bought new oats, or that trainers did not use them; and, on the
  contrary, asserted that a trainer had recently offered him a price
  for new oats.  Evidence was given for the defendant that 34s. a
  quarter was a very high price  for new oats and such as a prudent
  man of business would not have given. On the other hand, it
  appeared that oats were at the time very scarce and dear.
    The learned judge of the county court left two questions to
  the jury: first whether the word "old" had been used with re-
  ference to the oats in the conversation between the plaintiff and
  the defendant's manager;  secondly, whether the plaintiff had
  believed that the defendant believed, or was under the impression,
  that he was contracting for old oats;  in either of which cases he
  directed the jury to find for the defendant.
    It is to be regretted that the jury were not required to give
  specific answers to the questions so left to them. For, it is quite
  possible that their verdict may have been given for the defendant
  on the first ground; in which case there could, I think, be no
  doubt as to the propriety of the judge's direction; whereas now
  as it is possible that the verdict of the jury--or at all events
  some of them---may have proceeded on the second ground, we are
  called upon to consider and decide whether the ruling of the
  learned judge with reference to the second question was right.
    For this purpose we must assume that nothing was said on the
  subject of the defendant's manager desiring to buy old oats, nor of
  the oats having been said to be old; while on the oither hand, we
  must assume that the defendant's manager believed the oats to be old
oats, and that the plaintiff was conscious of the existence of such
belief,but dld nothing, dircctly or indirectly, to bring it about,
acquiescence of the seller in the self-deception of the buyer will
entitle the latter to avoid the contract.  I am of opinion that it
will not.
  The oats offered to the defendant's manager were a specific
parcel, of which the sample submitted to him formed a part.  He
kept the sample for twenty-four hours, and had, therefore, full
opportunity of inspecting it and forming his judgment upon it.
Acting on his own judgment, he wrote to the plaintiff, offering him
the oats in bulk.  It cannot be said that, if he had gone and per-
sonally inspected the oats in bulk and then, believing--but without
anything being said or done by the seller to bring about such a
belief---that the oats were old, had offered a price for them, he
would have been justified in repudiating the contract, because the
seller, from the known habits of the buyer, or other circumstances,
had reason to infer that the buyer was ascribing to the oats a
quality they did not possess, and did not undeceive him.
  I take the true rule to be, that where a specific article is offered
for sale, without express warranty, or without circumstancas from
which the law will imply a warranty--as where, for instance, an
article is ordered for a specific purpose---and the buyer has full
opportunity of inspecting and forming his own judgment, th
If he gets the article he contracted to buy, and that article corre-
sponds with what it ws sold as,he gets all he is entitled to, and
is bound by the contract.  Here the defendant agreed to buy a
specific parcel of oats. The oats were what they were sold as,
namely, good oats according to the sample.  The buyer persuaded
himself they were old oats, when they were not so; but the seller
neither said nor did anything to contribute to his deception.  He
has himself to blame. The question is not what a man of scrupu-
lous morality or nice honour would do under such circumstances.
  The case put of the purchase of an estate, in which there is a mine
  under the surface, but the fact is unknown to the seller, is one in
  which a man of tender conscience or high honour would be un-
  willing to take advantage of the ignorance of the seller; but there
  can be no doubt that the contract for the sale of the estate would
  be binding.
    Mr. Justice Story,in his work on Contracts (vol. i. s. 516), states
  the law as to concealment as follows :---" The general rule, both of
  law and equity, in respect to concealment, is that mere silence
  with regard to a material fact, which there is no legal obligation to
  divulge, will not avoid a contract, although it operate as an injury
  to the party from whom it is concealed."  "Thus," he goes on to
  say (s. 517), "although a vendor is bound to employ no artifice
  or diguise for the purpose of conccaling defects in the article sold,
  since that would amount to a positive fraud on the vendee; yet,
  under the general doctrine of caveat emptor, he is not, ordinarily,
  bound to disclose every defect of which he may be cognizant, although
  his silence may operate virtually to deceive the vendee."  "But,"
  he continues (s. 518), "an improper concealment or suppression
  of a material fact, which the party concealing is legally bound to
  disclose, and of which the other party has a legal right to insist
  that he shall be informed, is fraudulent and will invalidate a
  contract."  Further, distinguishing between extrinsic circumstances
  affecting the value of the subject-matter of  a sale, and the con-
  cealment of intrinsic  circumstances  appertaining to its nature,
  character, and  condition,  he points out (s. 519), that with re-
  ference to the latter, the rule is "that mere silence as to anything
  which the other party might by proper diligence have discovered,
  and which is open to his examination, is not fraudulent, unless a
  special trust or confidence exists between the parties, or be implied
  from the circumstances of the case."  In the doctrine thus laid
  down I entirely agree.
    Now, in this case, there was plainly no legal obligation in the
  plaintiff in the first instance to state whether the oats were new or
  old.  He offered them for sale according to the sample, as he had
  a perfect right to do, and gave the buyer the fullest opportunity of
  inspecting the sample, which, practically, was equivalent to an
  inspection of the oats themselves.  What, then, was there to create

any trust or confidence between the parties, so as to make it in-
cumbent on the plaintiff to communicate the fact that the oats
were not,as the defendant assumed them to be, old oats? If,
thing which intimated his understanding that the seller was selling
the oats as old oats, the case would have been wholly different;
or even if he had said anything which shewed that he was not
acting on his own inspection and judgment, but assumed as the
fraudulent concealment, such as would have entitled the buyer to
avoid the contract.  Here, however, nothing of the sort occurs.
own judgment.
  The case of Horsfall v. Thomas (1), if that case can be con-
sidered good law, is an authority in point.  In that case a gun which
had been manufactured for a purchaser, had, when delivered, a defect
quaintsd with the defect, had resorted to a contrivance to conceal it
as the buyer had had an oportunity of inspecting the gun, and had
accepted it without doing so, and had used it, it was not compe-
ent to him to avoid the contract on the ground of fraud.  The
case has, however, been questioned, and dissenting altogether from
the decision, I notice it only tosay that my opinion in the present
case has been in no way influenced by its authority
  In the case before us it must be taken that, as the defendent, on
a portion of the oats being delivered, was able by inspection to
ascertain that they were new oats, his manager might, by due
inspection of the sample, have arrived at the same result.  The
case is, therefore, one of the sale and purchase of a specific article
after inspection by the buyer.  Under these circumstances the rule
caveat emptor clearly applies; more especially as this cannot be
put as a case of latent defect, but simply as one in which the seller
did not make known to the buyer a circumstance affecting the
quality of the thing sold.  The cats in question were 1n no sense
  defective, on the contrary they were good oats, and all that can be
  said is that they had not acquired the quality which greater age
  would have given them.  There is not, so far as I am aware, any
  authority for the position that a vendor who submits the subject-
  matter of sale to the inspection of the vendee, is bound to state
  circumstances which may tend to detract from the estimate which
  the buyer may injudiciously have formed of its value.  Even the
  civil law, and the foreign law, founded upon it, which require that
  the seller shall answer for latent defects, have never gone the
  length of saying that, so long as the thing sold answers to the
  description under which it is sold, the seller is bound to disable
  the buyer as to any exaggerated estimate of its value.
  It only remains to deal with an argument which was pressed
  upon us, that the defendant in the pint case intended to buy
  old oats, and the plaintiff to sell new, so the two minds were not ad
  idem ; and that consequently there was no contract.  This argu-
  ment proceds on the fallacy of confounding what was merely a
  motive operating on the buyer to induce him to buy with one of
  the essential conditions of the contract.  Both parties were agreed
  as to the sale and purchase of this particular parcel of oats.  The
  defendant believed the oats to be old and was thus indused to
  agree to buy them, but he omittsd to make their age a condition
  of the contract.  All that can be said is, that the two minds were
  not ad idem as to the age of the oats ; they certainly were ad
  idem as to the sale and purchase of them.  Supposed a person
  to buy a horse without a warranty, believing him to be sound, and
  the horse turns out unsound, could it be contended that it would
  he open to him to say that, as he had intended to by a id
  horse,  and the sadler to sell  an unsound one, the contract was void,
  because the seller must have known from the price the buyer was
  willing to give, or from his general habits as buyer of horses, that
  he thought the horse was sound? The cases are exactlt parall.
  The result is that, in my opinion, the learnced judge of the
  county court was wrong in leaving the second question to the jury,
  and that, consequently, the case must go down to a new trial.
that is, to buy this parcel of oats without any stipulation as to their
quality; nor could the plaintiff have been led to believe he was
intending to do so.
  But the second direction raises the difficulty.  I think that, if
from that direction the jury would understand that they were
first to consider whether they were satisfied that the defendant
intended to buy this parcel of oats on the terms that it was part of
his contract with the plaintiff that they were old oats, so as to
have the warranty of the plaintiff to that effect  they were properly
told that, if that was so, the defendant could not be bound to a
contract without any such warranty unless the plaintiff was misled.
  But I doubt whether the direction would bring to the minds of the
jury the distinction between agreeing to take the oats under the
belief that they were old, and agreeing to take the oats under the
belief that the plaintiff contracted that they were old.
  The difference is the same as that between buying a horse
believed to be sound and buying one believed to be warranted
sound; but I doubt if it was made obvious to the jury, and I doubt
this the more because I do not see much evidence to justify a
finding for the defendant on this latter ground if the word "old"
was not used.  There may have been more evidence than is stated
in the case; and the demeanour of the witnesses may have
strengthened the impression produced by the evidence there was;
but it does not seem a verv satisfactory verdict if it proceeded on
this latter ground.  I agree, therefore, in the result that there
should be a new trial.
  HANNEN, J.  I think there should be a new trial in this case,
not because the ruling of the county court judge was incorrect, but
because, having regard to the evidence, I think it doubtful whether
the jury sufficiently understood the direction they received to
enable them to take it as their guide in determining the question
submitted to them.
  It appears from the evidence on both sides that the plaintiff sold
the oats in question by a sample which the defendant's agent took
away for examination.  The bargain was only completed after this
sample had been in the defendant's possession for two days.  This,
without more, would lead to the conclusion that the defendant
bought on his own judgment as to the quality of the oats repre-
sented by the sample and with the usual warranty only, that the
bulk should correspond with it.  There might, however, he super-
added to this warranty an express condition that the oats should
be old, and the defendant endeavoured by his evidence to establish
that there was such an express bargain between him and the plain-
tiff as they have not stated whether they answered it in favour of
the defendant, it is possible--and, from the judge, a report, it is
most probable--that they did not so answer it, and the case must
be considered on the assuumption that there was no express stipula-
tion that the oats were old.
  There might have been an implied term in the contract arising
from previous dealings or other circumstances, that the oats should
be old; but the learned judge probably thought the evidence did
not make it neceesary that he should leave this question to the
jury.  And the second question, which he did leave to them, seems
intended to ascertain whether there was any contract at all between
the parties.
  It is essential to the creation of a contract that both parties
should agree to the same thing in the same sense.  Thus, if two
persons enter into an apparent contract concerning a particular
person or ship, and it turns out that each of them, misled by a
similarity of name, had a different person or ship in his mind, no
contract would exist between them : Raffles v. Wichelhaus. (1)
  But one of the parties to an apparent contract may, by his own
fault, be precluded from setting up that he had entered into it in a
different sense to that in which it was understood by the other
party.  Thus in the case of a sale by sample where the vendor, by
mistake, exhibited a wrong sample, it was held that the contract
was not avoided by this error of the vendor :  Scott v. Littledale. (2)
  But if in the last-mentioned case the purchaser, in the course of
the negotiations preliminary to the contract had dicovered that
the vendor was under a misapprehension as to the sample he was
offering, the vendor would have been entitled to show that he had
not intended to enter into the contract by which the purchaser
sought to bind him. The rule of law applicable to such a case is a
corollary from the rule of morality which Mr. Pollock cited from
Paley (1), that a promise is to be performed "in that sense in
which the promuiser apprehended at the time the promisee received
it," and may be thus expressed: " The promiser is not bound to
fulfil a promise in a sense in which the promisee knew at the time
the promuiser did not intend it."  And in considering the question,
in what sense a promisee is entitled to enforce a promise, it
matters not in what way the knowledge of the meaning in which
the promiser made it is brought to the mind of the promisee,
whether by express words, or by conduct, or previous dealings, or
other circumstances.  If by any means he knows that there was no
real agreement between him and the promiser, he is not entitled
to insist that the promise shall be fulfilled in a sense to which the
mind of the promiser did not assent.
  If, therefore, in the present case, the plaintiff knew that the
defendant, in dealing with him for oats, did so on the -assumption
that the plaintiff was contracting to sell him old oats, he was aware
that the defendant apprehended the contract in a different sense
to that in which he meant it, and he is thereby deprived of the
was only the apparent, and not the real bargain.
  This was the question which the learned judge intended to leave
to the jury; and, as I have already said, I do not think it was
incorrect in its terms, but I think that it was likely to be mis-
understood by the jury.  The jury were asked, " whether they were
of opinion, on the whole of the evidence, that the plaintiff believed
the defendant to believe, or to be under the impression that he
was contracting for the purchase of old oats? If so, there would be
to mean that, if the plaintiff believed the defendant to believe that
he was buying old oats, the defendant would be entitled to the
verdict;  but a belief on the part of the plaintiff that the defendant
was making a contract to buy the oats, of which he offered him a
sample, under a mistaken belief that they were old, would not
relieve the defendant from liability unless his mistaken belief were
induced by some misrepresentation of the p]aintiff, or concealment
by him of a fact which it became his duty to communicate.  In
order to relieve the defendant it was necesaary that the jury should
find not merely that the plaintiff believed the defendant to believe
that he was buying old oats, but that he believed the defendant to
believe that he, the plaintiff, was contracting to sell old cats.
  I am the more disposed to think that the jury did not understand
the question in this last sense because I can find very little, if any
evidence to support a finding upon it in favour of the defendant.
It may be assumed that the defendant believed the oats were old,
and it may be suspected that the plaintiff thought he so believed,
but the only evidence from which it can be inferred that the
plaintiff believed that the defendant thought that the plaintiff was
making it a term of the contract that the oats were old is that the
defendant was a trainer, and that trainers, as a rule, use old oats;
and that the price given was high for new oats, and more than a
prudent man would have given.
  Having regard to the admitted fact that the defendant bought
the oats after two days, detention of the sample, I think that the
evidence was not sufficient to justify the jury in answering the
question put to them in the defendant's favour, if they rightly
underatood it;  and I therefore think there should be a new trial.
  Judgment accordingly.
  Attorneys for plaintiff: Park & W. B. Holgon.
  Attorney for defendant :  Haynes.
                      HARRIS' CASE
 In February, 1866, the prospectus of a company in London, called
the Imperial Land Company of Marseilles, Limited, was published,
requiring applicants for shares to pay #1 per share on application
and #4 on allotment, and stating that interest at the rate of 10 per
cent. per annum would during the construction of the works he
paid to the shareholders.
  Mr. Lewig Harrig, of Dublin, filled up a letter of application for
share as follows:---
  " To the Directors of the Imperial Land  Company of Mar-
  seilles, Limitgd.
  "Gentlemen, Having paid to your credit with the National
  Bank the sum of $200, being the deposit of $1 per share on
  200 shares in the above company, I request that you will allot
  me 200 shares of $20 each in the Imperial Land Company of
  Marseilles, Limited, and I hereby undertake to accept the same,
  or any smaller number which you may allot to me, and to pay the
  balance, $19 per share, thereon ;  and I agree to become a member
  of the  company, and request  you to  place my name on the
  register of members, in respect of the shares allotted to me.
  " I am, Gentlemen,
  " Your obedient servant,
  " Name in full:  Lewis Harrig.
  " Address in full :  19, Suffolk Street, Dublin-
  " Profession : Bill broker.
  " Usual signature : L. Harrris.
  " Date : 5th March, 1866."
  This letter was sent by Mr. Harris to the directors through a
  bank, and was duly received.  The directors appointed a committee
  to allot the shares, and 100 shares were allotted to Mr. Harris (1)-
  A letter from the secretary of the company, containing notice of
  this allotment, addressed to Mr. Harris at his Dublin address,
  was put into the post-ofiice at Lombard Street.  There was some
  dispute as to the exact time of posting, but the letter was posted
  either on the 15th or very early in the morning of the 16th of
  March 1866 and was received by Mr. Harris at Dublin on the
  17th.  This letter, after stating that the directors had allotted to
  Mr. Harris 100 shares in the company, on which a balance of
#300 was payable to the bankers of the company not later than
the 21st of March, 1866, proceeded thus :---
  "As the interest warrants attached to the shares bear interest
from the 2lst of March, 1866, punctual payment of the above
balance is requisite.  The bankers are instructed not to receive
payments after that day without charging interest at 10 per cent.
per annum."
  On the 16th of March Mr. Harris had written, and put into the
post at Dublin the folowing letter addressed to the directors in
London, declining to accept shares in the company:---
"Gentlemen,--On the 5th of March instant I paid to your
credit into the National Bank, Dublin, #200, being a deposit of
#1 per share on an application for 200 shares in the above com-
pany.  I hereby give you notice that, inasmuch as up to this date
I have received no allotment, I hereby withdraw the aforesaid
application, and request you will forthwith return me my deposit
of #200, as I shall not accept any shares now allotted, or hold
myself in any way liable."
  The secretary of the company answered on the 17th of March
that it was too late to withdraw the application for shares ;  and
Mr. Harris's name was placed on the register of members as
holding 100 shares.  Mr. Harris, however, by his solicitors con-
tinued to deny that he was a shareholder, and much correspondence
passed on the subject.
  An order was made for winding up the company, and Mr. Harris,
and two other persons in a similar position, on the 23rd of July,
1869, took out a summons to have their names removed from the
list of contributories.
  The Vice-Chancellor Malins dismissed the summons (1), and
Mr. Harris appealed.
  Mr. Cole, Q.C., and Mr. Everitt, for the Appellant:--
  We say that the contract to take shares was not binding until
  the letter allotting them wss received : British and American
  Telegraph Company v. Colson (1); Townsend's Case (2) ; Hebb's
  Case (3).  No doubt there have been case where a contract has
  been held complete when the letter accepting an offer has been
  posted ; but these were all mercantile cases, in which the law is
  necessarily different.  Until the letter has rcached its destination,
  the acceptance may be retracted :  Dunlop v. Higgins (4).
    Moreover, the letter of allotment is not a simple acceptance, but
  introducas a condition as to interest which is a new term :  Oriental
Inland Steam Company v. Briggs (1); English and Foreign Credit
Company v. Arduin (2).
Another objection is, that the allotment is void as being made
by a committee instead of by the directors, in direct contravention
of the seventh clause of the articles.
  Mr. Glasse, Q.C., and Mr Higgins Q.C., for the liquidators were
not called upon.
SIR W. M. JAMES, L.J. :--
  I feel no doubt whatever as to the propriety of the judgment of
the Vice-Chancellor in this case.
  Three grounds have been taken on behalf of the Appellant.
One is, that upon the construction of the articles of association the
allotment was invalid, because it was made by a committee of the
directors.  But the articles have in terms provided that the
directors might delegate anything to a committee ;  and that
they did delegate this duty to this committee appcars in evidence
before us.  It was a proper and rcasonable mode of dcaling with
such a thing as the investigation of the applications for shares
and the allotment of them.  It appears to me, therefore, that
argument has been addressed to us ; that there was a letter posted
In Dublin recalling the application for shares before the letter
posted in London containing the notice of the allotment was re-
ceived in Dublin ; the letter of revocation not being in the course
of post capable of arriving in London before the letter of allot-
ment was actually posted by the company.
  Now it appears to me that the Vice-Chancellor's decision is
correct, and that the contract was completed the moment the
notice of allotment was committed to the post addressed to the
address in Dublin which Mr. Harris himself had given.  That
decision seems to me to lie entirely in accordance with a grcat
number of cases in this Court, and to be utterly undistingnishable,
in principle or in fact, from Dunlop v. Higgins (3), a case which is
binding upon us, and in which every principle argued before us was
discussed at length by the Lord Chancellor in giving judgment.
He arrived at the conclusion that the posting of the letter of
acceptance is the completion of the contract; that is to say, the
moment one man has made an offer, and the other has done some-
thing binding himself to that offer, then the contract is com-
plete, and neither party can afterwards escape from it. That is in
fact the decision in Hobb's ffCase (1), though in that particular case
a distinction was taken by the Master of the Rolls that the com-
pany chose to send the letter to their own agent, which agent had
not been authorized by the applicant to receive it on his behalf.
  Against this current of authority there is the case of British
and American Telegraph Company v. Colson (2), in which the
of a case in the House of Lords---established a distinction which
does not apply to this case at all.  The Court there held that
although the posting of the letter, if the letter arrives, is a com-
plete contract, yet if from any cause, such as a failure of duty by
the Post Office, the letter never arrives at all, then there is a
difference.
  It seems to me not necessary to express any opinion as to whether
that distinction is sound or not, but that was the ground upon
which the Judges proceeded in that case.  In this case the letter did
arrive, and having arrived the contract was complete, and could
not be revoked, from the time when the letter was posted.  It was
completed in exactly the way which the Appellant desired, that is
to say, he gave his address in Dublin, and the company, according
to the ordinary usage of mankind in those matters, returned their
answer through the post.  That is a complete contract.  It does
not signify what was the particular hour of arrival of the one letter
or the other, or which was the first, the delivery in r~n or the
  deliverg in Dublin.  That appears to me wholly immaterial, be-
cause the contract was completed at the time when the letter of
allotment was properly posted by the company.
  The other point raised was, that there was a condition annexed
to this allotment letter, and on this point the case of English and
Foreign Credit Company v. Arduin (1) was cited.  Now the facts
in that case were such as persons might differ about, and the
chequor Chamber held one way while the House of Lords held
another way.  But the principle upon which they all proceeded,
which is the only thing we have to deal with, was, that where there
is an acceptance of an offer, if there is to be a term or condition
imposed, it must be clearly so stated, otherwise it is to be con-
sidered simply as a notification which may have such effect as it
ought to have in a Court of Law.  Here the acceptance was un-
qualified :--[His Lordship read the letter of allotment.]  It appears
to me that the statement as to interest does not introduce a
new stipulation.  It is not that the allottee is to have the shares
provided that he undertakes to pay 10 per cent., but it is that he
ought to pay exactly on the 21st of March, 1866, and that by way
of indulgence the directors have told the bankers, that if the
allottee subsequently pays the same rate of intereet which he would
be entitled to receive, then they are authorized to receive pay-
ment, but not otherwise.  It is a mere notification, not intended to
be a new stipulation, and it never was considered by the Appellant,
or by anybody who received such a letter, as a new term intro-
duced.  It would be contrary to the usage of all mankind to treat
this as being the introduction of a new term, altering or affecting
the express acceptance of the application for shares.
  I am of opinion, therefore, that the order of the Vice-Chancellor
be dismissed with costs.
SIR G. MELLISH, L.J. :---
  I am of the same opinion, and I agree with what the Lord
justice has said on the first and the last grounds, and also on the
second ground.  The only part of the case upon which I wish
to add any observations is on the second ground, wluich raises a
question of very great general importanvce, and that is this:
When a person in one part of the country writes to a person in
another part of the country a letter containing an offer, and either
directly or impliedly tells  him to send his answer by post, and an
answer accepting that offer is returned by post, when is a com-
plete contract made ? Is it made at the time when the letter
accepting the offer is put into the post, or is it not made until that
letter is received?  It was contended before us that it is not
made until the letter is received; so that until it is received the
contract may be revoked by the person who has made the offer.
  Now throught the argument I have been forcibly struck with
the extraordinary and very mischievous consequences which would
follow if it were held that an offer might be revoked at any time
ntil the letter accepting it had been actually received. No mer-
cantile man who has received a letter making him an offer, and
has accepted the offer, could safely act on that acceptance after
he has put it into the post until he knew that it had been received.
  Every day, I presume, there must be a large number of mercantile
letters received which require to be acted upon immediately. A
person, for instance, sends an order to a merchant in London offering
to pay a certain price for so many goods.  The merchant writes an
answer accepting the offer, and goes that instant into the market
and purchases the goods in order to enable him to fulfil the contract.
But according to the argument presented to us, if the person who
has sent the offer finds that the market is falling, and that it will
be a bad bargain for him, he may at any time, before he has received
the answer, revoke his offer.  The consequencas might be very
serious to the merchant, and might be much more serious when
the parties are in distant countries.  Suppose that a dealer in
Liverpool writes to a dealer in New York and offers to buy so
many quarters of corn or so many bales of cotton at a certain
price, and the dealer in New York, finding that he can make a
favourable bargain, writes an answer accepting the offer. Then,
according to the argument that has been presented to us to-day,
during the whole time that the letter accepting the offer is on the
Atlantic, the dealer who is to receive it in Liverpool, if he finds
that the market has  fallen, may send a message by telegraph and
revoke his offer.
  Nor is there any difference between an offer to receive shares
and an offer to buy or sell goods. And yet, if the argument is
sound, then for nearly ten days the buyer might wait and specu-
late whether the shares were rising or falling and if he found they
were falling he might revoke his offer.  Those consequences are
very extraordinary and I always understood the law to be the
other way until the case of British and American Telegraph Com-
pany v. Colson (1), which has caused some doubt on the subject-
  I will shortly refer to the previous cases on the subject.  The
first case is Adams v. Lindgell (2).  No doubt there were two
points in that case.  An offer was sent by post, but the letter was
misdirected through the mistake of the party who sent it, and
therefore did not arrive until two days afterwards.  And that
point was disposed of during the argument, that inasmuch as it
was the fault of the party sending it, the having been
written and posted as soon as it did arrive, no advantage could
be taken of the delay caused by the misdirection.  But the person
who sent the offer, finding no answer had arrived, sold the goods
the answer was actually received there could be no binding con-
tract between the parties, and therefore no breach of it.  But the
Court of King's Bench said that if the law was so, "no contmct
could ever be completed by the post.  For if the Defendants were
not bound by their offer when accepted by the Plaintiffs till the
answer was received, then the Plaintiffs ought not to be bound till
after they had received the notification that the Defendants had
received their answer and assented to it; and so it might go on
ad infinitum."  That appears to me to be at any rate an expres-
sion of opinion on the part of the Court there, that when an offer
is made by letter, and is accepted by a letter which is posted, then
there is a binding contract between the parties from the time
when the letter is posted.
  In Dunlop v. Higgins (3) the question was directly raised whether
the law was truly expounded in the case of Adams v. Lindsell, and
the House of Lords approved of the ruling in that case.  The Lord
Chancellor Cottenham said, in the course of his judgment, that in
the case of a bill of exchange, notice of dishonour given by putting
a letter into the post at the right time had been held quite sufii-
cient, whether that letter was delivered or not; and he referred to
Stocken v. Collin (4) as an authority on that point, he being clearly
of opinion that the rule as to accepting a contract was exactly the
same as the rule as to sending notice of dishonour of a bill of
exchange.  He then referred to the case of Adams v. Lindsell, (1),
and quoted the observation of Lord Ellenborough.  That case there-
fore appcars to me to be a direct decision that the contract is
made from the time when it is accepted by post.
  There is then the case of Duncan v. Topham (2), in which there
were no doubt  several questions, on one of which, whether posting
the acceptance was sufiicient, Mr. Justice Cresswell told the jury
that if the letter accepting the contract was put into the Post
Office, and lost by the negligence of the Post Office authorities
the contract would nevertheless be complete.  There was then a
motion for a new trial, and though #r. Baron BramiugU, in BritigF
thought the case not properly reported, still it appears as if Mr.
Justice Maule and Chief Justice Wilde both assented to the ruling
of Mr. Justice Cresswell, and refused the rule on that point.
of Mr. Justice Cresswell, and refused the rule on that point.
  In addition to that, there is the case of Potter v. Sanders (4),
which is also a direct decision of a Court of Equity on the point.
  Against them there is simply this case of British and American
Telegraph Company v. Colson, and that is not a direct decision on
this point.  The Lord Chief Baron, in the course of his judgment,
says, it may be that if the letter arrives in time, then the contract
will be treated as having been made from the time when the
letter was put into the post; but I do not see how there can be
any relation back in a case of this kind, as there may be in bank-
ruptcy.  If the contract, after the letter has arrived in time, is to
be treated as having been made from the time the letter is posted,
the reason is that the contract was actually made at the time
when the letter was posted.  Still that case is not a direct decision
on the point before us, though I confess I have great diffculty
in reconciling it with the previous decision in Dunlop v. Higgins (5).
That case was commented on at considerable length both by the
Lord Chief Baron and by Baron Bramwell, but they only com-
mented on the facts of the case, and shewed---which I think they
did shew---that according to the facts of the case the Plaintiff
might very well have had a verdict, even if the rule of law had
been that the contract was not made until the letter arrived,
because there the only thing which prevented the arrival of the
letter was the bad weather, which made the mail very late. And
therefore I agree, upon the facts of that case, that the Plaintiff
might have recovered, even although the law was that the contract
was not made until the letter arrived.  But then the real question
before the House of Lords in Dunlop v. Higgins was, whether the
ruling of the Lord Justice General was correct in point of law,
and the House of Lords held that it was correct.
  However I agree with the Lord Justice that it is not necessary
to give any decisive opinion on the point, because although the
contract is complete at the time when the letter accepting the
offer is posted, yet it may be subject to a condition subsequent
parties may act on the assumption that the offer has not been
accepted.  That, however, is not the case before us; the letter
did arrive in due time; and the question is whether, under that
state of circumstancas, the parties are bound by the contract.
  Solicitor for Mr. Harris : Mr. W. C. Smith.
  Solicitors for the Liquidators : Messrs. G. S. & H. Brandon.
            HARRIS v. NICKERSON.
    Auctioneer, Liability of--Withdrawal of Goods Advertised for Sale.
   The defendant, an auctioneer, advertised in the London papers that certain
  brewing materials, plant, and office furniture would be sold by him at Bury St.
  Edmunds on a certain day and two followiug days.  The plaintiff, a commision
  broker in London, having a commision to buy the office furniture, went down to
  the sale; on the third day, on which the furniture was advertised for sale,all the
  lots of furniture were withdrawn.  Upon which the plaintiff brought an action
  Held, that plaintiff could not maintain the action : for that the advertising the
  sale was a mere declaration and did not amount to a contract with any one who
  might act upon it, nor to a warranty that all the articles advertised would be put
  up for sale.
  CASE on appeal from the City of London Court.
  The following were the particulars of claim: This action is brought
to recover 2l. 16s. 6d. for two days loss of time by the plaintiff, at
the special instance and request of the defendant on the plaintiff
attending at a public sale by auction, advertised by the defendant
in the London newspapers to be held at the town of Bury St.
Edmunds, on the 14th of August, l872, for the disposal of certain
goods and ofiice fittings under bills of sale, and on the faith of
which the plaintiff duly attended, and was ready to purchase in
pursuance of such request and public notification aforesaid; but
the defendant, in breach thereof, did suddenly and without notice
withdraw the said goods and ofiice fittings from the sale, and by
which the plaintiff lost not only his two days time and railway
fare, but the additional expense of two days board and lodging.
  Two days loss of time .  .  .  .  .#1  1  0
  Third-class railway fare .  .  .  . 0 14  6
  Two days board and lodging  .  .  . 1  1  0
                                     ---------
                                     #2 16  6
                                     ---------
  At the hearing it was proved that the sale was advertised as
stated by the plaintiff, and catalogues circulated and distributed.
A copy of the catalogue was put in evidence, by which it appeared
that "Under bills of sale" certain brewing materials, plant, and
office furniture, would be sold by auction by Mr. Nickerson (the
defendant), at Bury St. Edmunds, on Monday, 12th of August
1872, and following days.  The conditions were the usual condi-
tions; the first being " The highest bidder to be the buyer."
  It was also proved that the plaintiff had a commission to pur-
chase at the sale the " office furniture," advertised to be sold.
  The plaintiff went to Bury St. Edmunds and attended the sale,
and purchased lots other than those described in the catalogue as
"office furniture."
  The articles described as " office furniture" were not put up for
sale, but were withdrawn.
  On these facts the Judge gave judgment for the plaintiff, but
at the request of the defendant, gave him leave to appeal.
  If the Court was of opinion that the plaintiff was not entitled to
recover, the judgment was to be set aside and a nonsuit entered.
  Macrae Moir, for the defendant, contended that it was clear that
the mere advertising of a sale did not amount to a contract with
anybody who attended the sale that any particular lot, or class
of articles advertised, would be put up for sale.  He referred to
Warlow v. Harrison (1); and Payne v. Cave. (2)
 [QUAIN, J. referred to Mainprice v. Westley. (3)]
Warton for the plaintiff, contended that the advertisement of
the sale by the defendant was a contract by him with the plaintiff,
who attended the sale on the faith of it, that he would sell the
property advertised according to the conditions ; and tlue withdrawal
of the property after the plaintiff hsd incurred expenses in conse-
quence of the advertisement was a brcach of such contract.  A
reasonable notice of the withdrawal, at all events, ought to have
been given.  He likened the case to that of an advertisement of
a reward, which, though general in its inception, becomes a pro-
mise to the particular person who acts upon it before it has been
withdrawn. (4)  He referred to Spencer v. Harding. (5)
  Macrae Moir was not heard in reply.
  BLACKBURN J.  I am of opinion that the judge was wrong.
  The facts were that the defendant advertised bona fide that certain
things would be sold by auction on the days named, and on the
third day a certain class of things, viz., office furniture, without
any previous notice of their withdrawal, were not put up.  The
plaintiff says, inasmuch as I confided in the defendant's advertise-
ment, and came down to the auction to buy the furniture (which
it is found as a fact he was commissioned to buy) and have
had no opportunity of buying, I am entitled to recover damages
from the defendant, on the ground that the advertisement amounted
to a contract by the defendant with anybody that should act upon
it, that all the things advertised would be actually put up for
sale, and that he would have an opportunity of bidding for them
and buying.  This is certainly a startling proposition, and would
be excessively inconvenient if carried out.  It amounts to saying
that any one who advertises a sale by publishing an advertise-
ment becomes responsible to everybody who attends the sale for
his cab hire or travelling expenses.  As to the cases cited: in
the case of Warlow v. Harrison (1), the opinion of the majority
of the judges in the Exchequer Chamber appears to have been
that an action would lie for not knocking down the lot to the
highest bona fide bidder when the sale was advertised as without
reserve; in such a case it may be that there is a contract to sell
to the highest bidder, and that if the owner bids there is a breach
of the contract; there is very plausible ground at all events for
saying, as the minority of the Court thought, that the auctioneer
warrsnts that he has power to sell without reserve.  In the pre-
sent case, unless every declaration of intention to do a thing
creates a binding contract with those who act upon it, and in
all cases after advertising a sale the auctioneer must give notice
of any articles that are withdrawn, or be liable to an action, we
cannot hold the defendant liable.
  QUAIN, J.  I am of the same opinion.  To uphold the judge's
decision it is necessary to go to the extent of saying that when an
auctioneer issues an advertisement of the sale of goods, if he
withdraws any part of them without notice, the persons attending
may all maintain actions against him.  In the present case, it is
to be observed that the plaintiff bought some other lots; but it is
said he had a commission to buy the furniture, either the whole
or in part, and that therefore he has a right of action against the
defendant.  Such a proposition seems to be destitute of all autho-
rity ; and it would be introducing an extremely inconvenient
rule of law to Bay that an auctioneer is bound to give notice of
the withdrawal or to be held liable to everybody attending the
sale.  The case is certainly of tlue first impression.  When a sale
is advertised as without reserve, and a lot is put up and bid for,
there is ground for saying, as was said in Warlow v. Harrison (1),
that a contract is entered into between the auctioneer and the
highest bona fide bidder ; but that has no application to the present
case ; here the lots were never put up and no offer was made by
the plaintiff nor promise made by the defendant, except by luis
advertisement that certain goods would be sold.  It is impossible
to say that that is a contract with everybody attending the sale,
and that the auctioneer is to be liable for their expenses if any
single article is withdrawn.  Spencer v. Harding (2), which was
cited by the plaintiff's counsel, as far as it goes, is a direct autho-
rity against his proposition.
  ARCHIBALD, J.  I am of the same opinion.  This is an attempt
on the part of the plaintiff to make a mere declaration of inten-
tion a binding contract.  He has utterly failed to shew authority
or reason for his proposition.  If a false and fraudulent representa-
tion had been made out, it would have been quite another matter.
But to say that a mere advertisement tbat certain articles will
be sold by auction amounts to a contract to indemnify all who
attend, if the sale of any part of the articles does not take place,
is a proposition without authority or ground for supporting it.
                             Judgment for the defedent.
  Attorney for plaintiff:  H. Sydney.
  Attorneys for defendant: Young, Jones, Roberts, & Hale.
  LINDSAY and OTHERS v. CUNDY and ANOTHER.
   Contract induced by Fraud--Passing of Property--Conviction of Fraudulent
  Party, Effect of under 24 & 25 Vict. c. 96, s. 100--On Conviction " the
  Property shall be restored."
  By 24 & 2~ V~ct. c. 90, B. 1C0, iE any pcrson ~iltD (~ntcr alia) oE olitiinin;
  Any chattel, money, or other property, by false pretences, " shall be indicted on
  behalf of the owner or the property, and convicted, in such case the property shall
  be restored to the owner."
  By s. 1 the term " property" shall include "not only such property as shall
  have been originally in the possession or under the control of any party,but also
any property into which the same may have been converted or exchanged, and
anything acquired by such conversion or exchange, whether immediatsly or
otherwise."
  A. Blenkarn took premises st 37, Wood Street, London, and wrote to the
plaintiffs at Belfast ordering goods of them.  The letters were dated 37, Wood
Street, and signed A. Blenkarn & Co., but in such a way as to look like A. Blenk-
iron & Co., of which name there was a long-established firm at 123, Wccd Street.
One of the plaintiffs had known something of this firm, and the plaintiffs entered
into a correspondence with Blenkarn, and ultimately supplied the goods ordered,
addressing the letters and goods to " A. Blenhiron & Co., 37, Wood Street."
The fraud having been discovered, Blenkarn was indicted and convicted of obtain-
ing the goos by false pretences.  Before the conviction, the defendants had bona#
fide purchased the goods or Blentarn, and resold them to other persons.  The
  laintiffs having brought an action for the conversion of the goods:--
  Held first, that, as the plaintiffs intended to deal with the person at 37, Wood
him, the property in the goods passed, subject to be divested while in Blenkarn's
hands, or in the hands of a purchaser with notice or the fraud; and that the
defendants therefore, having purchased bona# fide, acquired a good title.
  Secondly, that the title acquired under the statue by the owner of the pro-
perty dated from the conviction, and had no relation back to the original fraud;
and that, the defendants having parted with the goods when they had a good
title, the plaintiffs could recover neither the goods nor the proceeds.
  Held, also, by Blackburn and Mellor, J., that the definition of "property "
in s. 1 did not apply to the word " property" in s. 100.
Hardman v. Booth (1 H. & C. 803 ; 32 L. J. (Ex.) 105) distingished.
1N)ikling pv 1Haps (21 L. T. (N.8S) <Ex.)>765) diasseted freo
  DECLARATION for the conversion by the defendants of 250 dozen
handkerchiefs of the plaintiffs.
  Pleas not guilty and donial of plaintiff's property,
  Issue joined.
  At the trial, before Blackburn, J., at the Michaelmas sitting in
Middlesex, it appeared that one Alfred Blenkarn, with the intent
to commit frauds, hired a third floor in some premises, No. 37
Wood Street and 5 Little Love Lane, Cheapside, there being a
well-known and respectable firm of the name of William Blenkiron
& Sons at N. 123, Wood Street. Blenkarn wrote orders, at the
end of 1873, to the plaintiffs, who are linen manufacturers at
Belfast, for a large quantity of linen cambric handkerchiefs, his
letters having a printed heading, "37, Wood Street, Cheapside,
London," "Entrance, second door in Little Love Lane," and he
signed "A. Blenkarn & Co." in such a way as to look like "A.
Blenkiron & Co."  One of the plaintiffs had known the firm of
Blenkiron several years before, and knew they were respectable.
And the plaintiffs wrote several letters addressed to Messrs. Blenk-
iron & Co., 37, Wood Street, and they forAarded several lots of
handkerchiefs to the same address; heading the invoices " Messrs.
Blenkiron & Co., London, bought of Roberts, Lindsay, & Co."
The fraud was afterwards discovered, and Blenkarn was indicted
and convicted in April, 1874, of having obtained the handkerchiefs
by the false pretence that he was Blenkiron & Sons.  In the mean-
time the defendants had bought of Blenkarn 250 dozen cambric
handkerchiefs, and had resold them all to different persons before
the fraud of Blenkarn was discovered.
  The jury, in answer to questions by the learned judge, found,
in effect, that the defendants had bona# fide purchased the hand-
kerchiefs of Blenkarn, and that they were part of the handker-
chiefs sold by the plaintiffs.
  The learned judge reserved the question for the Court, whether
on the facts and findings the action was maintainable;  and refused
to enter judgment for either party.
  Notices of motion to enter judgment having bsen given by
the plaintiffs and defendants respectively.
  Edwards, Q.C., and Besley (with them Thesiger, Q.C.), in support
of the motion to enter judgment for the plaintiff.  No property
passed from the plaintiffs, inasmuch as they intended to contract
with Blenkiron & Co. and not with Blenkarn, so that there was
no contract of sale at all :  Hardman v. Booth. (1)
  [BLACKBURN, J. No doubt that case is good law, and was
affirmed in Holling v. Fowler (1); but the question is, whether
we should draw the same inference from the evidence as the Court
of Exchequer did.  Blenkiron & Co. are at 123 Wood Street;
the plaintiffs addressed their letters and sent the goods to the
person, be he Blenkarn or Blenkiron, 37, Wood Street.]
  Yes; but under an entire mistake as to the person to whom
they were selling.  In Benjamin on Sale, p. 48 it is said: " Where
a person passes himself off for another, or falsely represents him-
self as agent for another, for whom he professes to buy, and
thus obtains the vendor's assent to a sale, and even delivery
of the goods, the whole contract is void; it has never come into
existence, for the vendor never sssented to sell to the person
thus deceiving him :" citing Hardman v. Booth (2), and Higgons
v. Burton (3);  and then the author adds:  "The contrsracts in
necessary to bring them into existence."  See also Boulton v
 property obtained by false pretences is to lie restored to the owner
on conviction of the guilty party; that is, on the conviction, the
property revests in the owner : Scattergood v. Sylvester. (1)  That
case was decided under 7 & 8 Geo. 4, c. 29, s- 57, but the terms of
that section are almost identical with those of s. 100 of the present
Act.  The Court of Exchequer, in Nickling v. Heaps (2), have ex-
pressly decided that where goods have been obtained by false
pretences, on conviction there is a relation back to the time of
the original fraud.  Kelly, C.B., said : "Having regard to the
authorities and to the statute, I am clearly of opinion, that upon
the conviction of Ford for obtaining these goods by false pre-
tences, there was a relation back to the time of the original fraud
committed on the defendants, namely, the time at which Ford
obtained these goods from them.  These goods, therefore, were
the property of the defendants from the first, and the property was
in law never out of them."  And Martin, B.: " What the defend-
ants did was really in fact no more than to take their own goods.
to after all.  On a more mature consideration of the section of the
Act of Parliament, and the case of Scattergood v.  Sylvester (1), the
effect and operation of the statute, in my judgment (though I
was at first inclined to take a different view of it), is, that the
property in these goods was never out of the defendants at all,
and that, therefore  they only in fact possessed themselves of their
own property."
  [Sir H. S. Giffard, S.G., for the defendants, referred to Horwood
v. Smith (3), as deciding the direct contrary.]
  That case was decided under the old statute, 21 Hen. 8, c. 11,
which is in different terms from the modern statutes. (4)  Parker
v. Patrick (1) will be relied on by the other side, but that case
was before 7 & 8 Geo. 4, c. 29, which extends to false pretencecas as
well as felony ; and, moreover, in Peer v. Humphrey (2) that case
was doubted; and it was held that even if the defendant, a bona#
fide purchaser, has parted with the goods before conviction, the
owner may recover the value in trover.
  [BLACKBURN, J.  That was a case of felony.]
The statute (24 & 25 Vict. c. 96) by s. 1 says that property shall
include anything into which the property has been converted,
that is, the proceeds; so that independently of the doctrine of
relation, the defendants here are in possession of the proceeds of
these handkerchiefs, and the plaintiffs therefore have a right to
have that " property " restored to them.
  Sir H. S. Giffard, S.G. (with him B. Francis Williams), for the
defendants.
  [BLACKBURN, J.  We are agreed that the property possed from
the plaintiffs, as they intended to sell to the people at 37, Wood
Street, and sent the goods there.]
  The distinction between larceny and false pretsnces must be
borne in mind.  In the case of larceny neither the right of posses-
sion nor property passes from the owner.  But in the case of
obtaining goods by false pretences the property passss until the
transaction be avoided by demand of the goods or otherwise.  In
Horwood v. Smith (3) the goods were feloniously taken, but there
had been a sale in market overt to the defendanft, so that the
property passsd to him, just as in the present case;  and the Court
held that as the defendant had parted with the goods--although
after notice of the felony--before the conviction, the plaintiffs could
case, for the language of 24 & 25 Dict. c. 96, s. 100, is not mate-
rially dufferent from that of 2I Ben. 8, c. 11 ; whether a man be
restored to his property or his property be restored to a man would
seem to amount to the same thing.  Itl is true that in Scattergood
v. Sylvester (4) it was said by the Court, "the property should be
restored to the owner" meant the right of the owner should be
revested; the point however decided was only that the owner
could recover in trover under the statute without a writ of restitu-
tion; the stolen cow was still in the defendant's possession after
the conviction, and Patteson, J., says expressly, " I think the
statute revests the property on conviction ;  and any one who after-
wards converts the chattel may be sued by the owner."  So that
the only case in which it is said that there is any relation back
is Nikling v.  Heaps1  (1) That case is very difficult to understand;
the conviction there was after the trial, the Court must have
enter the verdict for the defendant, but only granted a new trial
unless the plaintiff consented to a verdict for nominal damages
with casts.  The proper construction of the statute, therefore, is,
that it enables the owner to recover the goods or proceeds against
any one who has had the goods in his possession after the con-
viction ; but not against a person who' luke the defendants, had a
perfectly good title, before the conviction, when they sold the
goods.  [He also referred to White v. Spettigu. (2)]
  Besley was heard in reply.
  BLACKBURN, J.  I think that the judgment should be entered
for the defendants.  The first question that arises is one of fact,
were these goods, which were originally the property of the plain-
tiffs, Messrs. Lindsay & Co., obtained from them by fraud so
that the property passed from them under a contract, though a
contract liable under certain circumstancas to be avoided ; or did
the property never passes from the plaintiffs at all?  Upon that
question reliance was placed on the case of Hardman v. Booth (3),
and that case unquestionably lays down very gced law.  The ques-
tion for us is whether the facts are the same, and whether we ought
to draw the same inference from the facts that the Courts of Ex-
chequer did in Hardman v. Booth. (3)  That case lays down this
law, that where a person has sold goods to A. B., or has been led to
believe he has sold them to A. B., and deliversd them as he sup-
poses to A. B., and the person who  led him into that belief receives
and carries off the goods, and disposed of them to another---there
has not been a selling to the person who fraudulently represented
himself to be a servant or agent of the supposed purchaser, A. B.,
and he cannot confer a good title upon any one else, the property
never having vested in him.  The facts in Hardman v. Booth (1)
seem to have been these:  The plaintiffs, meaning to deal with
Thomas Gandell & Sons, went to their office and took an order
from a person who, as they believed, and in point of fact was, the
son of Thomas Gandell, and whom they believed to be acting for
the firm of Thomas Gandell & Sons; and they took away a card
of the firm of Thomas Gandell & Sons, to show to whom they
were to send them, and they sent them to Thomas Gandell &
Sons, place of busness.  Edward Gandell, who was the son of
Thomas Gandell, had a private business of his own, and he it was
who in that office had given the order for Thomas Gandell & Sons
without any authority, and he was, as it was proved upon the
trial, who intercepted the goods when they arrived at Messrs
Gandell's, and carried them away, and sold them to the defendant.
Upon these facts, the Court of Exchequer drew the inference that
there never was any property vested in Edward Gandell as pur-
chaser under a contract voidable through fraud; for there never
was intended to be a contract with anybody but Thomas Gandell
& Sons, and in point of fact that contract did not exist, because
Thomas Gandell & Sons had not meddled in the matter in any
way; and what had been done by the plaintiffs did not in the
slightest degree constitute a contract with Edward Gandell vesting
the property in him.  I think that is good law, and the inference
would seem upon the evidence to have bsen correctly drawn.
  The same law was applied in the case of Hollins v. Fowler (2),
which was subsequently affirmed in the House of  Lords, the facts
there being clear.
  When we look at the facts of the prsent case they are not the
same at all.  The plaintiffs having received a letter from a person
who signed himself with the name of "Blenkaren," looking like
" Blenkiron," & Co, of 37, Wood Street they address all their
letters to him, and send the goods to him at 37, Wood Street, and
deliver them there, and everything is done with him at 37, Wood
Street. The fact was, that there was a highly respectable firm of
the name of William Blenkiron & Co., at 123, Wood Street, and
this man had set up a pretended business at 37, Wood Street' in
the hope that people would confuse him with his namesake, and
he would get the advantage of his namesake's character.  In this
particular case he did get the advantage of his namesake's  cha-
racter, and it being found that he did so intentionally, and that it
was a fraudulent intention he was guilty of obtaining the goods
under false pretences; but none the less was the contract by the
plaintiffs made with hi.  It was made with him exactly upon
the same reasoning as led to the decision in the criminal case
before Crompton, J. (1), where the criminal having an ill-will
against A., and thinking that the next sentry was A., when in fact
it was B., shot at him, having in his mind the intention to kill A. ;
the man lived, and under the statute it was necessary to indict the
prisoner for shooting at with intent to murder a particular person,
and the indictment wss laid that he shot at B., with intent to murder
B. ; and Crompton, J., held, that if the jury thought the prisoner
intended to kill the man he shot at, who in fact was B., though
less find him guilty.  The prisoner was found guilty, and sentence
of death was recorded; and the conviction was upheld without
any doubt. So here upon the facts of this case, the intention of
the plaintiffs was to contract with the person who was carrying on
business at 37, Wood Street, and there was therefore a contract
with him, although it was obtained by fraud.
  No#, to come to the other part of the ose. The rule of law
ground of fraud, you may avoid it, so long as the goods remain in
person has bona# fide acquimd an interest in the goods, you cannot
as against that person, avoid  the contract.  Where the goods have
come into the hands of a bona# fide purchase you cannot take
them back.  The case is very closely analogous to the old common-
law rule, in the case of felony or trespass.  If gceds are stolen or
taken away by trespass, no title whatever is conferred, in general,
upon a purchaser from the person who took them, however bona#
fide the purchase may have been; but if the sale be in market
overt to a person who has no knowledge of the felony or tres-
pass, then the purchaser acquires the property, notwithstanding
the gceds had been taken from the owner by felony or trespass.
  Let us now see how the statutes stand.  The first was the
statute 21 Hen. 8, c. 11, which said that when the felon had been
convicted, the owner should be " restored to his goods."  Under
that statute came the decision in 1788, in the case of Horwod v-
Smith, where the facts were, that the defendant, a bona fide
purchaser of sheep in market overt, hearing there was a prosecu
tion for felony going on against the person of whom he purchased
them, and having distinct notice of it, nevertheless sold the sheep;
and the question was whether, after the subsequent conviction of
the felon, the defendant having previously parted with the pro-
perty, the original owner of the sheep could sue him in trover ; and
the Court held he could not.  Lord Kenyon, C.J., says: " There is
no doubt but that the original owner of the goods who prosecuted
the felon to conviction, has a right to a restitution of them.  But
the question here is, whether he can maintain this action of trover
against the defendant, who was not in possession of them at the
time of the attainder; and we are of opinion that he cannot.
  To maintain this action, the defendant should have been in pos-
session at the time of the attainder.  But if the plaintiff could
any one of the various persons through whose hands the goods
may have passed in the intermediate time."  What Lord Kenyon
seems to consider as an absurdity, is the very thing the plaintiffs
seek to do here.  Buller, J., says: "This is an action of trover
for sheep; and in order to maintain it the plaintiff must prove
that the sheep were his property, and that while they were so
they came into the defendant's possession, who converted them to
his use.  Now when did the plaintiff's property begin in this
case?  Not till after the conviction of the felon; because before
that time the property had been altered by a sale in market overt.
From the time of the conviction the defendant has never had pos-
session of the sheep." Altering the words very slightly, they would
apply to the present case. When did the plaintiffs' property begin,
that is to say, begin after the time the defendants had got the
goods  in this case ?  Not till after the conviction of the person guilty
of the fraud, because before that time the property had been altered
by a bona# fide purchase from a person who held them under a
voidable but not void contmct.  Altering these few words, every-
thing in the judgment of Buller, J., is applicable to the present
case.
  The statute of 7 & 8 Geo. 4, c. 29, s. 57, used the same word
"restored," applying the restoration not only to cases of felony,
but also to cases of misdemeanor ; and the pint statute, 24 &
25 Vict. c. 96, s. 100, is in almost the ssme words as the statute
of Geo. 4.  And certainly, looking to the plain meaning of the
words, " if the guilty person shall be convicted the property shall
be restored," one would say it means, the property shall be restored
from that time, not that it shall be considered to have been re-
stored.  The case of Horwood v. Smith (1) shews decidedly that
the latter is not the meaning.  And in the case of Soattergood v.
Sylvester (2), though that was not the point before the Court, the
Court used language which shews very strongly they had in their
minds that the right to the stolen property was only from the
conviction, and that then it was a fresh title that was given.  The
case relied upon, and properly mlied upon, to the contrary is
Nickling v. Heaps (3), which to my mind certainly us not very
the defendant having parted with his goods to Ford under such
circumstances that Ford had a voidable contract, and had con-
ferred upon Nickling, who, as the facts are stated, was a bona# fide
purchaser, a title that was good, and the defendant committed a
conversion by taking away these goods from him.  Subsequently
to the conversion Ford was convicted of false pretencas and some-
how or other the Court of Exchequer seem to have thought (I can-
not make out upon these facts how) that that fact preventsd there
being a conversion before.  If it had been a case of larceny and
not false pretences, I could have understood it.  Mr. Baron Martin,
however, certainly is reported to have said that the defendant had
only taken away his own goods, which is not the case if the facts
are correctly stated.  He implies that the word "restored," in his
opinion, must mean replaced ab initio, from the time the fraud was
committed.  I can only say that it seems to me that the words of the
statute do not bear that meaning.  The case I have just cited of
Horwod v. Smith (1) is a strong authority for shewing that the
similar words in the statute of Hen. 8 do not bear that meaning.
However unwilling I may be to differ from the judgement in the
Court of Exchequer, I cannot think the point was so decided as
to be binding upon us; for I may observe that after all it resulted
in a verdict for the plaintiffs for 40s.  I do not think we can be
bound by that decision, and I greatly prefer to act upon the autho-
rity of the case of Horwood v. Smith (1), and to say that " restored "
means restored from the time of conviction.
  There remains one other point only to be considered.  The
statute 24 & 25 Vict. c. 96, repeats in s. l00, the words of the
former statute of Geo. 4.  In the event of conviction "the pro-
perty shall be restored to the owner;" but in the interpretation
clause (s. 1) (which is a modern innovation and frequently does
a great deal of harm, because it gives a non-natural sense to
words which are afterwards used in a natural sense, without
noticing the distinction), it is ssid:  " The term 'property' shall
include every description of real and personal property, money,
debts, and legacies, and all deeds and instruments relating to or
evidencing the title or right to any property, or giving a right to
recover, or receiveany money or goods, and shall also include, not
only such property as shall have been originally in the possession
or under the control of any party, but also any property into or
for which the same may have been converted or exchanged,
and anything acquired by such conversion or exchange, whether
immediately or otherwise."  I think that was probably meant to
point to a class of cases dealt with in the Act subsequently, such
as where a servant obtains a 5l. note, and changes the 5l. note to
five sovereigns, and afterwards converts the sovereigns, if he would
have committed a larceny as a servant, by steaing the 5l. note,
he will have committed a larceny of the five sovereigns.  That is
the class of case to which I think the interpretation clause may
be meant to apply.  The words of s. l00 are, " Upon conviction the
property shall be restored"; and it was argued that Blenkarn was
here convicted of obtaining by false pretences this property, and
therefore the property shall be restored, meaning thereby not only
the property which had been in the posession or under the control
of the defendants, but also the money into which they had converted
it by selling it. I cannot that to decide in favour of this
argument would be holding what was intended at all.  It would
clearly be making a very great change in the law; and Lord
Kenyon in the case of Horwood v. Smith (1), seems to treat such a
thing as an absurdity. Here, it is supposed to be introduced into
the law by means of the interpretation clause, which, I have
already pointed out, to my mind, was intended to apply to quite a
different set of cases, and has no bearing upon the restitution of
property in s. 100.
  That disposes of the whole of the points in the case.  No doubt
the plaintiffs parted with their goods through false pretences, but
I do not think the defendants are under an obligation to pay
for them, and, consequently, judgment should be entered for the
defendants.
  MELLOR, J.  I am of the same opinion.  I confess for some
little time I was embarrassed by the interpretation clause (s. 1),
and was rather disposed to think it might be read and introduced
into s. 100; but for the reasons which have been assigned by my
Brother Blackburn, I think that the interpretation clause was in-
troduced with another object, and is satisfied by other sections in
the Act to which he has referred ;  and I certainly think it would
be inconsistent to introduce it in the sense is which it is sought to
be introduced in s. 100.
  I could not help thinking that the case of Nickling v. Heaps (2)
in the Court of Exchequer, must have proceeded upon some mis-
apprehension as to the distinction between goods obtained by mis-
demeanor, false pretencee, or otherwise, and the case of felony;
and without considering this distinction, and the point decided in
Scattergood v. Sylvester (1), the Court seems rather hastily to have
come to the conclusion that that case was an authority for the
decision which they pronounced.  I am bound to say that though
at first I thought they had lost sight of the distinction between
misdemeanor and felony, get the Lord Chief Baron does un-
doubtedly refer expressly to thses goods as having been obtained by
false pretences ;  and then says there was a relation back upon con-
viction to the original fraud.  And Mr. Baron Martin decides that
the plaintiff's property in the goods had rcally not been affected
by anything that had been done.  I think, however, that that case
cannot be considered as a binding authority; and therefore, with
great respect for those two learned judges who decided it, I think
by it in the present case.
  With reference to the other points in the case, I quite agree
with what has been said by my Brother Blackburn as to the dis-
tinction between this case and the case of Hardman v. Booth (2),
which must be considered a thoroughly established case in law.
It is very clear that there the plaintiffs never intended to con-
tract with Edward Gandell; but here the plaintiffs did intend to
contract with this individual who had his premises at 37, Wood
Street, and the gceds were it there.  They undoubtedly negli-
gently allowed themselves to be led to suppose he was a person
other than he was;  but the contract was with him, and it was their
intention to coutract with that individual.  I quite agree in thinking
from the other circumstances of the case, that if they had got back
or claimed the goods at any time before they were disposed of
to a bona# fide purchaser, the matter would have been different;
but I think that as soon as the goods were dispofsed of to a bona#
fide purchaser for value the right of the plaintiffs to get them
back altogether ceased.
  I think, therefore, the defendants are free from liability in
respect of the goods which they bona# fide purchase from Blenkarn
and disposed of before his conviction.
  LUSH, J.  I am of the same opinion.  If these goods had been
stolen from the plaintiffs by Blenkarn, then the defendants might
have been liable; but they were not stolen, they were, in my
opinion, for the reasons given by my Brother Blackburn, obtained
by Blenkarn under such circumstances that the property vested
in him.  They were bought by him of the plaintiffs under the
person with whom the plaintiffs dealt, to him the goods were sold
and to him the goods were delivered; and the property therefore
passed in those goods to him, subject to the plaintiffs' right to
reclaim the property, so long as the goods remained in his posses-
sion, upon finding out the fraud, or until they had prosecuted him
to conviction.  But except in one or other of those two events the
plaintiffs' title to the goods is gone.  They did not reclaim the
goods until after he had sold them, so that the goods passed
unto the hands of the defendants as bona fide purchasers.  They
were Blenkarn's property, and the money he received for them
became his money.  After that, the plaintiffs prosecuted the man
to conviction; and then arises the question under s. 100 of 24 &
25 Vict. c. 96, what are the rights of the plaintiffs arising out of
that conviction.
  It appears to me this case is precisely analogous to the case of
Harwood v. Smith (1) decided many years ago. The difference
between that case and the present is that there hte goods had
been stolen, but then they had been sold in market overt which
passed the property, and the defendant in that case bought them
in market overt, and therefore he acquired a good title; just as
the defendants here aequired a good title by the bona# fide purchase
from the fraudulent buyer.  The defendant in that case sold the
goods again, and after that the thief was convicted.  Then arose
the question, whether the original owner of the goods could claim
them against the defendant who had bought the goods in market
overt and sold them before conviction, and the Court held he could
not. That is exactly this case.  The defendants bought the goods
of a person competent to give them a good title, they sold them
before conviction; and therefore the money they received was
their money, and there is nothing in s. 100 which entitles the
plaintiffs to take the money out of the defendants' pocket.  The
plaintiffs may, upon conviction, acquire a fresh title to the
goods, but then they must get the goods from the person in whose
hands they can find them, or what may be the substitute for the
goods.
  Judgment for the defendants.
  Solicitors for plaintiffs : Ashurst, Morris, & Co.
  Solicitor for defendants :  C. O. Humphreys.
DICKINSON v. DODDS
  (1874 D. 94]
An offer to sell property may be withdrawn before acceptance without
any formal notice to the person to whom the offer is made.  It is sufficient
if that person has actual  knowledge that the person who made the offer has
done some act inconsistent with the continuance of the offer, such as selling
the property to a third person.
  Semble, that the sale of the property to a third person would of itself
amount to a withdrawal of the offer, even although the person to whom
the offer was first made had no knowledge of the sale.
  Semble that the acceptance of an offer to sell constitutes a contract for
sale only as from the time of the acceptance. The contract does not relate
back to the time when the offer was made.
  The owner of property signed a document which purported to be an
agreement to sell it at a price fixed.  But a postscript was added, which he
also signed--" This offer to be left over until Friday 9 a.m.":--
  Held, that the document amounted only to an offer, which might be
withdrawn at any time before acceptance, and that a sale to a third person
which came to the knowledge of the person to whom the offer was made was
an effectual withdrawal of the offer.
  Decision of Bacon, V.C. reversed.
On Wednesday the 10th of June, 1874, the Defendant John
Dodds signed and delivered to the Plaintiff, George Dickinson, a
memorandum, of  which the material part was as follows :---
  "I hereby agree to sell to Mr. George Dickinson the whole of
the dwelling-houses, garden ground, stabling, and outbuildings
thereto belonging, situate at Croft, belonging to me, for the sum
of #800.  As witness my hand this tenth day of June, 1874.
  "#800.                         (Signed) John Dodds."
  " P.S.---This offer to be left over until Friday, 9 o'clock, a.m.
  J. D. (the twelfth), 12th June, 1874.
                               " (Signed)  J. Dodds."
  The bill alleged that Dodds understood and intended that the
Plaintiff should have until Friday 9 a.m. within which to de-
termine whether he would or would not purchase, and that he
should absolutely have until that time the refusal of the property
at the price of #800, and that the Plaintiff in fact determined to
accept the offer on the morning of Thursday, the llth of june,
but did not at once signify his acceptance to Dodds, believing
that he had the power to accept it until 9 a.m. on the Friday.
  In the afternoon of the Thursday tlue Plaintiff was informed
by a Mr. Berry that Dodds had been offering or agreeing to sell
the property to Thomas Allan, the other Defendant.  Thereupon
the Plaintiff, at about half-past seven in the evening, went to
the house of Mrs. Burgess,the mother-in-law of Dodds, where he
was then staying, and left with her a formal acceptance in writing
of the offer to sell the property.  According to the evidence of
Mrs. Burgess this document never in fact rcached Dodds, she
having forgotten to give it to him.
  On the following (Friday) morning, at about seven o'clock,
Berry, who was acting as agent for Dickinson, found Dodds at
the acceptance by Dickinson, and explained to Dodds its purport.
He replied that it was too late, as he had sold the property.  A
few minutes later Dickinson himself found Dodds entering a rail-
way carriage, and handed him another duplicate of the notice of
acceptance  but Dodds declined to receive it, saying, " You are too
late.  I have sold the property."
  It appeared that on the day before, Thursday, the IIth of June,
Dodds had signed a formal contract for the sale of the property
to the Defendant Allan for #800, and had received from him a
deposit of #40.
  The bill in this suit prayed that the Defendant Dodds might be
decreed specifically to perform the contract of the l0th of June.
1874; that he might be restrained from conveying the property
to Allan ; that Allan might be restrained from taking any such
conveyance ; that, if any such conveyance had been or should be
made, Allan might be declared a trustee of the property for, and
might lie directed to convey the property to, the Plaintiff;  and for
damages.
  The cause came for hearing before Vice-Chancellor Bacon on
the 25th of January,1876.
  Kay, Q.C., and Caldecott, for the Plaintiff:---
  The memorandum of the 10th of June, 1874, being in writing,
satisfies the Statute of Frauds.  Though signed by the vendor
only, it is effectual as an agreement to sell the property.
  Supposing it to have been an offer only, an offer, if accepted
before it is withdrawn, becomes, upon acceptance, a binding agree-
ment.  Even if signed by the person only who is sought to be
charged, a proposal, if accepted by the other party, is within the
statute : Reuss v. Picksley (1), following Warner v. Willington (2).
  In Kennedy v. Lee (3) Lord Eldon states the law to be, that
"if a person communicates his acceptance of an offer within
a reasonable time after the offer being wade, and if, within a
reasonable time of the acceptance being commununicated, no varia-
tion has been made by either party in the terms of the offer
so made and accepted, the acceptance must be taken as simul-
taneous with the offer, and both together as constituting such an
agreement as the Court will execute."  So that, not only is a parol
acceptance sufficient, but such an acceptance relates back to the
date of the offer.  This is further shewn by Adams v. Lindsell(4),
where an offer of sale was made by letter to the Plaintiffs "on re-
ceiving their answer in course of post."  The letter was misdirected,
and did not reach the Plaintiffs until two days after it ought to
have reached them. The plaintiffs, immediately on receiving the
letter, wrote an answer accepting;  and it was held that they were
entitled to the benifit of the contract.
  The ruling in Adams v. Lindsell (1) as approved of by the House of
Lords in Dunlop v. Higgins (2), as appears from the judgement of
Sir G. Mellish, L. J., in Harris's Case (3); and it is now settled
that a contract which can nbe accepted by letter is complete when
a letter containing such acceptance has been posted. The leaving
by the plaintiff of the notice at Dodds' residence was equivalent
to the delivery by a postman.
  That Allan is a necessary party appears from Potter v. Sanders (4) ;
and if Allan has had a conveyance of the legal estate, the Court
will decree specific performance against him.
  Swanston, Q.C., and Crossley, for the Defendant Dodds :--
  The bill puts the case no higher than that of an offer.  Taking
the memorandum of the 10th of June, 1874, as an offer only, it is
well established that, until acceptance, either party may retract;
Cooke v. Oxley (5) ; Benjamin on Sales (6).
  After Dodds had retracted by selling to Allan the offer was no
longer open.  Having an option to retract, he exercised that
option :  Humphries v. Carvalho (7) ;  Pollock on Contracts (8);
Routledge v. Grant (9).
  In delivering judgment in Martin v. Mitchell (10), Sir  T. Plumer,
M.R., put the case of a contract signed by one party only.  He
asked (11), "What mutuality is there, if the one is at liberty
to renounce the contract, and the other not?" and in  Meynell v.
Surtees(l2), the distinctions between an offer and an agreement in
respect of binding land were pointed out: Fry on Specific Per-
formance (13).
  The postscript being merely voluntary, without cosideration,
is nudum pactum ; and the memorandum may be rcad as if it
contained no postscript.
  Jackson, Q.C., and Gazdar, for the Defendant Allan :---
  Allan is an unnecessary party.  If Dodds has not made a valid
contract with the Plaintiff, he is a trustee for Allan ; if Dodds has
made a binding contract, rights arise between Allan and Dodds
which are not now in controversy.
We agree with the co-Defendant that, in order that the Plaintiff
may have a locus standi, there must have been a contract. If the
postscript is a modification of the offer, it is nudum pactum, and
may be rejected.
  It may be conceeded that if there had been an acceptance, it
would have related back in point of date to the offer.  But there
was no acceptance.  Notice of acceptance served on Mrs. Burgess
was not enough.
  Even if it would have been otherwise sufficient, here it was too
late.  Dodds had no property left to contract for.  The property
had ceased to be his.  He had retracted his offer; and the pro-
perty had become vested in some one else : Hebb's Case (1).
  The Plaintiff would not have delivered the notice if he had not
heard of the negotiation between Dodds and Allan.  What retrac-
tion could be more effectual than the sale of the property to some
one else?
  The Defendant Allan has a bona fide purchaser without notice.
  Kay, in reply :--
  The true meaning of the document was a sale.  The expression
is not "open," but "over."  The only liberty to be allowed by
that was a liberty for the Plaintiff to retract.
  But, taking it as an offer, the meaning was, that at any day or
hour within the interval named, the Plaintiff had a right to in-
dicate to the Defendant his acceptance, and from that moment
the Defendant would have had no right of retractation.  Then,
was there a retractation before acceptance ?  To be a retractation
there must be a notification to the other party. A pure resolve
within the recesses of the vendor's own mind is not sufficient.
There was no communication to the Plaintiff.  He accepted on
two several occasions.  There could have been no parting with
the property withoiut communication with him.  He was told that
the offer was to lie left over.
  The grounds of the decision in Cooke v. Oxley (2) have been
abundsntly explained by Mr. Benjamin in his work on Sales.  It
was decided simply on a point of pleading.
  BACON, V.C., after remarking that the case involved no question
of unfairness or inequality, and after stating the terms of the
document of the 10th of June, 1874, and the statement of the
Defendant's case as given in his answer, continued:--
  I consider that to be one agreement, and I think the terms of
the agreement put an end to any question of nudum pactum.  I
think 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 to him to determine whether
he would accept it or not. But whether the letter is read with
or without the postscript, it is, in my judgement, as plain and clear
a contract for sale as can be expressed in words, one of the terms
of that contract being that the plaintiff shall not be called upon
to accept, or to testify his acceptance, until 9 o'clock on the
morning of the 12th of June.  I see, therefore, no reason why the
Court should not enforce the specific performance of the contract,
if it finds that all the conditions have been complied with.
  Then what are the facts ?  1t is clear that a plain, explicit ac-
ceptance of the contract was, on Thursday, the 11th of June,
delivered by the Plaintiff at the place of abode of the Defendant,
and ought to have come to his hands.  Whether it came to his
hands or not, the fact remains that, within the time limited, the
Plaintiff did accept and testify his acceptance.  From that mo-
ment the Plaintiff was bound, and the Defendant could at any
time, notwithstanding Allan, have filed a bill against the Plaintiff
for the specific performance of the contract which he had entered
into, and which the Defendant had accepted.
  I am at a loss to guess upon what ground it can be said that it
is not a contract which the Court will enforce.  It cannot be on
the ground that the Defendant had entered into a contract with
Allan, because, giving to the Defendant all the latitude which can
be desired, admitting that he had the same time to change his
mind as he, by the agreement, gave to the Plaintiff---the law, I take
it, is clear on the authorities, that if a contract, unilateral in its
shape, is completed by the acceptance of the party on the other
side, it becomes a perfectly valid and binding contract.  It may
be withdrawn from by one of the parties in the meantime, but, in
order to be withdrawn from, information of that fact must be con-
veyed to the mind of the person who is to be affected by it. It
will not do for the Defendant to say, " I made up my mind that I
would withdraw but I did not tell the Plaintiff; I did not say
anything to the Plaintiff until after he had told me by a written
notice and with a loud voice that he accepted the option which
had been left to him by the agreement."  In my opinion, after
that hour on Friday, earlier than nine o'clock, when the Plaintiff
and Defendant met, if not before, the contract was completed, and
neither party could retire from it.
  It is said that the authorities justify the Defendant's  contention
that he is not bound to perform this agreement, and the case of
Cooke v. 0xley (1) was referred to.  But I find that the judgment
in Cooke v. 0xley went solely upon the plcadings.  It was a rule
to shew cause why judgment should not be arrested, therefore it
must have been upon the pleadings.  Now, the pleadings were that
the vendor in that case proposed to sell to the Defendant.  There
was no suggestion of any agreement which could be enforced.  The
Defendant proposed to the Plaintiff to sell and deliver, if the
Plaintiff would agree to purchase upon the terms offered, and
give notice at an earlier hour than four of the afternoon of that
day; and the Plaintiff says he agreed to purchase, but dcas not
say the Defendant agreed to sell.  He agreed to purchase, and
gave notice before four o'clock in the afternoon.  Although the
case is not so clearly and satisfactorily reported as might be
desired, it is only necessary to read the judgment to see that it
proceeds solely upon this allegation in the pleadings.  Mr. Justice
Buller says, " As to the subsequent time, the promise can only be
supported upon the ground of a new contract made at four o'clock ;
but there was no pretence for that."  Nor was there the slightsst
allegation in the pleadings for that;  and judgment was given
against the Plaintiff.
  Routledge v. Grant is plainly distinguishable from this case
upon the grounds which have been mentioned.  There the contract

was to sell on certain terms; possession to be given upon a parti-
cular day.  Those terms were varied and therefore no agreement
was come to; and when the intended purchaser was willing to
relinquish the condition which he imposed, the other said, "No,
I withdraw; I have made up my mind not to sell to you;" and
the judgment of the Court was that he was perfectly right
  Then Warner v. Willington (1) seems to point out the law in
the clearest and most distinct manner possible.  An offer was
made---call it an agreement or offer, it is quite indifferent.  It
was so far an offer, that it was not to be binding unless there was
an acceptance, and before acceptance was made, the offer was
retracted, the agreement was rescinded, and the person who had
then the character of vendor declined to go further with the ar-
rangement, which had been begun by what had passed between
them.  In the present case I read the agreement as a positive
engagement on the part of the Defendant Dodds that he will sell
for $800, and, not a promise, but, an agreement, part of the same
instrument, that the Plaintiff shall not be called upon to express
his acquiescence in that agreement until Friday at nine o'clock.
Before Friday at nine o'clock the Defendant receives notice of
acceptance.  Upon what ground can the Defendant now be let off
his contract?  It is said that Allan can sustain his agreement
with the Defendant, because at the time when they entered into
the contract tlue Defendant was possessed of the property, and
the Plaintiff bad nothing to do with it.  But it would be opening
the door to fraud of the most flagrant description if it was per-
mitted to a Defendant, the owner of property, to enter into a
binding contract to sell, and then sell it to somebody else and say
that by the fact of such second sale he has deprived himself of the
property which he has agreed to sell by the first contract.  That
is what Allan says in substance, for he says that the sale to him
was a retractation which deprived Dodds of the equitable interest
he had in the property, although tlue legal estate remained in him.
  But by the fact of the agreement, and by the relation back of the
acceptance (for such I must hold to be the law) to the date of
the agreement, the property in equity was the property of the
Plaintiff, and Dodds had nothing to sell to Allan.  The property
remained intact, unaffected by any contract with Allan, and there
is no ground, in my opinion, for the contention that the contract
with Allan can be supported.  It would be doing violence to
principles perfectly well known and often acted upon in this
Court.  I think the Plaintiff has made out very satisfactorily his
title to a decree for specific performance, both as having the
equitable interest, which he asserts is vested in him, and as being
a purchaser of tlue property for valuable consideration without
notice against both Dodds, the vendor, and Allan, who has entered
into the contract with him.
  There will be a decree for specific performance, with a decla-
ration that Allan has no interest in the property ; and the Plain-
tiff will be at liberty to deduct his costs of the suit out of his
purchase-money.
  From this decision botlu the Defendants appealed, and the ap-
peals were heard on the 3lst of March and the 1st of April, 1876.
  Swanstn, Q.C. (Crossley with him) for the Defendant Dodds.
  Sir H. Jackson, Q.C. ( Gazdar with him), for the Defendant
Allan.
  Kay, Q.C., and Caldecott, for the Plaintiff.
  The arguments amounted to a repetition of those before the
Vice-Chancellor.  In addition to the authorities then cited the
following cases were referred to:  Thornbury v. Bevill (1); Taylor
  JAMES, L.J., after referring to the document of the 10th of June,
1874, continued:--
  The document, though beginning "I hereby agree to sell," was
nothing but an offer, and was only intended to be an offer, for the
Plaintiff himself tells us that he required time to consider whether
he would enter into an agreement or not.  Unless both parties had
then agreed there was no concluded agreement then made; it was
in effect and substance only an offer to sell.  The Plaintiff, being
minded not to complete the bargain at that time, added this
memorandum---" This offer to be left over until Friday, 9 o-clock
A.M. 12th June, 1874."  That shews it was only an offer.  There
was no consideration given for the undertaking or promise, to
whatever extent it may be considered binding to keep the pro-
perty unsold until 9 o-clock on Friday morning; but apparently
Dickinson was of opinion, and probably Dodds was of the same
opinion, that he (Dodds) wss bound by that promise, and could
not in any way withdraw from it, or retmct it, until 9 o'clock on
Friday morning, and this probably explains a good deal of what
afterwards took place.  But it is clear settled law, on one of the
clearest principles of law, that this promise, being a mere nudum
pactum was not binding, and that at any moment before a com-
plete acceptance by Dickinson of the offer, Dodds was as free as
Dickinson himself.  Well, that being the state of things, it is said
that the only mode in which Dodds could assert that freedom was
by actually and  distinctly saying to Dickinson, " Now I withdraw
my offer."  It appears to me that there is neither principle nor
authority for the proposition that there must be an express and
actual withdrawal of the offer, or what is called a retractation.  It
must, to conatitute a contract, appcar that the two minds were at
one, at the same moment of time, that is, that there was an offer
continuing up to the time of the acceptance.  If there was not
such a continuing offer, then the acceptance comes to nothing.
Of course it may well be that tlue one man is bound in some way
or other to let the other man know that his mind with regard to
the offer has been chsnged ;  but in this case, beyond all questien,
the Plaintiff knew that Dodds was no longer minded to sell the
property to him as plainly and clcarly as if Dodds had told him in
so many words. " I withdraw the offer."  This is evident from the
Plaintiff's own statements in the bill.
  The Plaintiff says in effect that, having heard and knowing that
Dodds was no longer minded to sell to him, and that he was selling
or had sold to some one else, thinking that he could not in point
of law withdraw his offer, meaning to fix him to it,and endeavour-
ing to bind him,  " I went to the house where he was lodging, and
saw his mother-in-law, and left with her an acceptance of the
offer, knowing all the while that he had entirely changed his
mind.  I got an agent to watch for him at 7 o'clock the next
morning, and I went to the train just before 9 o'clock, in order
that I might catch him and give him my notice of acceptance just
before 9 o'clock, and when that occurred he told my agent,and he
told me, you are too late, and he then threw back the paper."  It
is to my mind quite clear that before there was any attempt at
acceptance by the Plaintiff, he was perfectly well aware that
Dodds had changed his mind, and that he had in fact agreed to
sell the property to Allan.  It is impossible, therefore, to say
there was ever that existence of the same mind between the two
parties which is essential in point of law to the making of an
agreement. I am of opinion, therefore, that the Plaintiff has
failed to prove that there was any binding contract between Dodds
and himself.
MELLISH, L.J. :---
  I am of the same opinion.  The first question is, whether this
document of the 10th of June, 1874, which was signed by Dodds,
was an agreement to sell, or only an offer to sell, the property
therein mentioned to Dickinson ; and I am clearly of opinion that
it was only an offer, although it is in the first part of it, indepen-
dently of the postscript, worded as an agreement.  I apprehend
that, until acceptance, so that both parties are bound, even though
it is in point of law only an offer, and, until both parties are bound,
neither party is bound.  It is not necessary that both parties
should be bound within the Statute of Frauds, for, if one party
makes an offer in writing, and the other accepts it verbally, that
will be sufficient to bind the person who has signed the written
document.  But, if there be no agreement, either verbally or in
writing, then, until acceptance, it is in point of law an offer only,
although worded as if it were an agreement.  But it is hardly
necessary to resort to that doctrine in the present case, because the
postscript calls it an offer, and says, " This offer to be left over
until Friday, 9 o'clock a.m."  Well, then, this being only an offer,
the law says--and it is a perfectly clear rule of law--that, although
it is said that the offer is to be left open until Friday morning at
9 o'clock, that did not bind Dodds. He was not in point of law
bound to hold the offer over until 9 o'clock on Friday morning.
He was not so bound either in law or in equity.  Well, that being
so, when on the next day lie made an agreement with Allan to sell
the property to him, I am not aware of any ground on which it
can be said that that contract with Allan was not as good and
binding a contract as ever was made.  Assuming Allan to have
known (there is some dispute about it, and Allan does not admit
that he knew of it, but I will assume that he did) that Dodds had
made the offer to Dickinson, and had given him till Friday morn-
ing at 9 o'clock to accept it, still in point of law that could not
prevent Allan from making a more favourable offer than Dickinson,
and entering at once into a binding agreement with Dodds.
  Then Dickinson is informed by Berry that the property has
been sold by Dodds to Allan.  Berry does not tell us from whom
he heard it, but he says that he did hear it, that he knew it,
and that he informed Dickinson of it.  Now, stopping there, the
question which arises is this---If an offer has been made for the
sale of property, and before that offer is accepted, the person who
has made the offer enters into a binding agreement to sell the
property to somebody else, and the person to whom the offer was
first made receives notice in some way that the property has been
sold to another person, can he after that make a binding con-
tract by the acceptance of the offer?  I am of opinion that he
cannot.  The law may be right or wrong in saying that a person
who has given to another a certain time within which to accept an
offer is not bound by his promise to give that time; but, if he is
not bound by that promise, and may still sell the property to
some one else, and if it be the law that, in order to make a con-
tract, the two minds must be in agreement at some one time  that
is, at the time of the acceptance, how is it possible that when the
person to whom the offer has been made knows that the person
who has made the offer has sold the property to someone else,
and that, in fact, lie has not remained in the same mind to sell
it to him, he can be at liberty to accept the offer and thereby
make a binding contract?  It seems to me that would lie simply
absurd.  If a man makes an offer to sell a particular horse in his
stable, and says, "I will give you until the day after to-morrow to
accept the offer," and the next day goes and sells the horse to
somebody else, and receives the purchase-money from him, can
the person to whom the offer was originally made then come and
say, "I accept," so as to make a binding contract, and so as to be
entitled to recover damages for the non-delivery of the horse?  If
withdrawn at any time, and which is made dependent on the ac-
ceptance of the person to whom it is made, is a mere nudum pactum,
how is it pcasible that the person to whom the offer has been made
can by acceptance make a binding contract after he knows that
the person who has made the offer has sold the property to some
one else ?  It is admitted law that, if a man who makes an offer
dies, the offer cannot be accepted after he is dead, and parting
with the property has very much the same effect as tbe dcath
of the owner, for it makes the performance of the offer impasible.
I am clearly of opinion that, just as when a man who has made an
offer dies before it is accepted it is impossible that it can then be
accepted, so when once the person to whom the offer was made
knows that the property has been sold to some one else, it is too
late for him to accept the offer, and on that ground I am clearly
of opinion that there was no binding contract for the sale of this
property by Dodds to Dickinson, and even if there had been, it
seems to me that the sale of the property to Allan was first in
point of time.  However, it is not necessary to consider, if there
had been two binding contracts, which of them would be entitled
to priority in equity, because there is no binding contract between
Dodds and Dickinson.

BAGGALLY, J.A.:--
  I entirely concur in the judgments which have been pronounced.

  JAMES, L.J.:--The bill will be dismissed with costs.

  Swanston, Q.C.:--We shall have the costs of the appeal.

  Kay, Q.C.:--There should only be the costs of one appeal.

  Sir H. Jackson Q.C.:--The Defendant Allan was obliged to
protect himself.
  MELLISH, L.J. :--He had a separate case.  Where might, if two
contracts had been proved, have been a question of priority.
  JAMES L.J.:--I think the Plaintiff must pay the costs of both
appeals.
  Solicitor for Appellants :  O. B. Wooler.
  Solicitor for Plaintiff: R. T. Jarvis, agent for Huchinson &
  Lucas, Darlington.
   In re REED. Ex parte BARNETT.
Liquidation--Undischarged Debter--After-acquired Property--Goods sent by
Mistake--Duty of Trustee--Bankruptcy Act, 1869(32 &33 Vict. c. 71), s. 15.
  A liquidating debtor who had not obtained his discharge engaged in
  trade.  He ordored some goods from a wholesale house, who sent the goods
  to him in the belief that the order had come from a firm with whom they
  were acquainted, and whose name resembled that under which the debtor
  traded.  The trustee claimed the goods :--
  Held (reversing the decision or the County Court Judge), that the debtor
  had acquired no property in the goods, and that the trustee was bound to
  return them to the persons who sent them.
THIS was an appeal from a decision of the Judge of the East
Stonehouse County Court.
  G.P. Reed formerly carried on the business of a wine merchant
in partnership with his father and brothers at Mincing Lane,
Compton Gifford near Plymouth, under the firm of Joseph Reed &
Sons.  On the death of the father G.P. Reed continued the
business under the old firm, while his brothers carried on a similar
business in Old Town Street, Plymouth, under the firm of Reed
Brothers & Co.  On the 30th of July, 1875, G.P. Reed filed a
liquidation petition, under which his creditors resolved on a liqui-
dation by arrangement and appointed Edward Duncan trustee.
After this the debtor removed from Compton Giffard into Love
Lane, Plymouth, where he  commenced carrying on again the
business of a wine merchant under the old firm of Joseph Reed &
Sons.  He attempted to alter the name of the street, without the
consent of the local authorities into " Mincing Lane Plymouth."
In letters written by him he gave his address as Mincing Lane,
Plymouth.  On the 17th of February, 1876 he sent by post to
Messrs. John Barnett & Son, wholesale wine merchants in Mark
Lane, London, a letter as follows :--
                                        " Mincing Lane, Plymouth.
                                              " 17th February, 1876.
"Messrs. John Barnett & Son.
 "Gentlemen,--Please clear and forward per G. W. Rail 1 hhd.
O sherry, #17, and 1 hhd. XX, #24, and oblige,
                             " Yours truly,
                               "Joseph Reed & Sons."
  Barrott & Sons had had no previous dealings with Joseph Reed
& Sons, but they executed the order, believing that it was sent by
Reed Brothers & Co., with whom they had transacted business.
On sending the invoice to Reed Brothers & Co. and pressing
them for payment of the sum which they had advanced to pay
the Government duty, Barnett & Son discovered the mistake
they had made, Reed Brothers & Co. disclaiming any
knowledge of the transaction.  On the 25th of February G. P.
Reed's trustee took possession of the two casks of sherry, the
debtor not having obtained his discharge.  On the 22nd of March
Barnett & Son gave notice of motion for an order that the trustee
should deliver up the two casks to them.  The Judge refused the
application.  Barnett & Son appealed.
Finlay Knight, for the Appellants :---
  The sherry was clearly sent by Barnett & Son to the debtor by
mistake.  It never became the debtor's property, and it was the
duty of the trustee to deliver it up to Barnett & Son : Ex parte
  James (1); Boulton v. Jones (2) ;  Benjamin on Sales (3).  We
applied to the Court as soon as possible after discovering the
mistake.
  R. A. McCall, for the trustee:---
  The names and addresses of the two firms were different, and,
though the Appellants may have thought that they were dealing
with Reed Brothers & Co., still it is clear that they intended to
deal with the firm who sent them the order.  The remarks of
Blackburn J.  in the recent case of Lindsay v. Cundy (4), shew that
Hardman v. Booth (5) woild not be followed now.  In Lindsay v.
Cundy the jury found that there had been fraud ; there is no
evidence of fraud here.
BACON, C.J.:--
  With regard to the probalility of the case, no one, I think, can
doubt for a moment.  The affidavit of the Appellants is uncontra-
dicted, and the probability which arises from the very nature of
the case is in their favour.  The probability that they intended
to intrust these two casks of sherry to an undischarged liquidating
debtor is too violent for me to entertain it.  The casks got into the
possession of a person to whom they did not intend to send them
and his trustee claims to keep them without paying for them.  The
trustee, no doubt, is entitled to any property which is acquired by
the debtor during the continuance of the liquidation but in my
opinion the debtor never acquired any property in these goods.  If
the law enabled the trustee to keep possession of them, it would be
a very iniquitous law.  The trustee has no right to these goods
but is bound to return them to the true owners, unless,indeed, he is
willing to pay the price of them.  He ought not to have resisted
the claim of the Appellants; it was simple dishonesty to do so.
The case of Lindsay v. Cundy has no sort of application, for there
the Defendant was a bona fide purchaser of the goods from the
person to whom they had been sent by mistake.
  Solicitors for Appellants: Hillearys, agents for Beer & Bundle,
Devonport.
  Solicitors for Trustee: Lanfear & Stewart, agents for John
Shelly, Plymouth.
  ALEXANDER BROGDEN AND OTHERS  .  .  APPELLANTS ;
                          AND
   THE DIRECTORS, &c., OF THE METRO- )
   POLITAN RAILWAY COMPANY . . .     ) RESPONDANTS.
  Contract--Absence of a formally signed Contract-- Conduct of Parties supplying
                  the Want of it.
  Circumstances in the conduct of two parties may establish a binding con-cotcar corti-
  tract between them, although the agreement, reduced into writing as a draft,
has not been formally executed by either.
  In such a case the word "approved" written by one of the parties at the
end of the draft agreement must be taken as an approval of the substance of
the draft, and not, as in the case of a conveyancer's or soliciter's draft, an
approval of the mere form.
  B. had for some years supplied the M. Railway Company with coals. At
last it was suggested by B. that a contract should be entered into between
them.  After their agents had met together the terms of agreement were drawn
up by the agent of the M. Company and sent to B.  B. filled up certain
parts of it which had been left in blank, and introduced the name of the gentle-
man who was to act as arbitrator in case of differences between the parties
rote " approved" at the end of the paper and signed his own name.  B.'s
agent sent back the paper to the agent of the M. Company, who put it in his
desk, and nothing farther was done in the way of a formal execution of it.
Both parties for some time acted in accordance with the arrangements men-
tioned in the paper, coals were supplied and payments made as therein
stated, and when some complaints of inexactness in the supply of coals,
according to the terms stated in the paper, were made by the M. Company
there were explanations and excuses given by B., and the " contract" was
mentioned in the correspondence, and matters went on as before.  Finally
disagreements arose, and B. denied that there was any contract which bound
him in the matter:--
  Held, that these facts, and the actual conduct of the parties, established the
existance of such a contract and there having been a clear breach of it B.
must be held liable upon it.
B. was the chief partner in a pertnership of three persons.  The word
"approved" written by him and signed with his name was treated as an
assent binding on all the partners (whose names were mentioned in the
paper), although the usual form of signature of the partnership was that of
  "B. & Sons."
  A mere mental assent to the terms stated in a proposed contract would
not be binding, but acting upon those terms, by sending coals in the quan-
titles and at the prices mentioned in it, amounted to sufficient to shew the
adoption of the writing previously altered ansent, and to constitute it a
valid contract.
  Per LORD BLACKBURN :--The onus of shewing that both parties had acted
oin the terms of an agreement which had not been, in due form, executed
by either, lies upon the part who rests his case on that circumstance.
IN this case the directors of the Metropolitan Railway Company
had brought an action against Messrs. Brogden & Co. to recover
damages for a breach of contract.  The defence was that there
was as no suchi contract.  The cause was tried before Mr. Justice
Brett at the Surrey Sprigg Assizes of 1873, when a verdict was
found for the Plaintiff, subject to a special case.
  The Defendants in the action (the present Appellants) were
colliery owners in Wales.  From the beginning of 1870 the De-
fendants had supplied the Plaintiffs with coal and coke for the
use of their locomotives.  The quantities supplied and the prices
charged were sometimes varying, and it appeared that, in Novem-
ber  1871, a suggestion was made in writing by Mr. Hardman (the
manager for the Defendants) that a contract should be entered
into between the parties.  Mr. Burnett, an officer of he company
was appointed to meet Mr. Hardman and to make some arrange-
ment, and the result of the communications between them was
that a draft agreement was drawn up.  This draft contained the
following sentences: "The contractors [which meant Brogden &
Co.]  shall, at their own expense, as from the 1st day of January,
1872 (but subject as hereinafter expressed) supply every week and
deliver, in narrow guage railway waggons, for the use of the com-
pany, at the Paddington Station of the Great Western Railway, 220
tons of coal, and any farther quantity of coal, not exceeding 35:0
shall, by writing under their agents,' hands, from time to time
require."  The coal was to be " from the best Bwllfa Merthyr four
feet seam" and from no other.  The payment was to be at the
rate of 20s. per ton of 20 cwt., the money payable for the same
being subject to the existing tolls payable at the date of the agree-
ment to the Great Western Railway Company, "but should the
existing tolls be advanced or reduced, the price per ton to be
advanced or reduced accordingly." Should the contractors make
default or become bankrupt the company was to be at liberty to
terminate the agreement by notice.  Provisions were made as to
strikes, and differences arising between the parties were to be
settled by arbitration.  Either of the parties was to have liberty
to " determine this agreement by giving two calender months pre-
vious notice in writing on the 1st day of November, 1872."  If no
such notice was given the agreement was to continue in force" for
one year from the 1st of January, 1873," both parties agreeing" to
fulfil and observe the agreements and provisions herein contained
so far as they may then be applicable to existing circumstances:
If any differences should arise they were to be referred to "the
arbitration of -----, and such person or persons as shall be
mutually agreed upon."  Such arbitrators to have all the powers
given by the Common Law Procedure Act, 1854.
  This paper was prepared by Mr. Burnett, who handed it to Mr.
Hardman for approval by the Defendants.  Mr. Hardman sub-
mitted it to Mr. Alexander Brogdon, the head of the firm of
Brogden & Co., who dealt with it thus: He left the date in blank.
He filled up the part describing the parties by putting in the
names of himself and partners.  He introduces the "Upper"
after the words "Bwllfa Merthyr."  He altered one of the
sentences by substituting the words " during the period of" for
the words "while they shall fulfil." He filled in the arbitration
clause with the name, "William Armstron, Esq., of Swindon,"
and, finally, he appended the word "approved,-- and under it
signed his own name, "Alexander Brogden.  He gave the paper
back to Mr. Hardman to be returned to Mr. Burnett for the pur-
pose (as it was said) of having a formal contract drawn induplicate
and signed by the respective parties.  If such formal contract had
been drawn it would have been signed " Alexander Brogden &
Sons," instead of merely " Alexander Brogden."  No formal copy
was made.  Mr. Hardman returned the paper to Mr. Burnett,
inclosed in a letter dated the 21st of December, 1871  which letter
contained these words:  " Herewith I beg to return your draft of
proposed agreement, re new contract for coal, which Mr. Brogden
has approved.  I am obliged to leave town for Bristol to-night, and
collieries] " will find me."  Mr. Burnett (who was the proper cus-
todian of the company's contracts for the supply of coke and coal)
put the paper into his drawer where it remained.  No entry of it
was made in the books of the company.  On the 22nd of December
Mr Burnett telegraphed " we shall require 250 tons per week of
locomotive coal commencing not later than the 1st of January
next" and sent off a letter the same day to the same effect. Mr.
Hardman answered, "we have arranged to supply you quantity
you name, 250 tons weekly, from the 1st of January."  The supply
of coals appeared to have been made for some time upon the terms
stated ; but sometimes there was a failure of the regular supply,
and many letters passed between the parties.  In most of the
letters the contract was referred to.  Excuses were made and defi-
cient supplies made up, till finally, in December, 1873, the Messrs.
Brogden declined to continue the supply of coals in that manner.
  An action for damages as for breach of contract was then
brought.  The Defendants denied the existence of any contract for
the supply of coals.  The special case was argued before the Court
of Common Pleas, and judgment was ordered to be entered for the
Plaintiffs, and the damages were assessed at #9643.  The case
was carried to the Court of Appeal, where Lord Justices of Appeal
Bramwell and Amphlett were for affirming the judgment, Lord
Chief Justice Cockburn thinking that it ought to be reversed.
  This appeal was then brought.
  Mr. Herschell, Q.C., Mr. Davey, Q.C., and Mr. Beresford, for the
Appelants.
  The Solicitor-General (Sir Hardinge Giffard)  and Mr. W.G.
Harrison Q.C., for the Respondents.
  The case was at first argued before Lord Hatherley, Lord Black-
burn and Lord Gordon. A second argument, by one counsel on a
side, was directed, and that took place before the Lord Chancellor
(Lord Cairns), Lord Hatherley, Lord Selborne, Lord Blackburn,
and Lord Gordon.  On the second argument the Respondents'
counsel were not called on to address the House.
  Mr. Herschell, Q.C., Mr. Davey, Q.C., and Mr. Beresford,   were for
Messrs. Brogden,  the Appellants.
  The Solicitor-General (Sir Hardinge Giffard) and Mr. W. G.
Harrison, Q.C., were for the Respondents.
  For the Appellants it was contended that there had not been
completed agreement.  It might be admitted that if there
any completed agreement. It might be admitted that if there
and signed by one of them, and the assent of the other declared,
and if then the terms so written had been acted upon by botb, a
contract would have been constituted.  But that was not the case
here.  And yet if the Plaintiffs could not shew that such was
the case (and the burden of proof was on them) they could not
maintain their action.  All that had been done was to sketch
out what was proposed on the one side, to send that sketch to tbe
other side, and the word " approved " had been written by one of
the partners of the firm, and signed with his own name and his
own name alone, and not with the proper style and designation of
the firm, which was not sufficient, as to the firm, to constitute a
valid and binding contract.  The case of Bidgway v. Wharton (1)
distinctly declared that a paper sent by one party to the solicitor
of the other to put it into form would not be sufficient to constitute
a contract, unless both agreed that that was the only pnrpose for
which it was sent, for that the act of so sending it afforded gene-
rally cogent evidence that the parties did not intend to bind them-
selves until it was reduced into form.  That rule was exactly
applicable here.  The mere fact that the parties for some time
dealt together on the prices mentioned in the paper here in-
sisted on as the contract, was nothing, for there had been
different prices on which their dealings had proceeded before any
offer of a contract was not sufficient; there must be a distinct
acceptance of it.  Here there could have been no acceptance of it.
Blanks in the draft had been filled up in a certain way, and a
name had been introduced.  These were all suggestions which
the party to whom they were made might or might not adopt.
  Till they were adopted they were mere propositions for an agree-
ment, and not parts of a concluded agreement.  If the party to
whom they were proposed refused to adopt them the proposed
contract was not completed.  Warner v. Willington (1), which was
the case of a bill for specific performance, which resembled the
present, and shewed that there had not been any unconditional
acceptance.  Where there remained anything to be done to indi-
cate the acceptance and adoption of what had been suggested by
one of the parties, the other was not bound, and no contract was
constituted : Jackson v. Turquand (2).  Circumstances such as
existed here would not even establish the liability of a contributor
upon shares in a company: British, &c., Telegraph Company v.
Colson (3).
  For the Respondents it was argued that everything had been
done here which was necessary to constitute a binding contract.
A proposition had been made, the duly authorized agents of the
two parties had met to consider it; what they had agreed to was
reduced into writing, with only such blanks as could easily be
filled up,without the fillings-up constituting in the least degree
(except perhaps in the name of the arbitrator) new propositions;
the paper wsa sent to ne of the principals, and he returned it to
the other with the word " approved," and with his signature
attached.  As to the name of the arbitrator, if that was to be
treated as a new proposition, it was a proposition made by Mr.
Brogden, and at once accepted without observation by the other
side.  There needed nothing more.  The case did not in the least
resemble Ridgway v. Wharton (4) nor Dunlop v. Higgins (5), nor
any of those cases in which either one side alone had acted, or one
had sent the other proposals as to which no assent had been given.
Here both parties had acted upon the terms proposed.  The per-
son who now refused to acknowledge the contract had examined
and considered it, and had written that he " approved" it ; he
was the head of his firm, and his signature was binding; and the
other party to whom it was then returned had accepted it as so
"approved;" and both parties had for some time and in repeated
dealings acted on it, and, in the various letters which had passed
between them, whether letters of complaint or otherwise had
referred to it again and again as the contract under which they
were conducting their dealings.  There was nothing said here, as
there had been in Ridgway v. Wharton (1), about putting the
contract into form ; it was sent, examined, and " approved;" it
was therefore complete, and it was so received and was acted on.
  THE LORD CHANCELLOR (Lord Cairns
  My Lords, there are no cases upon which difference of opinion
may more readily be entertained, or which are always more embar-
rassing to dispose of, than cases where the Court has to decide
whether or not, having regard to letters and documents which have
not assumed the complete and formal shape of executed and solemn
agreements, a contract has really bean constituted between the
parties.  But, on the other hand, there is no principle of law
better established than this, that even although parties may
intend to have their agreement expressed in the most solemn and
complete form that conveyancers and solicitors are able to prepare,
still there may be a consensus between the parties far short of a
complete mode of expressing it, and that consensus may be dis-
covered from letters or from other documents of an imperfect and
incomplete description;  I mean imperfect and incomplete as
regards form.
  My Lords, it was owing to the circumstance that your Lord-
ships had in this case to deal with a voluminous correspondence, and
that you had not a formal completely executed agreement between
the parties, that your Lordships desired to have the case argued a
second tume before you ultimately disposed of it ; but having had
that argument on the part of the Appellants, and having heard
from their very learned councel everything which could be urged
in support of the Appellants' view of the case, it appears to me,
and that seems also to be your Lordships, view, that there is not
any necessity for considering the case beyond the point which it
has already reached.
  Now, my Lords, the facts of which I shall have to  remind your
Lordships for the purpose of expressing my opinion, need not
range over any great length of statement.  There is no doubt that
before the 18th of November, 1871, the firm of Messrs. Brogden
& Co. had been in the habit of supplying the Plaintiffs the Metro-
politan directors, with coal, and occasionally with coke, for the
purpose of their railway.  The exact prices which were paid prior
to the close of the year 1871 are not set forth in the case but I
think it may be inferred from the documents I am about to
mention, what the general character of those prices was.  On the
18th of November, 1871, the firm of Brogden & Co. wrote to the
railway directors in these words:  " We beg to hand you statement
shewing the increase in price of our smokeless locomotive steam
coal as supplied to you.  The present price is 18s. 3d.  increased
railway rate. 7d.  Ten per cent. for increase of wages, 9d.  The
price of this particular quality of coal has advanced from 2s. 6d.
to 3s. per ton in the market, and we have every reason to believe
that it will continue to incrcase.  We shall, however, be willing
to make a contract with you for 300 or 400 tons per week at 20s.
per ton of 20 cwt., delivered at Paddington.  The supply to be
for 12 months and subject to the usual conditions for strikes, and
increase or decrease if the railway rate is changed.  We also beg
to state that we must add 7d. per ton to the price for nut coal,
being the increase in railwray rate."  Now, my Lords, that is a
letter which explains very clearly its object.  There was a rising
market, and it was the opinion of the coal producers that the
market was going to continue to rise ; they state the price which
it had already reached, and they tell the railway directors that
they will be willing to make a contract for the ensuing year for a
certain maximum supply per week, at a fixed price which would
be free from any future variations of the market, and the only
casualties to which it would be subject would be the contingency
of strikes and an increase or decrease of the railway rate from their
pits.
  No answer appears to have been given to that letter for a month,
and on the 18th of December, 1871, the engineer of the railway
company writes to the Messrs. Brogden, asking for an interview
with their representative, relative to the proposed contract for
coal.  The interview was arranged at once, " with reference to
proposed new contract for coal."
  My Lords, I dwell upon those expressions for the purpose of
reminding your Lordships that the parties were approaching to a
meeting for a definite and clearly expressed purpose, namely, to
make a contract, which was to last for a considerable length of
time, and it will be one of the observations in the case, that the
view taken by the Appellants in this case leaves your Lordship
entirely without any explanation of what ultimately became of
that contract which the parties, clearly, were seriously bent upon
agreeing to in some form or other.
  However they had this meeting on the 19th of December, and
the case finds that at that meeting the representative of the
railway company banded over the form of contract or agreement.
The date was in blank, the names of the Messrs. Brogden were
not filled up, and, in the clause with regard to arbitration, the
name of the arbitrator was also left blank ; the price was fixed in
the way which had been mentioned in the letter at 20s. a ton, and
the continuance of the agreement was to be for a twelvemonth,
to run on for another twelvemonth if a notice was not given to
terminate by the 1st of November, 1872.  This draft, or the
agreement in this form, was handed  over at this meeting;to the
losing therefore no time, and shewing that the parties at this time
were clcarly bent upon concluding the business, Mr. Hardman,
the agent of Messrs. Brogden, returns the draft agreement with
this letter :-- [His Lordship read it, see ante, p. 668.]  The last
sentence is important.
  Now what had been done with the agreement was this: The
date was left in blank as it stood before: the blank with regard
to the names was filled up by the introduction of the proper
names of himself and his co-partners.  The word " upper" was
introduced before the words " four-feet seam." But that appears
because either it would have become a different seam, which is
not suggested, or if it was the same seam it was merely selecting
one part of the seam which it would, without that, have been in
the power of Messrs. Brogden to select; and in the 3rd paragraph
of the letter Mr. Brogden "drew his pen through the words 'while
they shall fulfil,' and interlined in their place the words 'during
the period of,' so that the clause read, 'The company shall pay to,
or according to, the direction of the contractors every month
during the period of this agreement."  This seems to me also to
make no substantial difference in the terms.  Then "he filled in
the blank in the arbitration clause with the name of 'William  -
Armstrong, Esq., of Swindon,'" and he put the word 'approved'
at the foot of the paper and signed the paper with the name
'Alexander Brogden.'"
  Therefore my Lords, subject to this question about the arbitra-
tor's name, the document became a document signed by a gentle-
man who was signing clearly as one of the three persons named
as partners in the agreement, and it was signed therefore neces-
sarily upon their behalf ; and, although the word "approved " is
added, that is a word which in this case could not at all have the
meaning which the word frequently has in drafts.  Often when
a draft is signed by a solicitor or a conveyancer as "approved,"
the word " approved " means nothing more than that the legal
form and expression of the instrument is approved.  Here the
word " approved," signed by one of the partners, could have
meant nothing else than this--that he approved of the terms of
the agreement on behalf of the partners.
  My Lords, the only thing remaining was, as I have said, the
insertion of the name of the arbitrator.  I quite agree that that
required the assent and approval of the railway directors.  When
they saw the name inserted they might have said, if they had
been so minded,--We are not satisfied with this arbitrator--we
do not treat this as a concluded agreement between us, we there-
fore require you to enter upon the negotiation in another form,
and we are perfectly free to refuse what you have hitherto pro-
posed.  My Lords, it appears to me that it was with regard to
the circumstance that there had been the insertion of this name
among other matters, that the letter of the 2lst of December
contained the words to which I have already called your Lord-
ships- attention, " If you have anything farther to communicate,
letters addressed to 'Tondu' will find me."  That appears to me
to be just what you would have expected, namely, that Mr. Hard-
man, on the part of Messrs. Brogden, writes to Mr. Burnett: "I
send you back the draft of the agreement with the alterations we
have made in it; it is now for you to say whether there is any-
thing farther to be remarked upon the matter; If there is I here
communicate to you my address"'
  My Lords, that draft having been sent in this form to the
railway directors, the statement in the case is that "Mr. Burnett
was the proper custodian of contracts for the supply of coke and
coal for the Plaintiffs.  On receipt of the paper enclosed in Mr.
Hardman's letter he put it into his drawer, and it remained there
till the 7th of November, 1872, when it was produced to Mr.
Alexander Brogden on the occasion hereinafter mentioned."
  Now, my Lords, I will call your Lordship's attention to what
was done subsequent to this date; but before I do so, there is at
the very outset this remarkable circumstance, which your Lord-
shiips will bear in mind: these two parties having been in nego-
tiation up to the 22nd of December, both of them clearly bent
upon making a contract which was to provide for a supply of
coals in the following year, both of them engaged upon it  and so
serioualy engaged upon it that they had reduced it into writing
with very considerable minuteness of detail ; according to the
view of the Appellants, this agreement, which they were so bent
on forming, is said suddenly and without any kind of explanation
to have passed entirely out of view, an incomplete and unfinished
transaction, as regarded which there never was any consensus
of why it was, according to the view of the Appellants, that there
never was any reference afterwards to the contract, nor any pro-
ceeding taken to have it brought to a definite point.  My Lords
it would be, indeed, a very strange matter if, both parties having
shewn such earnestness in the business to which they were
addreesing themselves, they were from the moment of the 22nd of
December to be held to have parted without any impression what-
ever that anything had been done towards accomplishing the
object of that act upon which they were bent.
  But, my Lords, what took place afterwards was this: On the
22nd of December Mr. Burnett, getting this draft, putting it where
the contracts of the company were placed for custody, writes in
return to Messrs. Brogden & Song.  He makes no objection to
anything which had been done with regard to that document; he
is silent upon that subject, but he says, " We shall required
250 tons per week of locomotive coal commencing not late than
the 1st of January next"--the very date which was the date
mentioned in the contract for the commencement of the supply--
"Reply by wire that you will do this, that we may arrange with
other collieries accordingly."  My Lords, the contract had pro-
vided, with regard to the amount of the supply, that it should be
"220 tons of coal  and any farther quantity of coal not exceeding
350 tons per week, at such times and in such quantity as the
time require, such notice to be given to the contractors or agents
of the contractors for the time being.
  Now reference was made to this letter, and some argument was
raised upon it to the effect that it was a letter asking Messrs.
Brogden to reply by wire whether they would supply the 250 tons,
and that it was therefore inconsistent with a right to order that
supply.  My Lords, it seems to me to be the most natural letter
possible for persons who had a contract to have written.  They
order a supply within the terms of the contract greater than the
minimum, which was 220 tons. but within their power as regards
the maximum; and it seems to me that, inasmuch as they had to
give notice with regard to the times and the mode of any supply
over 220 tons, it was only what men in that position would have
done, to ask those who had to make that supply whether they
might depend and rely upon their affording it at the times and
in the quantity which were thus specified.
  My Lords, on the 22nd of December Messrs. Brogden & Sons
telegraph to the railway directors "We have arranged to supply
you quantity you name, 250 tons weekly, from 1st January."
And without going through the letters as to change of supply,
I may say that quantity was afterwards changed to a quantity
of 350 tons per week, which also was a quantity not beyond the
maximum mentioned, but the actual maximum mentioned by the
contract.
  Now my Lords, what I have to ask myself is this: the draft
having been returned with only one variation  to which, as far as
I can see, any objection could have been taken, namely, that with
reference to the arbitrator, and no objection having been made
upon the score of the insertion of his name, although any commu-
nication which might have been made must distinctly have been
made in writing: I have to ask, how is the course of action of the
parties---the suppliers of coal and the railway company--during
the following year to be accounted for?  In the first place, my Lords,
the railway directors commence by ordering a supply exactly at
the date specified in the contract; and, in the next place, and this
is a point which I am bound to say appears to me not in any way
to have been met by the very able argument we have heard, and
yet to be all important in the case--the price from that date, the
1st of January, commences to be, and continues to be, throughout
the year, the very price stipulated for in the contract.  And
farther, that price is a price differing from the price which had
prevailed up to that time.  And not only is that so, but during
the whole of the year, when, of course, the market price was
varying from time to time, this price never changes; it is an
unvarying price throughout the year.  And, my Lords, more than
that, to that price there are added upon two occasions exactly the
sums which by the contract might be added, namely, the sum of
5d. in the one case, and 6d. in the other, upon the charge of tlue
Great Western Company being raised for the carriage of the coal.
Then, my Lords, not only does the supply commence at  the time
mentioned in the contract, not only is the price the price which is
explained by the contract, and cannot be explained in any other
may, but in addition to that, the quantity is the quantity meu-
tioned in the contract, and during the greater part of the year is
required.
  Farther than that, your Lordships have in one of the letters a
reference which, again I must say, has not in any way been ex-
except by referring it to this contract---I refer to a letter of the
25th of July, 1872.  " We find," says the agent for Messrs.
Brogden, "that from 1st January to June 30th you recieved
883 15 tons, which equals 340 tons per week, or about 40 tons
per week more than your contract."  I have asked what is the
meaning of the expression "more than your contract" there? and
no explanation has been given of it.  No explanation can be
given of it unless it refers to the contract in question.  It is quite
true that, as it is said, the contract in question did not provide
for a maximum of 300 tons per week, but of 350.  My Lords,
that may be so, but an error as to the maximum mentioned in the
contract does not make it any the less a reference to the contract
and the letter cannot be explained in any other way.  I think I
can see how it came to pass that Messrs Brogden spoke of the
maximum supply as being 300 tons.  I think it arose in this way:
be that, not having kept a copy of the contract, they may, in a
loose way, have thought that 300 tons had been the agreed upon
amount which they had to supply under the contract.  However,
whether that was so or not appears to me to be quite immaterial.
Here is an express admission by them, which it seems to me to be
impossible to get over, that they were supplying coals under a con-
tract, and no contract can be suggested except the contract to
which I have alrcady referred.
  But, my Lords, over and above that, I must say that having
read with great care the whole of this correspondence, there
appears to me clearly to be pervading the whole of it the expres-
sion of a feeling on the one side and on the other that those who
were ordering the coals were ordering them, and those who were
supplying the coals were supplying them, under some course of
dealing which created on the one side a right to give the order,
and on the other side an obligation to comply with the order.  If
it had not been so, I cannot conceive how when there were these
repeated complaints against the Messrs. Brogden for short or
irregular supplies, and when they say more than once that the
pricas they were receiving from the Metropolitan Company did not
make their bargain a gced one, or did not make the Metropolitan
Company good customers, how it was that if they did not feel that
there was a contract somewhere or other entitling the Metropolitan
Company to a supply, and binding them (the Brogdens) to supply
coal, they did not say, If you do not like the mode in which we
are supplying, or the extent to which we are supplying, it is quite
easy for you to get your supplies elsewhere, and we are under no
obligation to supply you.  They do not do that; on the contrary,
they go on asking for indulgence and consideration in a way which
it appears to me to be impossible to account for, except upon the
footing which they recognise in the letter I have read of the 25th
of July, that there was a contract under which there was some
maximum or other up to which they were bound to supply the
coal.
  My Lords, these are the grounds which lead ms to think that,
there having been clearly a consensus between these parties,
arrived at and expressed by the document signed by Mr. Brogden
subject only to approbation, on the part of the company, of the
additional term which he had introduced with regard to an arbi-
trator, that approbation was clearly given when the company
commenced a course of dealing which is referable in my mind
only to the contract, and when that course of dealing was accepted
and acted upon by Messrs. Brogden & Co. in the supply of coals.
Therefore, my Lords, I am of opinion that the conclution at
which the Court of Common Pleas arrived was correct, as was
also the conclusiona at which the majority of the Court of Appeal
arrived.
  My Lords, I am bound to say, with regard to the very elaborate
judgment of the Lord Chief Justice, that, if I could as a matter of
fact arrive at the conclusion in one respect at which he arrived
upon the question of fact, I should be very much inclined to
concurr in the whole of his judgment.  As I understand it from the
passages to which I have referred in the judgment of the Lord
Chief Justice, which I will not read again, it was the opinion of
the Lord Chief Justice that, to use his own words, the Court
might "safely infer" that the applications to the Metropolitan
Company which are mentioned in one of the letters had actually
been made.  The Messrs. Tahourdin, the solicitors for the com-
pany, no doubt being instructed that such was the case, had actually
in their letter that the agent of Messrs. Brogden "afterwards
though often applied to thus, the company have taken care never
to place themselves in a condition to be charged by Messrs.
Brogden upon the alleged contract in case of breach on their
part."  My Lords, if I found it proved that an application had
been made by the Messrs. Brodgen to the railway company for
an agreement, and to have the agreement or contract completed,
and that they had been told that there was no contract and no
agreement, it seems to me that it would have gone far to answer
all the observations I have already made.  But I have no doubt
that if the Messrs. Tahourdin had found that that they had been
correctly informed when they made this statement, they would not
have failed to prove, and they would have had the means of
proving, before the arbitrator who stated the special case, the facts
which thus they state in their letter.  I take it that it must be
inferred from the fact that no such proof was given, that no such
proof could be given, and therefore these statements must entirely
be removed out of the case.  And, they being removed out of the
case, I cannot but think that the judgment of the Lord Chief
Justice is deprived of what would have In one of the strongest
arguments in support of it.
  My Lords, I must move your Lordships that the judgment of
the Court of Appeal be affirmed, and that this appeal be dismissed
with costs.  In one respect one cannot help feeling some anxiety
as I hsve felt about the case throughout, because one cannot help
believing that, whether from carelessness or not I know not,
Messrs. Brogden had not actually in their possession a copy of the
agreement, and that in all probability they were not aware that
the 1st of November was the last day on which they could have
terminated the agreement, as probably they would have terminated
it without entering upon another year.  With that, however, we
cannot deal, we must administer the law as the rights of the parties
really stand.
LORD HATHERLEY:--
  My Lords,I have come to the same conclusionn as that which
has just been expressed by my noble and learned friend on the
woolsack.  I cannot but feel great satisfation at the case having
been heard on a re-argument before your Lordships, because, not
only is it one of considerable importance to the parties on both
sides in point of amount but the case, it seems, had been argued
in the Courts below before no less than seven of Her Majesty's
Judges---Judges of grcat eminence (1)--and a contrariety of
opinion on the part of one at least of those lcarned Judges had
been expressed as regarded the conclusion proper to be come to ;
  My Lords, Mr. Herschell, in his extremely able argument in this
case, has given us every assistance that we could wish to have for
its determination, and has, as it appcars to me, put the case on a
very proper foundation, when he says that he will not contend that
this agreement is not to be held to be a binding and firm agree-
ment between the parties, if it should be found that, although
there has been no formal recognition of the agreement in terms
by the one side, yet the course of dealing and conduct of the
party to whom the agreement was propounded has been such as
legitimately to lead to the inference that those with whom they
were dealing were made aware by that courss of dealing, that the
contract which they had propounded had been in fact accepted by
the persons who so dealt with them.  That really is the case
which we have to try :---[His Lordship here stated the facts of the
case.]
  When I look to the agreement, I find that the draft agreement
is founded upon a letter, although not prepared immediately upon
the receipt of the letter, and is in accordance with that letter
in respect of the price, in respect of the arrangement for strikes,
in respect of the arrangement for incrcase or decrease if the
railway rate is changed, and in respect of the arrangement as to
time---that it is to be for twelve months.  All those mat$ters we
find in the letter of the 18th of Novembsr, and that letter having
been written by Messrs. Brogden had been considered by Mr. Bur-
nett on behalf of the railway company.  Mr. Burnett, in addition
to these matters, which I have referred to as being embodied in
the letter of the 18th of November, adds a clause by which,
instead of saying vaguely that the supply shall be between 300
and 400 tons per week, says definitely that the supply 3hall be of
220 tons of coal per week, or a farther amount not exceeding
350 tons (splitting the difference between the 300 and 400 tons)
" per week at such times and in such quantity as the company
shall by writing under their agent's hand from time to time
the contractors for the time being-"
  Then Mr Burnett puts into the agreement a clause for the
benefit of his employers, the company, which is this, that in case
"the company find it expedient to suspend the use of ccal by
reason of its being found by them to be detrimental to the atmo-
sphere of the railway, owing to high temperature in summer or
otherwise, and to use in lieu thereof coke, they shall be free to
suspend the use of coal for the time being and the time or times
during which the company shall be required to take the coal shall
be enlarged to correspond with the period or periods of suspen-
sion."  That is a new clause which I do not find in the letter of
November the 18th.  I find also a second new clause, and a very
important one, inasmuch as it gives rise to the present claim in
this action.  It is a clause providing that in default of notice
being given by one or other of the parties two calendar months
before the expiration of the twelve months, the agreement shall
go on for another twelve months.  That together with the appoint-
in addition to what is contained in the letter of the 18th of
November.
for either of the parties to consider.  It was not very little there was
a long time for consideration, and the importance of this part of
the case is with respect to the view which was taken by the
in his conclu3ion upon tbe case, namely, as to whether or not
learned Lord Chief Justice who differed from the other Judges
in his conclusion upon the case, namely, as to whether or not
it was contemplated when this agreement was put into writing,
that there should be a farther formal agreement in the sense of
a formal agreement to be considered by the solicitors on both
aides, and to have such variations made in it, I suppose, as those
solicitors might suggest, or anything of the kind.  My Lords,
instead of that it is a plain simple practical agreement confined
to very few particulars, such particulars as Mr. Hardman on one
side, and Mr. Burnett on the other, who were both practical men,
were perfectly competent to form an opinion upon.
  That being so, I apprehend, my Lords, that the case is entirely
outside the class of authorities referred to in the judgment of the
Lord Chief Justice in which it has been said that under the
not only arranged but settled, and put into a formal shape, that
intention will  of course, prevail, and it will not be held to be con-
cluded until such formal shape has been superinduced upon it,
and it has been settled as intended by the parties, and of course
there will be a locus poenitentae until tluat matter has been
achieved.
  Here, instead of that, we find that the draft, as prepared by
Mr. Burnett, is sent to Mr. Hardman for approval, and then sub-
mitted by Mr. Hardman to Mr. Alexander Brogden, who was a
person fully authorized to act on behalf of the Defendants' firm.
[His Lordship here described what had been done by Mr. Brogden
before the paper was returned to Mr. Burnett.
  My Lords, the case states that " after so dealing with the paper,
the said Alexander Brogden gave it back to Mr. Hardman to be
returned to Mr. Burnett for the purpose of having a formal con-
tract drawn in duplicate, and signed by the vendors and the pur-
chasers, and the formal contract if so drawn and signed would
have been signed John Brogden & Sons, and not Alexander
Brogden," and no doubt it would also have had the seal of the
company.  But that is not at all the class of changes and altera-
tions which is  aimed at in those cases to which I have already
referred as having been cited, with refersnce to whether or not
the parties should be bound until the formalities had bin com-
plied with.  Here there really was nothing to be done on the
part of the colliery owners, because they had settled and approved
railway directors beyond an intimation of whether or not they
intended to act upon that document so signed, and with such
variations as I have described.
  Now, my Lords, what took place?  This document so dealft with
and so handed over to Mr. Hardman as signed by Mr. Brogden,
was given to Mr. Hardman to be returned to Mr. Burnett:--
[His Lordship stated what had then taken place, and quoted at
length several letters on the matter of the supply, and the com-
plaints that it was deficient, and excuses on account of the colliers
not working, and promises to send the required supplies.]
  Now my Lords I apprehend that if it had stopped here, this is
a course of action from which the inference would fairly be drawn
which becomes quite conclusive afterwards.  Up to the present
stage to which I luave brought it the case stands thus :  Agreement
proposed first of all by the coal company sent as a proposition to
the railway company, converted by the railway company into a
definite agreement with some very slight alterations, sent back
again with these few alterations and then adopted and ap-
proved by the coal company with only one important farther
alteration, namely, the insertion of Mr. Armstrong's name as the
arbitrator---a letter written with it by the person engaged in the
whole negotiation on the one side, saying that he could not see
the person who was negotiating on the other side until the time
when the agreement was to come into effect---that immediately
followed by an order for coals to the extent of 250 tons---an inquiry
sent by telegram, and an anxious inquiry by letter also saying:---
" Let us know whether we can rely upon your supplying us with
220 tons of coal per week, because, upon your answer whether you
can or cannot supply us with that quantity will depend the
arrangements I am to make with other coal companies in the
North.
  It was said that this was inconsistent with the Plaintiffs having
an agreement was by which the Defendants had bound themselves to
supply that quantity of coal.  I do not see any such inconsistency
whatever.  It might possibly bear on the question of whether the
agreement was actually clenched at that moment or not.  It
might indicate this:  If you cannot answer definitely that you can
supply us with the 250 tons of coal, we may feel ourselves at
liberty then to deal with the other coal companie---that might
possibly be the true view of it,in which case it struck me it might
be said that it was not eo ingtanti that the agreement was clenched.
However, what followed did clench it most distinctly, because
there not only comes the answer "We can supply you with the
quantity, which is all you want to know in making your arrange-
ments with the other companies "---not only do they say they can
do it, but they do it, they send it at the time proposed, namely,
January, and invoice it at the price mentioned in the agreement,
which differs from the price at which they formerly invoiced it.
And at a subsequent part of the transactions, when they were
reproached for not sending the supplies in the quick, orderly and
regular manner in which the Plaintiffs conceived they were
entitled to receive them, all they said in reply was: "-We are
sending you as much as you are entitled to receive by contract."
It is that remarkable letter which the Lord Chancellor has already
commented upon, namely, the letter saying, " We have sent you a
quantity exceeding that which you are entitled to per contract."  I
think the mistake in the quantity when they say "per contract"
is very casily explicable in this way, that not having a copy of
the agreement they could not refer to it with accuracy.  They
probably had a copy of their letter of the 18th, in which they
offered to send from 300 to 400 tons, and they may very well have
conceived that the quantity stated in the agreement was 300 tons
instcad of 350.  But how they came to refer in their letter to a
Mr. Herschell, notwithstanding all the ability he has displayed in
the case, has been unable to grapple.
  Myy Lords, I will not go through the whole of these transactions,
If you ask me, when in my judgment the agreement was complete,
I answer that the agreement was complete when the first coals,
the 300 tons of coal supplied in January, were invoiced at the
differing price, and when that differing price was accepted and paid.
I think that did bring the case up to what Mr. Heschell very fairly
admitted, as he was bound to admit it, would be a sufficient case
to make out on the part of the Plaintiffs.  It does establish a course
of action on the part of the Plaintiffs of such a character as neces-
sarily to lead to the inference on the part of the Defendants that
the agreement had beeu araccepted on the part of the Plaintiffs,
and was to be acted upon by them; and they did act upon it
accordingly.
  I think, my Lords, it is not necessary for me to go into more
detail. I confess that there is no part of the correspondence
throughout, that at all shakes the view I entertain in this case as
derived from the documents which I have already referred to,
and I am therefore of opinion that the Plaintiffs are entitled
succeed in the action, and that the appeal should be dismissed
with costs.
LORD SELBORNE :---
  My Lords, the question which is brought before your Lordships
in this case is entirely one of fact, namely, whether the dealings
between these parties in the year 1872 were upon the footing of
the draft contract signed by Mr. Alexander Brogden in Decembsr,
1871.  Now, my Lords, the material facts which introduce the
dealings are simply these :--There having been dealings between
these parties going on in the preceding year, the prices increasing,
and Mr. Brogden having intimated that he looked forward to
a definite arrangement by which some increase of price could be
agreed upon, and in the meantime would supply at a lower price,
the Messrs. Brogden themselves, in the letter which has been
mentioned of the 18th of November, 1871, make a most clear
and definite proposal to supply at the price of 20s., which was an
increase upon the original price, but less than the price which
coal might be expected to reach in the course of the year in a
rising market, but to do that only upon the terms of a twelve
months contract, and for a definite quantity.  That was an
arrangement which  had been looked forward to beforehand; it
was an arrangement which they themselves proposed ;  and I must
own that I do not follow the passage in the Lord Chief Justices
judgment, in which he says that in November the price of 20s.
had been given ss that at which the coal owners were willing to
supply coal. It is by no means so; they are willing to supply
upon a large contract to continue for twelve months, but I can
find nothing from which I can infer that, at any time, they would
have been willing to supply coal at that price from week to week,
or from month to month, or otherwise than upon a twelve months
contract.
  That being the Messrs. Brogden's proposal for a contract, the
directors draw up a formal agreement upon the footing of that
proposal, but with the addition of at least one very material term
is given to terminate it.  They send that to the Brogdens, and
Mr. Alexander Brogden makes no alteration whatever in it except
by filling up the blanks, the way in which one of those blanks,
the blank for the nsme of the arbitrator, wss filled up being no
doubt a matter to which it was necessary that the other party
back to the company with the letter of the 21st of December,
1871, signed in a manner which clearly binds them beyond all
doubt if it was assented to or acted upon on the other side, and
adds this, which I think is most material, and really the key
almost to everything which follows:---"If you have anything
farther to communicate, letters addressed to Tondu will find me."
That distinctly shews that he thought at all events that it might
not be necassary that there should be any farther communication,
not that it was in his mind that unless he heard anything farther
the whole matter was to drop, but that he should take it that
silence gave consent.  The nature of his alterations was such that
he had no reason whatever to expect that there would be, or could
be any objection to them, and it was the most natural thing in the
world for him to look upon it as uncertain whether any communi-
cation would be thought necessary on the part of the company.
  Now, my Lords, I by no means say that if nothing had been
done upon the footing of the agreement, silence would have given
consent in such sense as to bind the parties on either side.  If
either Lord Coleridge or Mr. Justice Brett intended to express an
opinion that a mere mental consent given under those circum-
stances, and followed up neither  by communication nor by action,
would make a binding contract, I should certainly hesitate very
much bsfore I assented to that proposition.  I do not know that
it is necessary so to understand their expressions.  No doubt their
Lordships did say that mental consent without communication or
intimation might do, but then pnobably their Lordships did not
intend to leave out of sight action following upon that assent and
consistent with it.
  However that may be, this sentence is most material to the
interpretation of what follows.  The one party writes to the other
in terms which I interpret to mean this ; I do not suppose you
will have anything farther to say, or that you will make any
objection to the way in which I have filled up these blanks, but,
if you have anything farther to say, let me hcar from you. Now
what follows ?  On the very next day, the 22nd of December, not
indeed mentioning this contract, but dealing with the subject-
matter of it  Burnett write3 and saye, " We shall require 250 tons "
(that is the quantity which we shall want supplied) " per week of
locomotive coal commencing not later than the 1st of January
next," that was the very day on which the agreement was to take
effect.  I can hardly present to my mind the point of view from
which any person can refuse to connect the letter of the 22nd of
December with the letter of the 21st of December, which said,
" if you have anything farther to communicate."  The company s
agent had this to communicate--the quantity we shall want is
250 tons per week, and we shall want that supply to commence as
early as the 1st of January, the day mentioned in the agreement.
To my mind that is a clear reference to the agreement which had
been drafted, although the agreement itself is not mentioned
  Then, my Lords all that follows, the immediate requirement on
the very same day to supply that quantity from the 1st of Janu-
ary, the action (which I see no reason for referring to any other
period) of stopping the supply they had been receiving of fuel
from the North on the faith of this agreement upon which they
can rely, the quantity originally less but soon raised to the maxi-
mum of 350 tons a week, and spoken of in my letters as "the
full weekly quantity of 350 tons," and finally so spoken of in the
following terms, in a letter of the Messrs. Brogden themselves,
"We hope to be able to deliver your full quantity," and the
price charged being the same as that mentioned in the contract--
it appears to me that every single circumstance points quite un-
equivocally to this agreement; and, looking at the order of events
with regard to the dates and the communications between the
parties, I should have thought it absolutely impossible for any
person to doubt that, if the directors, after getting the benefit
of the lower price for nearly an entire year, had afterwards
endeavoured to turn round because the priee might have risen in
the market, they would have been turned without much hesitation
out of any Court into which they had come.
  Now it is said that Messrs. Brogden could not have understood
it so, because they did not give the notice which they might have
given at the beginning of November.  My Lords, I think there is
an extremely simple and easy explanation of that as well as of
their letter of the 25th of July, in which they speak of a " contract,"
although shewing some error as to its terms, and also of the
peculiar terms of that letter of the 7th of November, written im-
mediately after the dispute had arisen, in which they say that if
the agreement is exchanged they will go on to the end of the
year, but they will not go on any longer without new tsrms
being settled.  The explanation of the whole to my mind is
this---they had not kept a copy of the agreement which Mr.
Alexander Brogden had signed ;--they had kept a copy of their
own letter of the 18th of November, containing their proposal in
which there was no provision for carrying on the contract beyond
the end of the year, unless notice were given, and of course
nothing whatever as to the time at which such notice was to be
given.  They had been acting under the impression that the
actual contract was on the footing of that letter, probably think-
ing that the less number of tons mentioned there, namely 300,
had been settled instead of the greater 400, which would explain
the calculations in the letter of the 25th of July.  They had been
acting throughout upon the footing not that there was no contract,
but that the contract was in that respect different in its terms
from what it actually was, and when they found that they had
made that mistake they tried to get out of the contract alto-
gether.
  That my Lords is the clear conclusion to which if I wes a jury-
man sitting upon this case, I should come upon the case, which
entirely rests upon facts.  I therefore entirely concur in the motion
which has been made to your Lordships by my noble and learned
friend on the woolsack.
  LORD BLACKBURN :---
  My Lords, in this case the question which has now to be decided
is I believe, quite a question of fact; but part of what was said
in the Court of Common Pleas would raise an important question
of law, if it were to be taken in a way in which it was not neces-
sary for either Lord Coleridge or Mr. Justice Brett to hold it, and
i which therefore they both said, looking to the facts which hsa
been found, they did not hold it.  I wish to say upon that point
that I cannot agree with what seems to be their view.  Mr. Justice
Brett, referring to the case of Ex parte Harris (1) before the Lords
Justices, and other cases, says that, looking to all this, he has
come "to a strong opinion that the moment one party has made a
proposition of terms to another, and it can be shewn by sufficient
evidence that that other has accepted those terms in his own
mind, then the contract is made, before that acceptance is inti-
mated to the proposer."  And he goes on to say, applying that to
the present case, that, to his mind, as soon as Burnett put the letter
into his drawer, a contract was made, although none was formally
entered into.
  My Lords, I must say that that is contrary to what my impres-
sion is, and that I cannot agree in it.  If the law was as intimated
by Mr. Justice Brett, there would be nothing to discuss in the
present case.  But I have always believed the law to be this, that
when an offer is made to another party, and in that offer there is
a request express or implied that he must signify his acceptance
by doing some particular thing, then as soon as he does that
thing, he is bound.  If a man sent an offer abrcad saying: I wish
to know whether you will supply me with goods at such and
such a price, and, if you agree to that, you must ship the first
cargo as soon as you get this letter, there can be no doubt that as
soon as the cargo was shipped the contract would be complete, and
if the cargo went to the bottom of the sea, it would go to the bottom
of the sea at the risk of the orderer.  So again, where, as in the come
of Ex parte Harris (1), a person writes a letter and says.  I offer to
take an allotment of shares, and he expressly or impliedly says,
If you agree with me send an answer by the post, there, as soon
as he has sent that arswer by the post, and put it out of his con-
trol, and done an extraneous act which clenches the matter, and
shews beyond all doubt that each side is bound, I agree tbe
contract is perfectly plain and clear.
But when you come to the general proposition which Mr. Justice
Brett seems to have laid down, that a simple acceptance in your
own mind, without any intimation to the other party, and expressed
by a mere private act, such as putting a letter into a drawer, com-
pletes a contract, I must say I differ from that.  It appears from
the Year Books that as long ago as the time of Edward IV. (1),
Chief Justice Brian decided this very point.  The plea of the De-
fendant in that case justified the seizing of some growing crops
because he said the Plaintiff bad offered him to go and look at
them, and if he liked them, and would give 2s. 6d. for them, he
might take them ; that was the justification.  That case is referred
to in a book which I published a good many years ago, Blackburn
on Contracts of Sale (2), and is there translated.  Brian gives a
very elaborate judgment, explaining the law of the unpaid vendor's
lien, as early as that time, exactly as the law now stands, and he
consequently says:  " This plea is clearly bad, as you have not shewn
the payment or the tender of the money; " but he goes farther,
and says (I am quoting from memory, but I think I am quoting
correctly),  " moreover, your plea is utterly naught, for it does not
shew that when you had made up your mind to take them you
signified it to the Plaintiff, and your having it in your own mind
is nothing, for it is trite law that the thought of man is not triable,
for even the devil does not know what the thought of man is;
but I grant you this, that if in his offer to you he had said, Go
and look at them, and if yon are please with them signify it to
such and snch a man, and if you had signified it to such and such
a man, your plea would have been good, because that was a matter
of fact."  I take it, my Lords, that that, which was said 300 years
ago and more, is the law to this day, and it is quite what Lord
Justice Mellish in Ex parts Harris (3) accurately says, that where it
is expressly or impliedly stated in the offer that you accept
the offer by posting a letter, the moment you post the letter the
offer is accept.  You are bound from the moment you post the
letter, not, as it is put here, from the moment you make up your
mind on the subject.
  But my Lords, while, as I say, this 1s so upon the question of
law, it is still necessary to consider this case farther upon the
question of fact.  I agree, sad I think every Judge who has con-
sidered the case dcas agree, certainly Lord Chief Justice Cockburn
does, that though the parties may have gone no farther than an
offer on the one side, saying, Here is the draft,---(for that I think
is really what this csse comes to,)---and the draft so offered by the  -
one side is approved by the other, everything being agree to
except the name of the arbitrator, which the one side has filled 1n
and the other has not yet assented to, if both parties have acted
upon that draft and treated it ss binding, they will be bound by
it.  When they had come so near as I have said, still it remained
to execute formal agreements, and the parties evidently contem-
plated that they were to exchange agreements, so that each side
should be perfectly safe and secure, knowing that the other side
was bound.  But, although that was what cach party contem-
plated, still I agree (I think the Lord Chief Justice Cockburn
states it clearly enough), " that if a draft having been prepared
and agreed upon as the basis of a deed or contract to be executed
between two parties, the parties, 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.
But it must be clear that the parties have both waived the execu-
tion of the formal instrument and have agreed expressly, or as
shewn by their conduct, to act on the informal one."  I think
that is quite right, and I agree with the way in which Mr.
Herschell in his argument stated it, very truly and fairly.  If the
quite approved of by the railway company, has been excaedingly
near it, if they indicate by their conduct that they accept it, the
contract is binding.
  But then, my Lords, I think Mr. Herschell was justified in whit
he said, that the onus probandi lay upon the railway company who
were asserting that, and that it was a question whether enough
was done to shew that it must be taken that the two parties did
agree.  Upon that I had on the former argument come to the
conclusion, agreeing there with Lord Chief Justice Cockburn, that
there was not enough here to shew that the onus was satisfied and
that the acting upon the draft was completely made out.  I have
heard the argument of Mr. Hergchell again to-day, and every word
that could be said upon the subject in support of that view was, I
am quite confident, said by him.  Notwithstanding that argument,
the majority of your Lordships think otherwise.  I think, as
indeed I thought before, that there is some evidence here that the
parties had so treated the draft agreement.  I do not think it can
be ssid to be conclusive evidence, but it is evidence on the
question of fact to justify the conclusion to which the majority of
your Lordships have coma  But after listening to what has been
said, and farther considering it, I can only say that I hesitate
whether I should agree in the verdict or not.  I do not say that I
dissent from it, I only say that I hesitate about it.
  Now, my Lords, I will say very briefly what I have to say upon
this subject, just to indicate where it is that I have my doubt.  I
think that when the draft was sent in that letter there had been
corsiderable delay.  They had begun to talk about making this
contract in October.  The Appellants wrote making an offer in
November; they had an interview on the 18th of December, and
they had run it on until the 22nd of December, when Mr. Hard-
man writes : " Herewith I beg to return you draft of proposed agree-
ment, re new contract for coal which Mr. Brogden has approved,"
according to grammatical construction that means " which draft
he has approved."  Then it goes on : " I am obliged to leave town
for Bristol tonight, and shall be up again on Monday week"
(that is the 1st of January).  " If you have anything further, to
communicate letters addressed to Tondu will find me."  Now,
upon that, viewing it there, I certainly think it was comtemplated
that there might be something more to be communicated, there
might be indeed need to be something more communicatsd as to
whether they agreed upon the arbitrator or not; but I think that
might be communicated without any express words doing it, if
the parties shewed that they were willing to go on upon those
  The next letter that passes is this---I pass by the telegram--
Mr. Burnett writes, "I am in receipt of your letter of yesterday
informing me of your having been obliged to go to Bristol and
thereby prevented calling, as expected, to see me regarding the
supply of coal.  As the matter is pressing" (it must be remem-
bered that the 1st of January was fast approaching), " and as you
will not be in town again until Monday week, I have just tele-
graphed to you as follows:--'We shall require 250 tons per week
of locomotive coal, commencing not later than 1st of January
next.  Reply by wire, that you will do this, that we may arrange
with other collieries accordingly;' as it is necessary for us to know
definitely what you can do for us in the way of locomotive fuel, so
that we may arrange with other parties who are supplying us at
present. The supply of your coal seems to be very irregular at
present."  Now, as regards that letter, the impression on my mind
is, that if it stood alone it would fairly admit of this construction,
I, the writer, Mr. Burnett, am not prepared to say whether my
directors will enter into the contract or not.  I have put aside the
agreement to consider about it, but, as unfortunately yca are out
of the way, and the 1st of Jsnuary is fast coming, I telegraph to
you and ask you, can you supply us with 250 tons of coal per week
from that time forward, pending the time which we have taken to
consider.  1f that were so, clearly that would not have bound the
contract.
  But, then, comes a thing which does make strong evidence, and
which,I think the noble and learned Lord who spoke first on the
other side of the House (Lord Hatherley) has placed his reliance
mostly upon, which is this:  After he had written that letter there
comes, on the 2nd of January, again a letter complaining of short
supplies, which must of course have meant short supplies prior to
the 1st of January, but going on: " I would remind yon that it
was on your assurance that your firm could send us a regular
weekly supply of 250 tons that I stopped our supply of fuel from
the North.  And in a letter to the principals at the same time,
he says:  "I now remind  you that we stopped the supply of coke
from the North on your Mr. Hardman's assurance that you would
be able to send us a regular supply of 250 tons per week."  I
thought, at first, that the Lord Chief Justice's explanation of
that letter was the right one, and that when he said' "Upon
your assurance you would be able to send us a regular supply of
250 tons per week" " we stopped the supply of coke from the
North" that necessarily pointed back to the time when the strike
ceased ; but I am not by any means certain now that that is right.
I think it is very possible that they might have been getting a
supply of coke as fuel from the North, and what is meant here is,
that it was in reliance upon the statement in your telegram in
which you told us you would supply us with 250 tons per week,
that we stopped the supply of coke from the North.  That is an
  It is true that that letter was not written as to a  erson who
had a contract,--Remember you have bound yourself to give me
250 tons a week, and I hold you to your engagement. It is
rather a complaint ; it is put in this way: Recollect that you said
you would give us that supply.  It is, therefore, more a kind of
letter which I might call a neutral letter, pointing not very dis-
tinctly to either one view or the other.
  But then, my Lords, comes this fact : after that letter. there is
a supply all through the month of January of a considerable
quantity, and all of that coal is invoiced and paid for according to
the contract price of 20s., which was higher than the price had
been before.  That was evidence, and strong evidence, that the
parties had entered into a new contract; that both of them meant
to enter into a new contract, I think, cannot admit of any doubt.
It is upon that that Lord Justice Bramwell almost entirely bases
his judgment.  I do not, myself, feel that it is quite so strong as
he does.  It is, to my mind, evidence, and strong evidence, that
they were agreeing.  Viewing it as a question of fact, if a jury
were to take that view, and were to find that that would be enough
to bind the contrsct, I could by no means say that they were not
right.  My own view is, that I hesitate a good deal as to whether
there is enough to satisfy the onus which is cast on the Metropoli-
tan Railway Company to establish a contract; but farther than
that hesitation I will not go.
  I will not detain your Lordships any longer by remarking upon
the other portions of the ose.  Some of the letters read one way
and some the other.  I can only say that apart from that change
in the price I should have thought that they could all be explained
consistently with saying that the bargain was not made; but this
is a piece of evidence, and a strong piece of evidence, bearing
upon that.  It is a question of fact, and I think there is no doubt
at all that if the evidence of fact is sufficient, there is quite
enough to bind the contract.
LORD GORDON:--
  My Lords, the case has been so fully discussed by the noble and
learned Lords who have addressed your Lordships that I think
it would be unbecoming in me at this late hour of the day to
trespass upon your Lordships' time longer, except to express my
hearty concurrence in the views which have been stated by the
Lord Chancellor, and to say that, as a juryman, I have no doubt
whatever in coming to the conclusion that the judgment ought
to be in favour of the Respondents, the railway company.
  There is no question of law involved in the case except the one
which has been referred to by Lord Chief Justice Coleridge and
Lord Justice Brett, and I quite concur in the observations which
have been made by my noble and learned friends opposite (Lord
Selborne and Lord Blackburn) deprecating the views which they
expressed with reference to the possibility of a mental assent, as
it has been called.  In this case we have no evidence whatever of
consent by putting the document into a drawer, an operation of
the meaning of which we really know nothing whatever.  We
have no evidence with regard to the character of the documents
which are kept in that drawer.  I think in this case your Lord-
ships can have no hesitation in coming to the conclusion which
has been expressed by the majority of the learned Judges through-
out.  The only difficulty I felt was when reading the very elabo-
rate and able judgment of the Lord Chief Justice in favour of
the Appellants.  1 thought that great weight was dne to anything
coming from that quarter, and he had grappled with all the facts
of the case, as I thought,  But I find that he relied very much
upon a letter written by the solicitors for the Appellants, stating
that there had been repeated remonstrances or applications made
to the solicitors for the railway company for some evidence of
acceptance of the contract; but in reality that statement of the
solicitors was unsupported by evidence.  When that is removed
there really is no circumstance which can be taken as justifying
the strong view which the Lord Chief Justice expressed in favour
of the Appellants.
   I therefore think that the judgment should be in favour of the
Respondants.
                            Judgment complained of affirmed, and appeal
                               dismised with costs.
                                 Lords' Journals, July 16 1877.
  Solicitors for the Appellant :  Tahourdins & Hargreaves.
  Solicitors for the Respondents : Burchells.
  LEWIS v. BRASS,
Contract--Condition Precedent--Acceptance of Tender with intimation that
  formal Contract shall be subseqently prepared.
  An intimition in the written acceptance of a tender that a contract will be
afterwards prepared, does not prevent the parties from becoming bound to perform
the terms in the tender and acceptance respectively mentioned, if the intention
of the parties was thereby to enter into an agreement, And if the preparation of
the contract was contemplated merely for the purpose of expressing the agreement
already arrived at in formal language.
 CLAIM,that it was agreed between the plaintiff and the defend-
ant, that the defendant should execute complete certain works for
the plaintiff in such manner and upon such terms and within such
time, as was then agreed upon, for the sum of 4193l.; but that the
defendant omitted and refused to do the work, whereby the
plaintiff suffered damage.
  Defence, after denying the allegations in the claims stated that
the plaintiff intending to have certain work done at some houses
belonging to him, through A. E. Hughes advertised for tenders; a
contract between the plaintiff of the one part, and the builder
selected to do the work of the other part, and containing the terms
on which the same was to be executed, was to be prepared by the
plaintiff's solicitors and signed by the plaintiff and such builder.
A tender for the execution of the work was prepared upon the
defendant's behalf and sent in, but afterwards, and before any
contract had been entered into, the defendant discovered that a
mistake had been made in the estimate upon which the tender
was framed, and thereupon he withdrew the tender and declined
to enter unto any contract upon the basis of it for the execution of
the work.
  Reply, joining issue.
  At the trial, before Hawkins, J., the following facts were
proved :  the plaintiff being desirous of making certain alterations
in his premises above mentioned, sent, through his architect A. E
Hughes, bills of quantities to several builders, inviting them to
make tenders stating the amount at which they would be willing
to execute the work.  The defendant sent in a tender in these
terms :
  "I hereby agree to execute complete, within the space of
twenty-six weeks from the day of receiving instructions to com-
mence, the whole of the work required to be done in alterations
and additions to the above premises, with the best materials, in
strict accordance with the drawings and specification, and to your
entire satisfaction, for the sum of 4193l."
  The plaintiff's architect thereupon wrote to the defendant in the
following terms :
"I am instructed by my client, Mr. John Lewis, to accept yonr
tender of 4l93l. for works as above referred to.  The contract will
be prepared by Messrs. Underwood & Colman, Mr. Lewis's soli-
citors, and I have no doubt it will be ready for signature in the
course of a few days."
  The defendant afterwards found that he had made a mistake in
his tender and thereupon withdrew it; the plaintiff then entered
into a contract with certain other builders for the execution of the
work, and was obliged to pay to them a sum greatly exceeding
the amount mentioned in the defendent's tender.
  Hawkins, J., asked the jury whether by the tender and accept-
ance, tbe parties intended to enter into a contract;  the jury found
that the plaintiff and the defendant intended that the tender and
acceptance should form a contract; the learned judge thereupon
ordered the judgement to be entered for the plaintiff. The defend-
ant subsequently moved in the Quen's Bench Division for a new
trial ; but the motion was refused.  The defendant now appealed
from both the judgment of Hawkins, J, and the refusal of the
new trial rule by the Queen's Bench Division.
Dec. 6, 7.  Arthur Charles, Q.C., and Edwyn Jones, for the
defendant.  The plaintiff's architect did not accept unconditionally
the tender of the defendant, and the parties did not get beyond
mere negotiation.  The formal contract to be subsequently pre-
pared,as intimated in the lettr of the plaintiff's architect, must
necessarily have contained further terms and conditions not
agreed upon at the time of the correspondence; and until those
terms and conditions could be ascertained there could be no final
agreement: Crossley v. Maycock (1); and the signing of a formal
contract was a condition precedent to the parties being bound:
Rossiter v. Miller. (2)  The plaintiff's counsel may rely upon
Ridgway w. Wharton (3) ; but that case really shews that an
agreement to execute an agreement containing new and addi-
tional stipulations is a contradiction in terms, and that the cir-
cumstance of instructing the plaintiff's soliciters to prepare a
formal agreement affords cogent evidence, that the parties did
not intend to bind themselves until the contract should be
reduced into form.
  Herschell, Q.C., and Horace Smith, for the plaintiff.  The nature
of the transaction must be borne in mind, and the documents must
be construed with reference to the subject matter with which the
parties were dealing.  If an offer is made and is accepted, there is
a binding contract; if the acceptance be conditional upon some-
thing being done, for instance a contract being drawn up, then it
is different. But this is a contract to do certain works upon
certain specifications at a certain price and within a certain time;
the defendant agrees that he will fulfil the contract with the
usual stipulations.  Suppose nothing had been said about the
formal contract : the offer and acceptance would necessarily import
all customary stipulations.
  [BRAMWELL, L.J.  If the defendant had begun the work, would
he be paid anything until it was completed?  By the ordinary
rule of law he would be paid when the contract was com-
pleted; can a custom to pay by instalments be imported into the
contract ?]
  It might be shewn that in that trade there is a custom to pay
by instalments, just as in a mercantile contract it might be shewn
that payment was to be cash fourteen days after delivery.  The
law imports into the contract all the customs, which the parties
can be supposed to have had in their minds when they entered
into the contract: Heyworth v. Knight. (1)  In the present case
the acceptance does not contain any terms such as "subject to
signing a contract," and it was not intended that the agreement
was to be conditional upon signing a contract.  The defendant never
complained that terms were imposed on him which the plaintiff
was ound not to put on him: he withdrew his tender because he
found out that his prices were too low.  The mere mention of a
"contract" does not import in itself a  condition.  The words
merely point to an embodiment of the terms agreed upon in a
formal instrument.  Here what is to be done is perfectly well
ascertained on both sides, and the word "contract" does not
make any difference, and the jury have found that the parties
intended this to be the contract.  None of the authorities affect
the principle applicable to this case.  In Rossiter v. Miller (2)
the offer was made on conditions, and one of the terms was tluat
a contract containing a number of conditions should be signed:
until that was done, no contract was arrived at.  Governor, &c., of
the Poor of Kingston-upon-Hull v. Petch (3) does not turn upon the
question whether there was suficient evidence to go to a jury; the
Court drew the inference of fact, that neither party intended the
agreement to be a contract.  The question really turns upon the
construction of the documents: it seems a strange argument that
there was no contract, but it was a mere negotiation, the jury
having found that it was the intention of the parties to make the
contract.  The defendant cannot escape from liability merely
because the cost of the work was miscalculated: Scrivener v.
Pask.  (4)
  Charles, Q.C., in reply.  A contrsct may be absolute upon the
face of it, and yet be really conditional: Pym v. Campbell. (5)
The learned judge ought not to have laft any questions to the jury;
he treats the answer of the jury as if they said the two letters
should operate as the contract between the parties.  The jury
only said that the parties intended the tender and acceptance to
be a contract, not the contract.  There was no mutual assent to
any definate terms, and hence no contract was arrived at: Chinnock
v. Marchioness of Ely. (1)
                                          Cur. adv. vult.
  Dec. 11.  The following judgments were delivered:
  BRAMWELL, L.J.  I think that the decisions appealed from
must be affirmed.  There was sufficient evidence to go to the jury
that the parties were doing more than negotiating, and the entry
of the judgment was right; but it has been argued in this court
that the tender was not accepted "pure and simple," but with an
additional term;  and this contention was founded upon the circum-
stance that the letter of the plaintiff's architect, after stating that
the defendant's tender was accepted, proceeded to say that the
contract would be prepared by the plaintiff's solicitors.  I do not
take this to be the true construction of the documents; it was
merely intended that a formal instrument should be drawn up,
such as is usually prepared when works of magnitude are under-
taken, and in support of this construction I may observe that the
defendant made no objection to the letter from the architect.
The acceptance therefore was pure and simple, and did not impose
any additional terms.  It is possible that the formal contract
would have contained terms not specially mentioned in the tender
by the defendant and in the letter from the plaintiff's architect,for
instance, as to the payment of the contract price by instalments,
or as to what part of the work was to be first commenced;  but the
defendant might have successfully objected to the introduction of
such terms, and the work would have been proceeded with upon
the terms contained in the tender and the letter.

BRETT, L.J. I am of the same opinion. At the trial the
question was whether at the time when the documents were
signed the parties had a contracting mind; the jury found that
they had, and thereupon according to the ordinary rule of law
the true construction of the letters became a matter for the
determination of the Court.  I think that when the letter of the
plaintiff's architect had been written and received, a contract was
made and completed. The contract mentioned in the letter was
merely formal. I think that the plaintiff is entitled to succeed.
  COTTON, L.J.  I should have added nothing, if it were not that
reference has been made to Rossiter v. Miller. (1) In the case
before us there are two appeals, one from the judgment at the
trial before Mr. Justice Hawkins, and the other from the refusal of
the Queen's Bench Division to grant a new trial.  The jury have
found that there was a contract between the parties, and I think
that the evidence justified that finding. As the parties did intend
to contract we have to consider whether the tender and acceptance
did in point of law constitute a contract.  The tender is drawn up
in formal terms, and it was followed by the letter of acceptance.
When the existence of a contract is to be gathered from a corre-
spondence, there must be an unqualified acceptance of the offer,
and no term must be introduced; if a new term is introduced,
there is no contract.  It often happens that the language used is
ambiguous, and doubts arise whether the parties are ad idem.  If the
plaintiff's architect by his letter introduced new terms, the accept-
ance was not unqualified ;  but I do not think that he did, and if it
were not for the reference to the preparation of a subsequent con-
tract, it could not have been argued that the contract was incom
plete: no new terms as to the execution of the works or payment of
the price are mentioned, and if any other terms were contemplated
at the time of the negotiations, it was competent to the plaintiff
not to insist upon them.  I think that the rule of construction laid
down in Crossley v. Maycock (2) is correct  and that the accept-
ance of an offer accompanied by the expression of a wish for a
more formal instrument is suficient to enable a court of justice
to hold that a final agreement has been arrived at.  The defend-
ant has relied upon Rossiter v. Miller (1): I do not think that
that case is at variance with our decision: there the Court held
that upon the constructio of the documents no final contract had
been arrived at, and it is to be observed that by the conditions
the purchaser was " required to sign a contract."  The language
used ws different from that in the present case, and the decision
is no authority against the conclusion to which we have come.
                                      Appeals dismissed (1).
  Solicitors for plaintiff:  Underwood & Colman.
  Solicitors for defendant :  John Mackrell & Co.

                   CUNDY v. LINDSAY
now Respondents, Messrs. Lindsay & Co., were linen manufacturors,
carrying on business at Belfast.  In the latter part of 1873, Blenkarn
wrote to the Plaintiffs on the subject of a purchase from them of
goods of their manufacture--chiefly cambric handkerchiefs.  His
letters were written as from "37, Wood Street, Cheapside," where
he pretended to have a warehouse, but in fact occupied only a room
on the top floor, and that room, though looking into Wood Street on
one side, could only be reached from the entrance in 5, Little Love
Lane.  The name signed to these letters was always signed without
any initial as representing a Christian name, and was, besides, so
written as  to appear " Blenkiron & Co."  There was a highly
respectable firm of W. Blekiron & Son, carrying on business in
Wood Street--but  at number 123, Wood Street, and not at 37.
  Messrs. Lindsay who knew the respectability of Blenkiron &Sons
though not the number of the house where they carried on business
answered the letters, and sent the goods addressed to "Messrs.
Blenkiron & Co., 37, Wood Street, Cheapside," who the were
taken in at once. The invoices sent with the goods were always
addressed in the same way.  Blenkarn sold the goods, thus
fraudulently obtained from Messrs. Lindsay, to different persons,
and among the rest he sold 250 dozen of cambric handkerchiefs
to the Messrs. Cundy, who were bona fide purchasers, and who
resold them in the ordinary way of their trade. Payment not
being made, an action was commenced in the Mayor's Court of
London by Messrs. Lindsay the junior partner of which firm, Mr.
Thompson, made the ordinary affidavit of debt, sa against Alfred
Blenkarn, and therein named Alfred Blenkarn as the debtor.
Blenkarn's fraud was soon discovered, and he was prosecuted at
the Central Criminal Court, and convicted and sentenced. Messrs.
Lindsay then brought an action against Messrs. Cundy as for un-
lawful conversion of the handkerchiefs. The cause was tried before
Mr. Justice Blackburn, who left it to the jury to consider whether
Alfred Blenkarn, with a fraudulous intent to induce the plaintiffs to
give him the credit belonging to the good character of Blenkiron &
Co., wrote the letters, and by fraud induced the plaintiffs to send
the goods to 37, Wood Street--were they the same goods as those
bought by the Defendants--and did the Plaintiffs by the affidavit
of debt intend, as a matter of fact, to adopt Alfred Blenkarn as
 Gandell v. Todd was a different firm and carried on business at a
 different place, and was wholly unknown to the Plaintiffs, and
 Edward Gandell having by fraud got hold of the goods sent to the
 warehouse of Thomas Gandell, carried them off to his own place;
 and so disposed of them.  Here the Plaintiffs themselves sent the
 goods to the person who had corresponded with them, and who
 did carry on business at 37, Wood Street. The goods reached that
 destination,  and were delivered there acccording to the address
 which the Plaintiffs had put upon them.  The facts of the two
 cases were unlike, and without in the least doubting the decision
 in that case, it may well be contended not to be applicable here.
 Here the original owner allowed the goods to remain in the hands
 of the person to whom he had sent them, and while there they
 were sold to the Defendants, who were bona# fide purchaser for
 value.  After that the vendor could no longer follow them as his
 own; his intent~ion had been to transfer; them, and the transfer
 was complete.  In no way whatever could the case be compared
 to one in which money or a bill of exchange was delivered to a
 person for a particular purpose, and he used it for another, and so
 could give no title whatever to a third person to whom he passed
 it.  Neither was this a delivery to B., who stated himself to be
 the agent of some one else where he was not so; it was a delivery
 to B. himself.  Credit was therefore given to him; it was given to
 Blenkarn & Co., of 37, Wood Street.  Then again, in the first
 instance Mr. Thompson, one of the partners in Messrs. Lindsay's
 house, made an affidavit of debt against Alfred Blenkarn, which
 shewed that the house recognised Blenkarn as the debtor, and the
 transaction as one of a sale.  That, though not conclusive on the
 subject, was at least strong evidence of previous intention.  It may
 be admitted that where the authority to part with the property is
 limited, and the property is parted with in disregard of that limited
 authority, the title to it would not pass: Reg. v. Middleton (1)
 but that cannot affect this case, for here the goods were trans-
 mitted by the owners themselves to a person and a place described
 by themselves.  The title to the goods was for the time perfect in
 law, and, being so, the transfer to the Defendants and made during
 that time, being made bona# fide, could not be impeached: Pease v.
                   (1) Law Rep. 2 C. C. R. 38
Qlandell (l).  Till the title of Blenkarn was disaffirmed it was
good, and the property disposed of in the meantime could not
afterwards be followed in the hands of a third person who had
honestly purchased it.
  Mr. Wills, Q.C., and Mr. Fullarton, for the Respondents:--
  Where the circumstances are such that no contract has ever
case : Kingsford v. Merry (2) ; Boulton v. Jones (3) ; Hardman v.
Booth (4).  Here there was no contract.  The Plaintiffs did not know
of the existence of two firms of names similar to each other carry-
ing on business in Wood Street ; they knew only of Blenkiron & Co.,
and thought they were dealing with Blenkiron & Co., and sent their
goods to that firm.  But Blenkiron & Co. knew nothing whatever
of the matter. There wss, therefore, no contract with them. Nor
was there any with Blenkarn, for by a fraud in using the name of
other persons he obtained  possession of goods intended for these
other persons, and not for him.  There was, therefore, no contract
with him.  If so, no moment existed during which a title to the
goods could be given to the Defendants.  Their conversion of the
goods was consequently unlawful.
  The Solicitor General replied.
  THE LORD CHANCELLOR (Lord Cairns) :---
  My Lords, you have in this case to discharge a duty which is
always a disagreeable one for any Court, namely to determine as
between two partiees both of whom are perfectly innocenft, upon
which of the two the consequences of a fraud practised upon both
of them must fall.  My Lords, in discharging that duty and
Lordships can do no more than apply, rigorously, the settled and
well known rules of law. Now with regard to the title to per-
sonal property, the settled snd well known rules of law may, I
take it, be thus expressed: by the law of our country the purchaser
of a chattel takes the chattel as a general rule subject to what
  (1) Law Rep 1 P. C. 218.           (3) 2 H. & N. 564, see Re Reed,
  (2) 1 H. & N. 503.               3 Ch. D. 125.
                      (4) 1 H. & C. 803.
may turn out to be certain infirmities in the title.  If he puchases
the chattel in market overt, he obtains a title which is good
against all the world but if he does not purchase the chattel in
market overt, and if it turns out that the chattel bas been found
by the person who professed to sell it, the purchaser will not
obtain a title good as against the real owner.  If it turns out that
the chattel has been stolen by the person who was professed to sell
it, the purchaser will not obtain a title.  If it turns out that the
chattel has come into the hands of the person who professed to
sell it by a de facto contract, that is to say, a contract which has
purported to pass the property to him from the owner of the pro-
perty, there the purchaser will obtain a good title, even although
afterwards it should appear that there were circumstances con-
nected with that contract, which would enable the original owner
of the goods to reduce it, and to sat it aside, because these circum-
stances so enabling the  original  owner of the goods, or of the
chattel, to reduce the contract and to set it aside, will not be
allowed to interfere with a title for valuable consideration ob-
tained by some third party during the interval while the contract
remained unreduced.
  My Lords, the question, therefore, in the present case, as your
Lordships will  observe, really becomes the very short and simple
one which I am about to state. Was there any contract which,
with regard to the goods in question in this case, had passed the
propperty in the goods from Messrs. Lindsay to Alfred Blenkarn?
If there was any contract passing that property, even although, as
I have said, that contract might afterwards be open to a process
of reduction, upon the ground of fraud, still, in the meantime,
Blenkarn might have conveyed a good title for valuable conside-
ration to the present Appellants.
  Now, my Lords, there are two observations bearing upon the
solution of that question which I desire to make.  In the first
place, if the property in the goods in question passed, it could
only pass by way of contract; there is nothing else which could
have passed the property.  The second observation is this, your
Lordships are not here embarrassed by any conflict of evidence, or
any evidence whatever as to conversations or as to acts done, the
whole history of the  whole transaction lies upon paper.  The prin-
cipal parties concerned, the Respondents and Blenkarn, never
came in contact personally---everything that was done was done
by writing.  What has to be judged of, and what the jury in the
present case had to judge of, was merely the conclusion to be
derived from that writing, as aplplied to the admitted facts of the
case.
  Now, my Lords, discharging that duty and answering that
inquiry, what the jurors have found is in substance this: it is not
necessary to spell out the words, because the substance of it is
beyond all doubt.  They have found that by the form of the
signatures to the letters which were written by Blenkarn, by the
mode in which his letters and his applications to the Respondents
were made out, and by the way in which he left uncorrected the
mode and form in which, in turn, he was addressed by the Re-
spondents ; that by all these means he led and intended to lead,
the Respondents to believe, and they did believe that the person
with whom they were communicating was not Blenkarn, the dis-
honest and irresponsible man, but was a well known and solvent
house of Blenkiron & Co., doing business in the same street.  My
Lords, those things are found as matters of fffact, and they are
placed beyond the range of dispute and controversy in the case.
  If that is so what is the consequence?  It is that Blenkarn--
the dishonest man, as I call him---was acting here just in the same
way as if he had forged the signiture of Blenkiron & Co., the
respectble firm, to the applications for goods, and as if, when, in
return, the goods were forwarded and letters were sent, accom-
panying them, he had intercepted the goods and intercepted the
letters, and had taken possession of the goods, and of the letters
which were addressed to, and intended for not himself but, the
firm of Blenkiron & Co.  Now, my Lords, stating the matter
shortly in that way, I ask the question, how is it possible to
imagine that in that state of things any contract could have arisen
between the  Respondents and Blenkarn, the dishonest man?  Of
him they knew nothing, and of him they never thought.  With
him thy never intended to deal.  Their minds never, even for an
instant of time rested upon him, and as between him and them
there was no consensus of mind which could lead to any agreement
or any contract whatever.  As between him and them there was
merely the one side to a contract, where, in order to produce a
contract,two sides would be required. W1th the firm of Blenkiron
& Co. of course there was no contraet, for as to them the matter
was entirely unknown, and therefore the pretence of a contract
was a failure.
  The result, therefore, my Lords, is thus, that your Lordships
have not here to deal with one of those cases in which there is de
facto a contract made which may afterwards be impeached and set
aside, on the ground of fraud; but you have to deal with a case
which ranges itself under a completely different chapter of law,
the case namely in which the contract never comes into existence.
My Lords, that being so, it is idle to talk of the property passing.
The property remained, as it originally had been, the property of
the Respondents, and the title wh1ch was attempted to be given
to the Appellants was a title which could not be given to them.
  My Lords, I therefore move your Lordships that this appeal be
dismissed with costs, and ths judgment of the Court of Appeal
affirmed.
  LORD HATHERLEY:--
  My Lords, I have come to the same conclusion as that which
has just been expressed by my noble and learned friend on the
woolsack.  The real question we have to consider here, is this:
whether or not any contract was actually entered into between
the Respondents and a person named Alfred Blenkarn, who im-
posed upon them in the manner described in the verdict of the
jury; the case that was tried being one as between the alleged
vendors and a person who had purchased from Alfred Blenkarn.
  Now the case is simply this, as put by the learned Judge in the
Court below; it was most carefully stated,as one might expect it
would be by that learned Judge: "Is it made out to your satis-
faction that Alfred Blenkarn, with a fraudulent intent to induce
customers generally, and Mr. Thompson in particular, to give him
the credit of the good character which belonged to William Blenk-
iron & Sons, wrote these letters in the way you have heard, and
had those invoices headed as you have heard," and farther than
that, "did he actually by that fraud induce Mr. Thompson to send
the goods""to 37, Wood Street?"
Both these questions were answered in the affirmative by the
jury.  What, then, was the result?  It was, that there were
letters written by a man endeavouring by contrivance and fraud,
as appears upon the face of the letters themselves to obtain the
credit of the well-known arm of Blenkiron & Co., Wood Street.
That was done by a falsification of the signature of the Blenkiron,
writing his own name in such a manner as that it appeared to
represent the signature of that firm.  And farther, his letters and
invoices were headed " Wood Street," which was not an accurate
way of heading them, for he occupied only a room on a third
floor, looking into Little Love Lane on one side, and looking into
Wood Street on the other.  He headed them in that way, in order
that by these two devices he might represent himself to the
Respondents as Blenkiron of Wood Street.  He did that purposely;
and it is found that he induced the Respondents by that device to
send the goods to Blenkiron of Wood Streert.  I apprehend, there-
fore, that if there could be said to have been any sale at all, it
failed for want of a purchaser.  The sale, if made out upon such
a transaction as this, would have been a sale to the Blenkirons  of
Wood Street, if they had chosen to adopt it, and to no other person
whatever---not to this Alfred Blenkarn, with whom the Respon-
dents had not, and with whom they did not wish to have, any
dealings whatever.
  My Lords, it appears to me that that brings the case completely
that there was no real contract between the parties by whom the
goods were delivered and the concoctor of the fraud who obtained
possession of them, because they were not to him sold.  Exactly
in the same way here, there was no real contract whatever with
Alfred Blenkarn ; no goods had been delivered to anybody except
for the purpose of transferring the property to Blenkiron (not
Blenkarn; therefore the cse really in substance is the identical
case of Hardman v. Booth (1) over again.
  My noble and learned friend who sits opposite to me (Lord
Penzance) has callled my attention to a case whoch seems to have
been decided exactly the same principle as Hardman v. Booth (1)
and it is worth while referring to it as an additional authority upon
  (1) 1 H. & C. 803.
that principle of law. It is the case of Higgims v. Burton (1).
there, one Dix, who had been the agent of a responsible firm that
had had dealings with the Plaintiff in the act on, was dismissed
by his employers he concealed that dismissal from a customer of
the firm, the Plaintiff in the action, and, having concealed that
dismissal, cont1nued to obtain goods from him still as acting for
the firm. The goods were delivered to hum, but it was held that
that delivery was not a delivery to any person whatever who had
purchased the goods.  The goods, if they had been purchased at
all, would have been purchased by the firm for which thus man had
acted as agent; but he had been dismisssd from the agency--there
was no contract, therefore, with the firm; there was no contract
ever intended between the vendors of the goods and the person
who had professed to purchase the goods as the agent of that
firm; and the consequence was that there was no contract at all.
There, as here, the circumstance occurred that an innocent person
purchasing the goods from the personwith whom there was no
contract was obliged to submit to his loss. The point of the case
is put so very shortly by Chief Baron Pollock that I cannot do
better than adopt his reasoning: "There was no sale at all, but a
mere obtaing of the goods by false pretences; the property, there-
fore did not pass out of the Plaintiffs."  The other Judges, who
were Barons Martin, Bramwell, and Watson, concurred in that
judgment.
  Here, I say, exactly as in those cases of Hardman v. Booth (2)
and Higgins v. Burton (1), there was no sale at all; there was a
representation, a false representation, made by Blenkarn, by which
he got goods sent to him, upon applications from him to become a
purchaser, but upon invoices made out to the firm of Blenkiron &
Co.  But no contract was made with Blenkarn nor any contract
was made with Blenkiron & Co., because they knew nothing at
all about it, and therefore there could be no delivery of the goods
with the intent to pass the property.
  We have been pressed very much with an ingenious mode of
putting the case on the part of the counsel who have argued with
eminent ability for the Appellants in this case, namely, suppose
this fraudulent person had gone himself to the firm from which
  (1)26 L. J. (Ex)342.             (2) 1 H.&C 803.
he wished to obtain the goods, and had represented that he was a
member of one of the largest firms in London.  Suppose on his
making that representation the goods had been delivered to him.
Now I am very far, at all events on the present occas1on, from
seeing my way to this, that the goods be1ng sold to hum as repre-
senting that firm he could be treated in any other way than as an
agent of the firm, or suppose he had said:"I am as rich as that
firm.  I have transactions as large as those of that firm.  I have
a large balance at my bankers;" then the sale would not have been a
sale to a fraudulent purchaser on fraudulent representations, and a
sale whuch would have been capable of being set aside, but still
a sale would have been made to the person who made those false
representations, and the parting with the goods in that case
might possibly--I say no more--have passd the property.
  But this case is an entirely different one.  The whole case, as
represented here is this; from beginning to end the Respondents
believed they were dealing with Blenkiron & Co., they made out
their invoices to Blenkiron & Co, they supposed they sold to
Blenkiron & Co, they never sold in any way to Alfred Blenkarn;
and therefore Alfred Blenkarn cannot, by so obtaining the goods,
have by possibility made a good title to a purchaser, as against
the owners of the goods, who had never in any shape or way
parted with the property nor wuth anything more than the posses-
sion of it.
LORD PENZANCE:---
  My Lords, the findings of the jury in th1s case coupled with the
evidence, warrant your Lordships in concluding that the foillowing
are the circumstances under which the Respondents parted with
their goods.  Whether by so doing they passed the property in
them to Alfred Blenkarn is I conceive the real question to be
determined
  The Respondents had never seen or even heard of Alfred Blen-
karn, when they received a letter followed by several others signed
in a manner which was not absolutely clear, but which the writer
intended them to take, and which they did take, to be the signa-
ture of a well-known house of Blenkiron & Co., which in fact
carried on business at No. 123, Wood Street The purport of
these letters was to order the goods now in quest on  The house
of Blenkiron & Co. was known to the Respondents, and it was
also known that they lived in Wood Street, though the Respondents
did not know the number. The Respondents answered these
letters, addressing their answers to Blenkiron & Co. in  Wood
Street, but in place of No  123, they directed them to No 37,
which was the number given in the letters as the address of that
firm  In the result they sent off the goods now in dispute and
addressed them, as they had addressed their  letters, to Blenkiron &
Co., No 37, Wood Street, London.  It is not doubted or disputed
that throughout this correspondence and up to, and after, the tume
that the Respondents had dispatched their goods to London, they
intended to deal and believed they were dealing with Blenkiron &
Co, and with nobody else ; nor is it capable of dispute that, when
they parted with the possession of their goodes, they did so with
the intention that the goods should pass into the hands of Blenkiron
& Co, to whom they addrcased these goods  The goods, however,
were not delivered to Blenkiron & Co., to whom they were ad-
dressed, but found their way to the hands of Alfred Blenkarn,
owing to the number in Wood Street being given as No. 37, in
place of No 123---a mistake which had been purposely brought
about by the writer of the letters as I have before mentioned, who
was no other than Alfred Blankarn, and who had an office or room
at No. 37, Wood Street.
  In this state of things, it is not denied that the contact, or deal-
ing, which the Respondents thought they were entering into with
Blenkiron & Co, and in fulfilment of which they parted with their
goods, and forwarded them to what they thought was the address
of that firm  was no contract at all with them seeing that Blenkiron
& Co knew nothing of the transaction.  But, say the Appellants, it
to pass the property in the goods to that individual although the
goods were not addressed to him and the Respondents did not
know of his existence.
  I am not aware, my Lords, that there is any decided case in
which a sale and delivery intended to be made to one man, has
been held to be a sale and delivery so as to pass the property to
another, against the intent and will of the vendor. And if this
cannot be, it is difficult to see how the contention of the Appel-
lants can be maintained. It was indeed argued that as the letters
and goods were addressed to No. 37 instead of No. 123, this con-
stituted a dealing with the person whose office was at No. 37.
But to justify this argument it ought at least to be shewn that
the Respondents knew that there was such a person and that he
had officas there--whereas the contrary is the fact, and the
Respondents only adopted the number because it was given as the
address in letters purporting to be signed "Blenkiron & Co."
  My Lords, I am unable to distinguish this case in principle
from that of Hardman v. Booth (l) to which reference has been
made. In that case Edward Gandell who obtained posscasion of
the Plaintiff's goods, pretended to have authority to order goods
for Thomas Gandell & Co., which he had not, and then intercepted
the goods and made away with them, the Court held that there
was no contract w1th Thomas Gandell & Co.,  as they hsd given no
authority, and none with Edward Gandell, who had ordered the
goods, as the Plaintuffs never intended to deal with him.
  In the present case Alfred Blenkarn pretended that he was,
and acted as if he was, Blenkiron & Co. with whom alone the
vendors meant to deal.  No contract was ever intended with him,
and the contract which was intended failed for want of another
party to it. In principle the two cases seem to me to be quite
alike.
  Another case of a similar kind is that of Higgons v Burton (2),
to which similar reasoning was applied.
  Hypothetical cases were put to your Lordships in argument in
which a vendor was supposed to deal personally w1th a swindler,
believing him to be some one else of credit and stability, and
under thus belief to have actually delivered goods into h1s hands.
My Lords, I do not think it necessary to express an opinion upon
the possible effect of some cases wh1ch I can imagine to happen of
this character, because none of such cases can I think be parallel
with that which your Lordships have now to decide. For in the
 (1) 1 H.& C. 803.                  (2) 26 L. J. (Ex.) 342.
present case the Respondents were never brought personally into
contact with Alfred Bflenkarn , all the1r letters, although received
and answered by him, were addresssd to Blenkiron & Co., and
intended for that arm only; and finally the goods in dispute were
not delivered to him at all, but were sent to Blenkiron & Co
though at a wrong address.
  This appeal ought therefore, in my opinion  to be dismissed.
  LORD GORDON concurred.
                   Judgment appealed from affirmed,  and appeal
                       dismissed with costs
                            Lords' Journals, 4th March, 1878
  Solicitors for the Appellants :  Charles O. Humphreys & Son.
  Solicitors for the Respndents: Ashurst, Morris, Crisp, & Co.
 THE HOUSEHOLD FIRE AND CARRIAGE ACCIDENT INSURANCE
              COMPANY (LIMITED) v. GRANT.
Company--Allotment of Shares--Letter of Allotment posted, but not received--
            Post Office, Agent of Parties contracting by Letter.
 The defendant applied for shares in the plaintiff7s company. The company
alloted the shares to the defendant, and duly addressed to him and posted a
letter containing the notice of the allotment, but the letter never was received by
him:--
 Held, by Baggally and Thesiger, L.JJ., Bramwell, L.J., dissenting, that the
defendant was a shareholder.
 British and American Telegraph Co. v. Colson (L.R. 6 Ex. 108) overruled.

 ACTION to recover 94l. 15s. being the balance due upon 100
shares allotted to the defendant on the 25th of October, 1874, in
pursuance of an application from the defendant for such shares
dated the 30th of September, 1874.
  At the trial before Lopes J., during the Middlesex Sittings
1878, the following facts were proved.  In l874 one Kendrick
was acting in Glamorganshire as the agent of the company for
the placing of their shares and on the 30th of September the
defendant handed to Kendrick an application in writing for
  (1) 3 Q.B.D. 6.  (2) Brett and Cotton L.JJ.
shares in the plaintiffs' company, which stated that the defendant
had paid to the bankers of the company 5l., being a deposit of 1s.
per share, and requesting an allotment of 100 shares, and agree-
ing to pay the further sum of 19s. per pair within twelve months
of the date of the allotment.  Kendrick duly forwarded this
application to the plaintiffs in London, and the secretary of the
company on the 20th of October, 1874, made out the letter of
allotment in favour of the defendant, which was posted addresses
to the defendant at his residence 16, Herbert Street, Swansea,
Glamorganshire: his name was then entered on the register of
shareholders. This letter of allotment never reached the defend-
ant.  The defendant never paid the 5l. mentioned in his applica-
tion, but the plaintiffs' company being indebted to the defendant
in the sum of 5l. for commission, that sum was duly credited to
his account in their books.  In July, 1875, a dividend at the rate
of 22 per cent. was declared on the shares, and in February,
l876, a further dividend at the same rate; these dividends
amounting altogether to the sum of 5s., was also credited to the
defendant's account in the books of the plaintiffs' company. After-
wards the company went into liquidation, and on the 7th of
December, 1877, the official liquidator applied for the sum sued
for from the defendant; the defendant declined to pay on the
ground that he was not a shareholder.
  On these facts the learned judge left two questions to the jury.
1. Was the letter of allotment of the 20th of October in fact posted ?
2. Was the letter of allotment received by the defendant?  The
jury found the first question in the affirmative and the last in the
negative.
  The learned judge reserved the case for further consideration,
anj after arguinient dii-ectcd jiijgment to be entered for tlue
and after argument directed judgment to be entered for the
plaintiffs on the authority of Dunlop v. Higgins. (1)
The defendant appealed.
  May 22.  Finlay and Dillwyn for the defendant, contended
that the defendant was not a shareholder for it was necessary that
the allotment of shares should not only be made but also com-
municated to the defendant; that a letter posted but not received
  (1) 1 H.L.C. 381.
was not a communication to the defendant of the allotment, and
that there was therefore no contract between the parties.
 Wilberforce, and G. Arbuthnot (W. G. Harrigon, Q.C., with
them),for the plaintiffs, contended that the contract was complete
by acceptance when the letter was posted, and that the plaintiffs
were not answerable for casualties at the post office preventing the
arrival of the letter.
  In addition to the authorities mentioned in the judgment, the
following cases were cited during the argument :  Reidpath's
Case (1); Townsend's Case (2);Wall's Case (3);  Gunn's Case (4) ;
Dunmore v. Alexander (5); Pellatt's Case (6); Ex parte Cote (7) ;
Taylor v. Jones (8);  Pollock on the Law of Contracts, p. 13.
                                           Cur. adv. vult.
  July 1.  The following judgments were delivered :--
THESIGER, L.J.  In this case the defendant made an application
for shares in the plaintiffs' company under circumstances from
which we must imply that he authorized the company, in the
event of their allotting to him the shares applied for, to send
the notice of allotment by post.  The company did allot him the
shares, and duly addressed to him and posted a letter confirming
the notice of allotment, but upon the finding of the jury it must
be taken that the letter never reached its destination.  In this
state of circumstances Lopes, J., has decided that the defendant is
liable as a shareholder.  He based his decision mainly upon the
ground that the point for his consideration was covered by autho-
rity binding upon him and I am of opinion that he did so rightly,
and that it is covered by authority equally binding upon this
Court.
  The leading upon the subject is Dunlop v. Higgins. (9)  It
is true that Lord Cottenham might have decided that case without
deciding the point raised in this.  But it appears to me equally
true that he did not do so, and that he preferred to rest and did
  (1) Law Rep. 11 Eq.86           (5) 9 Shaw & Dunlop. 19O.
  (2) Law Rep. 13 Eq.148.         (6) Law Rep. 2 Ch. 527.
  (3) Law Rep. 15 Eq. 18.         (7) Law Rep. 9 Ch. 27.
  (4) Law Rep. 3 Ch. 4O.          (8) 1 C.P.D. 87.
                (9) 1 H.L.C. 381.
rest his judgment as to one of the matters of exception before him
upon a principle which embraces and governs the present case.  If
so the Court is as much bound to apply that principle, constituting
as it did a ratio decidendi, as it is to follow the exact decision
itself.  The exception was that the Lord Justice General directed
the jury in point of law that, if the pursuers po3ted their accept-
ance of the offer in due time, according to the usage of trade they
were not responsible for any casualties in the post office establish-
ment.  This direction was wide enough in its terms to include the
case of the acceptance never being delivered at all; and Lord
Cottenham, in expressing his opoinion that it was not open to
objection, did so after putting the case of a letter containing a
notice of dishonour posted by the holder of a bill of exchange in
proper time, in which case he said (1), " Whether that letter
be delivered or not is a matter quite immaterial, because for
accidents happening at the post office he is not responsible."  In
short, Lord Cottenham appears to me to have held that, as a rule,
a contract formed by correspondence through the post is complete
as soon as the letter accepting an offer is put into the post, and is
not put an end to in the event of the letter never being delivered.
My view of the effect of Dunlop v. Higgins (2) is that taken
by James, L.J., in Harris, Case (3) there (4) he speaks of the
former case as " a case which is binding upon us, and in which
every principle argued before us was discussed at length by the
Lord Chancellor in giving judgment," lie adds the Lord Chancellor
" arrived at the conclusion that the posting of the letter of accept-
ance is the completion of the contract;  that is to say, the moment
one man has made an offer,  and the other has done something
binding himself to that offer then the contract is complete and
neither party can afterwards escape from it."  Mellish J. also
took the same view he says  (5) " in Dunlop v  Higgins (2) the
question was directly raised whether the law was truly ex-
pounded in the case of Adams v. Lindsell. (6)  The House of
Lords approved of the ruling of that case.  The Lord Chancellor
Cottenham said, in the course of his judgment, that in the case of
  (1) 1 II. L. C. at p. 399.              (4) At p. 592.
  (2) 1 II. L. C. 351.                    (5) At p. 595.
  (3) Law Rep. 7 Ch. 587                  (6) 1 B. & A. 681
a bill of exchange notice of dishonour, given by putting a letter
into the post at the right time, had been held quite sufficient
whether that letter was delivered or not; and he referred to
Stocken v. Collin (l) on that point he being clearly of opinion that
the rule as to accepting a contract was exactly the same as the
rule as to sending notice of dishonour of a bill of exchange.  He
then referred to the csse of Adams v. Lindsell (2), and quoted
the observation of Lord Ellenborough, C.J.  That case therefore
appears to me to be a direct decision tliat the contract is made
from the time when it is accepted by post."  Leaving Harris'
Case (3) for the moment I turn to Duncan v. Topham(4) in which
Cresswell, J., told the jury that if the letter accepting the con-
tract was put into the post office and lost by the negligence of the
post office authorities, the contract would nevertheless be complete ;
and both he and Wilde, C.J., and Maule, J., seem to have under-
stood this ruling to have been in accordance with Lord Cotten-
ham's opinion in Dunlop v. Higgins. (5)  That opinion therefore
appears to me to constitute an authority directly binding upon
us.  But if Dunlop v. Higgins (5) were out of the way Harris'
Case (3) would still go far to govern the present.  There it was
held that the acceptance of the offer at all events binds both
parties from the time of the acceptance being posted and so as to
prevent any retractation of the offer being of effect after the
acceptance lias been posted.  Now, whatever in abstract discussion
may be said as to the legal notion of its being necessary, in order
to the effecting of a valid and binding contract, that the minds of
the parties should be brought together at one and the same
moment, that notion is practically the foundation of English law
upon the subject of the formation of contracts.  Unless therefore
a contract constituted by correspondence is absolutely concluded
at the moment that the continuing offer is accepted by tbe person
to whom the offer is addressed, it is difficult to see how the two
minds are ever to be brought together at one and the same
moment.  This was pointed out by Lord Ellenborough in the case
of Adams v. Lindsell (2), which is recognized authority upon this
(1) 7 M.& W. 515.              (3) Law Rep. 7 Ch. 587.
(2) 1 B.& A. 681.              (4) 8 C. B. 225.
                  (5) 1 H.L.C.381.
branch of the law.  But on the other hand it is a principle of law,
as well established as the legal notion to which I have referred,
that the minds of the two parties must be brought together by
mutual communication.  An acceptance, which only remains in the
breast of the acceptor without being actually and by legal impli-
cation communicated to the offerer, is no binding acceptance.
How then are these clements of law to be harmonised in the
case of contracts formedl by correspondence through the post?
I see no better mode than that of treating the post office as
the agent of both parties, and it was so considered by Lord
Romilly in Hebb's Case (1), when in the course of his judgment he
said : "Dunlop v. Higgins (2) decides that the posting of a letter
accepting an offer constitutes a binding contract, but the reason
of that is that the post office is the common agent of both
parties."  Alderson, B., also in Stocken v. Collin (3), a case of
notice of dishonour and the case referred to by Lord Cottenham,
says: "If the doctrine that the post office is only the agent for
the delivery of the notice were correct no one could safely avail
himself of that mode of transmission."  But if the post office be
such common agent, then it seems to me to follow that, as soon as
the letter of acceptance is delivered to the post office, the contract
is made as complete and final and absolutely binding as if the
acceptor had put his letter into tbe hands of a messenger sent by
the offerer himself as his agent to deliver the offer and receive
the acceptance.  What other principle can be adopted short of
holding that the contract is not complete by acceptance until and
except from the time that the letter containing the acceptance is
delivered to the offerer a principle which has been distinctly
negatived?  This difficulty was attempted to be got over in the
British and American Telegraph Co. v. Colson (4)  which was a
case directly on all fours with the present, and in which
Kelly C.B. (5) is reported to have said " It may be that in
general, though not in all cases  a contract takes effect from
the time of acceptance and not from the subsequent notifi-
cation of it.  As in the case now before the Court, if the letter
  (1) Law Rep. 1 Eq. at p. 12.         (3) 7 M. & W. at p. 516.
  (2) 1 H. L. C. 381.                  (4) Law Rep. 6 Ex. 108.
                            (5) At p. 115.
of allotment had been delivered to the defendant in the due
course of the post he would have become a shareholder from the
date of the letter.  And to this effect is Potter v. Sanders. (1)
And hence perhaps the mistake has arisen that the contract is
binding upon both parties from thetime when the letter is written
and put into the post, although never delivered ;  whereas although
it may be binding from the time of acceptance, it is only binding
at all when afterwards duly notified."  But with deference I
would ask how a man can be said to be a shareholder at a time
before he was bound to take any shares, or to put the question in
the form in which it is put by Mellish, L.J., in Harris' Case (2)
how there can be any relation back in a case of this kind as
there may be in bankruptcy. If, as the Lord Justice said, the
contract after the letter has arrived in time is to be treated as
having been made from the time the letter is posted, the reason
is that the contract was actually made at the time when the letter
was posted. The principle indeed laid down in Harris' Case (2)
as well as in Dunlop v. Higgins (3), can really not be reconciled
with the decision in the British and American Telegraph Co. v.
Colson. (4)  James, L.J., in the passage I have already quoted (5)
affirms the proposition that when once the acceptance is posted
neither party can afterwards escape from the contract  and refers
with approval  to Hebb's Case. (6)  There a distinction was taken
by the Master of the Rolls that the company chose to send the
letter of allotment to their own agent, who was not authorized by
the applicant for shares to receive it on his behalf, and who never
delivered it, but he at the same time assumed that if, instead of
sending it through an authorized agent they had sent it through
the post office, the applicant would have been bound although the
letter had never been delivered.  Mellish, L.J., really goes as far,
and states forcibly the rcasons in favour of this view.  The mere
suggestion thrown out (at the close of his judgment, at p. 597)
when stopping short of actually overruling the decision in the
British and American Telegraph Co. v. Colson (4), that although
  (1) 6 Hare, 1.                    (4) Law Rep. 6 Ex. 108.
  (2) Law Rep. 586,at p. 596.       (5) Harris' Case, Law Rep. 7 Ch.
  (3) 1 H.L.C. 381.                 592.
                     (6) Law Rep. 4 Eq. 9.
a contract is complete when the letter accepting an offer is posted,
yet it may be subject to a condition subsequent that, if the letter
does not arrive in due course of post, then the parties may act upon
the assumption that the offer has not been accepted, can hardly,
when contrasted with the rest of the judgment, be said to repre-
sent his own opinion on the law upon the subject. The contract
as he says (1), is actually made when the letter is posted.  The
acceptor in posting the letter, has, to use the language of Lord
Blackburn, in Brogden v. Directors of Metropolitan Ry. Co. (2),
"put it out of his control and done an extraneous act which
clenches the matter, and shews beyond all doubt that each side
is bound."  How then can a casualty in the post, whether resulting
in delay, which in commercial transactions is often as bad as no
delivery, or in non-delivery, unbind the parties or unmake the
contract?  To me it appears that in practice a contract complete
upon the acceptance of an offer being posted, but liable to be put
an end to by an accident in the post, would be more mischievous
than a contract only binding upon the parties to it upon the
acceptance actually reaching the offerer, and I can see no principle
of law from which such an anomalous contract can be deduced.
There is no doubt that the implication of a complete, final, and
absolutely binding contract being formed, as soon as the acceptance
of an offer is posted, may in some cases lead to inconvenience and
hardship.  But such there must be at times in every view of the
law.  It is impossible in transactions which pass between parties
at a distance, and have to be carried on through the medium
of correspondence, to adjust conflicting rights between innocent
parties  so as to make the consequences of mistake on the part of
a mutual agent fall equally upon the shoulders of both.  At the
same time I am not prepared to admit that the implication in
question will lead to any great or general inconvenience or hard-
ship.  An offerer if he chooses may always make the formation of
the contract which he proposes dependent npon the actual com-
munication to himself of the acceptance.  If he trusts to the post
he trusts to a means of communication which, as a rule, does not
fail, and if no answer to his offer is received by him, and the
matter is of importance to him, he can make inquiries of the
    (1) At p. 596.             (2) 2 App. Cas. 666, 691.
person to whom his offer was addressed.  On the other hand, if
the contract is not finally concluded, except in the event of the
acceptance actually reaching the offerer, the door would be opened
to the perpetration of much fraud, and, putting aside this con-
sideration, considerable delay in commercial transactions, in which
despatch is, as a rule, of the greatest consequence, would be occa-
sioned; for the acceptor would never be entirely safe in acting
upon his acceptance until he bad received notice that his letter of
acceptance had reached its destination.
  Upon balance of conveniences and inconveniences it seems to
me, applying with slight alterations the language of the Supreme
Court of the United States in Tayloe v. Merchants Fire Insurance
Co. (1), more consistent with the acts and declarations of the
parties in this case to consider the contract complete and abso-
lutely binding on the transmission of the notice of allotment
through the post, as the medium of communication tliat the
parties themselves contemplated, instead of postponing its com-
pletion until the notice had been received by the defendant.
Upon principle, therefore, as well as authority, I think that the
judgment of Lopes, J., was right and should be affirmed, and that
this appeal should therefore be dismissed.
  BAGGALLAY, L.J.  I am of opinion that this appeal should be
dismissed.
  It has been established by a series of authorities, including
Dunlop v. Higgins, in the House of Lords (2), and Harris' Case (3),
in the Court of Appeal in Chancery that if an offer is made by
letter, which expressly or impliedly authorizes the sending of an
acceptance of such offer by post, and a letter of acceptance
properly addressed is posted in due time, a complete contract is
made at the time when the letter of acceptance is posted though
there may be delay in its delivery.
  The question involved in the present appcal is, whether the
same principle should be applied in a case in which the letter of
acceptance, though duly posted is not delivered to the person to
whom it is addressed.  Lopes, J., was of opinion that the principle
  (1) 9 Howard S. Ct. Rep. 390.          (2) 1 H. L. C. 381.
                      (3) Law Rep. 7 Ch. 587.
was applicable to such a case, and gave judgment in favour of
the plaintiffs, and from  such judgment the  present appeal  is
brought.
  In support of his appeal the defendant relies upon the decisions
of the Court of Exchequer in the case of the British and American
Telegraph Co. v. Colson (1), to which, for conciseness, I will refer
as Colson's Case. (1)  I propose to consider Dunlop v. Higgins (2)
and Colgon's Case (1) and Harris' Case (3) somewhat in detail, for
the purpose of ascertaining whether the decision of the Court of
Exchequer in Colgon's Case (1) is consistent with the decisions of
the House of Lords and of the Lords Justicas in the other two cases,
and with the principles upon which such decisions were based.
  The circumstances of Dunlop v. Higgins (2) were as follows:
After a preliminary correspondence Messrs. Dunlop & Co., who
were merchants at Glasgow, addressed a letter on the 28th of
January, 1845, to Messrs. Higgins & Co., who carried on business
at Liverpool, offering them 2000 tons of iron pigs at 65s. per ton
net.  This letter reached Higgins & Co. at 8 A.M. on the 30th of
January, and on the same day they replied by letter duly addressed
to Dunlop & Co. in the following terms : " We will take the 2000
tons pigs you offer us."
  It appeared by the evidence that the first post for Glasgow,
after the receipt by Higgins & Co. of the letter of Dunlop &.Co.
left Liverpool at 3 p.m. on the 30th and that the post next follow-
ing left at 1 a.m. of the 31st, and also that a letter despatched by
the former post would in due course arrive at Glasgow at 2 p m.
on the 31st, and by the latter in time to be delivered at 8 A.M. on
the 1st of February.  The letter so sent by Higgins & Co. was
posted after the bags were made up for the 3 P.M. post, and was
despatched by the 1 A.M. post on the 31st.  In due course it
should have been delivered in Glasgow at 8 A.M. on the 1st of
February but it was not in fact delivered until 2 P.M. on that day,
the frosty state of the weather having prevented the train from
Liverpool arriving at Warrington in time to meet the down train
to Glasgow.  It appeared also that Higgins & Co., by mistake,
dated their letter as of the 31st of January instead of the 30th of
  (1) Law Rap. 7 Ex. 108.          (2) 1 H.L.C. 381.
               (3) Law ffRep. 7 Ch. 587.
January.  On the 1st of February, after the receipt of the letter
of Higgins & Co. accepting the offer, Dunlop & Co. wrote to
Higgins & Co., " We have your letter of yesterday's date, but are
sorry that we cannot now enter the 2000 tons, our offer not being
accepted in time."  The iron was not delivered, and Higgins & Co.
brought their action for breach of contract.  The defence of
Dunlop & Co. was that their letter of the 28th should have been
answered by the first post, viz. by that which left Liverpool
at 3 P.M. on the 30th, but that at any rate they were not bound to
wait for a third post delivered at Glasgow at 2 P.M. on the 1st of
February.
  On the trial before the Lord Justice General, he admitted
evidence to shew that the letter of acceptance, though dated the
31st, was in fact written and posted on the 30th of January, and
he directed the jury that if Higgins & Co. posted their accept-
ance of the offer in due time, according to the usage of trade,
they were not responsible for any casualties in the post office
establishment.
  It is important to bear in mind the terms of this direction, as
it formed the substantial subject of appeal, first to the Court of
Session and thence to the House of Lords.  The jury found for
the plaintiffs ;  that is to say,they found as a fact that the letter of
Higgins & Co. was posted in due time according to the usage of
the parties in their business transactions, and having so found
they under the direction of the judge, gave their verdict for the
plaintiffs.  Exceptions were therefore taken by the defendants,
and amongst other grounds of exception they objected to the
admission of evidence as to the posting of the letter on the 30th
of January, and to the direction of the Lord Justice General, to
which I have just referred.  The exceptions were overruled by
the judges of the First Division and from their decision the
defendants appealed to the House of Lords;  the appeal was
dismissged, and the ruling and direction of the Lord Justice
General were upheld
  Though the question in dispute between the partiesff was whether
Higgins & Co. were responsible for the delayin delivery of
the post, it is observed that the direction of the judge went
further, for he ruled that if their letter was duly posted they were
not responsible for any casualties in the post office establishment.
During the argument Lord Cottenham  said,  "The question is
whether putting in the post is a virtual acceptance, though by the
accident of the post it does not arrive;" and, in moving the
judgment of the House, he observed, "if a man does all that he
can do, that is all that is called for;  if there is a usage of trade to
accept such an offer and to forward it by means of the post, and if
the party accepting the offer puts his letter into the post on the
correct day, has he not done every thing he was bound to do;  how
can he be responsible for that over which he has no control?"
There is nothing in the language of Lord Cottenham to suggest
any distinction between a case in which there is delay in the
delivery of the letter and one in which the letter is not delivered
at all.  But Lord Cottenham went on to illustrate his meaning,
and did so in the following terms:  "It is a very frequent occnr-
rence that a party having a bill of exchange which he tenders for
payment to the acceptor, and acceptance is refused, is bound
to give the earliest notice to the drawer.  That person may be
resident many miles distant from him; if he puts a letter into
the post at the right time it hss been held quite sufficient; he
has put the letter into the post, and whether that letter be
delivered or not is a matter quite immaterial, because for acci-
dents happening at the post office he is not responsible."  Having
regard to the passages in Lord Cottenham's judgment, it appears
to me impossible to doubt that the proposition which he intended
to affirm, and which was in fact his ratio decidendi, was this, that
when the letter accepting the offer was duly posted, the contract
was complete, although it might be delayed in its delivery or
might never reach the hands of the party making the offer.
  I desire however to guard mydelf against being considered as
participating in a view of the effect of the decision in Dunlop v.
Higgins (1) which has been sometimes adopted, and as I think
without sufficient reason, viz. that in all cases in which an offer is
accepted by a letter addressed to the party making the offer and
duly posted, there is a binding contract from the time when such
letter is posted.  I do not take this view of the effect of the decision
in Dunlop v. Higgins. (1)  On the contrary, I think that the priciple
              (1)  1 H.L.C. 381.
established by that case is limited in its application to cases in
which by reason of general usage, or of the relations between the
parties to sny particular transactions, or of the terms in which
the offer is made the acceptance of such offer by a letter through
the post is expressly or impliedly authorized. In Dunlop v.
Higgins (1) the previous correspondence between the two firms
was, in my opinion, quite sufficient, not only to authorize the
mode in which, under the circumstances such acceptance could be
communicated, and it was in consequence of the jury finding it as
a fact thst Higgins & Co. posted their acceptance of the offer to
Dunlop & Co. in due time, according to the usage of their business
transactions, that they found a verdict for the plaintiffs under the
direction of the judge.  The principle involved in Dunlop v.
Higgins (1) was recognised by Cresswell, J. upon the trial of the
action in Duncan v. Topham (2) ; upon that occasion he directed
the jury that, if the letter accepting the contract was put into
the post office and lost through the negligence of the post office
authorities, the contract would nevertheless be complete;  and
upon an application in the same case, to make absolute a rule
which had been obtained for a new trial, though the new trial was
ordered upon other grounds, Wilde, C.J., and Manle, J., expressed
views to the same effect as the direction of Cresswell, J., in
that case the letter never reached the hands of the person to
whom it was addressed.
  I proceed to consider the circumstances of Colson's Case (3), they
were as follows.  On the 13th of February, 1867, the defendant
sent an application to the company, through the post, for an
allotment of fifty shares, undertaking by his letter to pay the sum
of 2l. per share on whatever number should be allotted to him;
on the 15th of the same month fifty shares were allotted to him,
and a letter informing him of such allotment was posted to his
address,  as given  in his letter of application for shares, viz,
31, Charlotte Street, Fitzroy Square.
  Now a letter of application for shares in a public company,
expressed in the usual form, must, I think, having regard to the
  (I) 1 H. L. C. 381.                       (2) 8 C. B. 225.
  (3) Law Rep. 7 Ex. 108.
usage in such matters, be considered as authorizing the acceptance
of the offer by a letter through the post, as was expressed by
Lopes, J., in the case now under consideration; such would be
the ordinary mode of transmission of an allotment letter.  The
defendant however swore, and there was no reason to doubt the
truth of his statment, that he never received the letter of allot-
ment; that another person of the same name lived opposite to him
in the same street: about that time the numbers in the street
were changed, his own being altered from 31 to 87; and that
several letters then sent to him had never reached him.  On the
28th of February the plaintiffs, on being informed that the letter
of allotment had not reached the defendant, sent him a duplicate,
which he refused to accept; the action was then brought by the
company to recover the 2l. per share.  The jury found that the
letter of allotment was posted to the defendant on the 14th of
February but that he never received it, and that the second notice
was not sent in reasonable time.  The learned judge, Bramwell, B.,
thereupon directed the verdict to be entered for the plaintiffs, but
gave the defendant leave to move to have it entered for himself on
the authority of Finucane's Case (1), which had recently been de-
cided by Lord Romilly.  A rule nisi was accordingly obtained, and
cause was shewn on the l7th of November, 1870, the Court being
composed of the Lord Chief Baron and Bramwell and Pigott, BB.
Judgment was reserved, and on the 3lst of January, 1871, the rule
was made absolute to enter the verdict for the defendant.
  The Lord Chief Baron, in the course of his judgment, expressed
himself as follows: "It appears to me that if one proposes to
another by a letter through the post to enter into a contract for
the sale or purchase of goods or as in this case, of shares in
a company and the proposal is accepted by letter and the letter
put into the post, the party having proposed to contract is not
bound by the acceptance of it until the letter of acceptance is
delivered to him, or otherwise brought to his knowledge except in
certain cases where the non-receipt of the acceptance has been
occasioned by his own act or default." Now, unless the proposition so
put by the Lord Chief Baron is to be read with some qualifications,
it can hardly be considered as consistent with the decision in
                   (1) 17 W.R. 813.
Dunlop v. Higgins (1), as such decision has ordinarily been under-
stood.  The view, however, taken by liim of that decision does not
appear to be in accordance witlu that generally taken; for after
alluding to the circumstances of Dunlop v. Higgins (1) he proceeded
to express his entire concurrence with the decision of the Court of
Session and in the affirmance of it by the House of Lords, upon
the ground that,in his opinion, the acceptance of the offer reached
Dunlop & Co. in time, and that the House of Lords had acted upon
the same view of the circumstances of the case; the distinction
which he recognised between that case and the one then under
consideration consisted in this, that whereas the letter of acceptance
in Dunlop v. Higgins (1) was received by the party making the offer
in due time, that in Colson's Cage (2) never reached its destination.
Pigott, B., did not give a separate judgment, but it was stated that
he concurred in that of the Lord Chief Baron.  Bramwell, B., also
comiuented upon the circumstances of Dunlop v. Higgins (1), and
referred to several passages in the judgment of Lord Cottenham
including those which I have quoted, and he then expressed himself
as follows: "It seems to me that the correct way to deal with
those expressions is to refer them to tlie subject-matter, and notto
consider them as laying down such a proposition as the plaintiffs
have contended for  but that when the post may be used between
the parties it must be subject to those delays which are unavoid-
able."  It would appear, then, that all the judges in the Court of
Exchequer treated the case of Dunlop v. Higgins (1) as one
decided npon its special circumstancas, and as not enunciating
any general principle beyond what was neccasary for dealing with
such circumstances.  I am unable to concur in this view.  It may
be that there were special circumstances in the case of Dunlop
v. Higgins (1) sufficient to have justified the decision of the
House, irrespective of the application of the principle involved
in the direction of the Lord Justice General; but the decision was
not expressed to be based, and apparently was not intended to be
based, upon any such ground, but upon ah approval end of the
direction of that learned judge.
  After a careful consideration of the judgments of the Lord
Chief Baron and of Mr. Baron Bramwell, I can come to no other
  (1) 1 H. L. C.381.            (2) Law Rep. 7 Ex. 108.
conclusion than that the decision in Colson's Case (l) is incon-
sistent with that of the House of Lords in Dunlop v. Higgins. (2)
If I am right in this conclusion it is not for me to choose between
the two; I am bound by the authority of the decision of the
House of Lords.
  But I pass on to consider the circumstances of Harris' Case (3),
which came before the Lords Justices in 1872.  On the 5th of
March, 1866, Lewis Harris, of Dublin, applied to the directors of
the Imperial Land Company of Marseilles, by a letter in the usual
form, for an allotment of 200 shares, undertaking by his letter to
accept that or any less number of shares that might be allotted to
him.  The directors allotted to him 100 shares, and early on the
morning of the 16th of March posted a letter to him at his address,
as given in his letter of application, which was received by him at
Dublin.  He had, however, in the interval between the posting
and the delivery of the letter giving him notice of the allotment,
written to the directors withdrawing his application and declining
to accept any shares.  Upon an order being made to wind up
the company, Mr. Harris was placed upon the list of contributories
in respect of the 100 sharee, and a summons having been taken
out by him to have his name removed from the list, such summons
was dismissed by Malins, V.C.  From such dismissal Mr. Harris
appealed, but the decision of the Vice-Chancellor was upheld.  In
giving judgment James L.J., said that it appeared to him that
the contract was completed the moment the notice of allotment
was committed to the post, and a similar view was expressed by
Mellish, L.J., who, after referring to the decision of the Court of
Exchequer in Colson's Case (l), and stating that he had great
difficulty in reconciling it with that of the House of Lords in
Dunlop v. Higgins (2), observed, with reference to the last men-
tioned case, that the real question then before the House of Lords
was, whether the ruling of the Lord Justice General was correct,
and that the House of Lords held that it was.
  It is doubtless true, as was observed by both the Lord Justices,
that the decision in Harris' Case (3) was not necessarily incon-
sistent with that of the Court of Exchequer in Colson's Case (1),
    (1) Law Rep. 6 Ex. 108.         (2) 1 H.L.C. 381.
                (3) Law Rep. 7 Ch. 587.
but it is, I think, clear that, although the Lords Justices did not
feel themselves called upon to express any dissent from the decision
an  of the Court of Exchequer, as it was not necessary for the decision
of the case before them that they should do so, they by no
means recognised the propriety of the distinction drawn by the
Court of Exchequer between Dunlop v. Higgins (1) and Colson's
Case. (2)  I do not think it necessary to refer to Finucane's Case (3)
and other cases decided by Lord Romilly, in which he held that
the posting of a letter of allotment which never reached its
destination was not sufficient to constitute the applicant a con-
tributory, further than to observe that in Finucane's Case (3) Dun-
lop v. Higgins (1), and Duncan v. Topham (4) were not cited, and
that in the others the circumstances were such that the Master of
the Rolls deemed himself justified in not following the decision
in Dunlop v. Higgins. (l)  Indeed, in one of those cases, Hebb's
Case (5), he distinctly recognised the authority of the decision in
Dunlop v. Higgins (1), which he considered to have been decided
upon the ground that the post office was the common agent of
both parties.  For the reasong which I have assigned, I am of
opinion that the principle established by the decision of the
House of Lords in Dunlop v. Higgins (1) is applicable to the case
now under consideration, and that the decision of Lopes, J., should
be affirmed.  I desire, however, to add that I have felt myself
bound by authority.  My own convictions are entirely in accord-
ance with the principles which I consider to have been established
by authority; and in saying this, I bear in mind as well the very
forcible remarks made by the Lord Chief Baron snd my present
colleague upon the subject of the mischievous consequences that
might ensue from an adoption of theee principles in certain sug-
gested cases, as the equally forcible remarks made by Mellish, L.J.,
as to the like consequences which would ensue in other cases if
those principles were departed from.
  BRAMWELL L.J. The question in this case is not whether
the post office was a proper medium of communication from the
  (1) 1 H.L.C. 381.         (3) 17 W.R. 813.
  (2) Law Rep. 6 Ex. 108.   (4) 8 C.B. 225.
            (5) Law Rep. 4 Eq.9.
plaintiffs to the the defendent.  There is no doubt that it is so in all
cases where personal service is not required.  It is an ordinary
mode of communication, and every person who gives any one the
right to communicate with him, gives the right to communicate
in an ordinary manner and so in this manner and to this extent, that
if an offer were made by letter in the morning to a person at a
place within half an hour's railway journey of the offerer, I should
say that an acceptance by post though it did not reach the offerer
till the next morning, would be in time.  Nor is the question
whether when the letter reaches an offerer the latter is bound
and the bargain made from the time the letter is posted or
despatched, whether by post or otherwise.  The question in this
case is different.  I will presently state what in my judgment it is.
Meanwhile I wish to mention some elementary propositions which,
if carefully borne in mind, will assist in the determination of this
case :
  First. Where a proposition to enter into a contract is made
and accepted, it is necessary, as a rule, to constitute the con-
tract that there should be a communication of that acceptance to
the proposer, per Brian, C.J., and Lord Blackburn : Brogden v.
Metropolitan Ry. Co. (1)
  Secondly. That the present case is one of proposal and
acceptance.
  Thirdly. That as a consequence of or involved in the first
proposition, if the acceptance is written or verbal i.e., is by letter
or message, as a rule, it must reach the proposer or there is no
communication, and so no acceptance of the offer.
  Fourthly. That if there is a difference where the acceptance is
by a letter sent through the post which does not reach the offerer,
it must be by virtue of some general rule or some particular
agreement of the parties.  As for instance there might be an
agreement that the acceptance of the proposal may be by sending
the article offered by the proposer to be bought, or hanging out a
flag or sign to be seen by the offerer as he goes by or leaving a
letter at a certain place, or any other agreed mode, and in the
same way there might be an agreement that dropping a letter in
a post pillar box or other place of reception should suffice.
             (1)  2 App. Cas. at p. 692.
  VOL. lV.        X                                        4
  Fifthly. That as there is no such special agreement in this case,
the defendant, if bound, must be bound by some general rule
which makes a difference when the post ofiice is employed as the
means of communication.
  Sixthly. That if there is any such general rule applicable to
the communicatuon of the acceptance of offers, it is equally
applicable to all communications that may be made by post.
Because, as I have said, the question is not whether this commu-
nication may be made by post.  If, therefore, posting a letter
which does not reach is a sufficient communication of acceptsnce
of an offer, it is equally a communication of everything else which
may be communicated by post, e.g., notice to quit.  It is im-
possible to hold, if I offer my landlordto sell him some hay and
he writes accepting my offer, and in the same letter gives me
notice to quit, and posts his letter which, however, does not reach
me, that he has communicated to me his acceptance of my offer
by cheque or banknote, and posts a letter containing a cheque or
banknote to his tailor, which never reaches, is the tailor paid ?  If
he is, would he be if he had never been paid before in that way?
Suppose a man is in the habit of sending cheques and banknotes
to his banker by post, and posts a letter containing cheques and
banknotes, which never reaches.  Is the banker liable?  Would
he be if this was the first instance of a remittance of the sort?
In the cases I have supposed, the tailor and banker may have
recognised this mode of remittance by sending back receipts and
putting the money to the credit of the remitter.  Are they liable
with that?  Are they liable without it?  The question then is, is
posting a letter which is never received a communication to the
person addressed, or an equivalent, or something which dispenses
with it? It is for those who say it is to make good their contention.
I ask why is it? My answer beforehand to any argument that may
be urged is, that it is not a communication, and that there is no
agreement to take it as an equivalent for or to dispense with a
communication.  That those who affirm the contrary say the
thing which is not.  That if Brian, C.J., had had to adjudicate on
the case, he would deliver the same judgment as that reported.
That because a man, who may send a communication by post or
otherwise, sends it by post, he should bind the person addressed,
though the communication never reaches him, while he would not
so bind him if he had sent it by hand, is impossible.  There is no
reason in it; it is simply arbitrary.  I ask whether any one who
thinks so is prepared to follow that opinion to its consequence;
suppose the offer is to sell a particular chattel, and the letter
accepting it never arrives, is the property in the chattel trans-
ferred?  Suppose it is to sell an estate or grant a lease, is the
bargain completed?  The lease might be such as not to require
a deed, could a subsequent lessee be ojected by the would be
acceptor of the offer because he had posted a letter?  Suppose an
article is advertised at so much, and that it would be sent on
receipt of a pot office order.  Is it enough to post the letter?  If
the word " receipt " is relied on, is it really meant that that makes
a difference?  If it should be said let the offerer wait, the answer
is, may be he may lose his market meamwhile.  Besides, his offer
may be by advertisement to all mankind.  Suppose a reward for
information, information posted does not reach, some one else
gives it and is paid, is the offerer liable to the first man?
  It is said that a contrary rule would be hard on the would-be
acceptor, who may have made his arrangements on the footing that
the bargain was concluded.  But to hold as contended would be
equally hard on the offerer, who may have made his arrangements
on the footing that his offer was not accepted ; his non-receipt of
any communication may be attributable to the person to whom it
was made being absent.  What is he to do but to act on the
negative, that no communication has been made to him ?  Further,
the use of the post office is no more authorized by the offerer
than the sending an answer by hand, and all these hardships
would befall the person posting the letter if he sent it by hand.
Doubtless in that case he would be the person to suffer if the
letter did not reach its destination.  Why should his sending it
by post relieve him of the loss ans cast it on the other party.  It
was said, if he sends it by hand it is revocable, but not if he sends
it by post, which makes the difference.  But it is revocable when
sent by post, not that the letter can be got back, but its arrival
might be anticipated by a letter by hand or telegram, and there
is no case to shew that such anticipation would not prevent the
letter from binding.  It would be a most alarming thing to say
that it would.  That a letter honestly but mistakenly written
and posted must bind the writer if hours before its arrival lie
informed the person addressed that it was coming, but was wrong
and recalled ; suppose a false but honest character given, and the
mistake found out after the letter posted, and notice that it was
wrong given to the person addressed.
  Then, as was asked, is the principle to be applied to telegrams ?
Further, it seems admitted that if the proposer said, " unless I
hear from you by return of post the offer is withdrawn," that the
letter accepting it must reach him to bind him.  There is indeed
a case recently reported in the Times, before the Master of the
Rolls, where the offer was to be accepted within fourteen days,
and it is said to have been held that it was enough to post the
letter on the 14th, though it would and did not reach the offerer
till the 15th.  Of course there may have been something in that
case not mentioned in the report.  But as it stands it comes to
this, that if an offer is to be accepted in June, and there is a
month's post between the places, posting the letter on the 30th of
June will suffice, though it does not rcach till the 31st of July;
but that case does not affect this.  There the letter rcached, here
it has not.  If it is not admitted that" unless I hear by return the
offer is withdrawn " makes the receipt of the letter a condition, it
is to say an express condition goes for nought.  If it is admitted, is
it not wliat every letter says?  Are there to be fine distinctions,
such as, if the words are "unless I hear from you by return of
post, &c.," it is necessary the letter should reach him, but" let me
know by return of post," it is not;  or if in that case it is, yet it is
not where there is an offer without those words.  Lord Blackburn
says that Mellish, L.J., accurately stated that where it is expressly
or impliedly stated in the offer, "you may accept the offer by
posting a letter," the moment you post this letter the offer is
accepted.  I sgree; and the same thing is true of any other mode
of acceptance offered with the offer and acted on---as firing a
cannon  sending off a rocket, give your answer to my servant the
bearer.  Lord Blackburn was not dealing with the question before
us; there was no doubt in the case before him that the letter had
reached.  As to the authorities, I shall not re-examine those in
existence before the British and American Telegramph Co. v.
Colson. (1)  But I wish to say a word as to Dunlop v. Higgins (2);
the whole difficulty has arisen from some expressions in that case.
Mr. Finlay's argument and reference to tlie case when originally
in the Scotch Court has satisfied me that Dunlop v. Higgins (2) de-
cided nothing contrary to the defendant in this case.  Mellish, L.J.,
in Harrig, Case (3) says, " That case is not a direct decision on the
point before us."  It is true, he adds, that he has great difficulty
in reconciling the case of the British and American Telegraph Co.
v. Colson (1) with Dunlop v. Higgins. (2)  I do not share that
difficulty.  I think they are perfectly reconcilable, and that I
have shewn so.  Where a posted letter arrives, the contract is
complete on the posting.  So where a letter sent by hand arrives,
the contract is complete on the writing and delivery to the
messenger.  Why not?  All the extraordinary and mischievous
consequences which the Lord Justice points out in Harris, Case (3)
might happen if the law were otherwise when a letter is posted,
would equally happen where it is sent otherwise than by the
post.  He adds that the question before the Lords in Dunlop v.
Higgins (2) was whether the ruling of the Lord justice Clerk was
correct, and they held it was.  Now Mr. Finlay shewed very
clearly that the Lord Justice Clerk decided nothing inconsistent
with the judgment in the British and American Telegraph Co. v.
Colson. (1)  Since the last case there have been two before Vice-
Chanceller Malins, in the earlier of which he thought it " reason-
able," and followed it.  In the other, because the Lord Justices
had in Harris' Case (3) thrown cold water on it, he appears to
have thought it not reasonable.  He says, suppose the sender of
a letter says, "I make you an offer, let me have an answer by
return of post."  By return the letter is posted, and A. has done
all that the person making the offer requests.  Now that is
precisely what he has not done.  He has not let him " have an
answer."  He adds there is no default on his part.  Why should
he be the only person to suffer?  Very true.  But there is no
default in the other, and why should he be the only person to
suffer?  The only other authority is the expression of opinion by
Lopes, J., in the present case.  He says the proposer may guard
himself against hardship by making the proposal expressly con-
ditioned on the arrival of the answer within a definite time.  But
it need not be express nor within a definite time.  It is enough
that it is to be inferred that it is to be, and if it is to be it must
be within a reasonable time.  The mischievous consequences he
points out do not follow from that which I am contending for.  I
am at a loss to see how the post ofiice is the agent for both
parties. What is the agency as to the sender ? merely to receive ?
But suppose it is not an answer, but an original communica-
tion. What then? Does the extent of the agency of the post
office depend on the contents of the letter? But if the post office
is the agent of both parties, then the agent of both parties has
failed in his duty, and to both. Suppose the offerer says, "My
offer is conditional on your answer reaching me." Whose agent is
the post office then? But how does an offerer make the post
office his agent, because he gives the offeree an option of using
that or any other means of communication.
  I am of opinion that this judgment should be reversed. I am
of opinion that there was no bargain between these parties to allot
and take shares that to make such bar ain there should have been
an acceptance of the defendant's offer and a communication to
him of that acceptance.  That there was no such communication.
That posting a letter does not differ from other attempts at com-
munication in any of its consequences, save that it is irrevocable
as between the poster snd post office.  The difficulty has arisen
from a mistake as to what was decided in Dunlop v. Higgins (1)
and from supposing that because there is a right to have recourse
to the post as a means of communication, that right is attended
with some peculisr consequences, and also from supposing that
because if the letter reaches it binds from the time of posting, it
also binds though it never reaches.  Mischief may arise if my
opinion prevails.  It probably will not, as so much has been said
on the mstter that principle is lost sight of.  I believe equal if
not greater, will, if it does not prevail.  I believe the latter will
be obviated only by the rule being made nugatory by every
prudent man saying, "your answer by post is only to bind if it
               (1)  1 H.L.C. 381.
reaches me"  But the question is not to be decided on these con-
siderations.  What is the law ?  What is the principle ?  If
Brian, C.J., had had to decide this, a public post being instituted
in his time, he would have said the law is the same, now there is
a post, as it was before, viz., a communication to affect a man must
be a communication, i.e., must reach him.
                                            Judgment affirmed.
  Solicitor for plaintiff:  Worthington Evans.
  Solicitor for defendant :  J. Davies.
         BYRNE & Co. v. LEON VAN TIENHOVEN & Co.
Contract--Sale of Goods--Offer--Acceptance--Withdrawal of Offer--Letter
                  posted before but recieved after acceptance.
  An offer of a contract sent by letter cannot be withdrawn by merely posting a
subsquent letter which does not, in the ordinary course of tbe post, arrive until
after the firdt letter has been received and answered.
  By letter of the 1st of October the defendants wrote from Cardiff offering goods
for sale to the plaintiffs at New Pork.  The plaintiffs received the offer on the
11th and accepted it by telegram on the same day, and by letter on the 15th.
On the 8th of October the defendants posted to the plaintiffs a letter withdrawing
the offer.  This letter reached the plaintiffs on the 20th :--
  Held, by Lindley, J., that the withdrawal was inoperative, a complete contract
binding both parties having been enutered into on the 11th of October when the
plaintiffs accepted the offer of the 1st which they had no reason to suppose was
withdrawn.
  ACTION tried at Cardiff assozes, before Lindley, J., without a
  jury,
               (1) 4 Ch. D. 869; 9 Ch. D. 459.
B. T. Williams and B. Francis Williams, for the plaintiffs.
M'Intyre, Q C., and Hughes, for the defendants.
                                                    Cur. adv. vult.
  March 6.  LINDLEY, J.  This was an action for the recovery of
damages for the non-delivery by the defendsnts to the plaintiffs of
1000 boxes of tinplates, pursuant to an alleged contract, which I
will refer to presently.  The action was tried at Cardiff before
myself without a jury; and it was agreed at the tial that in the
event of the plaintiffs being entitled to damages they should be
375l.
  The defendants carried on business at Cardiff and the plaintiffs
at New York, and it takes ten or eleven days for a letter posted
at either place to reach the other.  The alleged contract consists
of a letter written by the defendants to the plaintiffs on the 1st of
October, 1879, and received by them on the 11th, and accepted
by telegram and letter sent to the defendants on the 11th and
15th of October respectively.  These letters and telegram were as
follows:---[The learned judge read the letter of the 1st of October,
1879, from the defendants to the plaintiffs.  It contained a
reference to the price of tinplates branded " Hensol," and the
"offer of 1000 boxes of this brand 14 x 20 at 15s. 6d. per box
f. o. b. here with  1 per cent. for our commission; terms, four
months' bankers' acceptance on London or Liverpool against
shipping documents but subject to your cable on or before the
15th inst. here."  The answer was a telegram from the plaintiffs
to the defendants sent on the 11th of October, 1879: "Accept
thousand Hensols."  On the 15th of October, 1879, the plaintiffs
wrote to the defendants:  " We have to thank you for your valued
letter under date 1st inst., which we had on Saturday P.M., and
1c. 14/20 as offered.  Against this transaction we have pleasure
in handing you herewith the Canadian Bank of Commerce letter
of credit No. 78, October 13th, on Messrs. A. R. McMaster &
Brothers, London for 1000l. . . .  Will thank you ffto ship the
1000 'Hensols'  without delay."]  These letters and telegram
would, if they stood alone, plainly constitute contract binding
on both parties. The defendants in their pleadings say that there
VOL. V.           2 E                                   3
was no sufficient writing within the Statute of Frauds, and that
they contracted only as agents ; but these contentiors were very
properly abandoned as untenable, and do not require further
notice.  The defendants, however, raise two other defences to the
action which remain to be considered.  First, they say that the
offer made by their letter of the 1st of October was revoked by
them before it had been accepted by the plaintiffs by their
telegram of the 11th or letter of the 15th.  The facts as to these
are as follows: On the 8th of October the defendants wrote and
sent by post to the plaintiffs a letter withdrawing their offer of
the 1st.  The material part of this letter was as follows: " Con-
firming our respects of the 1st inst. we hasten to inform you that
there having been a regular panic in the tinplate market during
the last few days, which has caused prices to run up about twenty-
five per cent. we are reluctantly compelled to withdraw any offer
we have made to our constituents, and must therefore also
consider our offer to you for 1000 boxes 'Hensols' at 17g. 6d. to
be cancelled from this data"  This letter of the 8th of October
reached the plaintiffs on the 20th of October.  On the same day
the plaintiffs telegraphed to the defendants demanding shipment
and sent them a letter insisting on completion of the contract.
  [The learned judge read the letter.  In it the plaintiffs expresssd
astonishment at the contents of the letter of the 8th, recapitulated
the transactions, and said " practically and in fact a contract for
1000 boxes came into existence between you and ourselves.  It
requires the consent of both parties to a contract to cancel same.
  If instead of writing to us on the 8th you had cabled 'offer with-
drawn,' you would have protected yourselves and us too.  We
disposed of the 1000 boxes on the 17th at a net profit of 1850
dollars. . .   We write our friend Philip S. Philips, Esq., of
Aberkllery, requesting him to call on you and demand delivery
as agreed."  In a postscript they added, " You speak of offer of
1000 boxes Hensol at 17s. 6d.  The only firm offer we received
from you under date 1st of October was 1000 boxes at 15s. 6d.,
and ten per cent. f. o. b. Cardiff; we cable you to-night ' demand
shipment."]  This letter is followed by one from the defendants
to the plaintiffs of the 25th of October refusing to complete. [The
learned judge read it.  The defendants acknowledged the receipt
of the cable message of the 20th, inclosed the credit note sent in
the letter of the 15th, and added, "Our offer having been with-
drawn by our letter of the 8th inst. we now return the above credit
for which we have no further ned, but take this opportunity to
observe that in case of any future business proposals between
us, we must request you to conform to our rules and principles
which require bankers' credit in this country, whereas the firm of
A.F. McMaster & Brothers are not classified as such."]
  There is no doubt that an offer can be withdrawn before it is
accepted, and it is immaterial whether the offer is expressed to
be open for acceptance for a given time or not: Routledge v.
Grant. (1)  For the decision of the present case, however, it is
necessary to consider two other questions, viz.: 1. Whether a
withdrawal of an offer has any effect until it is communicated to
the person to whom the offer has been sent?  2. Whether posting
a letter of withdrawal is a communication to the person to whom
the letter is sent?
  It is curious that neither of these questions appears to have
been actually decided in this country.  As regards the first ques-
tion, I am aware that Pothier and some other writers of celebrity
are of opinion that there can be no contract if an offer is with-
drawn before it is accepted, although the withdrawal is not com-
municated to the person to whom the offer has been made  The
reason for this opinion is that there is not in fact any such consent
by both parties as is essential to constitute a contract between
them.  Against this view, however, it has been urged that a state
of mind not notified cannot be regarded in dealings between man
and man; and that an uncommunicated revocation is for all
practical purposes and in point of law no revocation at all.  This
is the view taken in the United States: see Tayloe v. Merchants
Fire Insurance Co. (2) cited in Benjamin on Sals, pp. 56-58, and
it is adopted by Mr. Benjamin.  The same view is taken by Mr.
Pollock in his excellent work on Principles of Contract, ed. ii.,
p.10, and by Mr. Leake in his Digest of the Law of Contracts,
p.43.  This view, moreover, appears to me much more in accord-
ance with the general principles of English law than the view
maintained by Pothier.  I pass, therefore, to the next question,
  (1) 4 Bing. 653.               (2) 9 How. Sup. Ct. Rep. 390.
viz., whether posting the letter of revocation was a sufficient com-
munication of it to the plaintiff.  The offer was posted on the
1st of October, the withdrawal was posted on the 8th, and did not
reach the plaintiff until after he had posted his letter of the 11th
accepting the offer.  It may be talken as now settled that where
an offer is made and accepted by letters sent through the post,
the contract is completed the moment the letter accepting the
offer is posted : Harris' Case (1) ; Dunlop v. Higgind (2), even
although it never reaches its destination.  When, however, these
authorities are looked at, it will be seen that they are based upon
the principle that the writer of the offer has expressly or impliedly
assented to treat an answer to him by a letter duly posted as a
sufficient acceptance and notification to himself, or, in other words,
he has made the post office his agent to receive the acceptance
and notification of it.  But this principle appears to me to be
inapplicable to the case of the withdrawal of sn offer.  In this
particular case I can find no evidence of any authority in fact
given by the plaintiffs to the defendants to notify a withdrawal of
their offer by merely posting a letter;  and there is no legal prin-
ciple or decision which compels me to hold, contrary to the fact,
that the letter of the 8th of October is to be treated as communi-
cated to the plaintiff on that day or on any day before the 20th,
when the letter reached them.  But before that letter had reached
the plaintiffs they had accepted the offer, both by telegram and by
post; and they had themselves resold the tin plates at a profit.
In my opinion the withdrawal by the defendants on the 8th of
October of their offer of the lst was inoperative; and a complete
contract binding on both psrties was entered into on the l1th of
October, when the plaintiffs accepted the offer of the lst, which
they had no reason to suppose had been withdrawn.  Before
leaving this part of the case it may be as well to point out the
extreme injustice and inconvenience which any other conclusion
would produce.  If the defendants' contention were to prevail no
person who had recieved an offer by post and had accepted it
would know his position until he had waited such a time as to be
quite sure that a letter withdrawing the offer had not been posted
before his acceptance of it.  It appears to me that both legal
  (1) Law Rep. 7 Ch. 587.                   (2) 1 H. L. 381.
principles, and practical convenience require that a person who
has accepted an offer not known to him to have been revoked,
shall he in a position safely to act upon the footing that the offer
and acceptance constitute a contract binding on both parties.
  The defendants' next defence is that, as the plaintiffs never sent
a banker's acceptance on London or Liverpool as stipulated in
the contract, they cannot maintain any action for its breach.  The
correspondence which preceded the contract satisfies me that the
defendants attached importance to this particular mode of pay-
ment ; and although the plaintiffs sent letters of credit which were
practically as good as a banker's acceptance, yet I cannot say
that they did in fact send a banker's acceptance according to the
contract.
  By the terms of the contract bankers' acceptances on London
or Liverpool were to be sent against,--i.e., were to be exchanged
for--shiping documents; and if the defendants had been ready
and willing to perform the contract on their part on receiving
proper bankers' acceptances, I should have been of opinion that
the plaintiffs would not have sustained this action.  But it is per-
fectly manifest from the correspondence that the defendants did
not refuse to perform the contract on any such ground as this.  It
is true that the defendants in their letter of the 3lst of October
say that, " even if we had not withdrawn our offer we would
all the same have returned your credit," and the defendants' soli-
citors in their letter of the 26th of November, say that, "if your
clients (i.e. the plaintiffs), had fulfilled the terms of the contract
at the outset the goods were ready to be shipped;" but the de-
fendants' own letters of the 8th, l3th, and 25th of October shew
conclusively that this was not the case and that the defendants
stood on their notice of withdrawal and would not have performed
the contract even if bankers' acceptance had been sent.  Their
letter of the 25th of October in which they return the plaintiffs'
first letter of credit is explicit on this point.  The defendants do
not return the letter of credit because it is not a banker's accept-
ance, but because the offer was withdrawn;  and the inference
I draw from that letter is that if the offer had not been with-
drawn the defendants would not have returned the letter of
credit although in future transactions they might have been more
particular.  In face of tliis refusal, it was useless for the plaintiffs
to send a banker's acceptance, and although when they found
their first letter of credit returned they sent another which was
declined, still the defendants never receded from their first posi-
tion, or expressed any readiness to ship the goods on receiving a
banker's acceptance ; and it is plain to my mind that they were
not prepared to do so.  On the other hand, I am satisfied that
if the defendants had taken this ground the plaintiffs would have
sent bankers' acceptancas in exchange for shipping documents,
and I infer as a fact that the plaintiffs always were ready and
villing to perform tlie contract on their part, although they
did not in fact tender proper bankers' acceptances.  It was con-
tended that by pressing the defendants to perform their con-
tract the plaintiffs treated it as still subsisting and could not
treat the defendants as having broken it, and a psssage in Mr.
Benjamin's book on Sales, p. 454, was referred to in support
of this contention.  But, when the plaintiffs found that the defend-
ants were inflexible, and would not perform the contract at all,
they had, in my opinion, a right to treat it as at an end and
to bring an action for its breach.  It would indeed be strange
if the plaintiffs by trying to persuade the defendants to perform
their contract were to lose their right to sue for its non-perform-
ance when their patience was exhausted.  The authorities referred
to by Mr. Benjamin (viz., Avery v. Bowden (1) and others of that
class), shew that as the plaintiffs did not when the defendants first
refused to perform the contract, trcat that refusal as a breach, the
plaintiffs cannot now treat the contract as broken at the time of
such refusal.  But I have found no authority to shew that a con-
tinued refusal by the defendants to perform the contract cannot be
treated by the plaintiffs as a breach of it by the defendants.  On
the contrary Ripley v. McClure (2), and Cort v. Ambergate, &c.,
Ry. Co. (3) shew that the continued refusal by the defendants
operated ss a continued waiver of a tender of bankers' accept-
ances and enable the plaintiffs to sustain this action.  In the
present instance it is not necessary to determine exactly when
the contract can be treated by the plaintiffs as broken by the
  (1) 5 E. & B. 714.                        (2) 4 Ex. 345.
                    (3) 17 Q. B. 127.
    COULTHART [PUBLIC OFICER Of THE STALYBRIDGE, HYDE, AND GLOSSOP
                BANK] v. CLEMENTSON AND ANOTHER
    Principle and Surety--Gurantee, continuing--Notice of Death of Guarantor--
                                Renovation.
  A continuing guarantee, in the absence of express provision, is revoked as
to subsequent advances by notice of the death of the guarantor.
Case reserved by Bowen, J., at the Liverpool summer assizes,
1879, for further consideration.

  The nature of the action, facts of the case, and the arguments,
sufficently appear from the judgment.

Dec. 4.  Channell, for the plaintiff.
C. Russell, Q.C., and Crompton, for the defendants.
                                           Cur. adv. vult.
Dec. 9. The following judgment was delivered :---
BOWEN, J. This is an action brought by a bank upon a
continuing guarantee against the executor of a deceased guarantor.
  Messrs. E. & J. Clementson, cotton-brokers and spinners in the
county of Chester, had a banking account with the bank of which
the plaintiff is the registered public officer.  In the year 1867
the bank required security for the advances which were likely to
be made to Messrs. E. & J. Clementson, and on the 24th of
August, 1867, a written guarantee was executed by Nathaniel
Lawton, the deceased, and the defendant Joseph M. Clementson,
who is now Nathaniel Lawton's executor (and sued as such).
  The material part of the guarantee is as follows :---
  " We, the undersigned, Joseph Moxon Clementson, of Dukin-
field, in the county of Chester, cotton-spinner, and Nathaniel
Lavton, of Micklehurst, flannel manufacturer, do hereby jointly
and severally undertake and agree to guarantee to the proprietors
of or partners in the said banking co-partnership for the time
being the due and punctual payment when required of all such
sums of money as may have been, or may be from time to time,
advanced or paid by or from the said banking co-partnership, or
which the same co-partnership may have already paid, or become
liable to pay, or may hereafter pay or become liable to pay for or
on account of the said Edward and John Clementson, or their
order, on any account whatsoever, with interest, commission and
other banking charges upon such sums. . . . .  And we jointly
and severally further agree as follows, namely, that this guarantee
or engagement shall be considered a continuing guarentee, and
shall not be withdrawn, but shall continue in full force until three
months after notice to the manager of the said banking co-
partnership in Ashton-under-Lyne in writing under our hands of
our intention to discontinue or determine the same."
  Advances were duly made by the bank under this guarentee
down to the death of the testator, Nathaniel Lawton, on the 19th
of December, 1875, at which date the firm of Messrs. E. & J.
Clementson were considerably indebted to the bank.  It was
admitted, however, that sufficient sums of money after notice of
the death had been paid into the account, and generally appro-
priated to the current account, to cover any balance which was in
fact owing at the date either of the death or of such notice.
Upon the other hand, if the guarantee was not determined in law
by death or notice of the death of the testator, it was admitted
that the bank, who continued their advances up to May, 1878, to
the firm of E. & J. Clementson, were entitled to recover under
this guarantee a large sum of 3000l. or thereabouts, which, in
case of difference, is to be settled hereafter by a referee.
  The cause was tried before myself and a special jury at
Liverpool, when it was agreed that the jury should be discharged,
and that the Court should have power to draw all reasonable
inferences of fact.
  The evidence as to what had passed between the bank and the
defendant as Nathaniel Lawton's executor after Nathaniel Lawton's
death is not very clear.  From a feeling of mutual courtesy the
parties refrained from cross-examination of one another at the trial.
  It appeared that the bank knew of the death of Mr. Lawton,
but had received no written notice of it addressed specially to
themselves.  On the 12th of February, 1876, however, the de-
fendant as executor had published in the proper newspapers
advertiesments under 22 & 23 Dict. c. 35, requiring the creditors
of the deceased Nathaniel Lawton to send in particulars of claims
to the solicitors of the executors on or before the 14th of May,
1876.  The bank and their officers were cognizant of this adver-
tisement, as well as of Nathaniel Lawton's death.
  Under the testator's will one-third of his estate was to be in
trust for the children of the testator's sister Sarah who should
attain twenty-one years in equal shares, one-third for the children
of his deceased brother John Lawton who should attain twenty-
one, and the remaining one-third to the brother of the testator,
M. H. Lawton.  Some of the children were minors.  M. B.
Lawton, before any claim made by the bank, got his share and
spent it.
  It was admitted that the bank knew who were the executors,
and that, without knowing the terms of the will, the bank knew
that the estate was going, one-third of it to the testators brother,
and two-thirds to the children of the testator's brother and sister,
some of whom were infants.
  The defendant, who was a brother of the partners in the guaranteed
firm, Messrs E. & J. Clementson, had become liable to the bank
as a guarantor jointly and severally with Nathaniel Lawton under
the guarantee in question.  He called at the bank shortly after
the appearance of the advertisements, and saw the manager, Mr.
Coulthart.  The following is the account given by the defendant
of the interview :  "I went to the bank to see if they could
advance some money on a large public building, the Conservative
Hall, and Mr. Coulthart agreed to do so.  Then he said, ' I see by
the notice in the paper that pour brother-in-law is dead.  Do you
know that you are responsible for 3000l., and I was not aware of
it, but was quite agreeable to be so, knowing my brother to be in
good circumstances.  He asked me how they were doing.  I told
him I knew all their affairs, and told him they were doing as well
as they could be doing at the time.  That is all that passed to the
best of my recollection.  We should never have paid the share
out if we had thought it was subject to liability."
  The defendant was not cross-examined, but it was stated on
behalf of the bank that Mr. Coulthart's recollection of the con-
versation differed from the defendant's, and by consent a written
memorandum of the interview made by Mr. Coulthart at the time
was put in as containing the substance of the evidence which Mr.
Coulthart was prepared to give, and was to be taken as if he had
actually deposed to it.
  The memorandum was as follows:---
  "Mr. Clementson called, and said he would sign a new letter of
guarantee for 4000l. or allow the existing ones to continue, as
might be most agreeable to the directors."
  In May, 1878, the guarantee firm, Messrs. E. & J. Clementson,
fell, as I have stated, into difficulties.  The bank to whom they
were indebted heavily for advances, exceeding the amount of the
guarantee, claimed under the guarantee to be repaid the same by
the defendant as executor of the testator, and brought this action.
  For the defendant it was contended that the testato's estate
was not liable for any advances made after the testater's death, or,
at all events, after the bank recieved notice of his death.  For
the bank it was argued that no notice was given which was equi-
valent to a notice of the withdrawal of the guarantee, and that
the proper inference to be drawn from these facts was that the
bank had a right to and did still suppose that the guarantee was
to continue.
  If it were established that, after the death of the testator the
parties had dcalt together on the footing that the guarantee was
at an end, the case of Harriss v. Fawcett (1) would apply, and the
bank would not be liable.  But I do not decide this case on that
ground, though I am not convinced, on the present materials
alone, that the bank may not, after the testator's death, have been
looking to the defendant's liability as joint and several guarantor
on the guarantee, and have considered the guarantee determined
as regards the testator and his estate.
  It is possible, on the other hand, that the executor himself
supposed the guarantee to be at an end, while the bank entertained
no definite opinion on the subject.  It would be difficult for me to
express any clear view about the matter, as the evidence leaves me
still in some doubt about it.  It is not necessary, if my judgment
be well founded, to decide the point.
  I am of opinion that the notice with which the bank in the
present case was affected amounted to a discontinuance, so far as
future advancas were concerned, of the guarantee.  A guarantee
like the present is not a mere mandate or authority revoked ipso
facto by the death of the guarantor.  It is a contract, and the
question from what time and on what notice it ceases to cover
advancas is a question of construction of the contract itself.  In
the case of such continuing guarantees as the present, it has long
been understood that they are liable, in the absence of anything
in the guarantee to the contrary, to be withdrawn on notice.
Various explanations have been offered of this reasonable, though
implied, limitation.  The guarantee, it has been said, is divisible
as to each advance, and ripens as to each adffvance into an irrevocable
promise or guarantee only when the advance is made.  This
explanation has received the sanction of the Court of Common
Pleas in the case of Offord v. Davies. (2)  Whether the explanation
e the trueo ne or not, it is nowj estalished by authorityt 3hat such
continuing guarantees can be withdrawn on notice during the
  (1) Law Rep. 15 Eq. 311; 8 Ch.  (2) 12 C. B.(N.S.) 748; 31 L. J.
  866.                          (N.S.) (C.P.) 319.
lifetime of the guarantor and a limitation to that effect must be
read  so to speak, into the contract.  But what is to happen on his
death?  Is the guarantee irrevocable and to go on for ever?  It
would be absurd to refuse to read into the lines of the contract in
order to protect the dcad man's estate a limitation which is read
into it to protect him while he is alive.  On the argument of the
present case it was virtually conceded that the provision as to three
months' notice relating only to the guarantor's life, and there being
no corresponding provision as to the notice to be given on his
death, the guarantee could be legally determined at any time after
the guarantor's death by a proper notice to that effect.  But there
remains the question what is the proper notice to be given.  To
answer this question we must consider the change which the
guarantor's death has effected in the situation.  The notice cannot
any longer be given by the guarantor.  He is dead.  The executor
of his will is guardian of his estate, and if notice is to be given by
any one, the executor would seem the person to give it.  But
must the executor give special notice that the guarantee is
withdrawn ; or is it not enough that the bank should be warned of
the death of the testator and the devolution of his estate to others?
In many cases the executor has no option to elect to continue the
guarantee.  Surely it would in such cases be idle to insist on
special forms of withdrawal of a guarantee which nobody has a
right to continue.  Notice of the death and of the existence of a
will is notice of the existence of trusts which may be incompatible
with the continuance of the guarantee.  If indeed, under the
testator's will, the executor has the option of continuing the
guarantee, then from the absence of any specific notice of with-
drawal, the bank may, perhaps, in spite of notice of the death,
properly assume, as against the estate, that the guarantee is not
to be determined.  But if the executor has no option of the sort
then, in my opinion, the notice of the death of the testator and of
the existence of a will is constructive notice of the determination
as to future advances of the guarantee.  The bank from that
moment are aware that the person who could during his lifetime
have discontinued the guarantee by notice cannot any longer be a
giver of notices; that his estate has passed to others, who have
trusts to fulfil, and it is easy for them to ascertain what those
trusts are.  If these trusts do not enable the executor to continue
the guarantee then the bank has constructive notice that the
guarantee is withdrawn.  If, indeed, the contracting parties desire
that on the death of the guarantor a special notice shall be
necessry to determine the guarantee, they can so provide in the
guarantee itself; and such a provision will, of course, bind the
estate.  Here there is no such provision.
  Judgment will, therefore, be entered for the defendants with
costs.
                               Judgment for the defendants.
  Solicitors for plaintiff: Milne, Riddle, & Mellor.
  Solicitors for defendants:  Johnson & Weatherall.

        STEVENSON, JAQUES, & Co. v. McLEAN
Contract--Sale of Goods--Offer, till when open--Refusal of Offer, what amounts
                  to--Revocation of Offer, when effective.
  The defendant, being possessed of warrants for iron, wrote from London to the
plaintiffs at Middlesborough asking whether they could get him an offer for the
warrants.  Further correspondence ensued, and ultimately the dsfendant wrote
to the plaintiffs fixing 40s. por ton rett cash, as the lowest price at which
he could sell, and stating that he would hold the offsr open till tha following
Monday.  The plaintiffs on the Mcoday morning at 9.42 telegraphed to the
defendant:  " Please wire whether you would accept forty for delivery over two
months or if not, longest limit you could give."  The defendants sent no answer
to this telegram, and after its receipt on the same day he sold the warrants,
and at 1.25 P.M. telegraphed to plaintiffs that he had done so.  Before the
arrival of his telegram to that effect, the plaintiffs having at 1 P.M. found a
purchaser for the iron, sent a telegram at 1.34 P.M. to the defendant stating that
they had secured his price.  The defendant refused to deliver the iron, and
thereupon the plaintiffs brought an action against him for non-delivery thereof.
The jury found at the trial that the relation between tha parties was that of
buyer and seller, not of principal and agent.
  The state of the iron market was very unsettled at tha time of the transaction
  how prices would range during the day:--
Held, by Lush, J., that under tha circumstances the plaintiffs' telegram at 9.42
ought not to be construed as a rejectbion of the defendant's offer, but merely
as an inquiry whether he would modify the terms of it, and that, although
the defendant was at liberty to revoke his offer before the close of the day on
Monday, such revcoation was not effectual until it reached the plaintiffs; con-
sequently the defendant's offer was still open when the plaintiffs accepted it, and
the action was therefore maintainable.
  Cooke v. Oxley (3 T.R. 653) discussed.
  Bryne & Co. v. Leon van Tienhoven & Co. (49 L.J. (C.P.) 316) followed.
Futher consideration before Lush, J.  The facts and argu-
ments sufficiently appear from the judgment.

May 7.  Waddy, Q.C., and Hugh Shield, for the plaintiffs.
Cave, Q.C., and Wormald, for the defendant
                               Cur. adv. vult.

May 25.  LUSH, J.  This is an action for non-delivery of a
quantity of iron which it was alleged the defendant contracted to
sell to the plaintiffs at 40s. per ton, nett cash.  The trial took
place before me at the last assizes at Leeds, when a verdict was
given for the plaintiffs for 1900l., subject to further consideration
on the question whether, under the circumstances, the corres-
pondence between the parties amounted to a contract, and subject
also, if the verdict should stand, to a reference, if required by
the defendant, to ascertain the amount of damages.  The question
of law was argued before me on the 7th of May last.
  The plaintiffd are makers of iron and iron merchants at Middles-
borough.  The defendant being possessed of warrants for iron,
which he had originally bought of the plaintiffs, wrote on the
24th of September to the plaintiffs from London, where he
carries on his business: " I see that No. 3 has been sold for imme-
diate delivery at 39s., which means a higher price for warrants.
Could you get me an offer for the whole or part of my warrants?
I have 3800 tons, and the brands you know."
  On the 26th one of the plaintiffs wrote from Liverpool: "Your
letter has followed me here.  The pig iron trade is at present
very excited, and it is difficult to decide whether prices will be
maintained or fall as suddenly as they have advanced.  Sales
are being made freely for forward delivery chiefly, but not in
warrants.  It may, however, be found advisable to sell the
warrants as maker's iron.  I would recommend you to fix your
price and if you will write me your limit to Middlesborough, I
shall probably be able to wire you something definite on Monday."
This letter was crossed by a letter written on the same day by
the clerk of one Fossick, the defendant's broker in London, and
which was in these terms :--
  "Referring to R.A. McLean's letter to you re warrants, I have
seen him again to-day, and he considers 39s. too low for same.
At 40s. he says he would consider an offer.  However, I shall be
obliged by your kindly wiring me, if possible, your best offer for
all or part of the warrants he has to dispose of."
  On the 27th (Saturday) the plaintiffs sent to Fossick the
following telegram :---
  " Cannot make an offer to day ; warrants rather easier.  Several
sellers think might get 39s. 6d. if you could wire firm offer
subject reply Tuesday noon."
  In answer to this Fossick wrote on the same day: " Your
telegram duly to hand re warrants.  I have seen Mr. McLean,
but he is not inclined to make a firm offer.  I do not think he is
likely to sell at 39s. 6d., but will probably prefer to wait.
Please let me know immediately you get any likely offer."
  On the same day the defendant, who had then received the
Liverpool letter of the 26th, wrote himself to the plaintiffs as
follows :---
  " Mr. Fossick's clerk shewed me a telegram from him yesterday
mentioning 39s. for No. 3 as print price, 40s. for forward
delivery.  I instructed the clerk to wire you that I would now
sell for 40s., nett cash, open till Monday."  No such telegram was
sent by Fossick's clerk.
  The plaintiffs were thus on the 28th (Sunday) in possession of
both letters, the one from Fossick stating that the defendant
was not inclined to make a firm offer; and the other from the
defendant himself to the effect that he would sell for 40s. nett
cash, and woul;d hold it open all Monday.  This it was admitted
must have been the meaning of " open till Monday."
  On the Monday morning, at 9.42 the plaintiffs telegraphed to
the defendant : " Please wire whether you would accept forty for
delivery over two months, or if not, longest limit you would
give."
  This telegram was received at the office at Moorgate at 10.1 A.M.,
and was delivered at the defendants office in the Old Jewry
shortly afterwards.
  No answer to this telegram was sent by the defendant, but
after its receipt he sold the warrants, through Fossick, for 40s.,
nett cash, and at 1.25 sent offa telegram to the plaintiffs: " Have
sold all my warrants here for forty nett to-day."  This telegram
reached Middlesborough at 1.46, and was delivered in due course.
  Before its arrival at Middlesborough, however, and at 1.34, the
plaintiffs telegraphed to defendant :  " Have secured your price for
payment next Monday--write you fully by post."
  By the usage of the iron market at Middlesborough, contracts
made on a Monday for cash are payable on the following Monday.
  At 2.6 on the same day, after receipt of the defendant's
telegram announcing the sale through Fossick, the plaintiffs
telegraphed: " Have your telegram following our advice to you
of sale, per your instructions, which we cannot revoke, but rely
upon your carrying out."
  The defendant replied: " Sour two telegrams received, but
your sale was too late; your sale was not per my instructions."
And to this the plaintiffs rejoined:  " Have sold your warrants on
terms stated in your letter of twenty-seventh."
  The iron was sold by plaintiffs to one Walker at 41s. 6d, and
the contrsct note was signed before 1 o'clock on Monday.  The
price of iron rapidly rose, and the plaintiffs had to buy in
fulfilment of their contract at a considerable advance on 40s.
  The only question of fact raised at the trial was, whether the
relation between the psrties was that of principal and agent or
that of buyer and seller.  The jury found it was that of buyer
and seller, and no objection has been taken to this finding.
  Two objections were relied on by the defendant: first, it was
contended that the telegram sent by the plaintiffs on the Monday
morning was a rejection of the defendant's offer and a new
proposal on the plaintiffs' part, and that the defendant had
therefore a right to regard it as putting an end to the original
negotiation.
  Looking at the form of the telegram, the time when if was
sent, and the state of the iron market, I cannot think this is its
fair meaning.  The plaintiff Stevenson said he meant it only
as an inquiry, expecting an answer for his guidance, and this,
I think, is the sense in which the defendant ought to have
regarded it.
  It is apparent throughout the correspondence, that the plain-
tiffs did not contemplate buying the iron on speculation, but that
their acceptance of the defendant's offer depended on their finding
some one to take the warrants off their hands.  All parties knew
that the market was in an unsettled state, and that no one could
predict at the carly hour when the telegram was sent how the
prices would range during the day.  It was rcasonable that, under
these circumstances, they should desire to know before business
began whether they were to be at liberty in case of need to make
any and what concession as to the time or times of delivery,
which would be the time or times of payment, or whether the
defendant was determined to adhere to the terms of his letter;
and it was highly unreasonable that the plaintiffs should have
intended to close the negotiation while it was uncertain whether
they could find a buyer or not, having the whole of the business
hours of the day to look for one. Then, again, the form of the
telegram is one of inquiry.  It is not "I offer forty for delivery
over two months," which would have likened the case to Hyde v.
Wrench (1), where one party offered his estate for 1000l., and the
other answered by offering 950l.  Lord Langdale in that case,
held that after the 950l. had been refused, the party offering it
could not, by then agreeing to the original proposal, claim the
estate, for the negotiation was at an end by the refusal of his
counter proposal.  Here there is no counter proposal.  The words
are, "Please wire whether you would accept forty for delivery
over two months, or, if not, the longest limit you would give."
There is nothing specific by way of offer or rejection but a
mere inquiry, which should have been answered and not
treated as a rejection of the offer.  This ground of objection
therefore fails.
  The remaining objection was one founded on a well-known
passage in Pothier, which has been supposed to have sanctioned
by the Court of Queen's Bench in Cooke v. 0xley (2), that in order
to constitute a contract there must be the assent or concurrence
  (1) 3 Beav. 334.              (2) 3 T. R. 653.
of the two minds at the moment when the offer is accepted; and
that if, when an offer is made, and time is given to the other party
to determine whether he will accept or reject it, the proposer
changes his mind before the time arrives, although no notice of
the withdrawal has been given to the other party, the option of
accepting it is gone.  The case of Cooke v. Oxley (1) does not
appear to me to warrant the inference which has been drawn from
it, or the supposition that the judges ever intended to lay down
such a doctrine.  The declaration stated a proposal by the de-
fendant to sell to the plaintiff 266 hogsheads of sugar at a specific
price, that the plaintiff desired time to agree to, or dissent from,
the proposal till 4 in the afternoon, and that defendant agreed to
give the time, and promised to sell and deliver if the plaintiff
would agree to purcliase and give notice thereof before 4 o'clock.
The Court arrested the judgment on the ground that there was no
consideration for the defendant's agreement to wait till 4 o'clock,
and that the alleged promise to wait was nudum pactum.
  All that the judgment affirms is, that a party who gives time to
another to accept or reject a proposal is not bound to wait till the
time expires.  And this is perfectly consistent with legal prin-
ciples and with subsequent authorities, which have been supposed
to conflict with Cooke v. Oxley. (1)  It is clcar that a unilateral
promise is not binding, and that if the person who makes an offer
revokes it before it has been accepted, which he is at liberty to
do, the negotiation is at an end: see Routledge v. Grant. (2)  But
in the absence of an intermediate revocation, a party who makes
a proposal by letter to another is considered as repeating the offer
every instant of time till the letter has reached its destination
and the correspondent has had a reasonable time to air it:
Adams v. Lindsell. (3) "Common sense tells us"  said Lord
Cottenham in Dunlop v. Higgins (4)  " that transactions cannot
go on without such a rule."  It cannot make any difference
whether the negotiation is carried on by post, or by telegraph, or
by oral message.  If the offer is not retracted, it is in force as a
continuing offer till the time for accepting or rejecting it has
arrived.  But if it is retracted, there is an end of the proposal.
  (1) 3 T. R. 653.                (3) 1 B. & A. 681.
  (2) 1 Bing. 653.                (4) 1 H. L. C. 381.
Cooke v. Oxley (1), if decided the other way, would have negatived
the right of the proposing party to revoke his offer.
  Taking this to be the effect of the decision in Cooke v. Oxley (1),
the doctrine of Pothier before adverted to, which is undoubtedly
contrary to the spirit of English law, has never been affirmed in
our Courts.  Singularly enough, the very reasonable proposition
that a revocation is nothing till it has been communicated to the
other party, has not, until recently, been laid down, no case having
apparently arisen to call for a decision upon the point.  In
America it was decided some years ago that " an offer cannot be
withdrawn unless the withdrawal reaches the party to whom it is
addressed before his letter of reply announcing the acceptance
has been transmitted":Tayloe v. Merchants' Fire Insurance Co. (2) ;
and in Bryne & Co. v. Leon Van Tienhoven & Co~. (3) my Brother
Lindley, in an elaborate judgment, adopted this view, and held
that an uncommunicatsd revocation is, for all practical purposes
and in point of law, no revocation at all.
  It follows, that as no notice of withdrawal of his offer to sell at
40d, nett cash, was given by the defendant before the plaintiffs
sold to Walker, they had a right to regard it as a continuing
offer, and their acceptance of it made the contract, which was
initiated by the proposal, complete and binding on both parties.
  My judgment must, therefore, be for the plaintiffs for 19000l.,
but this amount is liable to be reduced by an arbitrator to be
agreed on by the parties, or, if they cannot agree within a week,
to be nominated by me.  If no arbitrator is appointed, or if the
amount be not reduced, the judgment will stand for 1900l.  The
costs of the arbitration to be in the arbitrator's discretion.
                                      Judgment for the plaintiffs.
  Solicitors for plaintiffs: Dodds & Co.
  Solicitors for defendant: Harries, Wilkinson, & Raikes.
       (1) 3 T.R 653.            (2) 9 How. Sup. Court Rep. 390.
                   (3) 49 L.J. (C.P.) 316.
                    COWAN v. O'CONNOR.
  Major's Court--Jurisdiction--Contract by Telegraph--Order from without the
  An order to make certain bets having been transmitted by postal telegraph
from the plaintiff without the city of London to the defendant within it, he
telegraphed from the City that the order had been obeyed :--
  Held, that the contract of agency was made in the City, and that an action
for the breach of such contract was within the jurisdiction of the Lord Mayor's
  Court.
 Application referred from chambers for a writ of prohbition
to the corporation of London and to the plaintiff in an action in
the Mayor's Court.
  The declaration in the action alleged that the defendant,
acting for and on behalf of the plaintiff and as his agent in
wagering on certain horse races received to the use of the
plaintiff 356l., and the plaintiff claimed the said sum on an
account stated.
  It appeared from affidavits that the plaintiff telegraphed from
a post-office in Regent Street outside the City to the defendant
at Ludgate Circus, within the City, directions to put certain sums
onof money on a certain racehorses and gave an address at
the Pall Mall Club, without the City.  The defendant replied by
telegram from Ludgate Circus to the plaintiff at the club, "You
are on."  The defendant alleged in his affidavit that he did not
make any bet with any other person in consequence of the tele-
grams on behalf of the plaintiff, and that he had not received
any money in respect of any bets made on behalf of the plaintiff
or in consequence of the telegrams.
  Dancwerts, for the defendant.  Either the bets were made
between the plaintiff and defendant directly, and therefore the
sums claimed cannot be recovered, and there is no cause of
action, or, if the contract was one of agency only, the whole cause
of action did not arise within the City, and therefore the Mayor's
Court had no jurisdiction.
  First.  The affidavits state that the defendant did not make
the bets for the plaintiff, and that no moneys were received.
  Secondly. The whole cause of action must arise in the City:
Cooke v. Gill. (1)  In the pint case the post-office was the
agent of the parties, on the principle explained in Byrne v. Van
Tienhouen. (2)  The authority to the agent was given, if at all,
by the plaintiff at the post-office outside the City.  That autho-
rity must be proved.  It is a fact material to the cause of action.
There is no evidence that any money was received by the defend-
ant in the City.
  Francis Watt, for the plaintiff.  The whole transaction between
the parties was in the City.  The telegraph was merely a medium
of communication, just as a speaking trumpet or tube would be.
  [He was stopped.]
  MANISTY, J.  This is an application for a prohibition to the
Lord Mayor's Court in a cause where the amount sued for exceeds
     (1) Law Rep. 8. C. P. 107.              (2) 5 C. P. D. 344.
50l., and therefore the whole cause of action must arise within
the jurisdiction of the City.  The order by the plaintiff to the
defendant was sent by telegram, and to my mind that is exactly
the same as if it was a letter sent through the post office, and
until that reached the defendant he had no authority.  He re-
ceived this telegraphic communication in the City, and answered
it in the City.  It is said that there is a fact outside the City to
be proved, viz. the authority of the telegraph office to send this
telegram.  This is not the case.  All that need be done is to prove
the receipt by the defendant of the order from the plaintiff
directly, and the answer directly.  I am clearly of opinion that
in the present case there is no necessity to prove that the post-
office had authority to send the telegram ; it was merely a
medium of communication between the partiee, who are in the
same position as if they met together and made a contract.  There
is nothing to justify us in granting a prohibition.
  HAWKINS, J.  I am of the same opinion.  It is said that the
Lord Mayor's Court has no jurisdiction because the telegram
by which the directions to the defendant were given was de-
spatched from Regent Street, although delivered in the City, and
therefore that part of the cause of action arose out of the City.
I am not of that opinion.  I think that where, as here, a person
opens a correspondence and initiatss a transaction by telegram
he must be treated as though he were, through it, speaking to
the person to whom such telegram is directsd, at the place to
which he directs it to be sent, and where he intends it to be
delivered;  and if he desires a reply by telegram, such reply
must be considered as given to him at the telegraph office from
whence such reply is despatched.  A contract was created by two
telegrams in the present case, and I am clearly of opinion that
it was a contract in the City.  But it is said that the authority
to the telegraph clerk to communicate the telegram was an
authority given in Regent Street.  That may be.  But it is per-
fectly certain that the authority given in Regent Street was an
authority to do something, namely, deliver the message, in the
City, and nowhere else.  The authority to transmit the message,
when established, is merely evidence which goes to fix the
sender with the responsibility of sending it; but it is no part
of the cause of action.  If this objection were to prevail, no manu-
facturer in the country who sends his traveller to receive orders
in the City to supply goods could sue in the Mayor's Court for
the price, although the contract was made by the traveller and
the goods delivered in the City.  We have nothing to do with
the question whether the contract was that alleged, which, when
the case goes to trial it will be for the tribunal before which it is
to be tried to decide.  Then it is said there is another element
of consideration, viz., the receipt of the money.  Of course, the
the plaintiff will have to prove that it was received, or he will
fail on the merits.
                                    Application refused.
  Solicitor for plaintiff:  G. C. Scoles.
  Solicitor for defendant : C. Butcher.
            CARLILL v. THE CARBOLIC SMOKE BALL COMPANY
 Gaming--Contract by way of Wagering--Insurance against Disease--8 & 9 Vict.
                c. 109--14 Geo. 3, c. 48, s. 2.
  The defendants, the proprietors of a osrtain medical preparation called "The
  Carbolic Smoke Ball," issued an sdvertisement in which they promised to pay
100l. to any person who contracted the influenza after having used one of their
smoke balls, in a certain specified manner and for a certain specified period.
  The plaintiff, upon the faith of the advertisement, purchased one of the
defendants, smoke balls, and used it in the manner and for the period.
but nevertheless contracted the influenza:--
  Held, that the above facts established a contract by the defendants to pay
the plaintiff 100l. in the event which happened; that such contract was neither
a contraot by way of wagering within 8 & 9 Vict. c. 109, nor a policy within
14 Geo. 3, c. 48, s. 2;  and that the plantiff was entitled to recover.
  FURTHER consideration before Hawkins, J.
The defendants, who are the proprietors and vendors of a
medical preparation called the "Carbolic Smoke Ball," inserted
in the Pall Mall Gazette of November 13, 1891, the following
advertisement: "100l. reward will be paid by hte Carbolic
Smoke Ball Company to any person who contracts the incrseasing
epidemic influenza colds, or any disease caused by taking cold,
after having used the ball three times daily for two weeks,
according to the printed directions supplied with each ball.
1000l. is deposited with the Alliance Bank, Regent Street,
shewing our sincerity in the matter.
  "During the last epidemic of influenza many thousand carbolic
smoke balls were sold as preventives against this disease, and in
no ascertained case was the disease contracted by those using the
carbolic smoke ball.
  " One carbolic smoke ball will last a family several months,
making it the cheapest remedy in the world at the price, 10s.
post free.  The ball can be refilled at a cost of 5s.  Address:
  " Carbolic Smoke Ball Company,
     "27, Princes Street, Hanover Square, London, W."
  The plantiff, a lady, having read that advertisement, on the
faith of it bought one of the defendants' carbolic smoke balls
and used it as directed three times a day, from November 20
Secondly, if there was a contract it was void, as being a contract
by way of wagering, within the meaning of 8 & 9 Vict. c. 109.
A wagering contract is one the liability to perform which depends
on events beyond the control of the parties.  This case is similar
to Brogden v. Marriott (1), where an agreement by which the
defendant sold the plaintiff a horse, on the terms that the price
should be 200l. if within one month after the date of the agree-
ment it trotted eighteen miles in an hour, but one shilling if it
failed to do so, was held to be a wager, and void as such, under
9 Anne, c. 14.  So, too, in Rourke v. Short (2), a contract for the
sale and purchase of goods at a price to be regulated by ascer-
taining a past fact unknown to the parties at the time of the
contract was held to be void as a wager.  In Taylor v. Smetten (3),
where the defendant sold at a fixed price packets containing a
pound of tea and a coupon entitling the purchaser to a prixe
the amount of which was not determined till after the sale, it was
held that the transaction was a gaming transaction, and an
offence against the Lottery Act.
  Thirdly, if there was a contract, and it was not a wagering
contract, then it was a contract by way of insurance, and void
under s. 2 of 14 Geo. 3, c. 48, which provides that, " It shall not
person or persons, or other event or events, without inserting in
such policy or policies the person or persons, name or names,
interested therein, or for whose use, benefit, or on whose account
such policy is so made or uderwrote."
  W. Graham; (Murphy, Q. C. and Bonner, with him), for the
plaintiff.  The transaction between the parties amounted to a
contract of warranty of prevention of disease with liquidated
damages in the event of breach.  The advertisement which was
issued by the defendants was an offer by them to enter into such
a contract, which offer was accepted and converted into a contract
upon any person performing the conditions of the advertisement.
This view is in accordance with the judgments of Lord Campbell
and Wightman J., in Denton v. Great Northern Ry. Co. (4), who
held that the statement by a railway company in their time-
  (1) 3 Bing. N.C. 88.                  (3) 11 Q. B. D. 207.
  (2) 5 E. & B. 904                     (4) 5 E. & B. 860.
tables of the times at which their trains would run, amounted to
a contract with any person who came to the station and tendered
the price of a ticket that the trains would run at the times stated
In England v. Davidson (1), where the defendant offered a reward
to whoever would give such informat1on as would lead to the
conviction of a felon, and the plaintiff gave such information, it
conclusive in favour of the plaintiff that the contract in this case
was not a wager.  There Cotton, L.J., says (at p. 695) :  "The
essence of gaming and wagering is that one party is to win and
the other to lose upon a future event, which at the time of the
contract is of an uncertain nature--that is to say, if the event
turns out one way A. will lose, but if it turns out the other way
he will win."  Here the plaintiff was to win 100l. if she got
the influenza, but the defendants were not to win anything if she
did not.  So in Caminada v. Hulton (3), where the publisher of
a book containing information as to horse-races promised to pay
a sum of money to any purchaser of the book who correctly
prophesied the winning horses in certain future racas it was
of gain and loss.
  With regard to the contract being a policy of insurance, the
cases go to shew that a contract to fall within the Act of Geo. 3
must be shaped in the form of a pol1cy: Morgan v. Pebrer (4),
Cooke v. Field. (5)  Here the plaintiff was not merely to pay a
premium as in the case of an ordinary policy, but was further
to do something, namely, use the smoke ball.
  Loenis, in reply.  It is stated in Smith's Leading Case
9tlu ed. vol. ii. p. 311, that the Act of Geo. 3 applies to such
contracts "as are ordinarily, and in the common course of
business, made by way of policy."  That exactly covers the case
of an insurance against accident such as this.
                                      Cur. adv. vult.
  (1) 11 A.& E. 856.                 (3) 60 L.J. (M.C.) 116.
  (2) 4 Q.B.D. 685.                  (4) 3 Bing. N.C. 457.
                     (5) 15 Q.B. 460.
  July 4. HAWKINS, J., delivered the following written judg-
ment: The facts not being in dispute, I was requested to hcar
the legal objections discussed on further consideration, and to
enter the verdict and judgment as I thought right.  I have done
so, and I proceed now to deliver my judgment.
  Four questions require consideration in determining this case.
  1st. Was there a contract of any kind between the parties to
this action ?
  2nd. Was such contract, if any, wholly or partly in writing so
as to require a stamp?
  3rd. Was the contract a wagering contract ?
  4th. Was it a contract of insurance affected by statute,
14 Geo. 3, c. 48, s. 2.
  As regards the first question, I am of opinion that the offer or
proposal in the advertisement, coupled with the performance by
the plaintiff of the condition, created a contract on the part of
the defendants to pay the 100l. upon the happening of the event
mentioned in the proposal.  It seems to me that the contract
may be thus described.  In consideration that the plaintiff would
use the carbolic smoke ball three times daily for two weeks
according to printed directions supplied with the ball, the
defendants would pay to her 100l. if after having so used the ball
she contracted the epidemic known as influenza.
  The advertisement inserted in the Pall Mall Gaffzette in large
type was undoubtedly so inserted in the hope that it would bs
read by all who read that journal, and the announcement that
1000l. had been deposited with the Alliance Bank could only
have been inserted with the object of leading those who read it
to believe that the defendants were serious in their proposal, and
would fulfil their promise in the event mentioned; their own words,
"shewing our sicerity in the matter," state as much.  It may be
that, of the many readers of the advertisement, very few of the
sensible ones would have entertained expectations that in the
event of the smoke ball failing to act as a preventive against the
disease, the defendants had any intention to fulfil their attrac-
tive 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
the vendor of an article, whether it be medicine smoke or any-
thing 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 surely 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.
 I notice that in the present case the promise is of 100l. reward;
but the substance of the offer is to pay the named sum as compen-
sation for the failure of the article to produce the guaranteed
effect of the two weeks' daily use as directed.  Such daily use was
sufficient legal consideration to support the promise.  In Williams
v. Carwardine (1833) (l) the defendant, on April 25, 183l, pub-
lished a handbill, stating that whoever would give such in-
formation as should lead to the discovery of the murder of Walter
Carwardine should, on conviction, receive a reward of 20l.  In
August, 1831, the plaintiff gave information which led to the
conviction of one Williams.  The Court, consisting of Lord
Denman, C.J., Littledale, Parke, and Patteson, JJ., held, that the
plaintiff was entitled to recover the 20l. upon the ground that the
advertisement amounted to a general promise or contract to pay
the offered reward to any person who performed the condition
mentioned in it, namely, who gave the information.  If authority
was wanted to confirm the view I have taken, it is furnished by
the case I have just cited. (2)
  This brings one to the second question, whether the advertise-
ment, which is the only written or printed document affecting the
contract, requires to be stamped as an agreement before it can
be admitted in evidence.  This depends upon the language of
the Stamp Act, 1891 (54 & 55 Vict. c. 39), which requires " an
agreement, or any memorandum of an agreement . . . . under
hand only, whether the same be only evidence of a contract, or
(1) 4 B.& Ad. 621.                    not affect her right to recover. I pre-
(2) With reference to the case of     sume, however, that the offer had been
Williams v. Carwardine, Hawkins,J.,   brought to her knowledge before the
appended to his judgment the follow-  information was given. Otherwise, it
ing note:  "In this case the Court    is difficult to understand how it could
held, that the fact, as found by the  be said that she was party to a con-
jury,that the plaintiff was not induced tract, or gave the information in fulfil-
by the offer of the reward, but by other ment of the condition."
motives, to give the information, did
obligatory upon the parties from its being a written instrument"
to be duly stamped.  Whether a written or printed document
falls within this requirement depends upon its character at the
time it was committed to writing, or print, and issued.  If at the
time no concluded contract had been arrived at by the contract-
ing parties, it certainly could not in any sense be treated as an
agreement, nor could it be treated as a memorandum of an
agreement, for there could be no memorandum of an agreement
which had no existence.  No document requires an agreement
stamp unless it amounts to an agreement, or a memorandum of
an agreement.  The mere fact that a document may assist in
proving a contract does not render it chargeable with stamp
duty; it is only so chargeable when the document amounts to an
agreement of itself or to a memorandum of an agreement already
made.  A mere proposal or offer until accepted amounts to
nothing.  If accepted in writing, the offer and acceptance to-
gether amount to an agreement; but, if accepted by parol, such
acceptance does not convert the offer into an agreement nor into
a memorandum of an agreement, unless, indeed, after the accept-
ance, something is said or done by the parties to indicate that
in the future it is to be so considered: see Edgar v. Black (1);
Chaplin v. Clarke (2) ; Hudspeth v. Yarnold (3) ; Clay v. Crofts. (4)
I think for the reasons I have given, supported as they are by
authority, the advertisement does not require to be stamped.
  The third question is whether the contract I have found to
exist is a contract by way of gaming or wagering within the
meaning of statute 8 & 9 Vict. c. l09, s. 18, which renders such
contracts null and void, and, therefore, not enforceable by action.
I think it is not.  1t is not easy to define with precision what
amounts to a wagering contract, nor the narrow line of demarca-
tion which separates a wagering from an ordinary contract; but
according to my view, a wagering contract is one by which two
persons, professing to hold opposite views touching the issue of a
future uncertain event, mutually agree that, dependant upon the
determination of that event, one shall win from the other, and
that other shall pay or hand over to him, a sum of money or
  (1) 1 Stark. 464.                  (3) 9 C.B. 625.
  (2) 4 Ex. 407, per Maule,J.        (4) 20 L.J. (Ex.) 361.
other stake; neither of the contracting parties having any other
interest in that contract than the sum or stake he will so win or
lose, there being no other real consideration for the making of
such contract by either of the parties. It is essential to a wager-
ing contract that each party may under it either win or lose,
whether he will win or lose being dependent on the issue of the
event, and, therefore, remaining uncertain until that issue is
known.  If either of the parties may win but cannot lose, or
may lose but cannot win, it is not a wagering contract.
  It is also essential that there should be mutuality in the con-
tract.  For instance, if the evidence of the contract is such as to
make the intentions of the parties material in the consideration
of the question whether it is a wagering one or not, and those
intentions are at variance, those of one party being such as if
agreed in by the other would make the contract a wagering one,
whilst those of the other would prevent it from becoming so, this
want of mutuality would destroy the wagering element of the
contract and leave it enforceable by law as an ordinary one: see
Grizewood v. Blane (1);  Thacker v. Hardy (2); Blaxton v. Pye. (3)
No better illustration can be given of a purely wagering contract
than a bet on a horse-race.  A. backs Tortoise with B. for 100l. to
win the Derby. B. lays ten to one against him--that is, 1000 to
100. How the event will turn out is uncertain until the race is
over.  Until then, A. may win 1000l. or he may lose 100l., B.
may win 100l. or he may lose 1000l.;  but each must be a winner
or a loser on the event.  Under the wager neither has any
interest except in the money he may win or lose by it.  True it
is that one or both of the parties may have an interest in the
property of the horse;  but that interest is altogether apart from
the bet, and each party is in agreement with the other as to the
nature and intention of his engagement.  If any one desires to
read more upon the subject of wagers he will find the subject
fully and clearly treated in Mr. Stutfield's able and learned
book.  One other matter ought to be mentioned, namely, that
in construing a contract with a view to determining whether it
is a wagering one or not, the Court will receive evidence in order
  (1) 11 C. B. 526.                (2) 4 Q.B.D. 685.
               (3) 2 Wils. 309.
to arrive at the substance of it, and will not confine its attention
to the mere words in which it is expressed, for a wagering con-
tract may be sometimes concealed under the guise of language
which on the face of it if words were only to be considered
might constitute a legally enforceable contract.  Such was the
case in Brogden v. Marriott (1) in which under the guise of a
contract for the sale by the defendant to the plaintiff of a horse
staying power, there was concealed a mere bet of the defendant's
horse to 200l. that the horse within a month should trot eighteen
miles within an hour.  The defendant's horse having failed to
accomplish the task set him, plaintiff claimed the horse at a
nominal price of ls. The nature of this contract was transparent
to any person of ordinary intelligence, and the plaintiff in vain
argued that it was a bona# fide conditional bargain.  The Court
held it to be nothing more nor less than a mere wagering con-
tract prohibited by the then unrepealed statute 9 Anne, c. 14.
In that case the nature of the contract was very clearly to be
inferred from the statement of it in the record.  Of course, if in
any case it is suggested that a contract good on the face of it
was a mere device to elude the operation of the statute, the
question would be one for a jury to solve:  see also Hill v. Fox (2);
Grizewood v. Blane. (3)
  In the present case an essential element of a wagering contract
is absent.  The event upon which the defendants promised to pay
the 100l. depended upon the plaintiff's contracting the epidemic
influenza after using the ball; but, on the happening of that
event, the plaintiff alone could derive benefit.  On the other
hand, if that event did not happen, the defendants could gain
nothing, for there was no promise on the plaintiff's part to pay
or do anything if the ball had the desired effect.  When the
contract first of all came into existance (i.e. when the plaintiff
had performed the consideration for the defendants' promise) in
no event could the plaintiff lose anything, nor could the de-
fendants win anything.  At the trial it was not even suggested
that any evidence could be offered to alter the character of the
  (1) 3 Bing. N.C. 88.                (2) 4 H.& N. 359.
                 (3) 11 C.B. 526.
contract or the facts as deposed to by the plaintiff.  I am clearly
of opinion that, if those facts established a contract, as I think
they did, it was not of a wagering character.
  As to the objection that this contract (if any) was one of
insurance and invalid for non-compliance with the statute
14 Geo. 3, c. 48, s. 2, which enacts that "it shall not be lawful
to make any policy or policies on the life or lives of any person,
or other event or events, without inserting in such policy or
policies the person or persons, name or names, interested therein,
or for whose use benefit, or on whose account such policy is so
made or underwrote," it seems to me that the simple answer to
that objection is that the section relates only to a policy which
is a written document, and cannot apply to a contract like the
present, which is created by a written proposal or offer accepted
by the fulfilment by the plaintiff of the conditions attached to
the offer. I do not feel it necessary to discuss the question
whether the contract is one of insurance, which kind of contract
Blackburn, J., in Wilson v. Jonos (1), thus describes: " A policy
is, properly speaking, a contract to indemnify the insured in
respect of some interest which he has against the perils which he
contemplates it will be liable to."  My present opinion is that it
does not amount to such a contract, and certain I am that neither
of the parties so intended it.
  In the pleadings I find a further defence that the contract was
contrary to public policy; but the learned counsel for the de-
fendants was unable to point out to me any grounds for such a
contention other than those I have alrcady discussed.
  It follows from what I have said that, in my opinion the
plaintiff is entitled to recover the 100l.  I therefore direct a
verdict to be entered for the plaintiff for 100l. and judgment
accordingly with costs.
                                       Judgment for the plaintiff.
  Solicitors for plaintiff: Field & Roscoe.
  Solicitors for defendants: Rowcliffes Rawle & Co.
  (1) Law Rep. 2 Ex. at P. 150.
                                                  J. F. C.