^xytmW Slatw irl^nol Bbrarg Cornell University Library KF 801.A7A82 1912 A selection of cases on the law of contra 3 1924 018 847 651 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018847651 A SELECTION OF CASES ON The Law of Contracts CLARENCE D. ASHLEY Professor of Law and Dean of the Faculty of Law in New York University THIRD EDITION New York Leslie J. Tompkins 32 Waverly Place 1912 Copyright 1912 By Clarence D. Ashley All rights reserved J. B. LYON COMPANY PRINTERS, BINDERS, ELECTBOTYPERS ALBANY, N. Y. NOTE TO THIRD EDITION. The second edition of my collection of cases was ex- hausted some years ago. Since then I have used for my classes, successively, the excellent collections edited, the one by Judge Keener and the other by Professor Williston. The rich, able, and suggestive annotation by Professor "Williston gives his work a special value. Each of these collections fills two large volumes. A por- tion of the subject-matter covered by them being treated in other courses in this school, it seemed imperative that a one-volume collection should be compiled for our students. As it is intended that my recently-published text on contract shall serve as a summary and review of the course, no notes have been made herein. This collection is based upon my second edition, but the several collections made by Williston, Keener, Huffurt and Woodruff, and Hopkins have helped greatly — special acknowledgment is hereby made. It has been found useful to retain some of the hypo- thetical cases successfully employed by me for many years. C. D. A. New York University, School of Law. October 1, 1911. [Hi] CONTENTS. PAGE Table of cases vii Chapter I. rormation of contracts 1 Section 1. Mutual assent 1 2. Consideration . . . ; 180 a. Motive as distinguished from consideration 180 b. What constitutes consideration 185 c. Compromise and forbearance 323 d. Moral obligation as a so-called consideration . . . 339 e. Past consideration 385 Chapter II. Conditions in Contract 397 Section 1. Conditions precedent 397 a. Express conditions 397 b. Conditions implied in law 534 2. Conditions subsequent 717 3. Waiver of conditions : 730 Chapter III. Eights of third persons not parties to the contract 734 Section 1. Assignment of contract 734 2. Third persons as beneficiaries 765 Chapter IV. Form of contract 828 Section 1. Contracts under seal 82S 2. Statute of frauds 843 Chapter V. Unlawful subject matter 846 Chapter VI. Impossibility of performance 871 [v] vi Contents. Chapter VII. page Discharge of contract 906 Section 1. By agreement 906 2. By alteration 910 3. By merger 910 4. By anticipatory breach 913 5. By accord and satisfaction 941 Index , 951 TABLE OF CASES. A PAGE Abbott V. Doaue 293 Aborn v. Merchants' Dis- patch Trans. Co 7'2 Adams «. Lindsell 93 Allen V. Harris 941 Aller V. Aller 831 Anheuser Busch Brewing Assoc. V. Mason 856 Annoymous 397 Arkansas Valley Smelting Co. V. Belden 740 Armitage v. Insole 507 -Austin, R. E. & A., Co. v. Bahn 321 -Avery v. B'owden 918 -Ayer v. Western Union Tel. Co 88 B Bagge V. Slade 225 Bailey v. De Crespigny. . . . 898 Bainbridge v. Firmstone 186 'Baker ■;;. Higgins 591 Batterbury v. Vyse 477 Bay V. Williams 805 Beebe v. Johnson 874 Beecher v. Conradt 673 Behn v. Burness 434 -Benson v. Phipps 318 Bennett v. Merchants' Dis- patch Trans. Co., 72 Bettini v. Gye 705 Bidder v. Bridges 266 Boone v. Eyre 537 Boston Ice Co. v. Potter. ... 54 PAGE Boston & Maine R. R. v. Bartlett 188 Borden i;. Boardman 772 •Bourne v. Mason 765 Brauer v. Shaw 164 Brooks V. Ball 197 Brown v. Poster 459 Brusie v. Peck Bros 693 Buchanan v. Tilden 812 C Cad well v. Blake 498 Callisher v. Bischoffsheim . . . 323 Callonel v. Briggs 409 Carlill V. Carbolic Smoke Ball Co 215 Carter v. Nichols 764 Chicago, Sante Fe & Cal. R. R. Co. V. Price 482 Chism V. Schipper 488 Christie v. Borelly 598 Clark V. Fey 664 Clarke v. Watson 474 -Cohen V. Piatt 671 Cooke V. Oxley 1 Crears v. Hunter 330 Cross V. Cross 869 Cundy v. Lindsay 61 -Cunningham v. Judson 652 D Dana v. Merrill 757 Daniels v. Newton 927 Dawkins v. Sappington. . . . 50 Day V. Caton 18 vii] VUl Table of Cases. PAGE Dearborn v. Bowman 388 Dickenson v. Dodds 167 Duke of St. Albans v. Shore 538 Dunham v. Pettee 421 Dunlop V. Higgins 99 Dunton v. Dunton 208 Duplex Safety Boiler Co. v. Garden 462 Durnherr v. Rau 810 Dusenbury v. Hoyt 379 Dutton V. Poole 766 E Eastwood V. Kenyon 342 Eddy V. Davis 679 Edmunds v. Merchants' Dis- patch Trans. Co 72 -Ellen V. Topp 606 Eliason v. Henshaw 141 Elliot V. Blake 717 England v. Davidson 231 F Farrow v. Wilson 746 Felthouse v. Bindley 149 --resterman v. Parker 297 Fitch V. Snedaker 46 Foakes v. Beer 255 Fogg V. Portsmouth Athen- SBum 24 Foster v. Metts 326 Freeth v. Burr 624 Frost V. Knight 919 G Gibbons v. Procter 52 Gifford V. Corrigan 795 Glaholm v. Hays 445 Glazebrook v. Woodrow 551 Globe Mutual Life Ins. Assoc. V. Wagner -455 Goodisson v. Nunn 543 PAGE Goshen Nat'l Bank v. Bing- ham 753 Goulding v. Davidson 362 Grant v. Johnson 570 Graves v. Legg. 611 V. Johnson 852 Gray v. Gardner 718 H Hallock V. Commercial Ins. Co ;. 115 Hamer v. Sidway 203 Hamilton v. Liverpool, etc., Insurance Co 532 Harmony v. Bingham 880 Harris ■;;. Moore 241 Harrison v. Cage 191 Hayden v. Bradley 522 Henry v. RoweU 936 Henthorn v. Eraser 128 Herring v. Dorrell 242 Hertzog v. Hertzog 173 Hicks V. Burhans 392 Hoare v. Rennie 593 Hobbs V. Massasoit Whip Co 28 Hochster v. De La Tour 913 Home Ins. Co. v. Watson . . . 828 Household Fire & Carriage Accident Ins. Co. v. Grant 153 Howard v. Daly 121 Howell V. Maclvers 757 Hunt V. Bate 385 I Ilsley V. Jewett 381 J James v. Burcbell 687 Jonassohn v. Young 601 Jones V. Barkley 731 Table of Cases. IX K PAGE Kane v. Hood 419 Kellogg V. Olmsted 313 King V. Duluth M. & N. R'y Co 305 King V. Gillett 906 Kingston v. Preston 534 Kirksey v. Kirksey 226 Kromer v. Heim 942 Kurtz V. Frank -866 L Lacy V. Getman 747 Laird v. Pim 695 Lattimore v. Harsen 295 Laurence v. Fox 775 Lee V. Muggeridge 339 Logh V. Legh 734 Lehow V. Simonton 794 Littlefield v. Storey 735 Liverpool, London & Globe Ins. Co. V. Kearney. . . 450 Lock V. Wright 410 M Maclay v. Harvey 132 Mactier v. Frith 106 Makin v. Watkinson 517 Malone v. Boston & Worces- ter R. R. Co 80 Manhattan Life Ins. Co. v. Buck 724 Manter v. Churchill 327 Merrick v. Giddings 287 Mersey Steele Co. v. Nalor, Benzon & Co 629 Mills V. Wyman 356 Milner v. Field 481 Minnesota Oil Co. v. Collier, etc., Co 125 M'Kinnell v. Robinson 859 Moggridge V. Jones 565 Moore v. Elmer 393 PAGE Morehouse v. Second Nat'l Bank of Oswego 945 Morgan v. Birnie 470 Morton v. Lamb 547 Moulton V. Kershaw 36 Me- McCulloch V. Eagle Insur- ance Co 95 McMillan v. Ames 839 N New York Life Insurance Co. .V. Seyms 724 New York Life Insurance Co. V. Stratham 724 New York & Washington Printing, Telegraph Co. v. Dryburg 81 Nichols V. Raynbred 399 Nolan V. Whitney 487 Norrington v. Wright 637 Nugent V. Smith 871 OUive V. Booker 430 Oxendale v. Wetherell 577 P Pahner v, Merrill 757 Paussard v. Spiers 711 Payne v. Cave 4 Pearce v. Brooks 846 Pixley V. Boynton 862 President, Managers & Co. of The Del. & Hud. Canal Co. V. Pennsylvania Coal Co 524 R Rae V. Haekett 495 Rawson v. Johnson 560 Rajrmond v. Minton 509 Raynay v. Alexander 397 Table of Cases. PAGE Reif V. Paige 233 Reynolds v. Stevenson 865 Ricketts v. Scothom 220 Roscorla v. Thomas 390 Royal Insurance Co. v. Beatty 20 Rupley V. Daggett 75 S Schnell v. Nell 191 Scotson V. Pegg 281 Sears v. Eastern Railroad Co 42 Semmes v. Hartford Ins. Co. 720 Seward v. Mitchell 200 Shadforth v. Higgin 429 Shadwell v. Shadwell 273 Shepard v. Rhodes 351 Sibree v. Tripp 250 Sidenham v. Worlington's Case 386 Simpson v. Crippen 621 Smith V. Monteith 243 Staunton ■;;. "Wood 604 Stensgaard ■;;. Smith 13 Sterling v. Sinnickson 867 Stevens v. Coon 878 Stiek V. Myrrick '230 Stoddard v. Ham 57 Storer v. Gordon 566 Strong V. Sheffield 335 Stubbs V. Hollowell R. W. Co 736 Superintendent & Trustees of Public Schools of Trenton v. Bennett 882 Synge v. Synge 935 T PAGE Tayloe v. Merchants' Fire Insurance Co 109 — V. Harnett 6 Thomas v. Cadwallader 414 V. Thomas 180 Thompson v. Gillespy 616 V. Noel 730 Thorpe v. Thorpe 399 Thiinell v. Balhirnie 441 Tipton V. Peitner 580 Tobias v. Lissberger. 656 Todd D. Webber 801 Tolhurst V. Powers • 228 Tompkins v. Dudley 891 ■Traver v. 196 Tweddle v. Atkinson 769 Tyler v. Carlisle 851 V Vanderbilt v. Schreyer 298 Van Vliet v. Jones 910 Vrooman v. Turner 789 Vyse V. Wakefield 511 W Wells V. Calnan 666 White V. Bluett 206 V. Corlies 33 Williams v. Carwardine. . . . 44 Withers v. Reynolds 578 Worsley v. Wood 464 Y Yerrington v. Greene 887 CASES ON CONTRACTS. CHAPTER I. formation of contracts. Section- 1. — Mutual Assent, A and B are talking together. A offers to sell his watch to B for $75, and on going out tells B to think it over until he returns. In half an hour A returns and upon coming in says, " I won't sell my watch for $75, and withdraw my offer." B replies, " That won't do, you made me the offer and I accept it. ' ' CoOKE V. OXLEY. . 3 TEEM REPORTS, 653 — 1790. This was an action upon the case ; and the third count in the declaration, upon which the verdict was taken, stated that on, etc., a certain discourse was had, etc., con- cerning the buying of 266 hogsheads of tobacco; and on that discourse the defendant proposed to the plaintiff that the former should sell and deliver to the latter the said 266 hogsheads (at a certain price) ; whereupon the plaintiff desired the defendant to give him (the plaintiff) time to agree to or dissent from the proposal, till the hour of four in the afternoon of that day, to which the defend- ant agreed ; and thereupon the defendant proposed to the plaintiff to sell and deliver the same upon the terms aforesaid, if the plaintiff would agree to purchase them upon the terms aforesaid, and would give notice thereof to the defendant before the hour of four in the afternoon 2 FOEMATION OF CONTRACTS. [ChAP. I. of that day; the plaintiff averred that he .did agree to purchase the same upon the terms aforesaid, and did give notice thereof to the defendant before the hour of four in the afternoon of that day ; he also averred that he re- quested the defendant to deliver to him the said hogs- heads, and offered to pay to the defendant the said price for the same, yet that the defendant did not, etc. A rule having been obtained to show cause why the judgment should not be arrested, on the ground that there was no consideration for the defendant's promise. Erskine and Wood now showed cause. This was a bar- gain and sale on condition; and though the defendant might have rescinded the contract before 4 o'clock, yet, not having done so, the condition was complied with, and both parties were bound by the agreement. The declara- tion considered this as a complete bargain and sale ; for the breach of the agreement is for not delivering the tobacco, and not for not selling it. LoED Kestyon, Ch. J. (stopping Bearer oft, who was to have argued in support of the rule) : Nothing can be clearer than that, at the time of entering into this con- tract the engagement was all on one side ; the other party was not bound ; it was therefore nudum pactum. BuLLEE, J. It is impossible to support this declaration in any point of view. In order to sustain a promise, there must be either a damage to the plaintiff, or an advantage to the defendant : but here was neither when the contract was first made. Then, as to the subsequent time, the promise can only be supported on the ground of a new contract made at 4 o 'clock ; but there is no pretence for that. It has been argued that this must be taken to be a complete sale from the time when the condition was com- plied with; but it was not complied with, for it is not stated that the defendant did agree at 4 o'clock to the terms of the sale ; or even that the goods were kept till that time. Sec. l.J Hypothetical Cases. 3 Geose, J. The agreement was not binding on the plain- tiff before 4 o 'clock ; and it is not stated that the parties came to any subsequent agreement; there is, therefore, no consideration for the promise. Rule absolute. (a) A offered to repair B's fence for $25, and said, ' ' Think it over and let me know. ' ' In two or three hours B met him and said, " I accept your offer, go ahead and repair the fence. ' ' (b) Doane was talking to Atkins and said, " I will sell you my horse for $150." Atkins made no reply, and they separated. The next day Atkins called upon Doane and at once said, ' ' I accept your offer to sell your horse for $150." Doane replied, " You are too late, I do not now care to sell. ' ' (c) Barker was negotiating with Caton for the sale of certain real estate belonging to Barker. Finally he offered to sell to Caton for $50,000 and said, ' ' I will leave this offer open ten days." On the sixth day he wrote to Caton stating that he withdrew the offer. The next day Caton called and said he accepted the offer and in- sisted upon his right to do so within the ten days. Barker denied this. (d) Aiken desired to purchase a house from Bradley who offered to sell for $60,000. Aiken wished time to consider but this Bradley refused. Aiken then offered to pay Bradley $50 to keep this offer open one week. This Bradley consented to do and Aiken paid the $50. In three days Bradley sold the house to another party and notified Aiken that he withdrew his offer. Aiken pro- tested and said to Bradley, " I accept your offer to sell for $60,000." Did a contract arise in either of these cases? 4 Formation of Conteacts. [Chap. I. Payne v. Cave. 3 tekm reports, 148 — 1789. This was an action, tried at the sittings after last term at GuUdhall before Lord Kenyon, wherein the declaration stated that the plaintiff on 22d September, 1788, was pos- sessed of a certain worm-tub, and a pewter worm in the same, which were then and there about to be sold by pub- lic auction by one S. M., the agent of the plaintiff in that behalf, the conditions of which sale were to be the usual conditions of sale of goods sold by auction, etc., of all which premises the defendant afterwards, to wit, etc., had notice ; and thereupon the defendant in consideration that the plaintiff at the special instance and request of the defendant, did then and there undertake, and promise to perform the conditions of the said sale, to be per- formed by the plaintiff, as seller, etc., undertook, and then and there promised the plaintiff to perform the con- ditions of the sale, to be performed on the part of the buyer, etc. And the plaintiff avers, that the conditions of sale, hereinafter mentioned, are usual conditions of sale of goods sold by auction, to wit, that the highest bidder should be the purchaser, and should deposit five shillings in the pound, and that if the lot purchased were not paid for and taken away in two days' time, it should be put up again and resold, etc. (stating all the conditions). It then stated that the defendant became the purchaser of the lot in question for £40, and was requested to pay the usual deposit which he refused, etc. At the trial, the plaintiff's counsel opened the case thus; — The goods were put up in one lot at an auction; there were several bidders, of whom the defendant was the last, who bid £40 ; the auctioneer dwelt on the bidding, on which the de- fendant said " why do you dwell, you wUl not get more ; " the auctioneer said that he was informed the worm weighed at least 1,300 ewt., and was worth more than £40 ; the defendant then asked him whether he would warrant it Sec. 1.] Payne v. Cave. 5 to weigh so much, and receiving an answer in the nega- tive, he then declared that he would not take it, and re- fused to pay for it. It was resold on a subsequent day's sale for £30 to the defendant, against whom the action was brought for the difference. Lord Kenyon, being of opin- ion on this statement of the ease, that the defendant was at liberty to withdraw his bidding any time before the hammer was knocked down, nonsuited the plaintiff. Walton now moved to set aside the nonsuit, on the ground that the bidder was bound by the conditions of the sale to abide by his bidding, and could not retract. By the act of bidding he acceded to those conditions, one of which was, that the the highest bidder should be the buyer. The hammer is suspended, not for the benefit of the bidder, or to give him an opportunity of repenting, but for the benefit of the seller ; in the meantime the per- son who bid last is a conditional purchaser, if nobody bids more. Otherwise it is in the power of any person to in- jure the vendor, because all the former biddings are dis- charged by the last ; and, as it happened in this very in- stance, the goods may thereby ultimately be sold for less than the person who was last outbid would have given for them.^ The court thought the nonsuit very proper. The auctioneer is the agent of the vendor, and the assent of both parties is necessary to make the contract binding; that is signified on the part of the seller, by knocking down the hammer, which was not done here till the de- fendant had retracted. An auction is not unaptly called locus pcenitentice. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to. But according to what is now con- tended for, one party would be bound by the offer, and the other not, which can never be allowed. Rule refused. ' Reference to case omitted. 6 Formation of Conteacts. [Chap. I. Tayloe v. Haenett. 55 new york supplement, 988 — 1899. Appeal from Municipal Court, Borough of Manhattan, First District. There was a judgment for plaintiffs, and defendants appeal. Reversed. Argued before Be&kmast, P. J., and Gildebsleeve and GlEGERICH, JJ. Beekman, p. J. The plaintiffs claim that they were the highest bidders at an auction sale of certain stock, which was conducted by the defendants, who are co- partners, engaged in business as auctioneers; that the latter refused to accept their bid, and awarded the prop- erty to the next lowest bidder ; and that, in so doing, they violated a duty which they owed, as a matter of law, to the plaintiffs, as bidders at the sale, for which they are liable in damages. The justice below rendered judgment in favor of the plaintiffs. On the trial there was such a conflict upon the facts that we should not undertake to disturb the findings of the trial court in that regard. Assuming them to have been as testified to by the plain- tiffs' witnesses, we must, then, take it that the defend- ants advertised the sale at public auction of 10 shares of Electric Gas Company stock, of the par value of $100 each, to be held on January 4, 1898, at 12 -.30 o 'clock, at the salesroom. No. Ill Broadway, in this city. A copy of the advertisement, in the shape of a printed handbill, or " Catalogue," as it was called, was received by the plaintiffs from the defendants ; and it was in pursuance of this notice that the former attended the sale at the time and place stated, for the purpose of bidding on the stock. The terms of sale, as expressed in the catalogue, were as follows: " 10 per cent, at the time of sale, and the balance before 12 o'clock, Wednesday, January 5, payable to the auctioneers, at their office, Nos. Sec. 1.] Taylor v. Harkett. 7 71 and 73 Liberty Street, in funds current at the New York Clearing House. No checks received in payment unless certified and approved. Owners reserve the right to bid at this sale." The sale was personally conducted by Mr. Donald, one of the defendants, and the bidding for the plaintiffs was made by one Alexander K. Taylor, their agent. When it was opened, Mr. Taylor offered bids under par, which were refused; the auctioneer stating that none under par would be entertained. Mr. Taylor then bid that amount, whereupon a bid of 110 was made by some other bidder, which was followed by an offer from Mr. Taylor of 111. This the auctioneer refused to receive, saying, " I won't accept one point raised on stock," and again cried, ' ' I am bid 110. ' ' Mr. Taylor again bid 111, where- upon the auctioneer said, " Sold at 110," and dropped his hammer. According to Mr. Taylor's testimony, which it must be presumed was credited by the justice, the following thereupon took place between himself and the auctioneer: " I immediately went up, and said, ' Here is my card, Taylor & Com- pany ; that is my stock.' He said, ' That is not your stock.' I said, ' It is, absolutely.' He says, ' I will give you a chance to buy the stock.' He says, ' I am bid 125.' I said, ' I advise you not to sell my stock ; I bought the stock at 111.' With that he went on with another deal. Pirst he scratched his pencil through something." The witness was then further interrogated as follows : " Q. State, when he made the statement that he was bid 125, whether he dropped his hammer, and declared the stock sold. A. No, sir; I warned him not to sell stock which was mine. He did not declare it sold. He just ran his pencil through the line. I went immediately to the office." This sufficiently presents the facts on which the plain- tiffs rely in support of the judgment in their favor. Their claim is that, as a matter of law, where an auc- tioneer advertises a sale at public auction, and in re- sponse to this invitation bidders attend, an implied con- 8 FOEMATION OF CONTRACTS. [ChAP. I. tract arises between them that the property will be knocked down to the highest bidder, for a breach of which an action for damages will lie against him at the suit of such bidder. There is no case in this State which is directly in poiat upon the proposition advanced. The question, however, seems to have been determined in England in the case of Warlow v. Harrison, 29 Law J. Q. B. 14, in the Exchequer Chamber, error from the Queen's Bench. There it was held, as the, headnote ex- presses it, that, if an auctioneer inserts in the conditions of a sale by auction that the property is to be sold ' ' with- out reserve," he, by so doing, contracts with the highest bona fide bidder that the sale shall be without reserve; and the contract is broken if, during the auction, a bid is made by or on behalf of the owner of the property sold, and in such case the auctioneer is liable to an action at the suit of the highest bona fide bidder. In the course of his opinion, Martin, B., says : " In a sale by auction there are three parties, namely, the owner of the property to be sold, the auctioneer, and the portion of the public who intend to bid, which, of course, includes the highest bidder. In this, as in most cases of sale by auction, the owner's name was not dis- closed; he was a concealed principal. The names of the auctioneers, of whom the defendant was one, alone were published, and the sale was announced by them to be ' without reserve.' This, according to all the cases, both at law and in equity, means that neither the vendor, nor any person on his behalf, may bid M the auction, and that the property shall be sold to the highest bidder, whether the sum bid be equivalent to the real value or not. For this position, see the case of Thornett v. Haines (15 Mees. & W. 367). We cannot distinguish the case of an auctioneer putting up property for sale upon such a condition from the case of the loser of property offering a reward, or that of a railway company publishing a time table stating the times when, and the places at which, the trains run. It has been decided that the person giving information advertised for, or a passenger taking a ticket, may sue as upon a contract with him. Denton v. Railway Co. (.5 El. & Bl. 860). Upon the same principle, it seems to us that the highest bona fide bidder at an auction may sue the auctioneer as upon a contract that the sale shall be without reserve. We think that the auctioneer who puts prop- Sec. 1.] Taylok v. Harnett. 9 erty up for sale upon such a condition pledges himself that the sale shall be without reserve, or, in other words, contracts that it shall be so, and that this contract is made with the highest bona fide bidder, and, in case of a breach of it, that he has a right of action against the auctioneer.'' The reasoning of the court fairly supports the claim made by the plaintiffs that this decision determines the existence of a contractual relation between the auctioneer and the bidder, which imports a duty on the part of the former to sell according to the terms of sale, either ex- pressed or necessarily to be implied from the very nature of the sale itself. The fundamental principle of the de- cision is that, in the absence of stipulations to the con- trary, the auctioneer is bound as between himself and the attending bidders, to award the property to the highest bona fide bidder. Of course, this presupposes that the bid is one which the auctioneer either received or should have received. "While we concede all the respect that is due to the high- est authority of the court from which this decision emanated, it is not, of course, a controlling authority here. The question is still an open one, which, however, we see no necessity for deciding, in view of the fact that, assuming the law to be as the above-cited case seems to declare, we are still of the opinion that, upon the facts of the case before us, the plaintiffs have not established such a breach of duty on the part of the defendants as to sup- port a recovery. The contention of the plaintiffs is, as we have seen, that there was such a breach of duty in the refusal of the auctioneer to accept their bid of 111 for the ten shares of stock, which was an advance of $1 a share over the previous bid, and that they were, therefore, the highest bidders, and consequently entitled to have the property knocked down to them. Under this view, of course, any advance, however slight, should have the effect claimed for it ; but the trouble with the argument is 10 FOKMATION OF CONTRACTS. [ChAP. I. that it fails to notice the modifying effect of another duty which the auctioneer owes to his principal. He is bound to use all reasonable efforts, consistent, of course, with fairness, to make the sale a success, and to induce persons attending the same to bid. In short, he is there for the purpose of stimulating competition for the property, without which such a sale must almost always prove a failure. The necessity, then, for the existence of a cer- tain measure oi discretion on his part with respect to pro- cedure on the sale is manifest. That he has such power cannot reasonably be disputed, the only difficulty arising being to affix an exact specification of its limits. It is, we think, well settled that he may refuse a bid tendered in bad faith, or proffered by a person who is insolvent or otherwise disabled from completing the purchase ; other- wise the whole object of the sale might be defeated. Within the same reasoning comes the right, which we think he possesses, of refusing to accept trifling advances offered by bidders in the course of the sale, especially where that kind of bidding is initiated at the outset, and the sum so offered is utterly incommensurate with the actual known value of the property. It is reasonable to infer that bidding of that kind would have a depressing effect upon the sale, and tend to induce a belief on the part of others in attendance that the value of the prop- erty had been approximately reached. We see no reason, then, why it is not within the legitimate bounds of the dis- cretion of the auctioneer to refuse to accept a bid which is little more than a nominal advance, and, considering the surrounding circumstances, is, in his judgment, likely to affect the sale injuriously. Could it be seriously claimed that if a bidder should offer an advance of one cent the auctioneer would be bound to receive it? Certainly not. But this concession necessarily establisjies the principle, and the only ques- tion in each case must therefore be whether, considering Sec. l.J Hypothetical, Cases. 11 the surrounding circumstances, the power was reasonably exercised. In the case at bar the value of the stock was, as one of the plaintiffs testified, 170 ; and considering this fact and what took place at the sale, as above stated, we do not think it can be said that the auctioneer acted un- reasonably in refusing to accept the advance of 1 per cent., which was offered. But there is another consideration, also, which seems to dispose of the plaintiffs' claim. It will be remembered that, when their representative who was bidding for them demanded the stock at 111, the auctioneer, saying that he would give him a chance to buy it, reopened the sale, apparently erasing the record, and received a fur- ther bid of 125 from another. The plaintiffs, however, refused to assent to this, and declined to bid further ; in- sisting that the stock was theirs because of their former bid of 111. Had the stock been knocked down to them at that price, their resistance to a reopening of the bidding would have been well founded; but, as it was, the only person who could have complained, but who seems not to have done so, was the bidder at 110, to whom the stock had been knocked down. Certainly, the plaintiffs cannot predicate any rights upon an act which they claim was void. As to them, the sale was still open, and when the auctioneer so announced, and a bid of 125 was received, assuming that they had been the highest bidders before, they were so no longer, and whatever claim they might before have had entirely disappeared. For the reasons which we have given, we think that the court erred in awarding judgment in favor of the plaintiffs. Judgment reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur. Jones sued Adams, alleging the following facts in his complaint, viz. : Adams had an office at 55 Broadway, 12 FOKMATION OP CONTEACTS. [ChAP. I. where he had a safe. He took an office in the Mills Build- ing, and desiring to have the safe moved to his new office called in Jones and said, " I will pay you $10 to move that safe and put it in my office in the Mills Building." Jones made no reply but went out for some men, and re- turning began to remove the safe. In the meantime Adams found by inquiry at the Mills Building that he could have his safe taken up on the elevator and placed in his office for $5. Soon after this, Jones arrived at the Mills Building with the safe, and Adams at once said to him, ' ' I withdraw my offer, put the safe down. ' ' Jones paid no attention to this, but carried the safe up- stairs to Adams' office and left it in the room. Adams refused to pay the $10. Adams' attorneys demurred to the complaint on the ground that it did not state facts constituting a cause of action, and upon the demurrer coming on for argument his counsel contended that the alleged facts showed that there was no contract, because Adams had withdrawn his offer, before performance by Jones, that to hold other- wise was to bind Adams without consideration and that Jones was bound to nothing. The court overruled the demurrer, being of opinion that Adams ' offer was accepted the moment Jones began to move the safe, and could not therefore be withdrawn and that moving the safe was sufficient consideration. (a) X, carrying a valise, passed a cab stand. A cab driver called to him, " I will drive you to the 42d street station for $1 — jump in." X entered the cab and was driven off. At 41st street X jumped out of the cab and refused to pay the driver. Action against X by driver for breach of contract. (b) A countryman, being in New York, and ignorant of the customs of street railroads, hailed an uptown car at 23d street. On mounting the car he asked the driver the Sec. l.J Stensgaaed v. Smith. 13 price to 42d street, and the driver replied, " 5 cents." He then said, "All right, I will pay you 5 cents to take me to 42d street." At 38th street, before the conductor had collected the fare, he jumped off. (c) A boy jumped behind the rear platform guard of a street car, concealing himself from the conductor. He was discovered and jumped off. Did a contract arise in either case ? Stensgaaed v. Smith. 43 minnesota, 11 — 1890. Dickinson, J.^ This action is for the recovery of dam- ages for breach of contract. The rulings of the court below, upon the trial, were based upon its conclusion that no contract was shown to have been entered into between these parties. We are called upon to review the case upon this point. The plaintiff was engaged in business as a real estate broker. On the 11th of December, 1886, he procured the defendant to execute the following instru- ment, which was mostly in printed form : " St. Paul, Dec. 11, 1886. " In consideration of L. T. Stensgaard agreeing to act as agent for the sale of the property hereinafter mentioned, I have hereby given to said L. T. Stensgaard the exclusive sale, for three months from date, of the following property, to wit : (Here follows a description of the property, the terms of sale, and some other provisions not necessary to be stated.) I further agree to pay said L. T. Stensgaard a commission of two and one-half per cent on the first $2000, and two and one-half per cent on the balance of the purchase price, for his services rendered in selling of the above-mentioned property, "whether the title is accepted or not, and also whatever he may get or obtain for the sale of said property above $17,000 for such property, if the property is sold. "John Smith." ^ Citation of authorities omitted. 14 FOKMATION OF CoNTBACTS. [ChAP. I. The evidence showed that the plaintiff immediately took steps to effect the sale of the land, posted notices upon it, published advertisements in newspapers, and individually solicited purchasers. About a month subse- quent to the execution by the defendant of the above in- strument, he himself sold the property. This constitutes the alleged breach of contract for which a recovery of damages is sought. The court was justified in its conclusion that no con- tract was shown to have been entered into, and hence that no cause of action was established. The writing signed by the defendant did not of itself constitute a contract between these parties. In terms indicating that the in- strument was intended to be at once operative, it confer- red present authority on the plaintiff to sell the land, and included the promise of the defendant that, if the plain- tiff should sell the land, he should receive the stated com- pensation. This alone was no contract, for there was no mutuality of obligation, nor any other consideration for the agreement of the defendant. The plaintiff did not by this instrument obligate himself to do anything, and therefore the other party was not bound. If, acting under the authority thus conferred, the plaintiff had, be- fore its revocation, sold the land, such performance would have completed a contract, and the plaintiff would have earned the compensation promised by the defendant for such performance. But so long as this remained a mere present authorization to sell, without contract obli- gations having been fixed, it was revocable by the de- fendant.. The instrument does, it is true, commence with the words: "In consideration of L. T. Stensgaard agreeing to act as agent for the sale of the property," etc. ; but no such agreement on the part of the plaintiff was shown on the trial to have been actually made, al- though it was incumbent upon him to establish the exist- ence of a contract as the basis of his action. This instru- Sec. 1.] Stensgaaed v. Smith. 15 ment does not contain an agreement on the part of the plaintiff, for he is no party to its execution. It expresses no promise or agreement except that of the defendant. It may be added that the language of the " considera- tion " clause is not such as naturally expresses the fact of an agreement having been already made on the part of the plaintiff. Of course, no consideration was neces- sary to support the present, but revocable, authorization to sell. It is difficult to give any practical effect to this clause in the construction of the instrument. It seems probable, in the absence of proof of such an agreement, that this clause had no reference to any actual agree- ment between these parties, but was a part of the printed matter which the plaintiff had prepared for use in his business, with the intention of making it effectual by his own signature. If he had appended to this instrument his agreement to accept the agency, or even if he had signed this instrmnent, this clause would have had an obvious meaning. This instrument, executed only by the defendant, was effectual, as we have said, as a present, but revocable, grant of authority to sell. It involved, moreover, an offer on the part of the defendant to contract with the plain- tiff that the latter should have, for the period of three months, the exclusive -right to sell the land. This action is based upon the theory that such a contract was entered into ; but, to constitute such a contract, it was necessary that the plaintiff should in some way signify his accept- ance of the offer, so as to place himself under the recip- rocal obligation to exert himself during the whole period named to effect a sale. No express agreement was shown. The mere receiving and retaining this instrument did not import an agreement thus to act for the period named, for the reason that, whether the plaintiff should be willing to take upon himself that obligation or not, he might accept and act upon the revocable authority to sell 16 Formation of Contbacts. [Chap. I. expressed in the writing; and if he should succeed in effecting a sale before the power should be revoked, he would earn the commission specified. In other words, the instrument was presently effectual and of advantage to him, whether he chose to place himself under contract obligations or not. For the same reason the fact that for a day or a month he availed himself of the right to sell conferred by the defendant, by attempting to make a sale, does not justify the inference, in an action where the burden is on the plaintiff to prove a contract, that he had accepted the offer of the defendant to conclude a eon- tract covering the period of three months, so that he could not have discontinued his efforts without rendering himself liable in damages. In brief, it was in the power of the plaintiff either to convert the defendant's offer and authorization into a complete contract, or to act upon it as a naked revocable power, or to do nothing at all. He appears to have simply availed himself, for about a month, of the naked present right to sell if he could do so. He cannot now complain that the landowner then revoked the authority which was still unexecuted. It may be added that there was no attempt at the trial to show that the plaintiff notified the defendant that he was endeavoring to sell the land ; and there is but little, if any, ground for an inference from the evidence that the defendant in fact knew it. The case is distinguishable from those where, under a unilateral promise, there has been a performance by the other party of services, or other thing to be done, for which, by the terms of the promise, compensation was to be made. In the case before us, compensation was to be paid only in case of a sale of the land by the plaintiff. He can recover nothing for what he did, unless there was a complete contract ; in which case, of course, he might have recovered damages for its breach. Order affirmed. Sec. 1.] Hypothetical Cases. 17 A says to B, I will mend your fence for $5. B thinks to himself, ' ' I accept that offer and promise to pay the $5, ' ' but does not show his assent by word or act and walks away. A afterward refuses to mend the fence, and B sues him. (a) A newspaper manager sends a number of his paper to a man in his town, with a letter to the effect that unless he hears from him to the contrary, he will put his name down as a subscriber, terms $3 per year. Hearing nothing from the man he continues to send the paper regularly and at the end of the year sends a bin. Is he entitled to collect it? (b) Suppose the man replies, I have received your let- ter and am willing to become a subscriber as you suggest and will pay you $2.50 per year. Paper sent as before. What, if anything, is the editor entitled to collect? (c) Suppose the man subscribes for one year and at the end of the year pays his bill. Nothing is said about discontinuing the paper and the editor continues to send it regularly as before. Is the editor entitled to collect at the end of the second year? Cady sat on his front porch, in a country village, one summer morning. He was composing a poem and did not wish to be disturbed. His front fence was badly in need of paint. Just then Paul, the village painter, came down the street with a pot of green paint in his hand. Seeing the condition of the fence he called out to Cady, ' ' I will paint your fence green for $15. ' ' Cady heard and under- stood, but did not wish to disturb his poetic train of thought, and so said nothing. Paul supposed his silence meant assent and straightway painted the fence. Did a contract arise? 18 Formation of Conteacts. [Chap. I. Day v. Caton. 119 MASS. 513 — 1876. Contract to recover the value of one-half of a brick' party wall built by the plaintiff. The defendant requested the judge to rule that : "(1) The plaintiff can recover in this ease only upon an express agTeement. (2) If the jury find there was no express agreement about the wall; but the defendant knew that the plaintifE was build- ing upon land in which the defendant had an equitable interest, the defendant's rights would not be affected by such knowledge, and his silence and subsequent use of the wall would raise no implied promise to pay anything for the wall." The judge refused so to rule, but instructed the jury as follows : "A promise would not be implied from the fact that the plaintiff, with the defendant's knowledge, built the wall and the defendant used it, but it might be implied from the conduct of the parties. If the jury find that the plaintiff undertook and completed the building of the wall with the expectation that the defendant would pay him for it, and the defendant had reason to know that the plaintiff was so acting with that expectation, and allowed him so to act without objec- tion, then the jury might infer a promise on the part of the defend- ant to pay the plaintiff." There was a verdict for the plaintiff. Defendant al- leged exceptions. Devens, J.^ The ruling that a promise to pay for the wall would not be implied from the fact that the plain- tiff, with the defendant's knowledge, built the wall, and that the defendant used it, was substantially in accord- ance with the request of the defendant, and is conceded to have been correct. The defendant, however, contends that the presiding judge incorrectly ruled that such promise might be in- ferred from the fact that the plaintiff undertook and com- pleted the building of the wall with the expectation that Citation of authorities omitted. Sec. 1.] Day v. Caton. 19 the defendant would pay him for it, the defendant having reason to know that the plaintiff was acting with that ex- pectation, and allowed him thus to act without objection. The fact that the plaintiff expected to be paid for the work would certainly not be sufficient of itself to establish the existence of a contract, when the question between the parties was whether one was made. It must be shown that in some manner the party sought to be charged as- sented to it. If a party, however, voluntarily accepts and avails himself of valuable services rendered for his bene- fit, when he has the option whether to accept or reject them, even if there is no distinct proof that they were rendered by his authority or request, a promise to pay for them may be inferred. His knowledge that they were valuable, and his exercise of the option to avail himself of them, justify this inference. And when one stands by in silence, and sees valuable services rendered upon his real estate by the erection of a structure (of which he must necessarily avail himself afterward in his proper use thereof), such silence, accompanied with the knowledge on his part that the party rendering the services expects payment therefor, may fairly be treated as evidence of an acceptance of it, and as tending to show an agreement to pay for it. The maxim, " Qui tacet consentire videtur," is to be construed indeed as applying only to those cases where the circumstances are such that a party is fairly called upon either to deny or admit his liability. But, if silence may be interpreted as assent where a proposition is made to one which he is bound to deny or admit, so also it may be if he is silent in the face of facts which fairly call upon him to speak. If a person saw day after day a laborer at work in his field doing services, which must of necessity inure to his benefit, knowing that the laborer expected pay for his work, when it was perfectly easy to notify bim if his serv- 20 Formation of Contbacts. [Chap. I. ices were not wanted, even if a request were not expressly proved, such a request, either previous to or contempo- raneous with the performance of the services, might fairly be inferred. But if the fact was merely brought to his attention upon a single occasion and casually, if he had little opportunity to notify the other that he did not desire the work and should not pay for it, or could only do so at the expense of much time and trouble, the same inference might not be made. The circumstances .of each case would necessarily determine whether silence with a knowledge that another w,as doing valuable work for his benefit, and with the expectation of payment, indicated that consent which would give rise to the inference of a contract. The question would be one for the jury, and to them it was properly submitted in the case before us by the presiding judge. Exceptions overruled. Royal Instjeance Co. v. Beattt. 119 PA. ST. 6 — 1888. Eekor to Court of Common Pleas, Philadelphia County. This was an action by William Beatty against the Eoyal Insurance Company, on a policy of fire insurance, averring a renewal, and that it was in force at the time of the fire. There was a verdict and judgment for plaintiff. Defendant brings error. Geeen, J. "We find ourselves unable to discover any evidence of a contractual relation between the parties to this litigation. The contract alleged to exist was not founded upon any writing, nor upon any words, nor upon any act done by the defendant. It was founded alone upon silence. While it must be conceded that circum- stances may exist which will impose a contractual obliga- tion by mere silence, yet it must be admitted that such circumstances are exceptional in their character, and of Sec. 1.] Royal Ins. Co. v. Beatty. 21 extremely rare occurrence. We have not been furnished with a perfect instance of the kind by the counsel on either side of the present case. Those cited for defend- ant in error had some other element in them than mere silence which contributed to the establishment of the rela- tion. But, in any point of view, it is difficult to under- stand how a legal liability can arise out of mere silence of the party sought to be affected, unless he was subject | to a duty of speech, which was neglected, to the harm of the other party. If there was no duty of speech, there could be no harmful omission arising from mere silence. Take the present case as an illustration. The alleged contract was a contract of fire insurance. The plaintiff held two policies against the defendant, but they had ex- pired before the loss occurred, and had not been formally renewed. At the time of the fire the plaintiff held no policy against the defendant. But he claims that the de- fendant agreed to continue the operation of the expired policies by what he calls " binding " them. How does he prove this ? He calls a clerk who took the two policies in question, along with other policies of another person, to the agent of the defendant to have them renewed, and this is the account he gives of what took place : " The Royal Company had some policies to be renewed, and I went in and bound them. Question. State what was said and done. Answer. I' went into the office of the Royal Company, and asked them to bind the two policies of Mr. Beatty expiring to-morrow. The Court. Who were the policies for? A. For Mr. Beatty. The Court. That is your name, is it not? A. Yes, sir. These were the policies in question. I renewed the policies of Mr. Priestly up to the 1st of April. There was nothing more said about the Beatty policies at that time. The Court. What did they say? A. They did not say anything, but I suppose that they went to their books to do it. They commenoed to talk about the night privilege, and that was the only subject discussed." In his further examination he was asked : " Question. Did you say anything about those policies [Robert Beatty's] at that time? Answer. No, sir; I only spoke of the two 22 Formation of Oonteacts. [Chap. I. policies for William Beatty. Q. What did you say about them? A. I went in and said, ' Mr. Skinner, will you renew the Beatty policies, and the night privilege for Mr. Priestly ? ' and that ended it. Q. Were the other companies bound in the same way? A. Yes, sir; and I asked the Royal Company to bind Mr. Beatty." The foregoing is the whole of the testimony for the plaintiff as to what was actually said at the time when it is alleged the policies were bound. It will be per- ceived that all the witness says is that he asked the defendant's agent to bind the two policies, as he states at first, or to renew them, as he says last. He re- ceived no answer; nothing was said, nor was anything done. How is it possible to make a contract out of this? It is not as if one declares or states a fact in the presence of another, and the other is silent. If the declaration im- posed a duty of speech on perU of an inference from sUence, the fact of silence might justify the inference of an admission of the truth of the declared fact. It would then be only a question of hearing, which would be chiefly, if not entirely, for the jury. But here the utterance was a question, and not an assertion ; and there was no answer rto the question. Instead of silence being evidence of an lagreement to do the thing requested, it is evidence, either (that the question was not heard, or that it was not in- tended to comply with the request. Especially is this the case when, if a compliance was intended, the request would have been followed by an actual doing of the thing requested. But this was not done; how, then, can it be said it was agreed to be done? There is literally nothing upon which to base the inference of an agreement, upon such a state of facts. Hence the matter is for the court, and not for the jury ; for, if there may not be an inference of the controverted fact, the jury must not be permitted to make it. What has thus far been said relates only to the effect of the non-action of the defendant, either in responding, Sec. 1.] EoYAi, Ins. Co. v. Bbatty. 23 or doing the thing requested. There remains for con- sideration the effect of the plaintiff's non-action. When he asked the question whether defendant would bind or renew the policies, and obtained no answer, what was ( his duty? Undoubtedly, to repeat his question until he obtained an answer ; for his request was that the defend- ant should make a contract with him, and the defendant says nothing. Certainly, such silence is not an assent in any sense. There should be something done, or else some- thing said, before it is possible to assume that a contract was established. There being nothing done and nothing said, there is no footing upon which an inference of agreement can stand. But what was the position of the plaintiff! He had asked the defendant to make a con- tract with him, and the defendant had not agreed to do so; he had not even answered the question whether he would do so. The plaintiff knew he had obtained no answer, but he does not repeat the question; he, too, is silent thereafter, and he does not get the thing done which he asks to be done. Assuredly, it was his duty to speak again, and to take further action, if he really in- tended to obtain the defendant's assent; for what he wanted was something affirmative and positive, and with- out it he has no status. But he desists, and does and says nothing further. And so it is that the whole of the plain tiif's case is an unanswered request to the defend- ant to make a contract with the plaintiff, and no further attempt by the plaintiff to obtain an answer, and no actual contract made. Out of such facts it is not possible to make a legal inference of a contract. The other facts proved, and offered to be proved, but rejected, improp- erly as we think, and supposed by each to be consistent with his theory, tend much more strongly in favor of the defendant's theory than of the plaintiff's. It is not necessary to discuss them, since the other views we have expressed are fatal to the plaintiff's claim. Nor do I 24 Formation of Contracts. [Chap. L concede that if defendant heard plaintiff's request, and made no answer, an inference of assent should be made ; for the hearing of a reqiiest, and not answering it, is as consistent, indeed more consistent, with a dissent than an assent. If one is asked for alms on the street, and hears the request, but makes no answer, it certainly cannot be inferred that he intends to give them. In the present case there is no evidence that defendant heard the plaintiff's request, and, without hearing, there was of course no duty of speech. Judgment reversed. Fogg v. Portsmouth Athen^eum.^ 44 N. H. 115 — 1862. Assumpsit. The case was submitted to the court upon the following agreed statement of facts : The defendants are a corporation whose object is the support of a library and public readiag-room, at which latter a large number of newspapers are taken. Some are subscribed and paid for by the defendants; others are placed there gratuitously by the publishers and others; and some are sent there apparently for adver- tising purposes merely, and of course gratuitously. The Independent Democrat newspaper was furnished to the defendants, through the mail, by its then publish- ers, from Volume 3, No. 1 (May 1, 1847). On November 29, 1848, a bill for the paper from Volume 3, No. 1, to Volume 5, No. 1 (to May 1, 1849), two years, at $1.50 per year, was presented to the defendants for payment. The defendants at first refused to pay on the ground that they had never subscribed for the paper, but finally 1 Statement of facts slightly abbreviated. Sec. 1.] Fogg v. Poetsmotjth Athen^um. 25 paid the bill, and took upon the back thereof a receipt, as follows : "Nov. 29, 1848. " The within bill paid this day, and the paper is henceforth to be discontinued." " Hood & Co." Hood & Co. were the publishers of the paper from May 1, 1847, to February 12, 1849, when that firm was > dissolved, and the paper was afterward published by the present plaintiffs. The change of publishers was an- nounced editorially and otherwise, in the paper of February 15, 1849, and the names of the new publishers were conspicuously inserted in each subsequent number of the. paper, but it did not appear that the change was actually known to Mr. Hatch, the secretary and treasurer of the corporation, who settled the above bill, and who continued in the office till January, 1850. The plaintiffs had no knowledge of the agreement of Hood & Co. to discontinue the paper, as set forth in the receipt of November 29, 1848, until notified thereof by the defendants, after they had furnished the paper to the defendants for a year or more ; the books of Hood & Co., which came into their hands, only showing that the defendants had paid for the paper, in advance, to May 1, 1849. After the above payment and receipt, the paper con- tinued to be regularly forwarded by its publishers, through the mail, to the defendants to May 1, 1849, the expiration of the period named in said bill, and there- after continued to be so forwarded to January 1, 1860, and was during all that time constantly taken from the post-office by the parties employed by the defendants to take charge of the reading-room, build fires, etc., and placed in their reading-room. Payment was several times demanded, during the latter period, of the defend- ants, by agents of the plaintiffs; but the defendants re- 26 FOEMATION OF CoNTEACTS. [ChAP. I. fused to pay, on the ground that they were not sub- scribers of the paper. Conspicuously printed in each number of the paper sent to and received by the defendants were the follow- ing: " Terms of publication : By mail, express, or carrier, $1.50 a year, in advance; $2 if not paid within one year. No paper discontinued (except at the option of the publishers) unless all arrearages are paid." The plaintiffs in this action seek to recover the sub- scription price from May 1, 1849, to January 1, 1860. Nesmith, J.^ There is no pretense upon the agreed statement of this case that the defendants can be charged upon the ground that they were subscribers for the plaia- tiffs ' newspaper, or that they were liable in consequence of the existence of any express contract whatever. But the question now is, have the defendants so conducted as to make themselves liable to pay for the plaintiffs' newspaper for the six years prior to the date of the plain- tiffs ' writ, under an implied contract raised by the law and made applicable to this case. If the seller does in any case what is usual, or what the nature of the case makes convenient- and proper, to pass the effectual control of the goods from himself to the buyer, this is always a delivery. In like manner, as to the question of acceptance, we must inquire into the in- tention of the buyer, as evinced by his declarations and acts, the nature of the goods, and the circumstances of the case. If the buyer intend to retain possession of the goods, and manifests this intention by a suitable act, it is an actual acceptance of them; or this intention may be manifested by a great variety of acts in accordance with the varying circumstances of each case. Again, the law will imply an assumpsit, and the owner of goods has been permitted to recover in this form of ^ Citation of authorities omitted. Sec. 1.] Fogg v. Poetsmouth Athen^um. 27 action, where they have been actually applied, appro- priated, and converted by the defendant to his own bene- ficial use. Where there has been such a specific appropriation of the property in question, the property passes, subject to the vendor's liea for the price. In Weatherly v. Banham (5 C. & B. 228) the plaintiff was publisher of a periodical called the Eacing Calendar. It appeared that he had for some years supplied a copy of that work, as fast as the numbers came out, to Mr. Westbrook; Westbrook died in the year 1820; the defendant, Bonham, succeeded to Westbrook 's property, and went to live in his house, and there kept an inn. The plaintiff, not knowing of Westbrook 's death, continued to send the numbers of the Calendar, as they were pub- lished, by the stage-coach, directed to Westbrook. The plaintiff proved by a servant that they were received by the defendant, and no evidence was given that the de- fendant had ever offered to return them. The action was brought to recover the price of the Calendar for the years 1825 and 1826. Talford, for the defendant, ob- jected that there never was any contract between the plaintiff and the present defendant, and that the plain- tiff did not know him. But Lord Tenterden said : " If the defendant received the books and used them, I think the action is maintainable. Where the books come addressed to the deceased gentleman whose estate has come to the defendant, and he keeps the books, I think, therefore, he is clearly liable in this form of action, being for goods sold and delivered." The preceding ease is very similar, in many respects, to the ease before us. Agreeably to the defendants' set- tlement with Hood & Co., their contract to take their newspaper expired on the first of May, 1849. It does not appear that the fact that the paper was then to stop was communicated to the present plaintiffs, who had previously become the proprietors and publishers of the 28 FOEMATION OF CONTRACTS. [ChAP. I. newspaper establishment; having the defendants' name entered on their books, and having for some weeks before that time forwarded numbers of their newspaper, by m^il, to the defendants, they, after the first day of May, contiaued so to do up to January 1, 1860. During this period of time the defendants were occasionally re- quested, by the plaintiffs' agent, to pay their bill. The answer was, by the defendants, we are not subscribers to your newspaper. But the evidence is, the defendants used, or kept the plaintiffs' books, or newspapers, and never offered to return a number, as they reasonably might have done, if they would have avoided the liability to pay for them. Nor did they ever decline to take the newspapers from the post-office. If the defendants would have avoided the liability to pay the plaintiffs, they might reasonably have returned the paper to the plaintiffs, or given them notice that they declined to take the paper longer. "We are of the opinion that the defendants have the right to avail themselves of the statute of limitations. Therefore, the plaintiffs can recover no more of their account than is embraced in the six years prior to the date of their writ, and at the sum of $2 per year, with interest, from date of writ, or the date of the earliest demand of the plaintiffs' claim upon the defendants. HoBBS V. Massasoit Whip Compant. 158 MASS. 194 — i893. CoNTEACT, upon an account annexed for $108.50, for 2,350 eelskins sold by the plaintiff to the defendant. At the trial in the Superior Court, before Hammond, J., it appeared in evidence that the plaintiff lived in Saugus, and the defendant had its usual place of business in Westfield, and was engaged in the manufacture of whips. Sec. 1.] 'HoBBs v. Massasoit Whip Company. 29 The plaintiff testified that he delivered the skins in question to one Harding of Lynn, on February 18, 1890, who upon the same or the following day forwarded them to the defendant; that the skins were in good condition when received by Harding, 2,050 of them being over twenty-seven inches in length each, and the balance over twenty-two inches in length each ; that he had forwarded eelskins to the defendant through said Harding severa l different times in 1888 and 1889, and received payment therefor from the defendant; that he knew the defendant used such skins in its business in the manufacture of whips ; that the skins sent on February 1 8, 1890, were for such use; that he understood that all skins sent by him were to be in good condition and over twenty-two inches in length, and that the defendant had never ordered of him skins less than twenty- two inches in length; and that Harding took charge of the skins for him and that he received orders through Harding, but that Harding was not his agent. Harding, who was called as a witness, testified that he had some correspondence for the plaintiff with the de- fendant in reference to skins ; that he acted for the plain- tiff in forwarding skins to the defendant ; and in receiv- ing pay therefor, and acted for the plaintiff in giving him any information, order, or notice which he received from the defendant in reference to skins sent or to be sent. The defendant contended that Harding acted as the plaintiff's agent. The plaintiff contended that Harding acted as the agent of the defendant, and not as his agent. On this point the evidence was conflicting, and the ques- tion was submitted to the "jury, upon instructions not excepted to. Four letters were offered in evidence, three of which, dated in 1889, showed transactions between the plaintiff and the defendant, and the fourth of which, dated Lynn, 30 Formation of Contkacts. '[Chap. I. February 18, 1890, signed Harding and addressed to the defendant, was as follows : " We send you to-day, for Mr. Hobbs, 2,050 eelskins at .05 and 300 at .02." One Pirnie, president of the defendant corporation, called by the defendant, testified that before February 18, 1890, the plaintiff had sent eelskins four or five times by Harding to the defendant, which were received and paid for by the defendant ; that the defendant agreed to pay five cents each for eelskins over twenty-seven inches in length, and two cents each for eelskias over twenty-two inches in length and less than twenty-seven inches, suit- able for use in the defendant's business; that Harding- was not acting for the defendant, but for the plain tiif; . that the defendant never ordered the skins in question, and did not purchase them in any manner, and that no officer or employee of the corporation except himself had authority to order or purchase skins, and that he never ordered or purchased those in question ; that skins came from Hobbs through Harding on February 19 or .20, 1890, and were at once examined by him, and found to be less than twenty-two inches in length, and found to be unfit for use, and that he notified Harding at once, in writing, that the skins were unfit for use, and that they were held subject to the plaintiff's order; that the skins remained some months at the defendant's place of busi- ness in Westfield, and were then destroyed ; and that the defendant received no other skins in the month of Feb- ruary from the plaintiff or from any other person. One Case, the defendant's shipping clerk, and one Gowdy, the defendant's treasurer, testified that the skins sent on February 18, 1890, and received February 19 or 20, 1890, were examined by them, and were very short, in very bad shape, not fit for use, and worthless. The judge instructed the jury that the plaintiff could not recover for eelskins less than twenty-two inches in Sec. l.J HoBBs v. Massasoit Whip Company. 31 length, nor for any of the eelskins if they were in the condition described by the witnesses for the defendant. The plaintiff denied that he received any notice from the defendant that the skins were not suitable for use, or that they were held subject to his order. The judge, among other instructions, also gave the following : " Whether there was any prior contract or not, if skins are sent to them (the defendants) and they see fit, whether they have agreed to take them or not, to lie back and say nothing, having reason to suppose that the man who has sent them believes that they are taking them, since they say nothing about it, then, if they fail to notify, you would be warranted in finding for the plaintiff, on that state of things." The jury returned a verdict for the plaintiff, and the defendant alleged exceptions. Holmes, J.^ This is an action for the price of eelskins sent by the plaintiff to the defendant, and kept by the de- fendant some months, until they were destroyed. It must be taken that the plaintiff received no notice that the defendants declined to accept the skins. The case comes before us on exceptions to an instruction to the jury, that, whether there was any prior contract or not, if skins are sent to the defendant, and it sees fit, whether it has agreed to take them or not, to lie back, and to say noth- ing, having reason to suppose that the man who has sent them believes that it is taking them, since it says nothing about it, then, if it fails to notify, the jury would be warranted in finding for the plaintiff. Standing alone, and unexplained, this proposition might seem to imply that one stranger may impose a duty upon another, and make him a purchaser, in spite of himself, by sending goods to him, unless he will take the trouble, and be at the expense, of notifying the sender ^ Citation of authorities omitted. 32 FOEMATION OP CONTEACTS. [ChAP. L that he will not buy. The case was argued for the defend- ant on that interpretation. But, in view of the evidence, we do not understand that to have been the meaning of the judge, and we do not think that the jury can have understood that to have been his meaning. The plaintiff was not a stranger to the defendant, even if there was no contract between them. He had sent eelskins in the same way four or five times before, and they had been accepted and paid for. On the defendant's testimony, it is fair to assume that, if it had admitted the eelskins to be over twenty-two inches in length, and fit for its busi- ness, as the plaintiff testified, and the jury found that they were, it would have accepted them; that this was understood by the plaintiff; and, indeed, that there was a standing offer to him for such skins. In such a condi- tion of things, the plaintiff was warranted in sending the defendant skins conforming to the requirements, and even if the offer was not such that the contract was made as soon as skins corresponding to its terms were sent, sending them did impose on the defendant a duty to act about them ; and silence on its part, coupled with a reten- tion of the skins for an unreasonable time, might be found by the jury to warrant the plaintiff in assuming that they were accepted, and thus to amount to an acceptance. The proposition stands on the general prin- ciple that conduct which imports acceptance or assent is acceptance or assent in the view of the law, whatever may have been the actual state of mind of the party — a principle sometimes lost sight of in the cases. Exceptions overruled. Sec. 1.] White v. Coelibs. 33 White v. Corlies. 46N. Y. 467 — 1871. Appeal from judgment of the General Term of the rirst Judicial District, affirming a judgment entered upon a. verdict for plaintiff. The action was for an alleged breach of contract. The plaintiff was a builder, with, his place of business in Fortieth street, New York city. The defendants were merchants at 32 Dey street. In September, 1865, the defendants furnished the plain tiff with specifications for fitting up a suite of offices at 57 Broadway and requested him to make an estimate of the cost of doing the work. On September 28th the plaintiff left his estimate with the defendants, and they were to consider upon it, and inform the plaintiff of their conclusions. On the same day defendants made a change in their specifications, and sent a copy of the same, so changed, to the plaiatiff for his assent under his estimate, which he assented to by signing the same and returning it to defendants. On the day following the defendants' bookkeeper wrote the plaintiff the following note : " New Yoek, September 29. "Upon an agreement to finish the fitting up of ofiices at 57 Broad- Tvay in two weeks from date, you can begin at once. " The writer will call again, probably between 5 and 6 this p. m. "W. H. R., " For J. H. Corlies & Co., 32 Dey Street." Fo reply to this note was ever made by plaintiff, and on the following day the same was countermanded by a .second note from the defendants. Immediately on receipt of the note of September 29th, and before the countermand was forwarded, the plaintiff commenced a performance by the purchase of lumber and beginning work thereon. 3 34 FOKMATION OF CONTRACTS. [ChAP. I. And after receiving the countermand, the plaintiff brought this action for damages for a breach of contract. The court charged the jury as follows: " From the contents of this note which the plaintiff received, was it his duty to go down to Dey Street (meaning to give notice of assent) before commencing the work? " In my opinion it was not. He had a right to act upon this note and commence the job, an'd that was a binding contract between the parties." To this defendants excepted. FoLGEB, J. We do not think that the jury found, or that the testimony shows, that there was any agreement between the parties before the written communication of the defendants of September 30th was received by the plaintiff. This note did not make an agreement. It was a proposition, and must have been accepted by the plain- tiff before either party was bound, in contract, to the 'other. The only overt action which is claimed by the plaintiff as indicating on his part an acceptance of the offer, was the purchase of the stuff necessary for the work, and commencing work, as we understand the testi- mony, upon that stuff. We understand the rule to be, that where an offer is made by one party to another when they are not together, the acceptance of it by that other must be manifested by some appropriate act. It does not need that the accept- ance shall come to the knowledge of the one making the offer before he shall be bound. But though the mani- festation need not be brought to his knowledge before he becomes bound, he is not bound, if that manifestation is not put in a proper way to be in the usual course of events, in some reasonable time communicated to him. Thus a letter received by mail containing a proposal may be answered by letter by mail, containing the acceptance. And in general, as soon as the answering letter is mailed, the contract is concluded. Though one party does not Sec. J.] White v. Poelies. 35 know of the acceptance, the manifestation thereof is put in the proper way of reaching him. In the case in hand, the plaintiff determined to accept. But a mental determination not indicated by speech, or put in course of indication by act to the other party, is not an acceptance which will bind the other. Nor does an act, which, in itself, is no indication of an acceptance, become such, because accompanied by an nnevinced mental determination. Where the act uninterpreted by concurrent evidence of the mental purpose accompanying it, is as well referable to one state of facts as another, it is no indication to the other party of an acceptance, and does not operate to hold him to his offer. Conceding that the testimony shows that the plaintiff did resolve to accept this offer, he did no act which indi- cated an acceptance of it to the defendants. He, a carpenter and builder, purchased stuff for the work. But it was stuff as fit for any other like work. He began work upon the stuff, but as he would have done for any other like work. There was nothing in his thought formed but not uttered, or in his acts that indicated or set in motion an indication to the defendants of his acceptance to their offer, or which could necessarily result therein. But the charge of the learned judge was fairly to be understood by the jury as laying down the rule to them, that the plaintiff need not indicate to the defendants his acceptance of their offer ; and that the purchase of stuff and working on it after receiving the note, made a bind- ing contract between the parties. In this we think the learned judge fell into error. The judgment appealed from must be reversed, and a new trial ordered, with costs to abide the events of the action. All concur, but Allen, J., not voting. Judgment reversed, and a new trial ordered. 36 FOBMATIOK OP CONTBACTS. [ChAP. I. Case on appeal. The facts were as follows : The defendants advertised that they would sell at their store in New York, on April 6th, a large assortment of shawls at $3 each. The plaintiff reading the advertise- ment and wishing to buy one of the shawls at that rate, took a train from her home in Orange, went to the store and said, ' ' I will take one of those $3 shawls. ' ' Def end- ant 's clerk informed her that those shawls had been withdrawn from sale. Did a contract arise? MouLTON V. Kershaw.^ 59 WISCONSIN, 316 — 1884. The defendants were dealers in salt in the city of Milwaukee, including salt of the Michigan Salt Associa- tion; the plaintiff was a dealer in salt in the city of La Crosse, and accustomed to buy salt in large quantities, which fact was known to the defendants; on September 19, 1882, the defendants, at Milwaukee, wrote and posted to the plaintiff at La Crosse a letter, as follows : "Milwaukee, September 19, 1882. "J. H. MouLTON, Esq., La Crosse, Wis.: " Dear Sir : In consequence of a rupture in the salt trade, we are authorized to offer Michigan fine salt, in full carload lots of 80 to S5 barrels, delivered at your city, at 85 cents per barrel, to be shipped per C. & N. W. R. R. Co. only. At this price it is a bargain, as Ihe price in general remains unchanged. Shall be pleased to receive jour order. " Tours truly, " C. J. Kershaw & Son." The plaintiff received said letter in due course of mail, to wit: on September 20, 1882, and on that day sent to ^ Statement of facts condensed. Sec. 1.] MouLTON v. Kekshaw. 37 said defendants at Milwaukee a message by telegraph, as follows : " La Crosse, September 20, 1882. " To C. J. Kershaw & Son, Milwaukee, Wis. : " Your letter of yesterday received and noted. You may ship me two thousand (2000) barrels Michigan fine salt, as offered in your letter. Answer. J. H. Moulton." This message was received by said defendants on Sep- tember 20, 1882; 2,000 barrels of said salt was a reason- able quantity for the plaintiff to order in response to said order,, and not in excess of the amount which the defend- ants, from their knowledge of the business of the plain- tiff, might reasonably expect him to order in response thereto. To the complaint the defendants interposed a general demurrer. The Circuit Court overruled the demurrer, and from the order overruling the same the defendants appeal to this court. Tatloe, J.^ The only question presented is whether the appellants' letter, and the telegram sent by the respondent in reply thereto, constitute a contract for the sale of 2,000 barrels of Michigan fine salt by the appel- lants to the respondent at the price named in such letter. We are very clear that no contract was perfected by the" order telegraphed by the respondent in answer to appel- lants' letter. The learned counsel for the respondent clearly appreciated the necessity of putting a construc- tion upon the letter which is not apparent on its face, and in their complaint hg-ve interpreted the letter to mean that the appellants by said letter made an express offer to sell the respondent, on the terms stated, such reason- able amount of salt as he might order, and as the appel- lants might reasonably expect him to order, in response. * Citation of authorities omitted. 38 FOEMATIOK OF CONTRACTS. [ChAP. T. thereto. If in order to entitle the plaintiff to recover in this action it is necessary to prove these allegations, then it seems clear to us that the writings between the parties do not show the contract. It is not insisted by the learned counsel for the respondent that any recovery can be had unless a proper construction of the letter and telegram constitute a binding contract between the parties. The alleged contract being for the sale and delivery of per- sonal property of a value exceeding $50, is void by the Statute of Frauds, unless in writing. Section 2308, E. S. 1878. The counsel for the respondent claims that the letter of the appellants is an offer to sell to the respondent, on the terms mentioned, any reasonable quantity of Michi- gan fine salt that he might see fit to order, not less than one carload. On the other hand, the counsel for the ap- pellants claim that the letter is not an offer to sell any specific quantity of salt, but simply a letter such as a business man would send out to customers or those with whom he desired to trade, soliciting their patronage. To give the letter of the appellants the construction claimed for it by the learned counsel for the respondent would introduce such an element of uncertainty into the contract as would necessarily render its enforcement a matter of difficulty, and in every case the jury trying the case would be called upon to determine whether the quantity ordered was such as the appellants might reasonably expect from the party. This question would necessarily involve an inquiry into the nature and extent of the busi- ness of the person to whom the letter was addressed, as well as to the extent of the business of the appellants. So that it would be a question of fact for the jury in each ease to determine whether there was a binding contract between the parties. And this question would not in any way depend upon the language used in the written con- tract, but upon proofs to be made outside of the writings. Sec. 1.] MouLTON v. Kekshaw. 39 As the only communications between the parties, upon which a contract can be predicated, are the letter and the reply of the respondent, we must look to them, and noth- ing else, in order to determine whether there was a con- tract in fact. We are not at liberty to help out the writ- ten contract, if there be one, by adding by parol evidence additional facts to help out the writing so as to make out a contract not expressed therein. If the letter of the appellants is an offer to sell salt to the respondent on the terms stated, then it must be held to be an offer to sell any quantity at the option of the respondent not less than one carload. The difficulty and injustice of construing the letter into such an offer is so apparent that the learned counsel for the respondent do not insist upon it, and consequently insist that it ought to be construed as an offer to sell such quantity as the applicants, from their knowledge of the business of the respondent, might reasonably expect him to order. Eather than introduce such an element of uncertainty into the contract, we deem it much more reasonable to construe the letter as a simple notice to those dealing in salt that the appellants were in a condition to supply that article for the prices named, and requesting the person to whom it was addressed to deal with them. The case is one where it is eminently proper to heed the injunction of Justice Foster in the opinion in Lyman v. Eobinson, 14 Allen, 254: " That care should always be taken not to construe as an agreement letters which the parties intended only as preliminary negotiations." We do not wish to be understood as holding that- a party may not be bound by an offer to sell personal prop- erty, where the amount or quantity is left to be fixed by the person to whom the offer is made, when the offer is accepted and the amount or quantity fixed before the offer is withdrawn. We simply hold that the letter of the appellants in this case was not such an offer. If the 40 Formation of Contracts. [Chap. I. letter had said to the respondent we will sell you all the Michigan fine salt you will order, at the price and on the terms named, then it is undoubtedly the law that the appellants would have been bound to deliver any reason- able amount the respondent might have ordered, possibly any amount, or make good their default in damages. The case cited by the counsel decided by the California Supreme Court (Keller v. Ybarru, 3 Cal. 147) was an offer of this kind with an additional limitation. The defendant in that case had a crop of growing grapes, and he offered to pick from the vines and deliver to the plain- tiff, at defendant's vineyard, so many grapes then grow- ing in said vineyard as the plaintiff should wish to take during the present year at ten cents per pound on deliv- ery. The plaintiff, within the time and before the offer was withdrawn, notified the defendant that he wished to take 1,900 pounds of his grapes on the terms stated. The court held there was a contract to deliver the 1,900 pounds. In this case the fixing of the quantity was left to the person to whom the offer was made, but the amount which the defendant offered, beyond which he could not be bound, was also fixed by the amount of grapes he might have in his vineyard in that year. The case is quite different in its facts from the case at bar. We, however, place our opinion upon the language of the letter of the appellants, and hold that it cannot be fairly construed into an offer to sell to the respondent any quantity of salt he might order, nor any reasonable amount he might see fit to order. The language is not such as a business man would use in making an offer to sell to an individual a definite amount of property. The word " sell " is not used. They say, " we are authorized to offer Michigan fine salt," etc., and volunteer an opin- ion that at the terms stated it is a bargain. They do not say, we offer to sell to you. They use general language, proper to be addressed generally to those who were in- Sec. 1.] Hypothetical Cases. 41 terested in the salt trade. It is clearly the nature of an advertisement or business circular, to attract the atten- tion of those interested in that business to the fact that good bargains in salt could be had by applying to them, and not as an offer by which they were to be bound, if accepted, for any amount the persons to whom it was addressed might see fit to order. We think the complaint fails to show any contract between the parties, and the demurrer should have been sustained. By the Coubt. The order of the Circuit Court is re- versed, and the cause reminded for further proceedings according to law. 'A and B were negotiating for the purchase and sale of apples. A wrote to B that he would take the apples on certain terms which he specified. B telegraphed an answer saying : ' ' Offer accepted send contract. ' ' No fur- ther writing was signed and A refused to take the apples. Was there a contract? A and B were negotiating for the organization of a proposed corporation. They agreed upon the amount of cash to be put in by each, and the proportion of stock to be received by each. They then signed a memorandum containing full details as to all terms, except the amount of the capital stock which they were to arrange subse- quently. The terms of the contract were to be properly drafted by their counsel and then the final form executed by them. Was there a contract? A had a very important engagement in Buffalo, at 10 A. M., July 6th. On July 5th, he was in New York city, and being anxious to stay there as late as possible, con- sulted the current time table of the New York Central Eailroad Company, and found by it that a train left for 42 Formation of Conteacts. [Chap. I. Buffalo at 10 p. m. Belying on the time table he went to the depot shortly before 10, but at the ticket-ofi&ce they refused to sell him a Buffalo ticket, telling him the 10 p. M. train had been discontinued that afternoon and that there was no other train to Buffalo until the next morning. Upon the above state of facts A sued the company and obtained a verdict of $10,000 damages. Should this verdict be sustained? Seabs v. Easteex Railroad Company. 14 ALLEN, 433 — 1867. Chapman, J.^ If this action can be maintained, it must be for the, breach of the contract which the defendants made with the plaintiff. He had purchased a package of tickets entitling him to a passage in their cars for each ticket from Boston to Lynn. This constituted a contract between the parties. The principal question in this case is, what are the terms of the contract? The ticket does not express all of them. A public advertisement of the times when their trains run enters into the contract, and forms a part of it. It is an offer which, when once pub- licly made, becomes binding, if accepted before it is re- tracted. Advertisements offering rewards are illustra- tions of this method of making contracts. But it would be unreasonable to hold that advertisements as to the time of running trains, when once made are irrevocable. Railroad corporations find it necessary to vary the time of running their trains, and they have a right, under reasonable limitations, to make this variation, even as against those who have purchased tickets. This reserved right enters into the contract, and forms a part of it. The defendants had such a right in this case. ^ Citation of authorities omitted. Sec. 1.] Seaes v. Easteen Raileoad Company. 43 But if the time is varied, and ithe train fails to go at the appointed time, for the mere convenience of the company or a portion of their expected passengers, a person who presents himself at the advertised hour, and demands a passage, is not bound by the change unless he has had a reasonable notice of it. The defendant acted upon this view of their duty and gave certain notices. Their trains had been advertised to go from Boston to Lynn at 9.30 p. M., and the plaintiff -presented himself, with his ticket, at the station to take the train ; but was informed it was postponed to 11.15. The postponement had been made for the accommodation of passengers who desired to remain in Boston to attend places of amusement. Certain notices of the change had been given; but none of them had reached the plaintiff. They were printed handbills posted up in the cars and stations on the day of the change, and also a day or two before. Though he rode in one of the morning cars from Lynn to Boston, he did not see the notice and no legal presumption of notice to him arises from the fact of its being posted up. The de- fendants published daily advertisements of their regular trains in the " Boston Daily Advertiser," " Post," and " Courier," and the plaintiff had obtained his informa- tion as to the time of running from one of these papers. If they had published a notice of the change in these papers, we think he would have been bound by it. For as they had a right to make changes, he would be bound to take reasonable pains to inform himself whether or not a change was made. So if in their advertisement they had reserved the right to make occasional changes in the time of running a particular train, he would have been bound by the reservation. It would have bound all passengers who obtained their knowledge of the time- table from either of these sources. But it would be con- trary to the elementary law of contracts to hold that persons who relied upon the advertisements in either of 44 Formation of Contracts. [Chap. I. those papers should be bouad by a reservation of the offer, which was, without their knowledge, posted up in the cars and stations. If the defendants wished to free themselves from their obligations to the whole public to rim a train as advertised, they should publish notice of the change as extensively as they published notice of the regular trains. And as to the plaintiff, he was not bound by a notice published ia the cars and stations which he did not see. If it had been published in the newspapers above mentioned, where his information had in fact been obtained, and he had neglected to look for it, the fault would have been his own. The evidence as to the former usage of the .defendants to make occasional changes was immaterial, because the advertisement was an express stipulation which super- seded all customs that were inconsistent with it. An ex- press contract cannot be controlled or varied by usage. The Court are of opinion that the defendants, by fail- ing to give such notice of the change made by them in the time of running their train on the evening referred to as the plaintiff was entitled to receive, violated their con- tract with him, and are liable in this action. Judgment for the plaintiff. Williams v. Carwardine, 4 barnewa.ll & auolphus, 621 — 1833. Assumpsit to recover £20, which the defendant prom- ised to pay to any person who should give such informa- tion as might lead to a discovery of the murderer of Walter Carwardine. Plea, general issue. At the trial before Park, J., at the last spring assizes for the county of Hereford, the following appeared to be the facts of the case : One Walter Carwardine, the brother of the defend- ant, was seen on the evening of March 24, 1831, at a Sec. l.J Williams v. Cabwaedine. 45 public house at Hereford, and was not heard of again till his body was found on April 12th in the river Wye, about two miles from the city. An inquest was held on the body on April 13th and the following days till the 19th ; and it appearing that the plaintiff was at a house with the deceased on the night he was supposed to have been murdered, she was examined before the magistrates, but did not then give any information which led to the apprehension of the real offender. On April 25th the defendant caused a handbUl to be published, stating that whoever would give such information as should lead to a discovery of the murderer of Walter Carwardine should, on conviction, receive a reward of £20; and any person concerned therein, or privy thereto (except the party who actually committed the offense), should be entitled to such reward, and every exertion used to procure a par- don ; and it then added, that information was to be given, and application for the above reward was to be made to Mr. William Carwardine, Holmer, near Hereford. Two persons were tried for the murder at the summer assizes, 1831, but acquitted. Soon after this, the plaintiff was severely beaten and bruised by one Williams, and on August 23, 1831, believing she had not long to live, and to ease her conscience, she made a voluntary statement, con- taining information which led to the subsequent convic- tion of Williams. Upon this evidence it was contended, that as the plaintiff was not induced by the reward prom- ised by the defendant to give evidence, the law would not imply a contract by the defendant, to pay her the £20. The learned judge was of opinion, that the plaintiff, having given the information which led to the conviction of the murderer, had performed the condition on which the £20 was to become payable, and was therefore entitled to recover it ; and he directed the jury to find a verdict for the plaintiff, but desired them to find specially whether she was induced to give the information by the offer of 46 FOBMATION OF CoNTEACTS. [ChAP. I. the promised reward. The jury found that she was not induced by the offer of the reward, but by other motives. Curwood now moved for a new trial. There was no promise to pay the plaintiff the sum of £20. That promise could only be enforced in favor of persons who should have been induced to make disclosures by the promise of reward. Here the jury have found that the plaintiff was induced by other motives to give the infor- mation. They have, therefore, negatived any contract on the part of the defendant with the plaintiff. Denman, C. J. The plaintiff, by having given informa- tion which led to the conviction of the murderer of Wal- ter Carwardine, has brought herself within the terms of the advertisement, and therefore is entitled to recover. LiTTLEDALE, J. The advertisement amounts to a gen- eral promise, to give a sum of money to any person who •shall give information which might lead to the discovery of the offender. The plaintiff gave that information. Paeke, J. There was a contract with any person who performed the condition mentioned in the advertisement. Patteeson, J. I am of the same opinion. We cannot go into the plaintiff's motives. Rule refused. Fitch v. Snedakee. 38 new york, 248 — 186s. WooDEXJFF, J. On the 14th of October, 1859, the de- fendant caused a notice to be published, offering a reward of two hundred dollars . . . "to any person or per- sons who will give such information as shall lead to the apprehension and conviction of the person or persons guilty of the murder of " a certain unknown female. On the 15th day of October, before the plaintiffs had seen or heard of the offer of this reward, one Fee was ar- rested and put in jail, and though not in terms so stated, Sec. l.J Fitch v. Snedakee. 47 the case warrants tlie inference, that, by means of the evidence given by the plaintiffs on his trial and their efforts to procure testimony, Fee was convicted. This action is brought to recover the reward so offered. On the trial the plaintiffs proved the publication of the notice, and then proposed to prove that they gave infor- mation before the notice was known to them, which led to the arrest of Fee. This evidence was excluded. The plaintiffs then offered to prove, that, with a view to this reward, they spent time and money, made disclosures to the district attorney, to the grand jury and to the court on the trial after Fee was in jail, and that, without their effort, evidence, and exertion, no indictment or conviction could have been had. This evidence was excluded. The court thereupon directed a nonsuit. It is entirely clear that, in order to entitle any person to the reward offered in this case, he must give such in- formation as shall lead to both the apprehension and conviction. That is, both must happen, and happen as a consequence of the information given. No person could claim the reward whose information caused the appre- hension, until conviction followed; both are conditions precedent. No one could therefore claim the reward, who gave no information whatever until after the apprehen- sion, although the information he afterward gave was the evidence upon which conviction was had, and, however clear, that, had the information been concealed or sup- pressed, there could have been no conviction. This is according to the plain terms of the offer of the reward, and is held in Jones v. Phcenix Bank, 8 N. Y. 228; Thatcher v. England, 3 Com. Bench, 254. In the last ease it was distinctly held, that, under an offer of reward, payable * ' on recovery of property stolen and conviction of the offender," a person who was active in arresting the thief and finding and restoring part of the stolen property, giving information to the magis- 48 Formation of Contracts. [Chap. I. trates, tracing to London othei" of the property, and producing pawnbrokers with whom the prisoner had pledged it, and who incurred much trouble and efxpense in bringing together witnesses for the prosecution, was not entitled to the reward, as it appeared that another person gave the first information as to the party commit- ting the robbery. In the present case, the plaintiff, after the advertise- ment of the defendant's offer of a reward came to his knowledge, did nothing toward procuring the arrest, nor which led thereto, for at that time Fee had already been arrested. The cases above referred to, therefore, establish that, if no information came from the plaintiffs which led to the arrest of Fee, the plaintiffs are not entitled to re- cover, however much the information they subsequently gave, and the efforts they made to procure evidence, may have contributed to or even have caused his conviction, and, therefore, evidence that it M^as their efforts and in- formation which led to his conviction was wholly immate- rial, if they did not prove that they had given information which led to his apprehension, and was properly rejected. The question in this case is simple. A murderer hav- ing been arrested and imprisoned in consequence of in- formation given by the plaintiff before he is aware that a reward is offered for such apprehension, is he entitled to claim the reward in case conviction follows ? The ruling on the trial, excluding all evidence of infor- mation given by the plaintiffs before they heard of this reward, necessarily answers this question in the negative. The case of Williams v. Carwardine (4 Barn. & Adol. 621), and same case at the assizes (5 Carr & Payne, 566), holds that a person who gives information according to the terms of an offered reward is entitled to the money, although it distinctly appeared that the informer had suppressed the information for five months, and was led Sec. 1.] Fitch v. Snedakbe. 49 to inform, not by the promised reward, but by other motives. The court said the plaintiff had proved per- formance of the condition upon which the money was pay- able and that established her title. That the court would not look into her motives. It does not appear by the re- ports of this case whether or not the plaintiff had ever seen the notice or handbill posted by the defendant, offer- ing the reward; it does not, therefore, reach the precise point involved in the present appeal. I perceive, however, no reason for applying to an offer, of reward for the apprehension of a criminal any other rules than are applicable to any other offer by one, ac- cepted or acted upon by another, and so relied upon as constituting a contract. The form of action in all such cases is assumpsit. The defendant is proceeded against as upon his contract to pay, and the first question is, was there a contract be- tween the parties? To the existence of a contract there must be mutual assent, or in another form offer and consent to the offer. The motive inducing consent may be immaterial, but the consent is vital. Without that there is no contract. How then can there be consent or assent to that which the party has never heard? On the 15th day of October, 1859, the murderer. Fee, had, in consequence of informa- tion given by the plaintiffs, been apprehended and lodged in jail. But the plaintiffs did not, in giving that informa- tion, manifest any assent to the defendant's offer, nor act in any sense in reliance thereon, they did not know of its existence. The information was voluntary, and in every sense (material to this case) gratuitous. The offer could only operate upon the plaintiffs after they heard of it. It was prospective to those who will, in the future, give information, etc. An offer cannot become a contract unless acted upon or assented to. 4 50 FOBMATION OF CONTRACTS. [ChAP. I. Sueli is the elementary rule in defining what is essential to a contract. Chitty on Con. (5th Am. ed.), Perkins' notes, p. 10, 9, and 2, and cases cited. Nothing was here done to procure or lead to Fee 's apprehension in view of this reward. Indeed, if we were at liberty to look at the evidence on the first trial, it would appear that Fee was arrested before the defendant offered the reward. I think the evidence was properly excluded and the nonsuit necessarily followed. The judgment should be affirmed. Judgment affirmed. Dawkins v. Sappington. 26 INDIANA, 199 — 1866. Feazee, J. The appellant was the plaintiff below. The complaint was in two paragraphs. 1. That a horse of the defendant had been stolen, whereupon he published a handbill, offering a reward of $50 for the recovery of the stolen property, and that thereupon the plaintiff rescued the horse from the thief and restored him to the defend- ant, who refused to pay the reward. 2. That the horse of the defendant was stolen, whereupon the plaintiff recov^ ered and returned him to the defendant, who, in consider- ation thereof, promised to pay $50 to the plaintiff, which he has failed and refused to do. To the second paragraph a demurrer was sustained. To the first an answer was filed, the second paragraph of which alleged that the plaintiff, when he rescued the horse and returned him to the defendant, had no knowl- edge of the offering of the reward. The third paragraph averred that the handbill offering the reward was not published until after the rescue of the horse and his de- livery to the defendant. The plaintiff unsuccessfully de- murred to each of these paragraphs, and refusing to reply the defendant had judgment. Sec. l.J Dawkins v. Sappington. 51 1. Was the second paragraph of the complaint suffi- cient? The consideration alleged to support the promise was a voluntary service rendered for the defendant with- out request, and it is not shown to have been of any value. A request should have been alleged. This was necessary at common law, even in common count for work and labor (Chitty's PI. 338), though it was not always neces- sary to prove an express request, as it would sometimes be implied from the circumstances exhibited by the evi- dence. 2. It is entirely unnecessary, as to the third para- graph of the answer, to say more than that, though it was highly improbable in fact, it was sufficient in law. 3. The second paragraph of the answer shows a per- formance of the service without the knowledge that the reward had been offered. The offer, therefore, did not induce the plaintiff to act. The liability to pay a reward offered seems to rest, in some cases, upon an anomalous doctrine, constituting an exception to the general rule. In Williams v. Carwardine (4 Barn. & Adolph. 621) there was a special finding, with a general verdict for the plaintiff, that the information for which the reward was offered was not induced to be given by the offer, yet it was held by all the judges of the King's Bench then present, Denman, C. J., and Littledale, Parke, and Pat- terson, JJ., that the plaintiff was entitled to judgment. It was put upon the ground that the offer was a general promise to any person who would give the information sought ; that the plaintiff, having given the information, was within the terms of the offer, and that the court could not go into the plaintiff's motives. This decision has not, we believe, been seriously questioned, and its reasoning is conclusive against the sufficiency of the defense under examination. There are some considerations of morality and public policy which strongly tend to support the judgment in the case cited. If the offer was made in good 52 FOEMATION OF CONTKACTS. [ChAP. I. faith, why should the defendant inquire whether the plain- tiff knew that it had been made? Would the benefit to him be diminished by the discovery that the plaintiff, in- stead of acting from mercenary motives, had been im- pelled solely by a desire to prevent the larceny from be- ing profitable to the person who had committed it ? Is it not well that any one who has an opportunity to prevent the success of a crime, may know that by doing so he not only performs a virtuous service, but also entitles him- self to whatever reward has been offered therefor to the public? The judgment is reversed, with costs, and the cause re- manded, with directions to the court below to sustain the demurrer to the second paragraph of the answer. Gibbons v. Peoctob. 64 law times, new series, 594 — 1891. Motion to set aside a nonsuit. Day, J. This action is brought to recover a reward, which the defendant advertised as payable to the person who should prosecute to conviction the perpetrator of a certain crime. The facts are simple. The defendant pub- lished on the 29th May a handbill, in which he stated that he would give £25 to any person who should give information leading to the conviction of the offender in question, such information to be given to a superin- tendent of police of the name of Penn. The plaintiff is a police officer, and, m the early morning of the 29th May, the day on the afternoon of which the bill was published, communicated important information which led to the conviction of the offender to a comrade and fellow police- man called Coffin, telling Coffin, as his agent, to carry the information to the proper authority. Coffin, in accord- ance with the rules of the force, first informed his own Sec. 1,] Hypothetical Cases, 5S superior officer, Inspector Lennan, and Lennan sent on the information to Superintendent Penn. Both Coffin and Lennan were the agents of the plaintiff to carry on a message set going by him, and it reached Penn at a time when he had notice that the person sending him such in- formation was entitled to the reward of £25. The con- dition was fulfilled after the publication of the handbill and the announcement therein contained of the defend- ant's offer of the reward to the informant. Laweence, J. I entirely agree. Nonsuit set aside, and verdict entered for the plaintiff for £25. A lodged in a hotel for six months. Every night after A went to sleep B, the porter, slipped into A's room, took his shoes and polished them. Each morning A put on his; shoes and wore them, knowing that the porter had pol- ished them and expected pay therefor. On leaving he told B that he was much pleased with the shoe polishing. Was there a contract? A was away from home. The window blinds of his- house blew open, and as the wiud was high, the blinds and windows would soon have been destroyed. B was a car- penter, whose ordinary pay was $4 per day for his work. He went to A's house and fastened all the shutters securely, spending half a day and thus saved A great loss. B later demanded $2 for the job which A refused to- pay, and B sued him therefor. B, the same carpenter, saw that C's fence had blown, down, and knowing that C was away and that the cattle would go into the field and destroy the corn, repaired the fence, taking another half day. He showed C a bill of $2 against him for the job. C looked the bill over and said that it was a reasonable charge and promised to pay 54 Formation op Conteacts. [Chap. I. it. He did not pay and B brought an action against him for its collection. B, the same carpenter, made a tool-chest which he took to D's home. Not finding D there he left it in the barn. D returned and knowing that B, the carpenter, made the chest and expected to be paid for it, took and used it. B presented his bill which D refused to pay. B sued him for $5, the reasonable price of the box. Boston Ice Co. v. Potteb. 123 MASSACHUSETTS, 28 — 1877. CoNTEACT on an account annexed, for ice sold and de- livered between April 1, 1874, and April 1, 1875. Answer, a general denial. Judgment for defendant. Plaintiff alleged exceptions. Endicott, J.^ To entitle the plaintiff to recover, it must show some contract with the defendant. There was no express contract, and upon the facts stated no contract is to be implied. The defendant had taken ice from the plaintiff in 1873, but, on account of some dissatisfaction with the manner of supply, he terminated his contract, and made a contract for his supply with the Citizens' Ice Company. The plaintiff afterward delivered ice to the defendant for one year without notifying the defendant, as the presiding judge has found, that it had bought out the business of the Citizens' Ice Company, until after the delivery and consumption of the ice. The presiding judge has decided that the defendant had a right to assume that the ice in question was deliv- ered by the Citizens' Ice Company, and has thereby necessarily found that the defendant's contract with that company covered the time of the delivery of the ice. ^ Citation of authorities omitted. Sec. l.J Boston Ice Co. v. Potter. 55 There was no privity of contract established between the plaintiff and defendant, and without such privity the possession and use of the property will not support an implied assumpsit. And no presumption of assent can be implied from the reception and use of the ice, because the defendant had no knowledge that it was furnished by the plaintiff, but supposed that he received it under the contract made with the Citizens' Ice Company. Of this change he was entitled to be informed. A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his eonseiit. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture, or write a book, or fur- nish articles of a particular kind, or when he relies upon the character or qualities of an individual, or has, as in this ease, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into. If the defendant, before receiving the ice, or during its delivery, had received notice of the change, and that the Citizens ' lee Company could no longer perform its contract with him, it would then have been his undoubted right to have rescinded the contract and to decline to have it executed by the plain- tiff. But this he was unable to do, because the plaintiff failed to inform him of that which he had a right to know. If he had received notice and continued to take the ice as delivered, a contract would be implied. There are two English cases very similar to the case at bar. In Schmaling v. Thomlinson (6 Taunt. 147) a firm was employed by the defendants to transport goods to a foreign market, and transferred the entire employment to the plaintiff, who performed it without the privity of the defendants, and it was held that he could not recover compensation for his services from the defendants. 56 Formation of Conteaots. [Chap. I. The case of Boulton v. Jones (2 H. & N. 564) was cited by both parties at the argument. There the defendant, who had been in the habit of dealing with one Brockle- hurst, sent a written order to him for goods. The plain- tiff, who had on the same day bought out the business of Brocklehurst, executed the order without giving the de- fendant notice that the goods were supplied by him and not by Brocklehurst. And it was held that the plaintiff could not maintain an action for the price of the goods against the defendant. It is said in that case that the de- fendant had a right of set-off against Brocklehurst, with whom he had a running account, and that is* alluded to in the opinion of Baron Bramwell, though the other judges do not mention it. The fact that a defendant in a particular case has a claim in set-off against the original contracting party shows clearly the injustice of forcing another person upon him to execute the contract without his consent, against whom his set-off would not be available. But the actual existence of the claim in set-off cannot be a test to determine that there is no implied assumpsit or privity between the parties. Nor can the nonexistence of a set- off raise an implied assumpsit. If there is such a set-off, it is sufficient to state that as a reason why the defendant should prevail ; but it by no means follows that because it does not exist the plaintiff can maintain his action. The right to maintain an action can never depend upon whether the defendant has or has not a defense to it. The implied assumpsit arises upon the dealings be- tween the parties to the action, and cannot arise upon the dealings between the defendant and the original con- tractor, to which the plaintiff was not a party. At the same time, the fact that the right of set-off against the original contractor could not, under any circumstances, be availed of in an action brought upon the contract by the person to whom it was transferred and who executed Sec. 1.] Stoddakd v. Ham. 57 it, shows that there is no privity between the parties ia regard to the subject-matter of this action. It is, therefore, immaterial that the defendant had no claim in set-off against the Citizens ' Ice Company. We are not called upon to determine what other remedy the plaintiff has, or what would be the rights of the par- ties if the ice were now in existence. Exceptions overruled. Stoddakd v. Ham. 129 massachusetts, 383 — 1880. ToBT for the conversion of a quantity of bricks. An- swer, a general denial. Trial in the Superior Court, with- out a jury, before Pitman, J., who reported the case for the determination of this Court upon the following facts found by him : The plaintiffs were manufacturers of and dealers in bricks, at Bangor, Me. The bricks in question were there purchased of the plaintiffs by Charles E. Leonard, who did a commission business in that city, but sometimes bought on his own account. The plaintiffs supposed they were selling these bricks to the defendant through Leon- ard as his agent ; and they were sold on the credit of the defendant solely, and would not have been sold on the per- sonal credit of Leonard ; but Leonard was not the agent of the defendant in this purchase, and had no authority to bind him. Leonard was not guilty of any false repre- sentations as to agency; and it was a case of error and mistake on the part of the plaintiffs as to the principal with whom they were dealing. The bricks were bought upon short credit, and were im- mediately sold by Leonard to the defendant, at a fixed price delivered in Boston, and were, in fact, bought with a view to such sale. The bricKS remained in the plain- 58 FOKMATION OF CoNTEACTS. [ChAP. L tiff's yard and possession until after the sale by Leonard to the defendant, and were afterward delivered by the plaintiffs at a wharf ia Bangor, as directed by Leonard, and by him shipped to the defendant, Leonard taking the bills of lading in his own name. Leon- ard sold other bricks to the defendant, at or about the same time, and drew drafts against the aggre- gate cargoes, which were accepted and paid by the defendant, who also paid the freight on account of Leon- ard. From the proceeds, certain payments were made by Leonard to the plaintiffs, who supposed that they were made on the defendant 's account, and they were credited to the latter. After the bricks were all delivered, Leon- ard failed in business, and no other payments were made. Leonard was largely indebted to the defendant, and he offset the claim of Leonard for the balance due him on the bricks by this antecedent indebtedness. After Leonard stopped payment, the plaintiffs made due demand on the defendant for the bricks, contending that they had never parted with the property in them, if the defendant re- pudiated the agency of Leonard, and offered to repay the defendant for all advances and expenses incurred by him; but the defendant refused to deliver them, and claimed to hold by purchase from Leonard. At the time of the de- mand, the defendant had on hand some of the bricks which came from the plaintiffs ' yard ; the others had been sold and delivered by the defendant as they arrived. Upon these facts, the judge ruled, as matter of law, that the plaintiffs could not recover ; and ordered judg- ment for the defendant. If the ruling was right, judg- ment was to be entered for the defendant ; otherwise, the case to stand for a new trial. Colt, J.^ This case was tried without a jury, and there is no reason to doubt that, upon the facts found by the judge, it was correctly ruled that the plaintiffs could not ^ Citations omitted. Sec. 1.] Stoddard v. Ham. 59 recover in tort for the conversion of the property in dis- pute. It is not enough to give the plaintiffs a right to recover, that they supposed they were selling bricks to the de- fendant, through Leonard his agent, and that they would not have sold them to Leonard on his sole credit. The judge found that they were in fact sold to Leonard. There was no fraud, no false representation of agency, or pretence on the part of Leonard that he was buying for any one else. He was a commission merchant, who was in the habit of purchasing goods on his own account, and who honestly bought the bricks for himself, and sold them to the defendant as his own. It was not a case of mis- taken identity. The plaintiffs knew that they were deal- ing with Leonard; they did not mistake him for the de- fendant; nothing was said as to any other party to the sale. The conclusion is unavoidable that the contract was with him. The difficulty is, that the plaintiffs, if they had any other intention, neglected then to disclose it. It was a mistake on one side, of which the other had no knowl- edge or suspicion, and which consisted solely in the un- authorized assumption that Leonard was acting as agent for a third person, and not for himself. It is elementary in the law governing contracts of sale and all other contracts, that the agreement is to be ascer- tained exclusively from the conduct of the parties and the language used when it is made, as applied to the sub- ject-matter and to known usages. The assent must be mutual, and the union of minds is ascertained by some medium of communication. A proposal is made by one party, and is acceded to by the other in some kind of lan- guage mutually intelligible, and this is mutual assent. Met. Coil. 14. A party cannot escape the natural and reasonable interpretation which must be put on what he 60 FOKMATION OF CONTRACTS. [ChAP. I. says and does, by showing that his words were nsed and his acts don-e with a different and undisclosed intention.^ It is not the secret purpose, but the expressed intention, which must govern, in the absence of fraud and mutual mistake. A party is estopped to deny that the intention communicated to the other side was not his real intention. To hold otherwise would be to put it in the power of the vendor in every case to defeat the title of the vendee, and of those holding under him, by proving that he intended to sell to another person, and so there was no mutual assent to the contract. In Boston Ice Co. v. Potter, 123 Mass. 28, cited by the plaintiffs, there was no privity of contract established between the plaintiff and the defendant. There was no evidence afforded in the conduct and dealings of the par- ties, that the defendant assented to any contract what- ever with the plaintiff. A stranger attempted to perform the contract of another party with the defendant. In Hardman v. Booth, 1 H. & C. 803, there was abund- ant evidence that the contract was with another party, to whom the goods were sent, and not with the person who obtained possession of them and sold them to the defend- ant. In Mitchell v. Lapage, Holt N. P. 253, the goods were expressly bought of a firm, which, without the knowledge of the broker, had been dissolved by the with- drawal of two of its members. We are referred to no case which supports the claim here made by the plaintiffs. Judgment for the defendant. ^ Citations omitted. Sec. 1.] CuNDY v. Lindsay. 61 CuNDY V. Lindsay.^ LAW REPORTS, 3 APPEAL CASES, 459 — 1878. In 1873 one Alfred Blenkarn hired a room at a corner house in Wood street, Cheapside — it had two side win- dows opening into Wood street, but though the entrance was from Little Love Lane, it was by him constantly described as 37, Wood street, Cheapside. His agreement for this room was signed "Alfred Blenkarn." Messrs. Lindsay & Co. were linen manufacturers, carrying on business at Belfast. In the latter part of 1873 Blenkarn wrote to Lindsay & Co. on the subject of a purchase from them of goods of their manufacture — chiefly cam- bric 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 Chris- tian name, and was, besides, so written as to appear " Blenkiron & Co." There was a highly respectable firm of W. Blenkiron & Son, carrying on business in Wood street — but at number 123, Wood street,- and not at 37. Messrs. Lindsay, who knew the respectability of Blenk- iron & Son, though not the number of the house where they carried on business, answered the letters and sent the goods addressed to " Messrs. Blankiron & Co., 37 Wood street, Cheapside," where they 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 dif- ferent persons, and among the rest he sold 250 dozen of ' Statement of facts abbreviated and a portion of the opinion, upon another topic, omitted. 62 Formation of Contracts. [Chap. I. cambric handkerchiefs to the Messrs. Cundy, who were bona fide purchasers, and who resold them in the ordi- nary way of their trade. Blenkarn's fraud was soon dis- covered, 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. A verdict was taken for the defendants, with leave re- served to move to enter the verdict for the plauitiffs. On motion accordingly, the court, after argument, ordered the rule for entering judgment for the plaintiffs to be discharged, and directed judgment to be entered for the defendants. On appeal, this decision was reversed and judgment ordered to be entered for the plaintiffs, Messrs. Lindsay. This appeal was then brought. The Lord Chancellor (Lord Cahins). 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 parties, both of whom are perfectly innocent, upon which of the two the consequences of a fraud prac- tised upon both of them must fall. My Lords, in dis- charging that duty your Lordships can do no more than apply, rigorously, the settled and well-known rules of law. 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 property in the goods from the Messrs. Lindsay to Alfred Blenkarn? If there was any contract passing that property, even although, as I have said, that contract might afterward be open to a process of reduction, upon the ground of Sec. l.J CuNDY v. Lindsay. 63 fraud, still, in the meantime, Blenkarn might have con- veyed a good title for valuable consideration 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 w;hatever as to conversations or as to acts done, the whole history of the whole transaction lies upon paper. The principal 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 applied 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 respond- ents ; that by all those means he led, and intended to lead, the respondents to believe, and that they did believe, that the person with whom they were communicating was not Blenkarn, the dishonest 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 fact, 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 64 Formation of Conteacts. [Chap. I. Blenkarn — the dishonest man, as I call him — was acting here just in the same way as if he had forged the signature of Blenkiron & Co., the respectable firm, to the applications for goods, and as if, when, in return, the goods were forwarded and letters were sent, accompany- ing 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, hut 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 they 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. With the -firm of Blenkiron & Co. of course there was no contract, 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 this, that your Lordships have not here to deal with one of those cases in which there is de facto a contract made which may afterward 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 which was attempted to be given to the appel- lants was a title which could not be given to them. Sec. 1.] CuNDY v. Lindsay, 65 My Lords, I therefore move your Lordships that this appeal be dismissed with costs, and that the judgment of the Court of Appeal affirmed. LoED Hathebly. 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 ques- tion we have to consider here is this : whether or not any contract was actually entered into between the respond- ents and a person named Alfred Blenkarn, who imposed 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 satisfaction 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 those 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 endeavoring by con- trivance and fraud, as appears upon the face of the let- ters themselves, to obtain the credit of the well-known firm of Blenkiron & Co., Wood street. That was done by a falsification of the signature of the Blenkirons, writing his own name in such a manner as that it ap- peared to represent the signature of that firm. And further, his letters and invoices were headed " Wood Street," which was not an accurate way of heading them; 5 66 FOBMATION OP CONTEACTS. [ChAP. L for lie occupied only one 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 him- self 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 street. I apprehend, therefore, 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 respondents 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 within the authority of Hardman v. Booth,^ where it was held that there was no real contract between the parties by whom the goods were delivered and the concocter 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 any- body except for the purpose of transferring the property to Blenkiron (not Blenkarn) ; therefore the case really in substance is the identical case of Hardman v. Booth over again. My noble and learned friend who sits opposite to me (Lord Penzance) has called my attention to a case which seems to have been decided on exactly the same principle as Hardman v. Booth, and it is worth while referring to it as an additional authority upon that principle of law. It is the case of Higgons ik 'Burton.^ There one Dix, who had been the agent of a responsible firm that had had dealings with the plaintiff in the action, was dismissed 1 H. & C. 803. 2 26 L. J. (Ex.) 342. Sbc. l.J CuNDY V. Lindsay. 67 by his employers; he concealed that dismissal from a customer of the firm, the plaintiff in the action, and, having concealed that dismissal, continued to obtain goods from him still as acting for the firm. The goods were delivered to him, but it was held that that delivery was not a delivery to any person whatever who had pur- chased the goods. The goods, if they had been purchased at all, would have been purchased by the firm for which this man had acted as agent ; but he had been dismissed 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 person with 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 ob- taining of goods by false pretences ; the property, there- fore, did not pass out of the plaintiffs." The other judges, who were Barons, Martin, Branwell and Watson, concurred in that judgment. Here, I say, exactly as in those cases of Hardman v. Booth and Higgons v. Burton, 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 noth- ing 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 68 Formation of Conteacts. [Uhap. I. have argued with eminent ability for the appellants in this case — namely, suppose this fraudulent person had gone himself to the firm from whom 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 occasion, from seeing my way to this, that the goods being sold to him as representing that firm he could be treated in any other way than as an agent of that 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 have been a sale to a fraudulent purchaser on fraudulent representations, and a sale which would have been capable of being set aside, but still a sale would have been made to the person who made those false representa- tions ; and the parting with the goods in that case might possibly — I say no more — have passed 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 that they were dealing with Blenkiron & Co., they made out their invoices to Blenk- iron & 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 pur- chaser, as against the owners of the goods, who had never in any shape or way parted with the property nor with anything more than the possession of it. LoED Penzance. My Lords, the findings of the jury in this case, coupled with the evidence, warrant your Lordships in concluding that the following are the cir- cumstances under which the respondents parted with their goods. Whether by so doing they passed the prop- Sec. l.j Ctjndy v. Lindsay. 69 erty in them tp Alfred Blenkarn is, I conceive, the real question to, be determined. The respondents had never seen or even heard of Alfred Blenkarn, when they received a letter followed by several others signed in a manner which was not abso- lutely clear, but which the writer intended them to take, and which they did take, to be the signature of the 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 question. The house of Blenkiron & Co. was Imown to the respondents, and it was also known that they lived in Wood street, though the respondents did not know the number. The respond- ents 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 time 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 goods, they did so with the intention that the goods should pass into the hands of Blenkiron & Co., to whom they addressed these goods. The goods, however, were not delivered to Blenkiron & Co., to whom they were addressed, 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 Blenkarn, and who had an office or room at No. 37, Wood street. 70 FOEMATION OF CoNTKACTS. [ChAP. I. In this state of things, it is not denied that the con- tract, or dealing, which the respondents thought they were entering into with Blenkiron & Co., and in fulfil- ment of which they parted with .their goods, and for- warded 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 was a contract with, and a good delivery to, Alfred Blenkarn so as 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 appellants can be maintained. It was indeed argued that as the letters and goods were addressed to No. 37 instead of No. 123, this constituted a dealing with the person whose office was at No. 37. But to justify this argument it ought at least to be shown that the respondents knew that there was such a person, and that he had offices 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 prin- ciple from that of Hardman v. Booth, to which reference has been made. In that case Edward Gandell, who ob- tained possession 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 with Thomas Gandell & Co., as they had given no authority, and none with Edward Gandell, who had Sec. l.J CuNDY V. Lindsay. 71 ordered the goods, as the plaintiffs 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.^ Hypothetical cases were put to your Lordships in argument in which a vendor was supposed to deal person- ally with a swindler, believing him to be some one else of credit and stability, and under this belief to have actually delivered goods into his hands. My Lords, I do not think it necessary to express an opinion upon the possible effect of some cases which 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 present case the respondents were never brought personally into contact with Alfred Blenkarn; all their letters, although received and answered by him, were addressed to Blenkiron & Co., and intended for that firm 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 dis- missed. Lord Gokdon concurred. Judgment appealed from affirmed; and appeal dis- missed with costs. Citation omitted. 72 Formation of Contracts. [Chap. L Edmunds v. Merchants' Despatch Transportation Company. Bennett v. Same. Aborn v. Same. 135 massachusetts reports, 283 — 1893. Three actions of tort, with counts in contract, against a common carrier, to recover the value of certain goods entrusted to the defendant by the plaintiffs, at Boston, for carriage to Dayton, 0. At the trial in the Superior Court, before Rockwell, J., the jury returned verdicts for the plaintiffs ; and the defendant alleged exceptions. The facts appear in the opinion. Morton, C.J. These three cases were tried together. In some features they resemble the case of Samuel v. Cheney, ante, 278. In other material features they differ from it. They also in some respects differ from each other. In two of the cases, a swindler, representing himself to be Edward Pape of Dayton, 0., who is a repu- table and responsible merchant, appeared personally in Boston, and bought of the plaintiffs the goods which are the subject of the suits respectively. In those cases, we think it clear, upon principle and authority, that there was a sale, and the property in the goods passed to the purchaser. The minds of the parties met and agreed upon the terms of the sale, the thing sold,, the price and time of payment, the person selling, and the person buying. The fact that the seller was induced to sell by ' fraud of the buyer made the sale voidable, but not void. He could not have supposed that he was selling to any other person; his intention was to sell to the person present, and identified by sight and hearing; it does not defeat the sale because the buyer assumed a false name, or practised any other deceit to induce the vendor to sell. In Cundy v. Lindsay, 3 App. Cas. 459, 464, where the Sec. l.J Edmunds v. Merchants' Des. Trans. Co. 73 question was whether a man, who in good faith had bought chattels of a swindler who had obtained posses- sion of them by fraud, could hold them against the former owner. Lord Chancellor Cairns states the rule to be that, " if it turns out that the chattel has come into the hands of the person who professed to sell it, by a de facto con- tract — that is to say, a contract which has purported to pass the property to him from the owner of the property, there the purchaser will obtain a good title. ' ' In the cases before us, there was a de facto contract, purporting, and by which the plaintiffs intended, to pass the property and possession of the goods to the person buying them ; and we are of opinion that the property did pass to the swindler who bought the goods. The sale was voidable by the plaintiffs ; but the defendant, the car- rier by whom they were forwarded, had no duty to inquire into its validity. The person who bought them, and who called himself Edward Pape, owned the goods, and upon their arrival in Dayton had the right to demand them of the carrier. In delivering them to him, the car- rier was guilty of no fault or negligence. It delivered them to the person who bought and owned them, who went by the name of Edward Pape, and thus answered the direction upon the packages, and who was the person to whom the plaintiffs sent them. Dunbar v. Boston &> Providence Railroad, 110 Mass. 26. The learned judge who tried the cases in the Superior Court based his charge upon a different view of the law ; and, as the three cases were tried together, there must be a new trial in each. It seems to have been assumed that the same questions are raised in each case. It is proper that we should add that the third case differs materially from the others. In that case, the contract did not purport, nor the plain- tiffs intend, to sell to the person who was present and ordered the goods. The swindler introduced himself as 74 FORMATIOH OF CONTRACTS. [OhAP. I. a brothei of Edward Pape of Dayton, 0., buying for him. By referring to the mercantile agency, he tacitly represented that he was buying for the Edward Pape who was there recorded as a man of means. The plain- tiffs understood that they were selling, and intended to sell, to the real Edward Pape. There was no contract made with him, because the swindler who acted as his agent had no authority, but there was no contract of sale made with any one else. The relation of vendor and vendee never existed between the plaintiffs and the swindler. The property in the goods, therefore, did not pass to the swindler; and the defendant cannot defend, as in the other cases, upon the ground that it has deliv- ered the goods to the real owner.^ Whether the defendant has any other justification or excuse for delivering the goods to the swindler is a ques- tion not raised by this bUl of exceptions, and not consid- ered at the trial; and therefore we cannot express an opinion upon it. Exceptions sustained. A, meeting B on the street, said, " Come to my house at six to-night and I will give you a champagne dinner. ' ' A forgot this conversation and went out without provid- ing any dinner. B went to A's house at the appointed time, but there being no dinner provided he was obliged to go to a restaurant, it being too late to return to his own house. B sued A for the price of his restaurant dinner. A theatre party, composed of young people, were returning home from New York, and had reached Jersey City late in the evening. All the party being in good Citations omitted. Sec. 1.] RuPLEY V. Daggett. 75 spirits, and excited by the excursion, one of tlie young ladies, nineteen years old, in jest challenged one of the gentlemen, who was her escort, to marry her on the spot ; he, in the same spirit, accepted the challenge, and a jus- tice of the peace, who was one of the party, at their request, performed the ceremony, they making the proper responses. The ceremony was in the usual and proper form, the justice doubting whether it was in earnest or in jest. The gentleman escorted the young lady to her home, and left her there, as usual on occasions of such excursions. Both acted and treated the matter as if no ceremony had taken place. After some time the friends of the young lady having heard of the ceremony, and that it had been formally and properly performed before the proper magistrate, raised the question and enter- tained doubts whether it was not a legal marriage. The justice meditated returning a certificate of the marriage to be recorded before the proper office. "Was this a marriage? RuPLEY V. Daggett. 74 ILLINOIS REPORTS, 351 — 1874. Appeal from the Circuit Court of Will county. The Hon. Josiah McEobeets, Judge, presiding. This was an action of replevin, brought by John F. Daggett against Abram Eupley and Jacob Eupley, to recover a mare which the defendants claimed they had bought of the plaintiff. It appears that at the first conversation about the sale of the mare, Eupley asked the plaintiff his price, the plaintiff swearing that he replied $165, while the defend- ant testified that he said $65, and that he did not under- stand him to say $165. In the second conversation Eupley says he told Daggett, that if the mare was what 76 FoBMATioN OF Contracts. [Chap. I. lie represented her to be, they -would give $65, and Dag- gett said he would take him down the next morning to see her. Daggett denied this, and says that Rupley said to him, " Did I understand you sixty-five? " Daggett states that he supposed Eupley referred to the fraction of the $100, and meant sixty-five as coupled with the price named at the previous interview. He answered, " Yes, sixty-five." Both parties, from this, supposed the price was fixed, Eupley supposing it was $65, and Daggett supposing it was $165, and the only thing re- maining to be done, as each thought, was for Rupley to see the mare and decide whether she suited him. The next day Eupley came, saw the mare and took her home with him. The plaintiff recovered in the court below, and the defendants appealed. Scott, J., delivered the opinion of the court. It is very clear, from the evidence in this case, there was no sale of the property understandingly made. Ap- pellee supposed he was selling for $165, and it may be appellant was equally honest in the belief that he was buying at the price of $65. There is, however, some evidence tending to show that the appellant Rupley did not act with entire good faith. He was told, before he removed the mare from appellee's farm, there must be some mistake as to the price he was to pay for her. There is no dispute this information was given to him. He insisted, however, the price was $65, and expressed his belief he would keep her if there was a mistake. On his way home with the mare in his possession, he met appellant, but never intimated to him he had been told there might be a misunderstanding as to the price he was to pay for her. This he ought to have done, so that, if there had been a misunderstanding between them, it could be corrected at once. If the price was to be $165, he had never agreed to pay that sum, and was under no sort of obligation to keep the property at that price. It Sec. 1.] HYPOTHBTiCAii Cases. 77 was Ms privilege to return it. On the contrary, appellee had never agreed to sell for $65, and could not be com- pelled to part with his property for a less sum than he chose to ask. It is according to natural justice, where there is a mutual mistake in regard to the price of an article of property, there is no sale,. and neither party is hound. There has been no meeting of the minds of the contracting parties, and hence there can be no sale. This principle is so elementary it needs no citation of authori- ties in its support. Any other rule would work injustice and might compel a person to part with his property without his consent, or to take and pay for property at a price he had never contracted to pay. There was no error in refusing instructions asked by appellants. The court was asked to tell the jury if they believed, from the evidence, appellee had " sworn wil- fully and corruptly false in any material portion of his testimony, then they are at liberty to disregard his entire testimony, except so far as it may be corroborated by other evidence in the case." Conceding this instruction states a correct abstract principle of law, there was no necessity for giving it under the facts proven in this case. The verdict was right, and appellants were not prejudiced by the refusal of the court to give it. All that was pertinent to the issues in the other re- fused instructions was contained in others that were given, and there was no necessity for repeating it. No material error appearing in the record, the judg- ment must be affirmed. Judgment affirmed. A entered the office of an express company in Christ- mas week, and directed the clerk to call for a trunk at a certain house in 33d street and carry it to a certain house in 43d street. New York. 78 Formation of Contracts. [Chap. I. In a conspicuous place on the wall of the office was a notice which read: " Notice — New Eule. Owing to the press of business during the holidays trunks will be de- livered on the sidewalk and the front door bell rung, but the drivers will not wait for an answer to the bell. No trunks wUl be carried except upon the express under- standing that the company wUl not be responsible for loss after such delivery." A paid the charge and re- ceived a card, on the front side of which was printed a receipt for the transportation, with blanks which the clerk filled in. On the back of the ticket was printed in small type, " Subject to the new rule as to transporta- tion. ' ' A did not see the notice, nor did he see the printed matter on the back of the card. His attention was not called to the new rule and he knew nothing about it. The trunk was landed on the sidewalk and the bell rung. The expressman drove off and the trunk was stolen from the sidewalk. A sued the company. Action to recover for lost baggage. Blossom, the plaintiff, was traveling to New York by railroad. When near his destination a messenger of an express company passed through the train inquiring for baggage to be delivered. Blossom gave him two cheeks. The messenger entered the numbers of them on a printed receipt, which also contained on its face the fol- lowing printed notice: " It is mutually agreed, and is part of the consideration of the contract, that the express company shall not. be liable (among other things) for loss of baggage to an amount exceeding $100." The receipt also contained on its face the printed statement : " Read this receipt." The train was running rapidly, and the car was dark, except that there was one light at the end, insufficient to enable him to read the printed matter at his seat, and he did not read it. Sec. l.j Hypotheticai, Cases. 79 The express company received tlie baggage and de- livered one piece, but neglected to deliver the other. Was there a contract limiting the liability of the express company to $100! A applied to a corporation for work during fair week, as a messenger. He was employed by the directors under the following resolution : ' ' Resolved, That any service to be rendered during fair week by A shall be taken into consideration, and such remuneration be made as shall be deemed right. ' ' A accepted employment as messenger with knowledge of this resolution. The directors con- sidering his services worthless, refused to pay him any- thing, and he brought suit against the company for $10. The Gold Mining Company, a corporation located at Boston, Mass., issued its prospectus calling for subscrip- tions to its capital stock, stating price and other terms of subscription. Jones, at Worcester, Mass., wrote requesting the com- pany to allot him 100 shares of its capital stock and promising to pay the par value thereof. This letter was received and the directors of the com- pany, at a meeting held immediately after its receipt, allotted 100 shares to Jones as requested, and the secre- tary notified him by mail thereof. , The directors' meeting adjourned. at 12 m., April 3d, and the secretary's letter properly addressed was duly mailed at 2 p. m. on the same day. It was never received by Jones. At 1 p. m. of the 3d, Jones telegraphed with- drawing his request for an allotment. This telegram was received by the company at 1.30 p. m., April 3d. Jones refused to pay for the stock thus allotted and the com- pany brought an action for the price. 80 Formation of Contbacts. [Chap. I, MaiiOne v. Boston & Worcestee Railboad. 12 GRAY (Mass.), 388 — 1859. Action of tort against the defendants as common car- riers, for the loss upon their railroad of a trunk and its contents. The ticket issued to plaintiff had printed upon its face, ' ' Look on the back. ' ' On the back was a clause limiting the liability of defendant for baggage to $50, and a notice that other regulations were posted in the cars. In the cars was a similar notice as to liability for baggage. Plaintiff testified that he never saw the notice on the ticket nor in the car. The trial judge submitted to the jury the question whether the plaintiff ever assented to the limitation, and charged that the receiving of the ticket raised no legal presumption that plaintiff had the necessary notice. The jury returned a verdict for the plaintiff. Dewey, J. This case must be held to be analogous to the case of Brown v. Eastern Railroad (11 Cush. 97), and may, like that, be decided without any adjudication upon the broader question whether a limitation of the liability of the railroad company as to the amount and value of the baggage of passengers transported on the road may not be effectually secured by the delivery of a ticket to the passenger so printed in large and fair type on the face of the ticket, that no one could read the part of the ticket indicating the place to which it purports to entitle him to be conveyed without also having brought to his notice the fact of limitation as to liability for his baggage. The present case as to the ticket only differs from the case of Brown v. Eastern Railroad, in having printed in small type on the face of the ticket, ' ' Look on the back. ' ' But there is nothing on the face of the ticket alluding to the subject of baggage ; no notice to look on the back for regulations as to bag- Sec. 1.] N. Y. & Washington P. T. Co. v. Deyburg. 81 gage. The delivery of such a ticket does not entitle the railroad company to ask for instructions that there results therefrom a legal presumption of notice of the restricted liability as to the baggage of the passenger. The ruling as to the placards posted in the cars was correct, and no legal presumption of notice arose there- from. The court properly submitted the question of notice to the jury as a question of fact. We have not particularly considered the question of liability of the defendants as to certain small items, if any, of the wearing apparel of the husband, that were contained in the lost trimk. The articles are stated in the bill of exceptions to have been " nearly wholly his wife's wearing apparel," and the court was not asked to direct the jury to exclude the other articles in assess- ing damages. Without expressing any opinion upon the point whether these articles, if any, of the husband's would be embraced in the baggage which the defendants assumed to transport as common carriers, the husband paying no fare for his personal transportation, the court are of opinion that in the present aspect of the case judgment should be entered generally on the verdict. Exceptions overruled. The New York and Washington Feinting Tele- graph Company ik Dryburg. 35 pennsylvania state reporis, 298 — 1860. Error to the District Court of Philadelphia. This was an action on the case by Andrew Dryburg against the New York and Washington Printing Tele- graph Company, for carelessly, erroneously, and untruly transmitting to him a message from Robert LeRoy in New York. On the 26th of November, 1855, Eobert LeRoy, a resi- dent of New York, went to the office of the defendants, 6 82 Formation of Contracts. [Chap. I. and left with their clerk the following message, to be transmitted to the plaintiff, who was a florist in Phila- delphia : " New York, 26th November, 1855. " To A. Drtburg, S. W. Cor. 19th and Race : " Send me for Wednesday evening, two hand boquets, very hand- some, one of five, and one of ten dollars. " Robert LeRoy, 8 West 22nd St." In the message, as received in Philadelphia, the words " two hand boquets " read "two hundred boquets," and was so delivered to the plaintiff. On the same day, Mr. Dryburg inquired of Mr. LeEoy, by telegraph, ' ' are the two hundred bouquets intended for pyramids; are the five and ten dollar for the table or hand." To this he received the following reply, on the same evening: ' ' I wrote simply two hand boquets, and not two hundred ; I want two boquets for the hand — one at five, and the other at ten dollars." The original message was received from Mr. LeEoy by the company, for transmission, upon the following terms and conditions: [Here follow the customary stipulations relieving the company from liability for loss caused by mistake in the transmission, unless the message is repeated.] Neither of the messages was required to be repeated, nor insured or paid for as such. The plaintiff, between the time of the receipt of the first and' second messages from LeRoy, cut and procured a large quantity of ex- pensive flowers for the purpose of making a number of boquets, and brought this action for the damages alleged to have been thereby sustained. The defendants alleged that the word " hand " was written " hund " in the original message, and proved that the person who transmitted it was a skillful operator. The jury, under the instruction of the court, found a verdict for the plaintiff for $100, subject to the opinion Sec. 1.] N. Y. & Washington P. T. Co. v. Deybubg. 83 of tlie court upon the following point reserved, to wit, ' ' whether upon the whole of the evidence the plaintiff is entitled to recover? " The court in banc subsequently gave judgment for the plaintiff upon the reserved point, and the following opinion was delivered by Sharswood, P. J.: " Mr. LeEoy of New York transmitted, in the usual way, by the defendants' line, a message to the plaintiff, a florist, for two hand boquets. By the negligence of the defendants, as the jury have found, the message received by the plaintiff was an order for 200 boquets. In conse- quence of which the plaintiff suffers damages. The point reserved was, whether the plaintiff could recover in this, which was an action on the case. As to the private notice of defendants, that they only insured the correct transmission of messages where they are repeated back, and paid for as such, we do not think it applies here, for many reasons. It was not brought to the knowledge of the plaintiff, and if it had been, could not have exempted the defendants from liability for actual negligence. It was not here the improper working of the telegraph wire, or the misunderstanding by the receiving officer of the signs used, which might be cor- rected by repeating back the message. But the error was in the clerk who transmitted the order — he negligently read the word " hand " as though it was " hundred." It is evident, then, that if the message had been repeated back, it would have been reported all right. What the company, defendants, insure against, when they do in- sure, is not the negligence of their officers, but those de- lays and mistakes in transmission which are unavoidable. On the main question we have had considerable diffi- culty. If the defendants are to be considered as the agents of Mr. LeEoy, it seems clear, that they are not liable to an action for the plaintiff. Unless the agent or 84 FoEMATiosr OP Conteacts. [Chap. I. servant commits some actual trespass, Ms constituent or master is alone responsible to the party injured by his negligence. This is the well known rule, which is shortly expressed by the term respondeat superior. Lane v. Cot- ton, 12 Mod. 488; Colvin v. Holbrook, 2 Const. E. 129; Denney v. The Manhattan Company, 2 Denio, 118. But how can the defendants be considered as the agents or servants of Mr. LeEoy, in a proper sense? To consti- tute them such, he ought to have had some control over them in the transmission of his message. He should, at least, have had a right to be present to oversee that his business was properly done, so as not to subject him to responsibilities to strangers, if not the right to take it in hand and do it himself. A man employed to make a coat for another, cannot subject his employer to an action by a third person, for the consequences of negligence. One who contracts to build a house, or ship, or carriage for another, is in no case his servant. This was the position of the defendants. They contracted with Mr. LeEoy to deliver a certain message. To the plaintiff both the de- fendants and Mr. LeEoy are principals. If he is injured by the negligence of either of them, his recourse is to the party guilty of the negligence, and to him only. These responsibilities — independent of contract — and resting upon no privity between the parties, are incurred to strangers. The most striking illustration is that of a nuisance or obstruction of a public way, by which an in- dividual incurs special damage; and in regard to real estate, perhaps, the suffering it to be in a noisome or dangerous condition by the proprietor after notice, with- out regard to the original contract. Eule dismissed, and judgment for plaintiff." To this opinion the defendants excepted; and having removed the cause to this court, they here assigned the same for error. Sec. l.J N. Y. & Washington P. T. Co. v. Dkyburg. 85 Tlie opinion of the court was delivered by WooDWAED, J.^ The telegraph company did not send LeEoy's message as he wrote it. If written as the com- pany's agent read it, the word " hand " was written * ' hund ' ' ; and if the company had sent the word ' ' hund ' ' to Dryburg, they would have been in no fault. Their agent, however, assumed that hundred was meant, and accordingly added the three letters, red, which did all the mischief. "We do not understand that there was any dot after the letters hund, to indicate a contraction ; so that the agent's inference that hundred was the word meant, was entirely gratuitous. The wrong, then, of which the plaintiff complains, con- sisted in sending him a different message from that which they had contracted with LeEoy to send. That it was a wrong, is as certain as that it was their duty to transmit the message for which they were paid. Though the tele- graph companies are not, like carriers, insurers for the safe delivery of what is intrusted to them, their obliga- tions, as far as they reach, spring from the same sources, — the public nature of their employment, and the con- tract under which the particular duty is assumed. One of the plainest of their obligations is, to transmit the very message prescribed. To follow copy, an imperative law of the printing office, is equally applicable to the tele- graph office. But, when they violate this duty, whether negligently or willfully, are they responsible to the party to whom the erroneous message is addressed? That is the exact question upon this record. That the defendants would be responsible to LeRoy, and that he would be responsible over to Dryburg, are not contested, though, perhaps, not conceded points ; but that the company is liable to Dry- burg, is resisted on several grounds. ^ The citation of a few authorities and a small portion of the opiuion omitted. 86 I^OBMATION OF CONTRACTS. [ChAP. I. In the first place, it is said, tliat the case belongs to that class of torts ia which malice is the gist of the action. This is a mistake. The narr. lays the duty to transmit the message as it was received, and assigns as the breach, that it was transmitted ' ' erroneously, untruly, and care- lessly. ' ' No malicious intent is alleged, nor was it neces- sary that one should be alleged or proved. It is enough that negligence is charged and proved. It is said, in the next place, that, upon the general principles of agency, the company can be held answerable to LeEoy only. That the relation of principal and agent existed between him and the company, there can be no doubt, but I do not think it equally clear, that the relation was not established between Dryburg and the company. Telegraph companies are, in some sort, public institu- tions — open alike to all, and are largely used in con- ducting the commerce of the country. The banks decline to act upon their authority, and, doubtless individuals may also decline ; but when a man receives a message at the hands of the agent of such a company, and does act upon it, especially if, as Dryburg did, he use the same medium for responding to the message, it seems reason- able that, for all purposes of liability, the telegraph com- pany shall be considered as much the agent of him who receives, as of him who sends the message. In point of fact, the fee is often paid on delivery, and I am inclined to think, the company ought to be regarded as the com- mon agent of the parties at either end of the wire. But, however this may be, regarding the company as alone the agent of the sender of the message, is it to be doubted, that an agent is liable for misfeasance, even to third parties? For nonfeasance, the agent is responsible only to his employer, because there is no privity of con- sideration betwixt the agent and a third party. The remedy in such cases must be sought in the maxim res- pondeat superior; but, even to this rule, there is an ex- Sec. l.J N. Y. & Washington P. T. Co. v. Deybueg. 87 •ception in tlie instance of masters of ships, who, although they are the agents or servants of the owners, are also, ia many respects, deemed to be responsible as principals to -third persons, not only for their own negligences and nonfeasances, but for those. of subordinate officers and others employed under them. The general rule, however, "was laid down by Lord Holt in .Lane v. Sir Eobert Colton, 12 Mod. E. 488, in these words: "A servant or deputy, as such, cannot be charged for neglect, but the principal only shall be charged for it; but for a misfeasance, an action will lie against a servant or deputy, but not as a deputy or servant, but as a wrongdoer; " s. c. 1 Ld. Eaym. 646. The compilers have taken the rule from this source, and the cases cited by them show that it has generally been followed. The case of Camp v. The Western Union Telegraph Company, 6 Am. Law Register, 443, does not affect this principle, as we apply it here, for there the action was by the sender of the message, and it appeared, that the mes- sage was sent subject to the express condition, that de- fendant would not be liable for mistakes arising from any cause, unless the message was repeated by being sent back. This company had such a rule also, but they charge £fty per cent advance upon the usual price of transmis- sion, where the sender demands that the message be re- peated back to the first operator, and LeEoy did not pay it. If it be granted that, in consequence of his not pur- chasing this security against mistakes, he could not hold the company liable, it does not follow that Dryburg can- not. He did not know whether the message had been re- peated back to LeEoy or not. He received it as the com- pany delivered it to him, and it is very material to ob- serve, that the mistake was not due to what has been called the infirmities of telegraphing, but to the improper liberties which the operator took with the text before him. 88 Formation of Conteacts. [Chap. L Tlie magic power which presides over the wires per- formed its duty faithfully, and bore the very message it was bidden to bear, but the human agent sent a different message from that which he was commanded to send. This is the misfeasance the plaintiff complains of. The company claimed that their operator was a skillful and careful one. Then his negligence in this instance was the more apparent and inexcusable. If the hand- writing was so bad that he could not read it correctly, he should not have undertaken to transmit it ; but the busi- ness of transmission assumed, it was very plainly his duty to send what was written. It was no affair of his, that the message would have been insensible. Messages are often sent along the wires that are unintelligible to the operator. When he presumed to translate the hand- writing, and to add letters which confessedly were not in it, he made the company responsible to Dryburg for the damages that resulted from his wrongdoing. We do not conceive it necessary to go any farther in the discussion of this case. There are several errors as- signed to which we have not specifically alluded, but we see nothing in them to require a reversal of the judgment. Judgment affirmed. Ayek v. Westebn Ubtion Telbgbaph Company.^ 79 MAINE, 493 — 1887. Emeey, J. On report. The defendant telegraph com- pany was engaged in the business of transmitting mes- sages by telegraph between Bangor and Philadelphia, and other points. The plaintiff, a lumber dealer in Bangor, delivered to the defendant company in Bangor, to be ^ Statement of fact omitted, and only such portion of the opinion given as relates to the question of damage. Sec. 1.] Ayee v. Western Union Tblegkaph Co. 89 transmitted to his correspondent in Philadelphia, the fol- lowing message: " Will sell 800M. laths, delivered at your wharf, two ten net cash. July shipment. Answer quick." The regular tariff rate was prepaid by the plaintiff for such transmission. The message delivered by the defend- ant company to the Philadelphia correspondent was as follows : " Will sell 800M. laths delivered at your wharf, two net cash. July shipment. Answer quick." It wUl be seen that the important word " ten " in the statement of price was omitted. The Philadelphia party immediately returned by tele- graph the following answer : "Accept your telegraphic offer on laths. Cannot increase price spruce." .Letters afterward passed between the parties which disclosed the error in the transmission of the plaintiff's message. About two weeks after the discovery of the error, the plaintiff shipped the laths, as per the message received by his correspondent, to wit, at $2.00 per M. He testified that his correspondent insisted that he was en- titled to the laths at that price, and they were shipped accordingly. The defendant telegraph company offered no evidence whatever, and did not undertake to account for, or ex- plain the mistake in the transmission of the message. The presumption therefore is, that the mistake resulted from the fault of the telegraph company. We cannot con- sider the possibility that it may have resulted from causes beyond the control of the company. In the absence of evidence on that point we must assume that for such an error the company was in fault. Bartlett v. Tel. Co., 62 Maine, 221. 90 FoEMATiosr OP Contracts. [Chap. I. The fault and consequent liability of the defendant company being thus established, the only remainiag ques- tion is the extent of that liability in this case. The plain- titf claims, it extends to the difference between the market price of the laths and the price at which they were ship- ped. The defendant claims its liability is limited to the amount paid for the transmission of the message. It claims this limitation on two grounds.^ II. The defendant company also claims that the plain- tiff was not in fact damaged to a greater extent than the price paid by him for the transmission. It contends that the plabitiff was not bound by the erroneous message de- livered by the company to the Philadelphia party, and hence need not have shipped the laths at the lesser price. This raises the question, whether the message written by the sender and entrusted to the telegraph company for transmission, or the message written out and delivered by the company to the receiver at the other end of the line, as and for the message intended to be sent, is the better evidence of the rights of the receiver against the sender. The question is important and not easy of solution. It would be hard, that the negligence of the telegraph com- pany, or any error in transmission resulting from uncon- trollable causes, should impose upon the innocent sender of a message a liability he never authorized nor contem- plated. It would be equally hard that the innocent re- ceiver, acting in good faith upon the message as received by him, should, through such error, lose all claim upon the sender. If one, owning merchandise, write a message offering to sell at a certain price, it would seem unjust that the telegraph company could bind him to sell at a less price by making that error in the transmission. On the other hand, the receiver of the offer may, in good faith, upon the strength of the telegram as received by ^A portion of the opinion relating to a limitation clause in the company's contract is omitted. Sec. 1.] Ayek v. Western Union Telegraph Co. 91 him, have sold all the merchandise to arrive, perhaps at the same rate. It would seem mijust that he should have no claim for the merchandise. If an agent receive in- structions by telegraph from his principal, and in good faith act upon them as expressed in the message delivered him by the company, it would seem he ought to be held justified, though there was an error in the transmission. It is evident that in case of an error in the transmis- sion of a telegram, either the sender or receiver must often suffer loss. As between the two, upon whom should the loss finally fall? We think the safer and more equi- table rule, and the rule the public can most easUy adapt itself to, is, that, as between sender and receiver, the party who selects the telegraph as the means of communi- cation shall bear the loss caused by the errors of the tele- graph. The first proposer can select one of many modes of communication, both for the proposal and the answer. The receiver has no such choice, except as to his answer. If he cannot safely act upon the message he receives through the agency selected by the proposer, business must be seriously hampered and delayed. The use of the telegraph has become so general, and so many transac- tions are based on the words of the telegram received, any other rule would now be impracticable. Of course the rule above stated presupposes the inno- cence of the receiver, and that there is nothing to cause him to suspect an error. If there be anything in the mes- sage, or in the attendant circumstances, or in the prior dealings of the parties, or in anything else, indicating a probable error in the transmission, good faith on the part of the receiver may require him to investigate before act- ing. Neither does the rule include forged messages, for in such case the supposed sender did not make any use of the telegraph. The authorities are few and somewhat conflicting, but there are several in harmony with our conclusions upon 92 -POEMATION OF CoNTBACTS. [ChAP. I. this point. In Durkee v. Vt. C. E. E. Co., 29 Vt. 137> it was held, that where the sender himself elected to com- municate by telegraph, the message received by the other party is the original evidence of any contract; In Save- land V. Green, 40 Wis. 431, the message received from the telegraph company was admitted as the original and best evidence of a contract, binding on the sender. In Morgan V. People, 59 111. 58, it was said that the telegram received was the original, and it was held that the sheriff, receiv- ing such a telegram from the judgment creditor, was bound to follow it, as it read. There are dicta to the same effect, in WUson v. M. & N. Ey. Co., 31 Minn. 481, and Howley v. Whipple, 48 N. H. 488. Tel. Co. V. Schotter, 71 Ga. 760, is almost a parallel case The sender wrote his message, " Can deliver hundred turpentine at sixty-four." As received from the tele- graph company it read, "Can deliver hundred turpentine at sixty, ' ' the word ' ' four ' ' being omitted. The receiver immediately telegraphed an acceptance. The sender shipped the turpentine, and drew for the price at sixty- four. The receiver refused to pay more than sixty. The sender accepted the sixty, and sued the telegraph com- pany for the difference between sixty and the market. It was urged, as here, that the sender was not bound to ac- cept the sixty, as that was not his offer. The court held, however, that there was a complete contrarct at sixty — that the sender must fulfill it, and could recover his con- sequent loss of the telegraph company. It follows, that the plaintiff in this case is entitled to recover the difference between the two dollars and the market, as to laths. The evidence shows that the differ- ence was ten cents per M. Judgment for plaintiff for eighty dollars, with interest from the date of the writ. Sec. 1.] Adams v. Lindsell. 93 Adams v. Lindsell. 1 baenewall & anderson, 681 — 181«. Action for nondelivery of wool according to agree- ment. At the trial at the last Lent assizes for the county of Worcester, before Burrough, J., it appeared that the defendants, who were dealers in wool at St. Ives, in the county of Huntingdon, had, on Tuesday, September 2, 1817, written the following letter to the plaintiffs, who were woolen manufacturers residing in Broomsgrove, Worcestershire. ' ' We now offer you 800 tods of wether fleeces, of a good fair quality of our country wool, at 35s. 6d. per tod, to be delivered at Leicester, and to be paid for by two months' bill in two months, and to be weighed by your agents within fourteen days, receiving your answer in course of post." ' . This letter was misdirected by the defendants, to Bromsgrove, Leicestershire, in consequence of which it was not received by the plaintiffs in Worcestershire till 7 p. M. on Friday, September 5th. On that evening the plaintiffs wrote an answer, agreeing to accept the wool on the terms proposed. The course of the post between St. Ives and Bromsgrove is through London, and conse- quently this answer was not received by the defendants tUl Tuesday, September 9th. On Monday, September 8th, the defendants not having, as they expected, received an answer on Sunday, September 7th (which in case their letter had not been misdirected would have been in the usual course of the post), sold the wool in question to another person. Under these circumstances the learned judge held, that the delay having been occasioned by the neglect of the defendants, the jury must take it, that the answer did come back in due course of post ; and that then the defendants were liable for the loss that had been sus- tained, and the plaintiffs accordingly recovered a verdict. Jervis having in Easter term obtained a rule nisi for a 94 FOEMATION OF CONTEACTS. [ChAP. I. new trial, on the ground that there was no binding con- tract between the parties. Dauncey, Puller <& Richardson showed cause. They contended that at the moment of the acceptance of the offer of the defendants by the plaintiffs the former be- came bound. And that was on the Friday evening, when there had been no change of circumstances. They were then stopped by the court, who called upon Jervis S Campbell in support of the rule. They relied on Payne v. Cave, and more particularly on Cooke v. Oxley. In that case Oxley, who had proposed to seU goods to Cooke, and given him a certain time at his re- quest, to determine whether he would buy them or not, was held not liable to the performance of the contract, even though Cooke, within the specified time, had deter- mined to buy them, and giver^ Oxley notice to that effect. So here thie defendants who had proposed by letter to sell this wool, are not to be held liable, even though it be now admitted that the answer did come back in due course of post. Till the plaintiff's answer was actually received there could be no binding contract between the parties ; and before then the defendants had retracted their offer by selling the wool to other persons. But the court said if that were so, no contract could ever be completed by the post. For if the defendants were not bound by their offer when accepted by the plain- tiffs till the answer was received, then the plaintiffs ought not to be bound till after they had received the notifica- tion that the defendants ' had received their answer and assented to it. And so it might go on ad infinitum. The defendants must be considered in law as making, during every instant of the time their letter was traveling, the same identical offer to the plaintiffs, and then the con- tract is completed by the acceptance of it by the latter. Then as to the delay in notifying the acceptance, that arises entirely from the mistake of the defendants, and it Sec. 1.] McCuLLOCH v. The Eagle Insukance Co. 95 therefore must be taken as against them that the plain- tiffs ' answer was received in the course of post. Rule discharged. McCuLiiOCH V. The Eagle Insurance Company. 1 PICKBEING, 278 — 1820. This action, which was assumpsit, came before the court upon a case stated. The material facts were as fol- lows: On December 29, 1820, the plaintiff, who lived at Kennebunk, in Maine, wrote to the defendants requesting to know on what terms they would insure $2,500 on his . brig Hesper and cargo from Martinico to the United States. The defendants on January 1, 1821, sent an answer, saying they would take the risk at 2% per cent. This letter was received by the plaintiff on January 3d, on which day he wrote a reply requesting the defendants to fill a policy on the terms proposed by them. The de- fendants on January 2d wrote again to the plaintiff, de- clining to take the risk, but the plaintiff had sent his let- ter of the 3d before he received the last letter of the de- fendants. All the letters were sent by mail, and were duly received by the parties respectively. The vessel was afterward lost on the voyage. The only question in the cause was, whether the corres- pondence of the parties constituted a contract by which the defendants were bound. Paekee, C.J., delivered the opinion of the court. This action is brought to recover a sum alleged to have been insured by the defendants on the brig Hesper, belonging to the plaintiff, on a voyage from Martinico to her port of discharge, and another sum on her cargo. The usual evidence of such contract, a policy, never having been made, the only question submitted is, whether there was an agreement to insure ; everything else necessary to en- 96 Formation of Conteacts. [Chap. I. title the plaintiff to recover being agreed by the parties. And it is certain that if a contract was made, the mere want of a policy will not prevent the plaintiff from re- covering. We are to inquire, then, whether the correspondence between the parties, which is submitted to us, does consti- tute a contract binding upon both parties ; if it does not whatever might be the expectations of either, it is only an attempt to make a contract, which has failed. The letter from the plaintiff of December 29th contained an inquiry only, as to the rate of premium at which the in- surance might be done in the defendants' office, and the plaintiff was entirely at liberty to accept or refuse the terms which were proposed in answer; even if he had made no reply to the defendants' letter, there would have been neither a breach of contract nor of civility. This answer was written on January 1st, and would reach the post-office in Kennebunk, the place of the plaintiff's resi- dence, on the 3d. It was replied to on the day of the ar- rival, by an acceptance of the terms and a direction to make out the policy and deliver it to the plaintiff's agent in Boston, who was authorized to give a promissory note for the premium in common form. But on January 2d, before the defendants' letter to the plaintiff could have been received, another letter was written by the defend- ants; retracting the offer made in the former letter, and signifyng a determination not to insure upon that vessel upon any terms. These letters crossed each other upon the road. It is contended by the plaintiff, that the bar- gain was complete at the moment he wrote and put iuto the mail his letter signifying his acceptance of the terms offered ; by the defendants, that the treaty was open until they should have received that letter, and that in the meantime they had a right to withdraw their offer. We adopt the latter opinion as the most reasonable. The offer did not bind the plaintiff until it was accepted, and Sec. l.J McCuLLOCH v. The Eagle Insueance Co. 97 it oould not be accepted, to tlie knowledge of the defend- ants, until the letter announcing the acceptance was re- ceived, or at most until the regular time for its arrival by mail had elapsed. Had the vessel arrived in safety at Kennebunk on the 2d, or pn the morning of the 3d, the plaintiff would .not have accepted the offer, and was not bound to accept, so that the defendants would not have been entitled to any premium ; and both must be bound, in order to make the contract binding upon either, unless time is given by one to the other, in which case, perhaps, he may be bound, although the other is not; at least we should think this reasonable in mercantile contracts, though it was decided otherwise in the case of Cooke v. Oxley, 3 D. & E. 653. In that case the declaration stated that the defendant proposed to the plaintiff to sell him tobacco at a certain price, and, at the request of the plain- tiff, gave him until 4 o 'clock p. m. to consent or disagree to the proposal. The plaintiff averred that he did agree to purchase, and gave notice thereof to the defendant be- fore 4 o'clock; that he ofl'ered to pay the price, and re- quested the defendant to deliver the tobacco, which he refused. The court, without hearing the counsel for the defendant, said that it was an engagement all on one side, and was therefore nudum pactum; and Butler, J., said there was neither damage to the plaintiff nor advantage to the defendant at the time when the contract was first made. The judgment was affirmed in the Exchequer Chamber. This was treated by the plaintiff's counsel as an actual sale upon condition to avoid the statute of frauds, so that the real question was, as in the case before us, whether there was a bargain in fact amounting to a sale, as the question here is, whether there was an in- surance in fact, the usual evidence of which only was left unfinished; and it is as necessary that the obligation should be mutual in this case as in that. See also Payne V. Cave, 3 D. & E. 148. It is suggested that the putting 7 98 Formation of ConI'eacts. [Chap. I. the letter into the mail was a completion of the bargain, but if the vessel had arrived, and the plaintiff had re- called his letter, or if he had sent on an express to an- nounce his refusal to accept before the letter arrived, we think he would not have been held to pay the premium. No authority has been cited on the side of the plaintiff to support his case, and we cannot perceive, upon general principles, any ground upon which he can recover. There seems to have been locus penitentice for both parties, no change of circumstances having occurred, nor any infor- mation being received, until the loss of the vessel was known, which was nearly three months after the corres- pondence ceased between the parties; during all which time the plaintiff might have got insured elsewhere if the risk was a fair one. Had the vessel arrived after the de- fendants ' letter was received and before it was answered, there can be no doubt the plaintiff might have declined entering into the bargain, because he then had made no contract ; and so long as it continued open for the plain- tiff, it must have been open for the defendants, and their revocation was made before the plaintiff had opportunity to accept. It was suggested in the argument, that the correspond- ence between these parties formed what is called in the civU law a pollicitation, a sort of contract which arises from a promise made by one party only, without any con- sent or acceptance by the other ; but this is a peculiar kind of obligation which exists only from an individual toward a body politic or government. Heinecc. sec. Ord. Pandect., Part VII., §§ 334, 335. In a note to the first of these sec- tions the author says, " For although promises made otherwise always require the consent and acceptance of the other party, yet here " (that is, in promises made to the state) " the law itself accepts the promise for the State." Plaintiff nonsuit. Sec. 1.] DuNLOP v. Higgins. 99 DuNLOP V. Higgins.^ 1 HOUSE OF LORDS CASES, 381 — 1848. This was an appeal against a decree of the Court of Session, made under the following circumstances: Messrs. Dnnlop & Co. were iron masters in Glasgow, and Messrs. Higgins & Co. were iron merchants in Liverpool. Messrs. Higgins had written to Messrs. Dunlop respect- ing the price of iron, aaid received the following answer : " Glasgow, January 22, 1845k " We shall be glad to supply you with 2000 tons, pigs, at 65s. per ton, net, delivered here." Messrs. Higgins wrote the following reply: "Liverpool, January 25, 1845. " Yon say 65s. net, for 2000 tons pigs. Does this mean for our usual four months bill? Please give us this information in course of post, as we have to decide with other parties on Wednesday next." On the 28th Messrs. Dunlop wrote: " Our quotation meant 65s. net, and not a four months bill." This letter was received by Messrs. Higgins on Jan- uary 30th, and on the same day, and by post, but not by the first post of that day, they dispatched an answer in these terms : " We will take the 2000 tons pigs you ofEer us. Your letter crossed ours of yesterday, but we shall be glad to have your answer respect- ing the additional 1000 tons. In your first letter you omitted to state any terms, hence the delay." This letter was dated " January 31st." It was not de- livered in Glasgow until 2 o 'clock p. m. on February 1st, and, on the same day, Messrs. Dunlop sent the following reply : "Glasgow, February 1, 1845. "We have your letter of yesterday, but are sorry that we cannot now enter the 2000 tons pig iron, our offer of the 28th not having been accepted in course." ^ Proceedings before the Ordinary and parts of opinion omitted. 100 FOBMATIOK OF CONTRACTS. [ChAP. I. Messrs. Higgins wrote on February 2d to say that they had erroneously dated their letter on January 31st, that it was really written and posted on the 30th, in proof of which they referred to the postmark. They did not, how- ever, explain the delay which had taken place in its deliv- ery. The iron was not furnished to them, and iron having risen very rapidly in the maket, the question whether there had been a complete contract between these parties was brought before a court of law. Messrs. Higgins in- stituted a suit in the Court of Session for damages, as for breach of contract. The defense of Messrs. Dunlop was, that their letter of the 28th, offering the contract, not hav- ing been answered in due time, there had been no such acceptance as would convert that offer into a lawful and binding contract ; that their letter having been delivered at Liverpool before 8 o'clock in the morning of January 30th, Messrs. Higgins ought, according to the usual prac- tice of merchants, to have answered it by the first post, which left Liverpool at 3 o'clock p. m. on that day. A letter so dispatched would be due in Glasgow at 2 o 'clock p. M. on January 31st; another post left Liverpool for Glasgow every day at 1 o'clock a. m., and letters to be dispatched by that post must be put into the office during the preceding evening, and if any letter had been sent by that post on the morning of the 31st, it must have been delivered in Glasgow in the regular course of post at 8 o'clock in the morning of February 1st. As no communi- cation from Messrs. Higgins arrived by either of these posts, Messrs. Dunlop contended that they were entitled to treat their offer as not accepted, and that they were not bound to wait until the third post delivered in Glas- gow at 2 o'clock p. M., of Saturday, February 1st (at which time Messrs Higgins' letter did actually arrive), before they entered into other contracts, the taking of which would disable them from performing the contract they had offered to Messrs. Higgins. Sec. 1.] DuNLQp v. Higgins, The Lord Chancelloe. My Lords, everytMng which learning or ingenuity can siiggest on the part of the ap- pellants, has undoubtedly been suggested on the part of the learned counsel who have just addressed the House ; and if your Lordships concur in my view, that they have failed in making out their case, you will have the satis- faction of knowing that you have come to that conclusion after having had everything suggested to you that by possibility could be advanced in favor of this appeal. The case certainly appears to me one which requires great ingenuity on the part of the appellants, because I do not think that in the facts of the case, there is any- thing to warrant the appeal. The contest arises from an order Sent from Liverpool to Glasgow, or rather a propo- sition sent from Glasgow to Liverpool, and accepted by the house at Liverpool. It is unnecessary to go earlier into the history of the case than the letter sent from Liverpool by Higgins, bearing date of January 31st. A proposition had been made by the Glasgow house of Dunlop, WUson & Co., to sell 2000 tons of pig iron. The answer is of that date of January 31st: " Gentlemen, we will take the 2000 tons, pigs, you offer us." Another part of the letter refers to other arrangements ; but there is a distinct and positive offer to take the 2,000 tons of pigs. To that letter there is annexed a postscript in which they say: " We have" accepted your offer unconditionally, but we hope you will accede to our request as to delivery and mode of pajnment by two months bill." That, my Lords, therefore, is an unconditional accept- ance, by the letter dated January 31st, which was proved to have been put into the post-office at Liverpool on the 30th ; but it was not delivered, owing to the state of severe frost at that time, which delayed the mail from reach- ing Glasgow at the time at which, in the ordinary course, it would have arrived there. The letter having been put 102 Formation of Contracts. [Chap. I. in on January 30th, it ought to have arrived at Glasgow on the following day, but it did not arrive till Feb- ruary 1st. It appears that between the time of writing the offer and February 1st, the parties making the offer had changed their minds ; and instead of being willing to sell 2000 tons of pig iron on the terms proposed, they were anxious to be relieved from that stipulation, and on that day, February 1st, they say: " "VVe have yours of yesterday, but are sorry that we cannot enter the 2000 tons of pig iron, our offer of the 28th not having been accepted in course." Under these circumstances, the parties wishing to buy, and by their letter accepting the offer, instituted proceed- ings in the Court of Session for damages sustained by the nonperformance of the contract. The next exception to be considered is the second, and that raises a more important question, though not one at- tended with much dijBficulty. The exception is, that his Lordship did direct the jury in point of law, that if the pursuers posted their acceptance of the offer in due time, according to the usage of trade, they are not re- sponsible for any casualties in the post-ofi&ce establish- ment. Now there may be some little ambiguity in the con- struction of the proposition. It proceeds on the assump- tion that, by the usage of trade, an answer ought to have been returned by the post, and that the 30th was the right day on which that answer ought to have been notified. Then comes the question, whether, under those circum- stances, that being the usage of trade, the fact of the let- ter being delayed, not by the act of the party sending it, but by an accident connected with the post, the party so putting the letter in on the right day is to lose the bene- fit which would have belonged to him if the letter had arrived in due course? Sec. l.J DuNLOP v. Higgins. 103 I cannot conceive, if that is the right construction of the direction of the learned judge, how any doubt can exist on the point. 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 return an answer to 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 everything he was bound to do? How can he be responsible for that over which he has no control? It is not the same as if the date of the party's acceptance of the offer had been the subject of a special contract ; as if the contract had been, " I make you this offer, but you must return me an answer on the 30th, and on the earliest post of that day. ' ' The usage of trade would require an answer on the day on which the offer was received, and Messrs. Higgins, therefore, did on the 30th, in proper time, return an answer by the right conveyance — the post-office. If that was not correct, and if you were to have refer- ence now to any usage constituting the contract between the parties a specific contract, it is quite clear to me that the rule of law would necessarily be that which has obtained by the usage of trade. It has been so decided in oases in England, and none has been cited from Scot- land which controverts that proposition; but the cases in England put it beyond all doubt. 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 has been held quite suffi- cient; he has done all that he is expected to do as far as he is concerned; he has put the letter into the post, and whether that letter be delivered, or not, is a matter 104 FOBMATION- OF CONTRACTS. [ChAP. L quite immaterial, because for accidents happening at the post-office he is not responsible. My Lords, the case of Stockton v. CuUen,^ is precisely a case of that nature, where the letter did not arrive in time. In that case Baron Parke says: " It was a question for the jury whether the letter was put into the post-office in time for delivery on the 28th. The post-ofifiee mark certainly raised a presumption to the contrary, but it was not con- clusive. The jurors have believed the testimony of the witness who posted the letter, and the verdict was therefore right. If a party puts a notice of dishonor into the post, so that in due course of delivery it would arrive in time, he has done all that can be required of him, and it is no fault of his if delay occurs in the delivery." Baron Alderson says: " The party who sends the notice is not answerable for the blunder of the post-office. I remember to have held so in a case on the Norfolk Circuit, where a notice addressed to Norwich had been sent to War- wick. If the doctrine that the post-office is only the agent for the delivery of the notice was correct, no one could safely avail himself of that mode of transmission. The real question is whether the party has been guilty of laches." There is also the other case which has been referred to, which declares the same doctrine, the case of Adams V. Lindsell. That is a case where the letter went, by the error of the party sending it, to the wrong place, but the party receiving it answered it, so far as he was con- cerned, in proper time. The party, however, who orig- inally sent the offer not receiving the answer in proper time, thought he was discharged, and entered into a con- tract and sold the goods to somebody else. The question was, whether the party making the offer had a right to withdraw after notice of acceptance. He sold the goods after the party had written the letter of ac- ceptance, but before it arrived he said, " I withdraw my offer. ' ' Therefore he said, ' ' Before I received your acceptance of my offer I had withdrawn it." And that raised the question when the acceptance took place, and 1 7 Meeson & Welsby, 518. Sec. 1.] DuNLOP v. Higgins. 105 what constituted the acceptance. It was argued, that " till the plaintiff's answer was actually received, there could be no binding contract between the parties, and that before then the defendants had retracted their offer by selling the wool to other persons." But the court said: " If that was so, no contract 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. The defendants must be considered, in law, as making, during every instant of the time their letter was travelling, the same identical offer to the plaintiffs, and then the contract is completed by the acceptance of it by the latter." Those two cases leave no doubt at all on the subject. Common sense tells us that transactions cannot go on without such a rule and these cases seem to be the lead- ing oases on the subject; and we have heard no authority cited which in the least degree affects the principle on which they proceed. The law of Scotland appears to be the same as the law of England, for Mr. Bell's Com- mentary lays down the same rule as existing in Scotland, and nothing has been stated to us in contradiction of his opinion. Now whether I take that proposition as conclusive upon the objection, or whether I consider it as a question entirely open, whether the putting the letter into the post was, or not, in time to constitute a valid acceptance, it appears to me that the learned judge was right in the conclusion to which he came, that he was right in the mode in which he left the question to the jury, and that he was not bound to lay down the law in the manner alleged in the bill of exceptions. The next exception is the third, which says: " In so far as his Lordship did not direct the jury in point of law, that if a merchant makes an offer to a party at a distance, by post- 106 FOBMATION OP CONTEACTS. [OhAP. I. letter, requiring to be answered within a certain time, and no answer arrives within such time as it should arrive, if the party had written and posted his letter within the time allowed, the offerer is free, though the answer may have actually been written and posted in due time, if he is not proved to be aware of accidental circumstances preventing the due arrival of the answer." That, my Lords, raises, first of all, a proposition that does not arise in this case at all. It assumes a contract that requires an answer within a certain stipulated time, and it assumes (which is already disposed of by what I have said in answer to the second exception) that the putting a letter into the post is not a compliance with the requisition of the offer. But there is no special contract here, and therefore this exception cannot be maintained. I believe that in these remarks I have exhausted the whole of the objections made, and my advice to your Lordships is to affirm the judgment of the court from which this is appealed. It was ordered that the interlocutor complained of should he affimed with costs. Mactiee v. Feith.* 6 WENDELL, lfl3 — 1830. Appeal from Chancery. At New York, Frith and Mactier agreed to embark in a commercial adventure. Frith was to direct a shipment of 200 pipes of brandy from France to New York to be consigned to Mactier, who was to ship to Frith, at Jacmel, in St. Domingo, provisions to the amount of the invoice cost of the brandy, and Frith was to place the shippers of the brandy in funds by shipments of coffee to France. The parties were to share equally in the speculation. ^ Statement of fact somewhat abbreviated. Opinions omitted. Sec. 1.] Mactiee v. Feith. 107 Accordingly, on September 5, 1822, Frith wrote to Havre, directing the shipment of 200 pipes of brandy to New York consigned to Mactier. On the 24th of De- cember, Frith, who had returned to Jaemel, wrote to Mactier. This letter contained a paragraph in these words : " I also send you copies of letters received, regarding' the brandy order. Wishing to confine myself in business as much as possible, I propose to you to take the adventure solely to your own account, holding the value to cover the transaction to my account in New York." On January 17, 1823, Mactier wrote to Frith acknowl- edging the receipt of his letter of the 24th ult. Regard- ing the brandy, he wrote : " I desire that the speculation should continue as at first proposed. As you havD, however, expressed a wish that I should take the adven- ture to my own account, I shall delay coming to any determination until I again hear from you. The prospect of war between France and Spain laay defeat the object of this speculation as far as relates to the shipment of provisions hence to Hayti, to be invested in coffee for France, in which case I will at once decide to take the adventure to my own account." On March 1, 1823, Frith wrote Mactier, making no other allusion to the last letter of Mactier than the fol- lowing : "'I have leceived your favors of the 17th and 31st of January and note their respective contents." On March 12, 1823, the ship laden with the brandy in question arrived in New York, and was at the wharf on the morning of March 13th. The morning after the arrival of the brandy Mactier told his clerk that he should take it to himself. On March 17th, Mactier en- tered the brandy at the custom-house as owner, and not as consignee, took the usual oath, and gave a bond for the duties. On March 22d he sold 150 pipes of the brandy. The remaining 50 pipes were put in the public store and 108 FOEMATION OF CONTRACTS. [ChAP. I. remained there in bond. On Marcli 25th Mactier wrote to Frith, at Jacmel, saying, " I have now to advise you of the arrival of the 200 pipes of brandy, and in consequence of the probabihty of war between France and Spain, and in compliance with the wish expressed in your favor of December 24th, and my answer thereto of the 17th of January last, I have de- cided to take the adventure to my own account. I therefore credit you with the amount of the invoice." To this letter was attached a postscript dated March 31st. On March 28th Frith, at Jacmel, wrote to Mactier and said, speaking of the brandy in question, " With regard to this adventure, I would wish to confirm, if altogether satisfactory to you, what I mentioned to you some time ago, and which I omitted to repeat to you in my previous letter in reply to yours of the 17th of January." Previous to the arrival of these two last letters at their respective places of direction, Mactier was dead, having died on April 10, 1823. On April 21st, Frith again wrote to Mactier acknowl- edging the receipt of Mactier 's letter of March 25th, and stating that its contents are noted. He further requests Mactier to charter on his account a staunch vessel and sent out to Jacmel by her, flour, pork, beef, etc. Administration of Mactier 's goods, etc., was granted to one Lawrence who in May, 1823, gave the requisite bonds to secure the duties on the 50 pipes of brandy, took them from the public store and sold them at public auction. Frith, unwilling to come in as a general creditor of Mactier and receive a pro-rata distribution on April 1, 1824, filed his bill in the Court of Chancery, alleging that the brandy was shipped from France on his sole account, and that Mactier was only the consignee thereof. The bill concluded by praying an account of the sales of the brandy and a decree directing the administrator to retain in his hands sufficient of the funds belonging to Sec. l.J Taylob v. Meechant's Fiee Insurance Co. 109 the estate of Mactier to pay and satisfy the complainant when his accounts should be settled and adjudged upon by the court. Taylob v. Merchant's Fire Insurance Company.^ 9 HOWARD, »90 — 1850. Mr. Justice Nelson delivered the opinion of the court. This is an appeal from a decree of the Circuit Court for the District of Maryland, which was rendered for the defendants. The case in the court below was this: William H. Tayloe, of Richmond county, Va., applied to John Minor, the agent of the defendants, residing at Fredericksburg in that State, for an insurance upon the dwelling-house to the amount of $8,000 for one year, and, as he was about leaving home for the State of Alabama, desired the agent to make the application in his behalf. The application was made accordingly, under the date of November 25, 1844, and an answer received from the secretary of the company, stating that the risk would be taken at 70 cents on the $1,000, the premium amount- ing to the sum of $56. The agent stated in the applica- tion to the company the reason why it had not been signed by Tayloe; that he had gone to the State of Alabama on business, and would not return till February following, and that he was desired to communicate to him at that place the answer of the company. On receiving the answer, the agent mailed a letter directed to Tayloe, under date of December 2d, advising him of the terms of the insurance, and adding, "Should you desire to effect the insurance, send me your check payable to my order for $57, and the business is con- Statemejit of facts and portion of opinion omitted. 110 Formation of Conteacts. [Chap. L eluded." The additional dollar was added for the policy. This letter, in consequence of a misdirection, did not reach Tayloe till the 20th of the month ; who, on the next day, mailed a letter in answer to the agent, expressing his assent to the terms, and inclosing his check for the premium as requested. He also desired that the policy should be deposited in the bank for safekeeping. This letter of acceptance was received on the 31st at Fred- ericksburg by the agent, who mailed a letter in answer the next day, communicating to Tayloe his refusal to carry into effect the insurance, on the ground that his acceptance came too late, the center building of the dwelling-house in the meantime, on the 22d of the month, having been consumed by fire. The company, on being advised of the facts, confirmed the view taken of the case by their agent, and refused to issue the policy or pay the loss. A bill was filed in the court below by the insured against the company, setting forth, substantially, the above facts, and praying that the defendants might be decreed to pay the loss, or for such other relief as the complainant might be entitled to. I. Several objections have been taken to the right of the complainant to recover, which it Avill be necessary to notice; but the principal one is that the contract of in- surance was not complete at the time the loss happened, and therefore that the risk proposed to be assumed had never attached. Two positions have been taken by the counsel for the company for the purpose of establishing this ground of defense. 1. The want of notice to the agent of the company of the acceptance of the terms of the insurance ; and, 2. The nonpayment of the premium. The first position assumes that, where the company Sec. 1.] Tayloe v. Meechant's Fiee Insueancb Co. Ill have made an offer through the mail to insure upon certain terms, the agreement is not consummated by the mere acceptance of the offer by the party to whom it is addressed; that the contract is still open and incomplete untU the notice of acceptance is received; and that the company are at liberty to withdraw the offer at any time before the arrival of the notice, and this even without communicating notice of the withdrawal to the appli- cant; in other words, that the assent of the company, express or implied, after the acceptance of the terms proposed by the insured, is essential to a consummation of the contract. The effect of this construction is to leave the property of the insured uncovered until his acceptance of the offer has reached the company and has received their assent, for if the contract is incomplete until notice of the acceptance, till then the company may retract the offer, as neither party is bound until the negotiation has resulted in a complete bargain between the parties. In our apprehension, this view of the transaction is not in accordance with the usages and practice of these companies in taking risks; nor with the understanding of merchants and other business men dealing with them ; nor with the principles of law, settled in analogous cases, governing contracts entered into by correspondence between parties residing at a distance. , On the contrary, we are of opinion that an offer under the circumstances stated, prescribing the terms of in- surance, is intended, and is to be deemed, a valid under- taking on the part of the company, that they will be bound, according to the terms tendered, if an answer is transmitted in due course of mail accepting them; and that it cannot be withdrawn, unless the withdrawal reaches the party to whom it is addressed before his letter of reply announcing the acceptance has been trans- mitted. 112 Formation of Contracts. [Chap. I. This view of the effect of the correspondence seems to us to be but carrying out the intent of the parties, as plainly manifested by their acts and declarations. I On the acceptance of the terms proposed, transmitted fby due course of mail to the company, the minds of both Vparties have met on the subject, in the mode contem- jplated at the time of entering upon the negotiation, and /the contract becomes complete. The party to whom the\ proposal is addressed has a right to regard it as intended \ as a continuing offer until it shall have reached him, and shall be in due time accepted or rejected. i Such is the plain import of the offer. And beside, upon any other view, the proposal amounts to nothing, as the acceptance would be but the adoption of the terms tendered, to be, in turn, proposed by the applicant to the company for their approval or rejection. For, if the contract is still open until the company is advised of an acceptance, it follows, of course, that the acceptance may be repudiated at any time before the notice is received. Nothing is effectually accomplished by an act of accept- ance. It is apparent, therefore, that such an interpretation of the acts of the parties would defeat the object which both had in view in entering upon the correspondence. The fallacy of the argument, in our judgment, consists in the assumption, that the contract cannot be consum- mated without a knowledge on the part of the company that the offer has been accepted. This is the point of the objection. But a little reflection will show that, in all cases of contracts entered into between parties at a distance by correspondence, it is impossible that both should have a knowledge of it the moment it becomes complete. This can only exist where both parties are present. The position may be illustrated by the ease before us. If the contract became complete, as we think it did, on Sec. l.J Taylor v. Mbechant's Fiee Insurance Co. 113 the acceptance of tlie offer by the applicant, on Decem- ber 21, 1844, the company, of course, could have no knowledge of it until the letter of acceptance reached the agent, on the 31st of the month; and, on the other hand, upon the hypothesis it was not complete until notice of the acceptance, and then becoijie so, the appli- cant could have no knowledge of it at the time it took effect. In either aspect, and, indeed, in any aspect in which the case can be presented, one of the parties must be unadvised of the time when the contract takes effect, as its consummation must depend upon the act of one of them in the absence of the other. The negotiation being carried on through the mail, the offer and acceptance cannot occur at the same moment of time ; nor, for the same reason, can the meeting of the minds of the parties on the subject be known by each at the moment of concurrence ; the acceptance must succeed the offer after the lapse of some interval of time; and, if the process is to be carried farther in order to com- plete the bargain, and notice of the acceptance must be received, the only effect is to reverse the position of the parties, changing the knowledge of the completion from the one party to the other. It is obviously impossible, therefore, under the circum- stances stated, ever to perfect a contract by correspond- ence, if a knowledge of both parties at the moment they become bound is an essential element in making out the obligation. And as it must take effect, if effect is given at all to an endeavor to enter into a contract by corre- spondence, in the absence of the knowledge of one of the parties at the time of its consummation, it seems to us more consistent with the acts and declarations of the parties, to consider it complete on the transmission of the acceptance of the offer in the way themselves con- templated; instead of postponing its completion till 114 FOEMATION OF CONTEACTS. [ChAP. L notice of such acceptance has been received and assented to by the company. For why make the offer, unless intended that an assent to its terms should bind them? And why require any further assent on their part, after an unconditional acceptance by the party to whom it is addressed? We have said that this view is iu accordance with the usages and practice of these companies, as well as with the general principles of law governing contracts entered iuto by absent parties. In the instructions of this company to their agent at Fredericksburg, he is advised to transmit all applica- tions for insurance to the office for consideration; and that, upon the receipt of an answer, if the applicant ac- cepts the terms, the contract is considered complete with- out waiting to communicate the acceptance to the com- pany; and the policy to be thereafter issued is to bear date from the time of the acceptance. The company desire no further communication on the subject, after they have settled upon the terms of the risk, and sent them for the inspection of the applicant, in order to the consummation of the bargain. The com- munication of the acceptance by the agent afterward isl to enable them to make out the policy. The contract isl regarded as complete on the acceptance of the terms. ' This appears also to have been the understanding of the agent ; for, on communicating to the insured the terms received from the company, he observes.: " Should you desire to effect the above insurance, send me your check payable to my order for $57, and the business is con- cluded;" obviously enough importing that no other step would be necessary to give effect to the insurance of the property upon the terms stated. The cases of Adams v. Lindsell, 1 Barn. & Aid. 681, and Mactier's Adm'rs v. Frith, 6 Wend. 104, are authori- ties to show that the above view is in conformity with Sec. l.J Hallock v. Commebcial Insxjkance Co. 115 tlie general principles of law governing the formation of all contracts entered into between parties residing at a distance by means of correspondence. \ The unqualified acceptance by the one of the terms proposed by the other, transmitted by due course of maU, is regarded as closing the bargain from the time of the transmission of the acceptance. ^ This is also the effect of the case of Eliason v. Hen- shaw, 4 Wheat. 228, in this court, though the point was not necessarily involved in the decision of the case. The acceptance there had not been according to the terms of the bargain proposed, for which reason the plaintiff fail-ed. Upon the whole, without pursuing the examination fur- ther, we are of opinion that the decree of the court below should be reversed, and that the cause be remitted, with directions to the court to take such further proceedings herein as may be necessary to carry into effect the opin- ion of this court. Hallock v. Commercial Insurance Company.* 26 new jeesey law repoets, 268 — 1857. An action of trespass on the case was brought in this court by George W. Hallock against the Commercial Insurance Company. The plaintiff declared on a policy of insurance, and the defendants pleaded the general issue. The case was tried at the Hudson Circuit, before a jury, at May Term, 1856. The court directed that a verdict should be taken for the plaintiff, with liberty to make a special case for the opinion of the Supreme Court, or turn it into a special verdict, a,t the instance of either party, within ninety ^ Statemeat of facts and opinion abbreviated, and opinion of Potts, J., omitted 116 Formation of Conteacts. [Chap. I. days after the judgment of the Supreme Court should be rendered and entered. The cause was argued at February Term, 1857, before the Chief Justice and Justices Potts and Vredenburgh. Veedenexjkgh, J. G. W. Breck was the agent of the defendants at Bath, N. Y., to make surveys, receive pro- posals for insurance, and receive premiums on risks accepted by the company, but was not authorized to make insurances or issue policies. The proposals for insur- ance were sent by him to the company at Jersey City, and if accepted by them, the policies were to be sent to htm to deliver. On March 2, 1855, the plaintiff applied to him to insure his building in Bath, for one year from March 10, for $1,200. Breck made the survey, and told him what the premium would be. The plaintiff thereupon offered the premium to Breck, who said he would consider it as paid, but would leave it with the plaintiff, who was a banker and with whom he kept his account, until the policy arrived, when he would call and get the money. The application was signed by the plaintiff, and with the survey attached, was sent by Breck to the company, on March 2d or 3d. The defendants deferred acting on the application until the secretary could procure a map of Bath, referred to .by Breck. On March 13th, between 10 and 12 a. m., the map having been received, a policy was filled up on said building, insuring it from March 10th for one year, signed by the proper officers, and mailed at Jersey City, directed to Breck at Bath, which by due course of mail would have reached him on March 14th, but which, owing to the snow, did not until March 16th. At the same time that Breck received the policy he also received a telegraphic despatch, dated March 15th, as follows: "Risk not taken when burnt. Return policy when received." Sec, l.J Hallock i;. Oommebcial Insukancb Co. 117 Accompanying the policy was also a letter from the secretary, of the tenor following: " Office of the Commercial Insubance Company, " lio. 3 Montgomery Street, Jersey City, March 13, 1855. " Messes. Beeck and Sawyer, Esq'rs, Bath, N. Y. : " Dear Sirs : Your application on G. W. Hallock's saloon has been held under advisement tUl we could procure a copy of the map, of which you speak in your letter. We do not look on it as a very desirable risk, but nevertheless, as the rate seems a fair one, we enclose a policy, relying very much on your representation in regard to the good character of the occupant. Enclosed please find policy. No. 1054, for $1200, premium $24. " Respectfully, " J. M. Chapman, " Secretary," On March 16th, after the policy arrived, the plaintiff tendered the premimn in gold to Breck, and demanded the policy. Breck accepted the money, because he had refused to accept it when the application was made, and considered it on deposit, meaning to put the plaintiff in the same situation as if he had received it on March 2d, but refused to deliver the policy, because so directed by the defendants. The building insured was entirely consumed by fire on March 13th at 8 a. m., about two hours before the risk was accepted or the policy signed. • The suit is on the policy, and the plea the general issue. The defendants suggest three reasons why the policy never became a contract.^ Second. Because the application of the plaintiff can- not be considered as an existing offer when the policy was signed. Secondly. The defendants insist that the application, having been made on March 2d, and no action having been taken by the defendants until the 13th, we cannot consider the plaintiff as still continuing his offer to the ^ The 1st and 3d omitted. 118 FoKMATIOSr OF CONTEACTS. [ChAP. L defendants; that we are bound to consider it as with- drawn. But why so? There is no pretence of any express withdrawal. The question and the answer can never, in any case, be simultaneous; the question must always remain for some length of time with the one to whom it is put, and abide the answer. In every nego- tiation, whether by telegraph, by letter, or by word of mouth, the application and the answer can never be at the same precise instant. The application must wait upon the answer. If the application is considered to be withdrawn as soon as made, no two minds ever could meet upon any proposition. The aggregatio mentium never could take place. In all cases the application is construed to stand untU the contrary appears; until it is either withdrawn or answered. Pothier Traite du Contrat du vente, p. 1, § 2, Art. 3, No. 32; Mactier v. Frith, 6 Wend. 103. But here the plaintiff avers the application to be still standing. The defendants treat it as still before them on March 13th, by accepting it, and making out the policy. We must, therefore, treat it as the parties treat it, as stUl'at noon on March 13th a standing and valid offer by the plaintiff to the defendants. The defendants next suggest that the plaintiff was ignorant of their acceptance of the risk, of their making ■out and mailing the policy to Breck until after they had countermanded its delivery, and that the aggregatio m,entium could not take place until after the acceptance of the proposition by the defendants came to the plain- tiff's knowledge, and that before that the defendants had changed their own minds, so that in fact it never did take place, and that consequently there was no legal delivery of this policy. This involves the more general question, does a con- tract arise when an overt act is done intended to signify the acceptance of a specific proposition, or not untU that Sec. 1.] Hallock v. Commercial Insurance Co. 119 overt act comes to the knowledge of the proposer? This question may arise upon every mode of negotiating a ■contract, whether the parties be in each other's presence or not. First comes the mental resolve to accept the proposition ; but the law can only recognize an overt act. "Whether that act be a word spoken, a telegraphic sign, or a letter mailed, some interval of time, more or less appreciable, must intervene between the doing of the -act and its coming to the knowledge of the party to whom it is addressed. In the meantime, what is the condition of affairs? Is it a contract or no contract? If the bidder does not see the auctioneer's hammer fall; if the article written for and sent never arrives ; if the verbal answer, when the' parties are in each other's presence, is in a foreign tongue, or by sudden noise or distraction is not heard; if the telegraphic circuit is broken; if the mail m.iscarries ; if the word spoken or the letter sent is over- taken, and countermanded by the electric current, is there no contract? In the progress of the negotiation, at what precise point of time does mind meet mind, does the contract spring into life? Upon this subject, with respect to negotiations con- ducted by written communications, there has been some variety of decision, but it appears to me that the weight of authority, as well as reason and necessity, admit of but one solution. The meeting of two minds, the aggregatio mentium necessary to the constitution of every contract, must take place eo instanti with the doing of any overt act intended to signify to the other party the acceptance of the proposition, without regard to when that act comes to the knowledge of the other party; everything else must be question of proof or of the binding force of the contract by matters subsequent. The overt act may be as various as the form and nature of contracts. It may he by the fall of the hammer, by words spoken, by letter. 120 Formation of Conteacts. [Chap. I. by telegraph, ' by remitting tbe articles sent for, by mutual signing or by delivery of the paper, and the delivery may be by any act intended to signify that the instrument shall have a present vitality. Whatever the form, the act done is the irrevocable evidence of the aggregatio mentiuni; at that instant the bargain is struck. The acceptor can no more overtake and counter- mand by telegraph his letter mailed than he can his words of acceptance after they have issued from his lips on their way to the hearer. If the two minds do not meet eo instanti with the act signifyifflg acceptance, when can they, in the nature of things, ever approach each other more closely? The defendants say, when the act of ac- ceptance comes to the knowledge of the other party. But this knowledge would be a fact without any force, unless we suppose in the proposer a power still of elect- ing not to accept the acceptance. But if we do this, it is apparent that the negotiation is yet precisely in the same stage of development it was in when the first proposition was waiting upon the first answer. The notion that there is Jio contract until the acceptance comes to the knowledge of the other party, proceeds upon the ground, in the first place, that the proposal has been withdrawn or lost its force, which is against the intent of the parties and the necessities of the case ; and in the second place, upon the ground that the answer is conditional, whereas we suppose it to be absolute. We suppose the acceptor to say not simply I agree, but to say I agree if you do, which requires an answer from the proposer; so that the minds do not meet till he answers. But in the meantime the acceptor may have changed his mind, and for the same reason as before, there is no bargain until this last answer comes to the knowledge of the other party; and so, uipon this theory, it must go on ad infinitum without the possibility of the aggregatio mentiiim ever taking place. There is, in fact, no difference between the ac- Sec. l.J Howard v. Daly. 121 ceptance of a proposition by word of mouth and a letter stating an acceptance. In the one case it is articulate sounds carried by the air, in the other, written signs carried by the mail or by telegraph. The vital question is, was the intention manifested by any overt act, not by what kind of messenger it was sent. The bargain, if ever struck at all, must be eo instanti with such overt act. Mailing a letter containing an acceptance, or the instrument itself intended for the other party is cer- tainly such an act. The only English case sustaining the defendants in their view that I have seen, is that of Cooke v. Oxley, 3 Term E. 653, which, it will be perceived by the above references, has been effectually overruled in their courts. In the State of New York the case of Mactier v. Frith, 1 Paige, 434, was reversed in their Court of Errors by a very large vote (6 Wend. Ill), and the doctrine sus- tained as contended for by the plaintiff. The only other American ease on this side of the ques- tion is that of McCuUoch v. The Eagle Ins. Co., 1 Pick. 278. This last is against the whole current of authorities both in England and in this country, and appears to me requires for the creation of a contract a fact without significance, or a condition that would render its crea- tion impossible. Let judgment be entered on the verdict for the plaintiff. HowABD V. Daly. 61 NEW YORK, 362 — 1875. , Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff entered, on the report of a referee. 122 Formation of Contkacts. [Chap. I. This action was brought upon an alleged contract for employment and service. The complaint set forth in substance, that, on the 20th day of April, 1870, the plaintiff contracted with the de- fendant to act at the Fifth Avenue Theater, in the city of New York, or at such other places as he might require, in such capacity and in such a way and manner as he might direct, and under such rules as he might establish for the coming season, to commence on or about Septem- ber 15,-1870, and terminate on or about July 1, 1871, at a salary of ten dollars per week during the season, and the plaintiff agreed with the defendant so to do and act dur- ing the time aforesaid. That, about the beginning of the season, and some weeks before the theater was opened, the plaintiff reported for rehearsals, but was not as- signed any part, or allowed to take part in the perform- ances, as was agreed by the defendant, although she was then ready and willing to do so ; and she was prevented by the defendant and his servants from acting and ful- filling her part of the contract, although she was then, and has ever since been, willing and anxious to do so. There was a further allegation that no part of the salary of ten dollars, as agreed upon, had ever been paid. The plaintiff then demanded judgment for the whole amount stipulated, to be paid. The answer contained a general denial of the allega-. tions of the complaint. The referee found, in substance, that the contract set forth in the complaint was entered into between the plaintiff and the defendant; that the plaintiff offered and tendered performance of her part of the contract, but that the defendant repudiated the contract, and thereby prevented the j>laintiff from performing her part of the same; and that no part of her salary had been paid to the plaintiff. Sec. 1.] HowAED v. Daly. 123 He further found that a paper, embodying the terms of the contract, was signed by the defendant, and inclosed by him to the plaintiff, together with another, which was a duplicate of the one signed, as an offer or proposal for a contract. The acceptance of such offer was, by its terms, to be signified by the plaintiff by signing one of said papers and returning the same, so signed, to the de- fendant; that the plaintiff signed such duplicate and re- turned it to the defendant. The referee found, as matter of law, that the plaintiff was entitled to judgment against the defendant for the sum of $410 damages. Judgment was entered accord- ingly. Further facts appear in the opinion. DwiGHT, C.^ It is insisted, by the defendant, that the complaint in this cause should have been dismissed, on the ground that the plaintiff made and maintained no proper tender of service. The finding of the referee that the plaintiff offered and tendered performance of her part of the contract, but that the defendant repudiated the contract, and therebj'' prevented the plaintiff from performing her part of it, is said to be unsustained by the evidence, and to be erroneous. As this is substantially the whole question raised by the defendant on this appeal, it will be the most conven- ient way to discuss it, to consider the effect of the acts of the defendant denying the existence of the contract. The fact that there was a valid contract has been found by the referee. The evidence showed that a proposal, in writing, was made by Mr. Daly to the plaintiff for an engagement of her services for the year 1869. The plain- tiff testifies that she signed an acceptance on Saturday, April 13, 1870, and placed it in the letter box of the de- ^ Only so much of the opinion is given as relates to the question of acceptance. 124 FOKMATION OF CoNTEAOTS. [ChAP. I. fendant, at the theater. The defendant admits that this letter box was sometimes used as a place for deposit of the duplicates of contracts made between him and the actors. It is true that he testified that he never received the papers which the plaintiff asserts that she deposited in the bos. This, however, is immaterial. The minds of the parties met when the plaintiff complied with the usual, or even occasional, practice, and left the accept- ance in a place of deposit recognized as such by the de- fendant. This doctrine is analogous to that which has been adopted in the case of communication by letter or by telegraph. ( Vassar v. Camp, 11 N. Y. 441 ; Trevor v. Wood, 36 id. 307.) The principle governing these cases is, that there is a concurrence of the minds of the parties upon a distinct proposition, manifested by an overt act. (White V. Corliss, 46 N. Y. 467.) The deposit in the box, under the cireimastances of the present case, is such an act. The case may also be rested upon the fact that there was evidence to lead to a presumption that the document reached the defendant, as it was placed in a receptacle considered by him to be a suitable one for the deposit of documents of this class. In the ordinary course of busi- ness it would reach the defendant, as he would be sup- posed to have competent attendants in charge to transact his business. His denial that he received it simply raises a case of conflict of evidence, on which the referee has passed in the plaintiff's favor. In Dana v. Kemble (19 Pick. 112), it appeared that it was the usage of a hotel to deposit all letters left at the bar in an urn kept for that purpose, whence they were sent, almost every fifteen minutes throughout the day, to the rooms of the differ- ent guests to whom they were directed. It was held that there was a presumption that a letter addressed to one of the guests left at the bar was received by him. The same point was ruled, in substance, in Hetherington v. Sec. l.J Minnesota Oil Co. v. Colliee, etc., Co. 125 Kemp (4 Camp, 192), where a letter was placed on a table where letters were usually placed to go to the post- office. The court held that this would be sufficient if it were proved that they were usually carried to the post- office. TliQugh no strict usage was established in the case at bar, there was enough proved to show that, in the ordinary course of business, the letter addressed to him by the plaintiff was likely to reach him. Minnesota Oil Co. v. Collier, etc., Co. 4 DILLON (U. S. C. C), 431—1876. Action for oil sold by plaintiff to defendant. Defend- ants sets up counterclaim for damages for nondelivery of oU bought ofi plaintiff. Defendant's counterclaim rests on these facts. On July 31st, plaintiff offered defendant by telegraph a quantity of oil at fifty-eight cents. The telegram was sent on Saturday, but was not delivered to defendant until Monday, August 2d, between eight and nine o'clock. On Tuesday, August 3d, about nine o'clock, defendant deposited a telegram accepting the offer. Later in the day, plaintiff sent defendant a telegram withdrawing the offer of July 31st, but defendant replied that sale was effected, and inquired when shipment would follow. It appeared that the market was very much unsettled, and that the price of oil was subject to sudden fluctua- tions during the month previous, and at the time of this negotiation, varying from day to day, and ranging be- tween fifty-five and seventy-five cents per gallon. It is urged by the defendant that the dispaj:ch of Tues- day, August 3, 1875, accepting the offer of the plaintiff transmitted July 31st, and delivered Monday morning, August 2d, concluded a contract for the sale of the twelve thousand four hundred and fifty gallons of oil. 126 FOEMATION OF CONTKACTS. [ChAP. L The plaintiff, on the contrary, claims, first, that the dispatch accepting the proposition made July 31st was not received untU after the offer had been withdrawn; second, that the acceptance of the offer was not in due time, that the delay was unreasonable, and therefore no contract was completed. Nelson, J. It is well settled by the authorities in this country, and sustained by the later English decisions, that there is no difference in the rules governing the negotiation of contracts by correspondence through the post-office and by telegraph, and a contract is concluded when an acceptance of a proposition is deposited in the telegraph office for transmission. The reason for this rule is well stated in Adams v. Lindsell (1 Barn. & Aid. 681). The negotiation in that case was by post. The court said, " that if a bargain could not be closed by letter before the answer was re- ceived, no contract could be completed through the med- ium of the post-office; that if the one party was not bound by his offer when it was accepted (that is, at the time the letter of acceptance is deposited in the mail), then the other party ought not to be bound until after they had received a notification that the answer had been received and assented to, and that it might so go on ad infinitum." In the case at bar the delivery of the mes- sage at the telegraph office signified the acceptance pf the offer. If any contract was entered into, the meeting of minds was at 8.53 of the clock on Tuesday morning, August 3d, and the subsequent dispatches are out of the case. 1 Parsons on Contracts, 482, 483. This rule is not strenuously dissented from on the argument, fand it is substantially admitted that the ac- ceptance or an offer by letter or by telegraph completes the contract, when such acceptance is put in the proper and usual way of being communicated by the agency employed to carry it; and that when an offer is made by Sec. 1.] Minnesota Oil Co, v. Colliek, etc., Co. 127 telegraph, an acceptance by telegraph takes effect when the dispatch containing the acceptance is deposited for transmission in the telegraph office, and not when it is received by the other party. Conceding this, there re- mains only one question to decide, which will determine the issues: Was the acceptance of defendant deposited in the telegraph office Tuesday, August 3d, within a rea- sonable time, so as to consummate a contract binding upon the plaintiff? It is undoubtedly the rule that when a proposition is made under the circumstances in this case, an acceptance concludes the contract if the offer is still open, and the mutual consent necessary to convert the offer of one party into a binding contract by the acceptance of the other is established if such acceptance is within a reason- able time after the offer was received. The better opinion is, that what is, or is not, a reason- able time, must depend upon the circumstances attend- ing the negotiation, and the character of the subject- matter of the contract, and in no better way can the in- tention of the parties be determined. If the negotiation is in respect to an article stable in price, there is not so much reason for an immediate acceptance of the offer, and the same rule would not apply as in a case where the negotiation related to an article subject to sudden and great fluctuations in the market. The rule in regard to the length of the time an offer shall continue, and when an acceptance completes the contract, is laid down in Parsons on Contracts (Vol. 1, p. 482). He says: " It may be said that whether the offer be made for a time certain or not, the intention or understanding of the parties is to govern. If no definite time is stated, then the inquiry as to a reasonable time resolves itself into an inquiry as to what time it is rational to sup- pose the parties contemplated; and the law will decide this to be that time which, as rational men, they ought to have understood each other to have had in mind." 128 Formation of Contracts. [Chap. I. Applying this rule, it seems clear that the intention of the plaintiff, in making the offer by telegraph, to sell an article which fluctuates so much in price, must have been upon the understanding that the acceptance, if at all, should be immediate, and as soon after the receipt of the offer as would give a fair opportunity for consideration. (The delay here was too long, and manifestly unjust to the plaintitf, for it afforded the defendant an opportunity to take advantage of a change in the market, and accept or refuse the offer as would best subserve its interests. Judgment will be entered in favor of the plaintiff for the amount claimed. The counterclaim is denied. Judgment accordingly. Henthorn v. Frasek.^ law reports, 2 chancery 27 — 1892. Lord Herschell. This is an action for the specific performance of a contract to sell to the plaintiff certain house property situate in Flamank street, Birkenhead. The action was tried before the Vice-Chancellor of the County Palatine of Lancashire, who gave judgment for the defendants. On July 7, 1891, the secretary of the building society whom the defendants represent handed to the plaintiff, in the office of the society at Liverpool, a letter in these terms : " I hereby give you the refusal of the Mamaiik Street property at £750 for fourteen days." It appears that the plaintiff had been for some time in negotiation for the property, and had on two previous occasions made offers for the purchase of it, which were not accepted by the society. These offers were made by ^ Statement of fact and concurring opinions of Lindley, L. J., and Kay, L. J., omitted. Sec. 1.] Henthobn v. Fkasee. 129 -means ol letters, written by the secretary in the office of the society, and signed by the plaintiff there. The plain- tiff resided in Birkenhead, and he took away with him to that town the letter of July 7th containing the offer of the society. On July 8th a letter was posted in Birken- Jiead at 3.50 p. m., written by his solicitor accepting on his behalf the offer to sell the property at £750. This letter was not received at the defendants' office untU 8.30 p. M., after office hours, the office being closed at 6 o 'clock. On the same day a letter was addressed to the plaintiff Tjy the secretary of the building society in these terms : " Please take notice that my letter to you of the 7th inst. giving you the option of purchasing the property, Flamank Street, Birken- iead, for £750, in fourteen days, is withdrawn and the offer can- ceUed." This letter was posted in Liverpool between 12 and 1 p. M., and was received in Birkenhead at 5.30 p. m. It wUl thus be seen that it was received before the plain- tiff's letter of acceptance had reached Liverpool, but after it had been posted. One other fact only need be stated. On July 8th the secretary of the building society sold the same premises to Mr. Miller for the sum of £760, but the receipt for the deposit paid in respect of the purchase stated that it was subject to being able to with- draw the letter to Mr. Henthorn giving him fourteen days' option of purchase. If the acceptance by the plaintiff of the defendants' offer is to be treated as complete at the time the letter containing it was posted, I can entertain no doubt that the society's attempted revocation of the offer was wholly ineffectual. I think that a person who has made an offer must be considered as continuously making it until he has brought to the knowledge of the person to whom it was made that it is withdrawn. This seems to me to be in accordance with the reasoning of the Court of King's Bench in the case of Adams v. Lindsell, which 9 130 POKMATION OP CONTEACTS. [ChAP. I. was approved by the Lord Chancellor in Dunlop v. Hig- gins, and alsq with the opinion of Lord Justice Mellish in Harris's Case (Law Eep. 7 Ch. 587). The very point was decided in the case of Byrne v. Van Tienhoven (5 C. P. D. 344) by Lord Justice Lindley, and his decision was subsequently followed by Mr. Justice Lush. The grounds upon which it has been held that the acceptance of an offer is complete when it is posted have, I think, na application to the revocation or modification of an offer. These can be no more effectual than the offer itself, unless brought to the mind of the person to whom the offer is made. But it is contended on behalf of the de- fendants that the acceptance was complete only when received by them and not on the letter being posted. It cannot, of course, be denied, after the decision in Dunlop V. Higgins in the House of Lords, that, where an offer has been made through the medium of the post, the contract is complete as soon as the acceptance of the offer Is posted, but that decision is said to be inap- plicable here, inasmuch as the letter containing the offer was not sent by post to Birkenhead, but handed to the plaintiff in the defendants' office at Liverpool. The question, therefore, arises in what circumstances the ac- ceptance of an offer is to be regarded as complete as soon as it is posted. In the case of the Household Fire and Carriage Accident Insurance Company v. Grant (4 Ex. D. 216), Lord Justice Baggallay said: " I think that the principle established in Dunlop v. Higgins is limited in its application to cases in which by reason of general usage, or of the relations between the parties to any particular trans- actions, 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." And in the same ease Lord Justice Thesiger based his judgment on the defendant having made an application for shares under circumstances ' ' from which it must be Sec. 1.] Henthoen v. Feasee. 131 implied 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 facts of that case were that the defendant had, in Swansea, where he resided, handed a letter of application to an agent of the com- pany, their place of business being situate in London. It was from these circumstances that the Lords Justices implied an authority to the company to accept the de- fendant's offer to take shares through the medium of the post. Applying the law thus laid down by the Court of Appeal, I think in the present case an authority to accept by post must be implied. Although the plaintiff received the offer at the defendant's office in Liverpool, he resided in another town, and it must have been in con- templation that he would take the offer, which by its terms was to remain open for some days, with him to his place of residence, and those who made the offer must have known that it would be according to the ordinary usages of mankind that if he accepted it he should com- municate his acceptance by means of the post. I am not sure that I should myself have regarded the doctrine that an acceptance is complete as soon as the letter con- taining it is posted as resting upon an implied authority by the person making the offer to the person receiving it to accept by those means. It strikes me as somewhat artificial to speak of the person to whom the offer is made as having the implied authority of the other party to send his acceptance by post. He needs no authority to transmit the acceptance through any particular chan- nel ; he may select what means he pleases, the post-office no less than any other. The only effect of the supposed authority is to make the acceptance complete so soon as it is posted, and authority will obviously be implied only when the tribunal considers that it is a case in which this result ought to be reached. I should prefer to state the rule thus: Where the circumstances are such that it 132 Formation of Contkacts. [Chap. L must have been within the contemplation of the parties that, accordiag to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted. It matters not in which way the proposi- tion be stated, the present case is in either view within it. The learned Vice-Chancellor appears to have based his decision to some extent on the fact that before the ac- ceptance was posted the defendants had sold the prop- erty to another person. The case of Dickinson v. Dodds was relied upon in support of that defense. In that case, however, the plaintiff knew of the subsequent sale before he accepted the offer, which, in my judgment, distin- guishes it entirely from the present case. For the rea- sons I have given, I think the judgment must be reversed and the usual decree for specific performance made. The respondents must pay the costs of the appeal and of the action. Maclay v. Haevey. 90 illinois, 525 — 1878. Appeal from the Circuit Court of Warren County; the Hon. Aethtje A. Smith, J., presiding. ScHOLFiELD, J., delivered the opinion of the court. Appellant brought assumpsit against appellee, in the court below, on an alleged contract whereby the latter employed the former to take charge of the millLaery de- partment of his store in Monmouth, in this State, for the season commencing in April and ending in July, in the year 1876, and to pay her therefor $15 per week. The judgment was in favor of appellee, and ap- pellant now assigns numerous errors as grounds for its reversal. In our opinion the case may be properly disposed of by the consideration of a single question. Appellant's right Sec. l.J Maclay v. Habvey. . 133 of recovery is based entirely upon an alleged special con- tract, and unless there was such a contract, the judgment below is right, however erroneous may have been the rulings under which it was obtained. After some preliminary correspondence, which is not before us, appellant, who was then residing in Peoria, re- ceived from appellee the following, by mail : "Monmouth, III., March 9, 1876. "Miss L. Maolat, Peoria, 111.: "I have been trying to find your address for some time, and was informed last evening that you were in Peoria. I write to enquire if you intend to work at millinery this season, and if you have made any arrangements or not. If you have not, can you take charge of my stock this season, and if we can agree I would want you for a permanent trimmer. " Please notify me by return mail, and terms, and we can confer further. Yours in haste, " John Haevet. " Formerly Jno. Harvey & Co., when you trimmed for me." Appellant's reply to this is not before us. She says she stated her terms in it, and thereafter appellee wrote her the following, which she also received by mail: "Monmouth, III., March 21, 1876. " Miss L. Maclat, Peoria, 111. : " Your favor was received in due time, and contents noted. You spoke of wages at $15 per week and fare one way. You will want to go to Chicago, I presume, and trim a week or ten days. " I would like for you to trim at H. W. Wetherell's or at Keith Bros. I will give you $15 per week and pay your fare from Chicago to Monmouth, and pay you the above wages for your actual time here in the house at that rate per season. " I presume that the wholesale men will allow you for your time in the house. You will confer a favor by giving me your answer by return mail. Yours, "John Haevet." 134 . Formation of Contracts. [Chap. I. Appellant says she received this in the afternoon, and replied the next day by_ postal card, addressed to ap- pellee, at Monmouth, as follows : " Peoria, March 23. "Me. Harvey: " Yours was promptly received, and I will go up to Chicago next week, and when my services are required you will let me know. " Very respectfully, " L. Maclay." Appellant did not place this in the post-office herself, but she says she gave it to a boy who did errands about the house of her sister, with whom she was then staying, directing him to place it in the office. The postmark on the card, which is shown to be always placed on mail matter the same day it is put in the office, shows that the card was not mailed until March 25th. Appellee receiving no reply from appellant on Monday morning, March 27th, went to Peoria and endeavored to engage another milliner, and failing in this, endeavored to find appellant, but was unable to do so, and then re- turned to Monmouth, when he received appellant's postal card, which had come to the office there during his absence. On Wednesday night, of the same week, appellee left Monmouth for Chicago, arriving at the last- named place on the following morning, Thursday, March 30th. Finding that appellant was neither at Keith Bros., nor at Wetherell's, he proceeded to employ another milliner, and on the same day, and before leaving Chi- cago, wrote and mailed a letter directed to appellant's address at Peoria, notifying her of that fact ; but this let- ter, in consequence of appellant's absence from Peoria she did not receive for some time afterward. The millinery season commences from April 5th to 10th, and ends from June 20th to July 4th, as shown by the evidence. Appellee had not laid in his spring stock Sec. 1.] Maclay v. Haevey. 135 "when lie was corresponding with appellant, and he started for New York, from Chicago, for that purpose, on the evening of the day on which he addressed the letter to appellant notifying appellant of his employment of another milliner, the evening of March 30th. Appel- lant says she left Peoria for Chicago on Friday, which must have been March 31st. On arriving at Chicago, she went to Wetherell's, and failing to get employment there, did not go to Keith Bros., but went to another house in the same line of business, where she remained some days, and on April 8th she notified appellee, by letter, that she was sufficiently informed as to the " new ideas of trimming " and was ready to enter his service. Appellee replied to this, reciting the disap- pointments he claimed to have met with on ter account, and again notifying her that he did not require her services. If a contract was consummated between the parties, it was by the mailing of appellant's postal card on March 25th. Appellee's letter of the 21st cannot be re- garded as the consummation of a contract, because it restates the terms with some variation, though it may be but slight, and requires an acceptance upon the terms thus stated. This, until unequivocally accepted, was only a mere proposition or offer. Hough v. Brown, 19 N. Y. (5 Smith) 111. It was said by the Lord Chancellor, in Dunlop v. Higgins, first House of Lord's cases, at page 387: " Where an individual makes an offer by post, stipulating for, by the nature of the business having the right to expect, an answer by return of post, the offer can only endure for a limited time, and the making of it is accompanied by an implied stipulation that the answer shall be sent by return of post. If that implied stipulation is not satisfied, the person making the offer is released from it. "When a person seeks to acquire a right, he is bound to act with a degree of strictness, such as may not be required where he is only endeavoring to excuse himself from a liability." 136 Formation of Contbacts. [Chap. L This is regarded as a leading case on the question of acceptance of contract by letter, and the language quoted we regard as a clear and accurate statement of the law, as applicable to the present case. It is clear here, that the nature of the business demanded a prompt answer, and the words " you will confer a favor by giving me your answer by return mail ' ' do, in effect, ' ' stipulate ' ' for an answer by return mail. Taylor v. Eennie et al., 35 Barb. 272. The evidence shows that there were two daily mails between Peoria and Monmouth — one arriving at Mon- mouth at 11 o'clock A. M., and the other at 6 o'clock p. m., and it did not require more than one day's time between the points. Appellee 's letter to appellant making the offer, it will be remembered, bears date March 21st. Assum- ing the date of appellant's postal card (which, she says, was written on the morning after she received appellee 's letter) to be correct, she received appellant's letter on the evening of the 22d. Appellee was, therefore, entitled to expect a reply mailed on the 23d, which he ought to have received on that day, or, at farthest, by the morn- ing of the 24th; but appellant's reply was not mailed until the 25th. It does not relieve appellant of fault that she gave the postal card to a boy on the 23d, to have him mail it. Her duty was not to place an answer in private hands, but in the post-office. The boy was her agent, not that of the appellee, and his negligence in mailing the postal card was her negligence. The question whether it would not have equally well subserved appellee's object had he treated the postal card of appellant as the consummation of a contract, is irrelevant. Appellant seeks to recover upon the strict letter of a special contract, and it is, therefore, incum- bent on her to prove such contract, (it is required of her, as we have seen, to prove an acceptance of appellee's offer within the time to which it was limited) — that is to Sec. 1.] Maclay v. Hakvey. 137 say, by the placing in the post-office of an answer unequivocally accepting the offer in time for the return mail, which she did not do) Appellee was, thereafter, under no obligation to regard the contract as closed. He might, it is true, have done so, but he was not legally bound in that respect, nor was he legally bound to notify appellant that her acceptance had not been signified within the time to which his offer was limited. She is legally chargeable with knowledge that her acceptance was not in time, and in order to fix a liability thereby on appellee, it was incumbent upon her, before assuming that appellee waived this objection, to ascertain that he in fact did so. Appellee was led, by the postal card of appellant, to believe that he would, when he arrived at Chicago on Thursday, find her either at Wetherell's or Keith Bros. Had he done so it was his intention to treat the contract as closed; but she was not there, and this intention was not acted upon, and so it is to be considered as if it had never existed. Appellee, not finding appellant at Weth- erell or Keith Bros., as she had led him to believe he would, had no reason to assume that she was, in good faith, acting upon the assumption that her postal card had closed the contract, and he cannot, therefore, be held estopped from denying that it was not posted in time. In view of the lateness of the season, and the danger to appellee's business from delay, of all which appellant was aware, it cannot be said appellee acted with undue haste in engaging another milliner. The judgment is affirmed. Judgment affirmed. Dickey, J., dissenting: I cannot concur in this decision. I think the special contract was made and assented to by both parties. I concede that the delay of Miss Maclay in mailing her postal card was such that the mere mailing of it on 138 Formation of Contbacts. [Chap. I. Saturday, March 25tli, did not bind Harvey or consum- mate a contract. I agree that on Monday evening (the 27th), when he received that card, he had, at that time, the right, by law, .to reject it, because it came too late, but, in my judgment, he waived that right. In the lan- guage of the governing opinion, appellee was " under no obligation to regard the contract as closed. He might, it is true, have done so " — that is, he might have " treated the postal card as the consummation of a contract. ' ' The point on which I differ from my brethren is this : I think the evidence tends to show that he did, in fact, ivaive the delay; that he did, in fact, treat " the postal card as the consummation of a contract;" that he did " regard the contract as closed." He received on Monday evening her acceptance of his offer, with a statement, dated on the Thursday previous, that she would (in pursuance of the supposed contract) " go up to Chicago next week. " If he intended to avail himself of her delay in sending her answer, and for that cause refuse to treat the contract as closed, it was his duty to notify her at once of his intention to do so. He remained silent three whole days, and permitted her to make her journey to Chicago on the faith of the supposed con- tract. Even had Harvey not intended to treat this as a contract consummated, his neglect to so notify her ought to estop him from saying he did not waive all objection on account of her delay in answering. It is true, one cannot, on his own mere motion, impose upon another, without his consent, the duty of rejecting an offer. In such a case, the failure to reject an offer must not be held to be an acceptance. But in this case, special relations, as negotiators, had been established between these parties, at the instance of Harvey. [The surroundings were such that common honesty demanded of him that he should notify her at once if he intended to object to her acceptance of his offer on the ground Sac. 1.] Maclay v. Habvey. 139 that it came too late. Not only was he silent, but he did, affirmatively, treat the contract as consummated. He started to Chicago on Wednesday evening, two days after he received her postal card, as he testifies, " ex- pecting to find Miss Maclay in Chicago," and intending to confer with her about the business which was the sub- ject of the contract. The expectation that he would meet her in Chicago was founded on the fact that he supposed she regarded the contract complete, and that she would, in pursuance thereof, be in Chicago. A contract consists in the meeting of two minds at the same time on the same terms, and so made manifest to each. The proof tends to show, that on Wednesday, when Harvey started to Chicago, he regarded the con- tract as closed, and that at that time Miss Maclay, also at Peoria, regarded the contract as made and complete; and it also plainly shows, that Miss Maclay understood that Harvey was consenting thereto, and at the same time Harvey well understood that she was consenting thereto. He thought he had hired a trimmer — she thought she had contracted for employment as such. Had Harvey found Miss Maclay at Chicago, and had she there at once refused to perform the contract, and had she thereby compelled him, at increased expense, to hire another trimmer, Harvey could, doubtless, have had an action against her for a breach of the contract. If she were bound, he ought also to be. held bound by this con- tract. It is suggested, that the failure of Miss Maclay to be found in Chicago on Thursday, in some way gave Harvey the right to cease treating this contract as closed. It is true, as a matter of fact, that Harvey expected Miss Maclay would be in Chicago on Thursday, preparing to execute the contract. It was no fault of hers that she was not there on that day. She had written the week previous, saying, ' ' I will go up to Chicago next week. ' ' 140 FOEMATION OP OONTBACTS. [ChAP. I. She kept her promise. She arrived in Chicago on Fri- day, March 31st. She had no intimation that Harvey ex- pected to meet her there, or intended to go there at all. She was under no obligation to be there before Friday, and I cannot perceive how that fact can operate to release Harvey from what I regard as a binding contract. A in St. Lonis wrote to B in Kansas City offering to sell his white horse Dexter for $150. At the same time B in Kansas City wrote to A in St. Louis offering to buy A's white horse Dexter for $150. These letters were mailed at the same hour, crossed in the mail and were both duly received. "Was there a contract? In a certain city there was an outbreak of incendiary fires. The mayor advertised an offer of $1,000 reward for the conviction of any persons engaged in these nefarious practises. This offer was never withdrawn. Similar rewards for the detection of incendiaries had been previously offered, and paid upon the conviction of the offenders. Four years later in the same city there was another large fire of incendiary origin. Certain persons hunted down the guilty party and brought about his conviction. They now claim the above reward. Should they recover in an action against the city therefor? . A, in Colorado Springs, owned five don-keys. On May 1st he mailed a letter to B in New York city offering to sell him a good donkey for $40. This letter was deliv- Sec. 1.] Eliason v. Henshaw. 141 ered to B in New York city at 10 a. m., May 4th. At 10 A. M., May 5th, B telegraphed to A " Offer accepted. I select your donkey with the white star. '>^^ received this telegram at 4 p. m., May 5th. At 3 p. m. May 5th A mailed a letter of revocation to B and at 3.30 p. m. of the same day B mailed a letter to A, saying, " Offer ac- cepted." These letters were received in due course. When and where was the offer made? Did a contract arise? If you think there was a contract, state where and when you think it arose. Eliason v. Henshaw. 4 WHEATON, 225 — 1819. Eeeoe to the Circuit Court for the District of Colum- bia. Washington, J., delivered the opinion of the court. This is an action, brought by the defendant in error, to recover damages for nonperformance of an agree- ment, alleged to have been entered into by the plaintiffs in error, for the purchase of a quantity of flour at a stipulated price. The evidence of this contract, given in the court below, is stated in a bill of exceptions, and is' to the following effect: A letter from the plaintiffs to the defendant, dated the 10th of February, 1813, in which they say: " Captain Conn informs us that you have a quantity of flour to dispose of. We are in the practice of purchasing flour at all times in Georgetown, and will be glad to serve you, either in receiving your flour in store when the markets are dull, and disposing of it when the markets will answer to advantage, or we will purchase at market price when delivered; if you are disposed to engage two or three hundred barrels at present, we will give you $9.50 per barrel, deliver- able the first water in Georgetown, or any service we can. If you 142 Formation of Contracts. [Chap. I. should want an advance, please write us by mail, and will send you part of the money in advance." In a postscript they add: "Please write by return of wagon whether you accept our offer." This letter was sent from the house at which the writer then was, about two miles from Harper's Ferry, to the defendant at his mill, at Mill Creek, distant about twenty miles from Harper's Ferry, by a wagoner then em- ployed by the defendant to haul flour from his mill to Harper's Ferry, and then about to return home with his wagon. He delivered the letter to the defendant on the 14th of the same month, to which an answer, dated the succeeding day, was written by the defendant, ad- dressed to the plaintiffs at Georgetown, and dispatched by a maU which left Mill Creek on the 19th, being the first regular mail from that place to Georgetown, In this letter the writer says : " Your favor of the 10th instant was handed me by Mr. Chenoweth last evening. I take the earliest opportunity to answer it by post. Your proposal to engage 300 barrels of flour, delivered in George- town by the first water, at $9.50 per barrel, I accept, and shall send on the flour by the first boats that pass down from where my flour is stored on the river; as to any advance, will be unnecessary, — pay- ment on delivery is all that is required." On the 25th of the same month, the plaintiffs addressed to the defendant an answer to the above, dated at Georgetown, in which they acknowledge the receipt of it, and add : " Not having heard from you before, had quite given over the expectation of getting your flour, more particularly as we requested an answer by return of wagon the next day, and as we did not get it, had bought all we Wanted." The wagoner, by whom the plaintiff's first letter was sent, informed them when he received it, that he should not probably return to Harper's Ferry, and he did not in fact return in the defendant's employ. The flour was Sec. 1.] Eliasok v. Henshaw. 143 sent down to Georgetown some time in March, and the delivery of it to the plaintiffs was regularly tendered and refused. Upon this evidence, the defendants in the court below, the plaintiffs in error, moved that court to instruct the jury, that, if they believed the said evidence to be true as stated, the plaintiff in this action was not entitled to recover the amount of the price of the 300 barrels of flour, at the rate of $9.50 per barrel. The court being divided in opinion, the instruction prayed for was not given. The question is, whether the court below ought to have given the instruction to the jury, as the same was prayed for. If they ought, the judgment, which was in favor of the plaintiff in that court, must be reversed. •^It is an undeniable principle of the law of contracts, that an offer of a bargain by one person to another imposes no obligation upon the former, until it is accepted by the latter according to the terms in which the offer was made. Any qualification of or departure from those terms invalidates the offer, unless the same be agreed to by the person who made it. Until the terms of the agreement have received the assent of both par- ties, the negotiation is open, and imposes no obligation upon either. In this case, the plaintiffs in error offered to purchase from the defendant two or three hundred barrels of flour, to be delivered at Georgetown by the first water, and to pay for the same $9.50 per barreL To the letter containing this offer they required an answer by the return of the wagon by which the letter was dispatched. This wagon was at that time in the service of the de- fendant, and employed by him in hauling flour from his mill at Harper's Ferry, near to which place the plaintiffs then were. The meaning of the writers was obvious. They could easily calculate, by the usual length of time which was employed by this wagon in traveling from 144 FOKMATION OF CoNTEACTS. [ChAP. I. Harper 's Ferry to Mill Creek, and back again with a load of flour, about what time they should receive the desired answer; and, therefore, it was entirely unimportant whether it was sent by that or another wagon, or ia any other manner, provided it was sent to Harper's Ferry, and was not delayed beyond the time which was ordinarily employed by wagons engaged in hauling flour from the defendant's mill to Harper's Ferry. Whatever uncertainty there might have been as to the time when the answer would be received, there was none as to the place to which it was to be sent; this was distinctly indicated by the mode pointed out for the conveyance of the answer. The place, therefore, to which the answer was to be sent constituted an essential part of the plaintiff's offer. It appears, however, from the bill of exceptions, that no answer to this letter was at any time sent to the plain- tiffs at Harper's Ferry. This offer, it is true, was ac- cepted by the terms of a letter addressed Georgetown, and received by the plaintiffs at that place; but an acceptance communicated at a place different from that pointed out by the plaintiffs, and forming a part of their proposal, imposed no obligation binding upon them, unless they had acquiesced in it, which they declined doing. It is no argument that an answer was received at Georgetown ; the plaintiffs in error had a right to dictate the terms upon which they would purchase the flour; and, unless they were complied with, they were not bound by them. All their arrangements may have been made with a view to the circumstance of place, and they were the only judges of its importance. There was, therefore, no contract concluded between these parties; and the court ought, therefore, to have giv«n the instruction to the jury which was asked for. Judgment reversed. Cause remanded, with directions to award a venire facias de novo. Sec. 1. j Hypothetical Cases. 145 A said to B, I want you to work for me to-morrow and I will pay you $4. B answered, I will work for you to-morrow for $5. A made no reply. B tlien said, I accept your offer and will work for $4. Nothing more was said or done. B left and later refused a $5 job for the next day on account of his conversation with A. The next day at the proper time, B went to A prepared to work. A declined to give him work or pay Tiim anything. B tried to get work elsewhere, but could not and lost the day. B sues A for $4. Is he entitled to recover? A writes to B, " We have on hand a fine lot of good double-ply goods, and offer you ten cases at $10 per case, cash on six months' delivery, April 14th." B replies, ' ' We have your letter and accept your offer, ten cases best double-ply goods at $10 per case. Delivery April 13th, cash on six months." A answers, " We note that you require delivery on April 13th and will deliver 10 cases good double-ply goods as per our prior letter." A tenders goods on April 13th, but B refuses to take them. Action for damages for noncompletion of contract. The complaint stated the following facts: The defendant offered by his agent to sell an estate to the plaintiff for $6,000, which the plaintiff by his agent declined. On June 6th the defendant wrote to his agent as follows: " I notice refusal of your friend to give me $6,000 for my farm. I will make one more offer, which I shall not alter, i. e., $5,000. I expect a reply by return mail, as I have another application." On receipt of this letter plaintiff's agent immediately called on the defendant, and previously to accepting 10 146 FOEMATION OF CoNTBACTS. [ChAP. I. the offer, offered $4,750 for the farm, but the defendant wished a few days to consider. On June 27th the defendant wrote to the plaintitf's agent that he declined the plaintiff's offer of $4,750 for the farm. This letter being received on June 29th, on the same day the plaintiff's agent wrote to the defendant as fol- lows: " Your letter of the 27th inst., mf orming me that you will not accept $4,750 for your farm is received. This being the case I at once agree to the terms on which you offered the farm, viz. : $5,000. Please to instruct your attorney to communicate with me at once." The complaint stated that the defendant " returned a verbal answer to the effect that he would see his attor- ney thereon." Demurrer. Mr. Eutledge held a ten years ' lease of a house in 56th street. Mr. Grant wrote the following letter to Eutledge^ which he sent by mail : " Dear Sir : '' I will give you $5,000 for your lease of house in 56th street. " Possession to be given on or before July 25th next. An answer to be given by you on or before May 1st, 1825." Rutledge wrote the following reply, which he maUed on April 25, 1825, putting it in the P. O. at 1 p. m. : "Dear Sir: " Your offer of $5,000 for lease of my house in 56th street is received. '' I hereby accept the same, possession to be given August 1st." This letter was received by Grant at 3 p. m. of the day it was mailed. At 2 p. M. of the same day Grant met Rutledge and said, " I withdraw my offer for your lease." Rutledge would not hear to this claiming there was a contract. Rutledge sues Grant for the purchase money, tender- Sec. 1.] Hypothetical Cases. 147 rag an assignment of tlie lease and offering to have valuation of fixtures made. (a) Coit at Albany wrote to Grotten in New York city saying : " I will sell you my horse Jenny for $5D0, deliv- ery here." Grotten replied by letter: " I accept your offer, delivery in New York." This answer was duly mailed. Soon after Grotten telegraphed to Coit: " I accept your offer." This telegram was received and read by Coit before the letter arrived. (b) Thompson at New York city wrote to Swett at Buffalo: " I will furnish you with 1,000 tons of coal at $6 per ton." This letter was received by Swett at 10 A. M., October 6th. At 10.30 a. m. of the "6th, Thomp- son duly mailed a letter to Swett, saying : " I revoke my offer. " At 11 A. M. Swett duly mailed a letter to Thomp- son, saying: " I accept your offer." On the 7th Swett received the letter of revocation at 10.30 a. m. and Thompson received the letter of acceptance at 11 a. m. (c) Hatch at Eochester wrote to Williams at Troy: " I will sell you 100 bales of my hay at $12 per bale." This offer he mailed at 9 a. m. on November 10. On the same day and at the same hour Williams mailed a letter to Hatch, saying: " I will buy 100 bales of your hay at $12 per bale." These letters crossed in the mails. At 11 a. m. on the same day Hatch telegraphed to Williams : " I withdraw my offer." This telegram was received and read by Williams before either letter was received. Did a contract arise in either (a), (&) or {c)1 A wrote to B: "I will sell you my horse for $150." On receipt of this letter B telegraphed to A : " Will you take $125 for the horse." A telegraphed back " No." B thereupon replied by letter : ' ' Your letter received. I accept your offer." This return letter was mailed on 148 FoBMATiox OF Contracts. [Chap. I. tlie afternoon of the day the offer was received. A made no reply. Did a contract arise? (a) A in New York wrote to B at Albany offering to sell him a certain carriage for $600. This was received at 8 A. M. At 10 A. M. B mailed a reply saying : " I ac- cept your offer. Delivery, however, must be at Boston, Mass." At 11 A. M. B mailed a second letter saying, " I accept your offer." A died at 11.30 a. m. Was there a contract. (b) Suppose A had lived and received both letters at once, reading letter No. 1 first and then No. 2. Would this affect your conclusions. A, in Rochester, N. T., wrote to B in New York city, offering to sell to him six steam engines at $1,000 each, and giving him one week in which to accept the offer. B received this letter on September 5th. On September 7th, at 10.30 A. M., A died. B. not knowing of the death, at 11 A. M. of the same day deposited a letter of accept- ance in the New York city post-office. Some days later B declined a very advantageous offer of similar engines on account of his correspondence with A. By a sudden demand in the market the price of such engines advanced rapidly, and the executor of A refused to deliver the engines, claiming that there was no contract with B. B then brought suit against A's executor for damages for nondelivery of the engines. A's horse having strayed away he advertised in the daily paper of his town an offer of reward of $50 for its return. Six days later he advertised a revocation of the offer. B read the offer and in consequence thereof made a hunt for the horse. He did not see or know of the revocation. Ten days after the offer was made he found the horse and returned it. A refused to pay the $50 and B brought suit against him. Sec. 1.] Felthouse v. Bindley. 149 Felthouse v. Bindley.^ 11 common bench; n. s., 868 — 1»62. Action for conversion of a horse. Pleas, not guilty and not possessed. The plaintiff was a builder. The defendant was an auctioneer. In December, 1860, John Felthouse, a nephew of the plaintiff, being about to sell his farming stock by auctian, a conversation took place between the uncle and nephew respecting the purchase by the former of a horse of the latter, and on January 1, 1861, John Felthouse wrote to his uncle as follows : "January 1st, 1861. " Dear Sir : I saw my father on Saturday. He told me that you considered that you had bought the horse for £30. If so, you are laboring under a mistake, for 30 guineas was the price I put upon him, and you never heard me say less. . When you said you would have him I considered you were 'aware of the price, as I would not take less. John Felthouse." The plaintiff on the following day replied as follows : " Dear Nephevf : Your price I admit, was 30 guineas. I offered £30, never offered more; and you said the horse was mine. However, as there may be a mistake about him I will split the difference, £30., 15s., I paying all expenses of transportation. You can send him be- tween now and March 25th. If I hear no more about him I consider the horse mine at £30., 15s. Paul Felthouse." To this letter the nephew sent no reply; and on Feb- ruary 25th the sale took place, the horse in ^ question being sold with the rest of the stock for £33, which sum was handed over to John Felthouse. On the following day the defendant (the auctioneer), being apprised of the mistake, wrote to the plaintiff as follows : "February 26th, 1861. " Dear Sir : I am obliged to acknowledge myself forgetful in the matter of one of Mr. John Felthouse's horses. Instructions were given ■ Statement of facts slightly abbreviated. 150 Formation of Contracts. [Chap. I. me to reserve the horse, * * *. I will do all I can to get the horse again, » » *. William: Bindley." On February 27tli John Felthouse wrote to the plain- tiff as follows: "February 27th, 1861. "My Dear Uncle: My sale took place on Monday last, and we were very much annoyed in one instance. When Mr. Bindley came over to take an inventory of the stock, I said that horse (meaning the one I sold to you) is sold. Mr. B. said it would be better to put it in the sale, and he would buy it in without charge. Father stood by while he was running it up, but had no idea but he was doing it for the good of the sale, and according to his previous arrangement, until he heard him. call out Mr. Glover. He then went to Mr. B. and said that horse was not to be sold. He explained he had quite forgotten, but would see Mr. Glover and try to recover it * * *. " John Felthouse." On the part of the defendant it was submitted that the letter of February was not admissible in evidence. The learned judge, however, overruled the objection. It was then submitted that the property in the horse was not vested in the plaintiff at the time of the sale by the defendant. A verdict was found for the plaintiff, damages £33, leave being reserved by the defendant to move to enter a nonsuit, if the court should be of the opinion that the objection was well founded. WiLLES, J. I am of opinion that the rule to enter a nonsuit should be made absolute. The horse in ques- tion had belonged to the plaintiff's nephew, John Felt- house. In December, 1860, a conversation took place between the plaintiff and his nephew relative to the pur- chase of the horse by the former. The uncle seems to have thought that he had on that occasion bought the horse for £30, the nephew that he had sold it for 30 guineas, but there was clearly no complete bargain at that time. On January 1, 1861, the nephew writes : " I saw my father on Saturday. He told me that you considered you had bought the horse for £30. If so, you are laboring under a Sec. l.J Felthousb v. Bindley. 151 mistake, for 30 guineas was the price I put upon him, and you never heard me say less. When you said you would have him, I considered you were aware of the price." To this the uncle replies on the following day: "Your price, I admit, was 30 guineas. I offered £30; never offered more, and you said the horse was mine. However, as there may be a mistake about him, I will split the difference. If I hear no more about him, I consider the horse mine at £30 15s." It is clear that there was no complete bargain on Jan- uary 2d, and it is also clear that the uncle had no right to impose upon the nephew a sale of his horse for £30 15s. unless he chose to comply with the condition of writing to repudiate the offer. The nephew might, no doubt, have bound his uncle to the bargain by writing to him, the uncle might also have retracted his offer at any time before acceptance. It stood an open offer, and so things remained until February 25th, when the nephew was about to sell his farming stock by auction. The horse in question being catalogued with the rest of the stock, the auctioneer (the defendant) was told that it was already sold. It is clear, therefore, that the nephew in his own mind intended his uncle to have the horse at the price which he (the uncle) had named — £30 15s. — but he had not communicated silch his intention to his uncle, or done anything to bind himself. Nothing, therefore, had been done to vest the property in the horse in the plaintiff down to February 25th, when the horse was sold by the defendant. It appears to me that, independently of the subsequent letters, there had been BO bargain to pass the property in the horse to the plain- tiff, and therefore that he had no right to complain of the sale. Then what is the effect of the subsequent corre- spondence? The letter of the auctioneer amounts to nothing. The more important letter is that of the nephew, of February 27th, which is relied on as showing that he intended to accept and did accept the terms 152 FOEMATION OF CONTRACTS. [ChAP. L offered by his uncle 's letter of January 2d. That letter, however, may be treated either as an acceptance then for the first time made by him, or as a memorandum of a bargain complete before February 25th, sufficient within the Statute of Frauds. It seems to me that the former is the more likely construction, and if so, it is clear that the plaintiff cannot recover. But, assuming that there had been a complete parol bargain, before February 25th, and that the letter of the 27th was a mere expression of the terms of that prior bargain, and not a bargain then for the first time concluded, it would be directly contrary to the decision of the Court of Exchequer in Stockdale v. Dunlop, 6 M. & W. 224, to hold that that acceptance had relation back to the previous offer so as to bind third persons in respect of a dealing with the property by them in the interim. In that case Messrs. H. & Co., being the owners of two ships, called the Antelope and the Maria, trading on the coast of Africa, and which were then ex- pected to arrive in Liverpool with cargoes of palm oU, agreed verbally to sell the plaintiffs 200 tons of oil — 100 tons to arrive by the Antelope and 100 tons by the Maria. The Antelope did afterward arrive with 100 tons of oU on board, which were delivered by H. & Co. to the plaintiffs. The Maria, having 50 tons of oU on board, was lost by perils of the sea. The plaintiffs having insured the oil on board the Maria, together with their expected profits thereon, it was held that they had no insurable interest, as the contract they had entered into with H. & Co., being verbal only, was incapable of being enforced. Byles, J. I am of the same opinion, and have noth- ing to add to what has fallen from my brother Willes. Keating, J. I am of the same opinion. Had the ques- tion arisen as between the uncle and the nephew, there would probably have been some difficulty. But as between the uncle and the auctioneer, the only question Sec. 1.] Household Fibe, etc., Ins. Co. v. Gteant. 153 "we liave to consider is, whether the horse was the prop- erty of the plaintiff at the time of the sale on February 25th, It seems to me that nothing had been done at that time to pass the property out of the nephew and vest it in the plaintiff. A proposal had been made, but there had before that day been no acceptance binding the nephew. Rule absolute. Household Fike & Careiage Acc. Ins. Co. v. Geant.^ 4 EXCH. DIV. 216 — 1879. Action to recover £94 15s., being the balance due upon 100 shares alotted to the defendant on the 25th of Octo- ber, 1874, in pursance of an application from the defend- ant 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 1874 one Kendriek 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 Kendriek an application in writing for shares in the plaintiff's com- pany, which stated that the defendant had paid to the bankers of the company £5, being a deposit of Is. per share, and requesting an allotment of 100 shares, and agreeing to pay the further sum of 79s. per share within twelve months of the date of the allotment. Kendriek 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 favor of the defendant, which was posted addressed to the defendant at his residence, 16 Herbert street, Swan- sea, Glamorganshire. His name was then entered on the ^ Concurring opinions of Baggallay, L. J., and Potts, J., omitted. 154 Formation op Conteacts. [Chap. I. register of shareholders. This letter of allotment never reached the defendant. The defendant never paid the £5 mentioned in his application but, the plaintiffs* com- pany being indebted to the defendant in the sum of £5 for commission, that sum was duly credited to his account in their books. In July, 1875, a dividend at the rate of 2^ per cent, was declared on the shares, and in February, 1876, a further dividend at the same rate. These dividends, amounting altogether to the sum of 5s., were also credited to the defendant's account in the books of the plaintiff's company. Afterward the com- pany 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. ques- tion in the affirmative and the last in the negative. The learned judge reserved the case for further considera- tion, and after arguments directed judgment to be en- tered for the plaintiffs on the authority of Dunlop v. Higgins, 1 H. L. Gas. 381. The defendant appealed. Cur. adv. vult. Thesingee, L. J. In this ease 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 allot- ment by post. The company did allot him the shares, and duly addressed to him and posted a letter contain- ing 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., Sec. l.j Household Fike, etc., Ins. Co. v. Grant. 155 has decided that the defendant is liable as a shareholder. He based his decision mainly upon the ground that the point for consideration was covered by author- ity 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 case upon the subject is Dunlop v. Hig- gins, 1 H. L. Cas. 381. 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 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 generally directed the jury in point of law that, if the pursuers posted their acceptance of the offer in due time, according to the usage of trade they were not responsible for any casual- ties in the post-office establishment. This direction was wide enough in its terms to include the case of the accept- ance never being delivered at all; and Lord Cottenham, in expressing his opinion that it was not open to objec- tion, did so after putting the case of a letter containing a notice of dishonor posted by the holder of a bill of exchange in proper time, in which case he said (1 H. L. Cas., at page 399) : " 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, 1 H. L. Cas. 381, is that 156 FOKMATION OF CoNTBACTS. [OhAP. I. taken by James, L. J., in Harris' Case, L. E. 7 Ch. 587. There, at page 592, he speaks of the former case as " a case which is binding upon us, and in which every princi- ple argued before us was discussed at length by the lord chancellor in giving judgment. ' ' He adds, the lord chan- cellor " 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 something binding himself to that offer, then the contract is complete, and neither party can afterwards escape it." Mellish, J., also took the same view. He says, at page 595: " In Dunlop v. Hig- gins, 1 H. L. Cas. 381, the question was directly raised whether the law was truly expounded in the case of Adams v. Lindsell, 1 Barn. & Aid. 681. The house of lords approved of the ruling of that case. The Lord Chancellor Cottenham said, in the course of his judg- ment, that in the case of a bill of exchange notice of dis- honour, given by putting a letter into the post at the right time, had been held quite sufficient whether that let- ter was delivered or not; and he referred to Stocken v. Collin, 7 Mees. & W. 515, 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 dis- honour of a bill of exchange. He then referred to the case of Adams v. Lindsell, 1 Barn. & Aid. 681, and quoted the observation of Lord EUenborough, C. J. That case therefore appears to me to be a direct decision that the 'contract is made from the time when it is accepted by post." Leaving Harris' Case, L. E. 7 Ch. 587, for the moment, I turn to Duncan v. Topham, 8 C. B. 225, in which Cresswell, J., told the jury that if the letter accept- ing the contract 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 understood this ruling Sec. 1.] Household Fire, etc., Ins. Co. v. Grant. 157 to have been in accordance with Lord Cottenham's opin- ion in Dixnlop v. Higgins, 1 H. L. Cas. 381. That opinion therefore appears to me to constitute an authority di- rectly binding upon us. But if Dunlop v. Higgins, 1 H. L. Cas. 381, were out of the way, Harris' Case, L. E. 7 Ch. 587, 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 retraction of the offer being of effect after the acceptance has 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 con- tracts. Unless therefore a contract constituted by cor- respondence is absolutely concluded at the moment that the continuing offer is accepted by the 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 EUenborough in the case of Adams v. Lindsell, 1 Barn. & Aid. 681, which is recognized authority upon this 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 re- ferred, 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 implication communicated to the offerer, is no binding acceptance. How, then, are these elements of law to be harmonized in the case of contracts formed by correspondence through the post? I see no better mode that that of treating the post-office as the agent of both parties, and it was so considered by Lord Eomilly in Hebb's Case, L. R. 4 Eq., at page 12, 158 FOEMATION OF CoNTEACTS. [ChAP. I. when in the course of Ms judgment lie said: " Dunlop V. Higgins, 1 H. L. Cas. 381, 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, 7 Mees & "W., at page 516, — a case of notice of. dishonor, 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 transmis- sion." But if the post-office be such a 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 the hands of a mes- senger sent by the offerer himself as his agent to deliver the offer and receive the acceptance. What other princi- ple can be adopted short of holding that the contract is not complete by acceptance untU and except from the time that the letter containing the acceptance is deliv- ered to the offerer, a principle which has been distinc- tively negatived? This difficulty was attempted to be got over in Telegraph Co. v. 'Colson, L. E. 6 Exch. 108, which was a case directly on all fours with the present, and in which Kelly, C. B., at page 115, 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, arid not from the subsequent 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, 6 Hare, 1. And hence perhaps the mistake has arisen that the contract is binding upon both parties from the time when the letter is written and put into the post, although never delivered; whereas, although it may be binding Sec. 1.] Household Pibe, etc., Ins. Co. v. Grant. 159 from tlie 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, 7 Ch. App. 587, at page 596, 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 con- tract, 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, 7 Ch. App. 587, at page 596, as well as in Dunlop v. Higgins, 1 H. L. Cas. 381, can really not be reconciled with the decision in Telegraph Co. v. Colson, L. R. 6 Exch. 108. James, L.J.-, in the passage I have already quoted, — Harris' Case, L. R. 7 Ch. 592, — afiirms the proposition that when once the acceptance is posted neither party can afterward escape from the contract, and refers with approval to Hebb's Case, L. E. 4 Eq. 9. There a distinction was taken by the master of the rolls that the company chose to send the letter of al- lotment 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 reasons in favor of this view. The mere sug- gestion thrown out at the close of his judgment, at page 597, when stopping short of actually overruling the de- cision in Telegraph Co. v. Colson, L. R. 6 Exch. 108, that although 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 160 FOEMATION OF CoNTEACTS. [ChAP. I. course of post, then the parties may act on the assump- tion that the offer has not been accepted, can hardly when contrasted with the rest of the judgment, be said to represent his own opinion on the law upon the subject. The contract, as he says, at page 596, 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 Eailway Co., 2 App. Cas. &&Q, 691, ' ' 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 nondelivery, unbind the parties or unmake the contract? To me it appears that in practice a con- tract 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 act- ually reaching the offerer ; and I can see no principle of law from which such an anomalous contract can be de- duced. 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 im- possible 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 mis- take 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 hardship. An offerer, if he chooses, may always make the formation of the con- Sec. l.J Hypothetical Cases. 161 tract which he proposes dependent upon 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 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 consideration, considerable delay in commercial transactions, in which despatch is, as a rule, of the great- est consequence, would be occasioned; for the acceptor would never be entirely safe in acting upon his accept- ance until he had received notice that his letter of accept- .ance had reached its desination. Upon balance of conveniences and inconveniences it seems to me, applying with slight alterations the lan- guage of the Supreme Court of the United States in Tayloe v. Insurance Co., 9 How. 390, more consistent with the acts and declarations of the parties in this case lo consider the contract complete and absolutely binding on the transmission of the notice of allotment through the post, as the medium of communication that the parties themselves contemplated, instead of postponing its com- pletion until the notice had been received by the defend- ant. 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. On May 1st, A, at Albany, sent the following letter to B, at New York: " I will sell you 1,000 tons scrap iron ^t $24 per ton, delivery June 3d, in New York." 11 162 FoEMATioN OP Contracts. [Chap I. B received this letter May 2d, and wrote in reply: " I accept your offer of 1,000 tons scrap iron at $24, deliv- ery June 3d, in New York, and will take the same." B mailed this reply properly addressed and postage prepaid at 4 p. m. on May 2d. At 4.30 p. m. on May 2d A sent a telegram to B withdrawing his offer, which B received at 5 p. m. the same day. A received B's letter of acceptance May 3d, at 9 a. m. The price of scrap iron rose. A refused to deliver and B brought suit for breach of contract. A and B were dealers in bullion, A in New York and B in New Orleans. They had agreed to conduct their busi- ness by telegraph. On January 30, 1860, A telegraphed B for his price for Mexican dollars. On the next day B replied, offering to deliver 50,000 at 7i^, and on the same day A telegraphed B as follows : ' ' Your offer 50,000 Mexicans at 7% accepted." On the next day (February 1), A telegraphed B as follows: "Accepted by telegraph yesterday your offer for 50,000 Mexicans." Neither of these telegrams reached B until February 4, at 10 A. M., in consequence of a derangement on the line used by A, but not known to A until February 4. On February 3 B telegraphed to A, " No answer to our dispatch, dollars are sold." A received this dispatch on the same day and at once answered as follows : ' ' Your offer was accepted on re- ceipt ; ' ' and again the next day, ' ' The dollars must come or we will hold you responsible; " and again on Feb- ruary 4, insisting on the dollars being sent. On February 4 B telegraphed A " No dollars to be had." No dollars were sent and this action was brought by A to recover damages for breach of contract in not de- livering them. Sec. 1.] Hypothetical Cases. 163 Judgment for plaintiff reversed at General Term and new trial ordered, and plaintiff appealed to Court of Appeals. A, a deaf man, said to B, " Will you buy my watch for $25? " B replied, " I will." A did not hear him, but asked him to write out the answer. B then wrote ' ' No, I will not. ' ' A, learning from C what B had said at first claimed that there was a contract, tendered the watch and sued B for the price. Jones had a phonograph on his desk, and upon leavmg his office, spoke into it an offer to sell his horse to Brown for $500, and requested Brown to speak his answer into the machine. Brown, coming in soon after, received the offer from the phonograph .and spoke into it an accept- ance of Jones ' offer. Upon leaving the office he changed his mind, and meeting Jones on the street before the lat- ter knew what had taken place, said, " I don't care to buy your horse, and withdraw the acceptance which I spoke into your phonograph." Jones declined to allow the withdrawal, claiming that the acceptance was in his machine and beyond the control of Brown and therefore could not be withdrawn. Jones tendered the horse and sued for the price. Castor, in Boston, Mass., mailed an offer to Bartholf in New York City, offering to sell a certain horse for $500. Bartholf replied at once by letter saying that he accepted the offer and would buy the horse for $500. This reply, with postage prepaid and properly directed, Bartholf mailed in New York. Before Castor received this answer he telegraphed to Bartholf stating that he withdrew his offer. Bartholf received and read this telegram in New York before Castor received the letter of acceptance in Boston. Did a contract arise? 164 FOEMATION OF CONTRACTS. [ChAP. I. Bbatjee V. Shaw. 168 MASSACHUSETTS, 198 — 1897. Two actions by William W. Brauer and others against Frank Shaw and others for breach of contracts. The cases were tried together, and a verdict ordered for defendants. Plaintiffs except. Holmes, J.^ These are two actions of contract on alleged contracts letting all the cattle-carrying space on the Warren Line of steamships for the May sailings from Boston to Liverpool, the first contract at the rate of fifty shillings a head, the second and alternative one at fifty-two shillings and six pence. As we are all of opinion that, for one reason or another, the right to recover upon the first contract is not made ont, it may be stated shortly. On April 15, 1892, after earlier cor- respondence, the defendants wrote, stating terms, saying that they had telegraphed that they " would probably accept 50s., if reply promptly," referring to an answer asking to have the space kept until noon the next day, and to their reply that they would " try to keep space for you," and adding that there were several customers, and that they should feel '' duty bound to let it to the first man making the best bid." The plaintiffs' agents tele- graphed at fifty-three minutes past eight the next morn- ing, making a modified offer. Whether they had received the above letter does not appear. The defendants answered, " Referring our letter yeterday, first offer for number named has preference, three parties considering. Wire quick if you want it." This was received in the New York telegraph oifice at fifteen minutes past ten. At twenty minutes past ten the plaintiffs' agents tele- graphed, " Have closed all your May spaces as per letter, ' ' etc. This is relied on as making the contract. It ^ Citation of authorities omitted. Sec. 1.] Bkaueb v. Shaw. 165 does not appear whether the telegram which arrived only- five minutes before had been received. If not, and, if the last telegram was in answer to the letter only, the plaintiffs would encounter the question whether the letter contained an absolute offer or only invited one, and, if the former, whether the offer had not been rejected by the modified offer in the first telegram mentioned. How- ever this may be, the parties did not stop at the point which we have reached, but went on telegraphing as we shall state; so that, if there was any moment when a contract had been made, the parties assumed the con- trary, and continued their bargaining. Either no con- tract had been made thus far, or it was discharged by the conduct of the parties. It was treated as discharged in a letter of the plaintiffs ' agents written later on the same day. We come, then, to the later telegrams of the same day, which are relied on as making the second contract. At half past eleven the defendants telegraphed, " Subject prompt reply, will let you May space, fifty-two six." This was received in New York at sixteen minutes past twelve, and at twenty-eight minutes past twelve a reply was sent accepting the offer. For some reason this was not received by the defendants until twenty minutes past one. At one the defendants telegraphed, revoking their offer, the message being received in New York at forty- three minutes past one. The plaintiffs held the defend- ants to their bargain, and both parties stand upon their rights. There is no doubt that the reply was handed to the telegraph company promptly, and, at least, it would have been open to a jury to find that the plaintiffs had done all that was necessary on their part to complete the con- tract. If, then, the offer was outstanding when it was accepted, the contract was made. But the offer was out- standing. At the time when the acceptance was received, 166 FoEMATioisr op CoifTBACTs. [Chap. I. even the revocation of the offer had not been received. It seems to us a reasonable requirement that, to disable the plaintiffs from accepting their offer, the defendants should bring home to them actual notice that it had been revoked. By their choice and act, they brought about a relation between themselves and the plaintiffs, which the plaintiffs could turn into a contract by an act on their part, and authorized the plaintiffs to understand and to assume that that relation existed. "When the plaintiffs acted in good faith on the assumption, the defendants could not complaia. Knowingly to lead a person reason- ably to suppose that you offer, and to offer, are the same thing. The offer must be made before the acceptance, and it does not matter whether it is made a longer or a shorter time before, if, by its express or implied terms, it is outstanding at the time of the acceptance. Whether ■much or little time has intervened, it reaches forward to the moment of the acceptance, and speaks then. It would be monstrous to allow an inconsistent act of the offerer, not known or brought to the notice of the offeree, to affect the making of the contract; for instance, a sale by an agent elsewhere one minute after the principal personally has offered goods which are accepted within five minutes by the person to whom he is speaEing. The principle is the same when the time is longer, and the act relied on a step looking to, but not yet giving notice. The contrary suggestion by Wilde, J., in McCuUoch v. Insurance Co. (1 Pick. 278, 279), is not adopted as a ground of decision, and the view which we take is that taken by the Supreme Court of the United States, and is now the settled law of England. It is unnecessary to consider other reasons which were urged for our decision. Exceptions sustained. Sec. 1.] Dickinson v. Dodds. 167 Dickinson v. Dodds.^ l. e. 2 chancery division, 463 — 1876. On Wednesday, June 10, 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 be- longing, situate at Croft, belonging to me, for the sum of £800. As witness my hand this tenth day of Jime, 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 determine 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, June 11th, 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 Thursday the plaintiff was in- formed 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 reached Dodds, she having forgotten to give it to him. On the following (Friday) morning, at about seven * Proceedings before the Vice-Chaneellor omitted. 168 FOBMATION OF CoNTBACTS. [ChAP. L o'clock, Berry, who was acting as agent for Dickinson^ found Dodds at the Darlington railway station, and handed him a duplicate of 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 railway 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, June 11th, Dodds had signed a formal contract for tlie 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 June 10, 1874 ; that he might be restrained from convey- ing the property to Allan ; that Allan might be restrained from taking any such conveyance ; that, if any such con- veyance had been or should be made, Allan might be declared a trustee of the property for, and might be directed to convey the property to, the plaintiff ; and for damages. James, L.J., after referring to the document of June 10, 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., June 12th, 1874." That shows it was only an offer. There was no consider- Sec. l.J Dickinson v. Dodds. 169 ation given for the undertaking or promise, to whatever extent it may be considered binding, to keep the prop- erty 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) was bound by that promise, and could not in any way with- draw from it, or retract it, until 9 o'clock on Friday morning, and this probably explains a good deal of what afterward 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 complete acceptance by Dickinson of the offer, Dodds Tvas 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 retraction. It must, to consti- tute a contract, appear 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 accept- ance comes to nothing. Of course it may well be that the 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 changed; but in this case, beyond all question, the plaintiff knew that Dodds was no longer minded to sell the property to him as plainly and clearly 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, 170 Formation of Contkacts. [Chap. I. thinking that he could not in point of law withdraw his offer, meaning to fix him to it, and endeavoring to bind htm, " 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 exist- ence of the same mind between the two parties which is essential in point of law to the making of an agreement. 1 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 J une 10, 1874, which was signed by Dodds, was an agreement to sell, or only an offer to sell, the property therein mentioned to Dick- inson; and I am clearly of opinion that it was only an offer, although it is the first part of it, independently of the postscript, worded as an agreement. I apprehend that, until acceptance, so that both parties are bound, even though an instrument is so worded as to express that both parties agree, 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 receipts it verbally, that will be sufficient to bind the person who has signed the Sec. l.J Dickinson v. Dodds. 171 written docuinent. 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 dictrine 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 he 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 the 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 morning at 9 o'clock to accept it, still in point of law that could not prevent Allan from making a more favorable offer than Dickinson, and entering at once into a binding agreement with Dodds. Then Dickinson is informed by Berry that the prop- erty 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 the 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 172 FOEMATION OF CoNTKACTS. [ChAP. L after tbat make a binding contract by tbe 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 prop- erty to some one else, and if it be the law that, in order to make a contract, the two minds must be in agreement at some one time — (that is, at the time of the accept- ance) — 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 some one else, and that, in fact, he 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 be simply absurd. If a man makes an offer to sell a particular horse in his stable, and says, ' ' I wUl give you until the day after to-morrow to accept the offer," and the next day goes and sells the horse to some- body 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 nondelivery of the horse? If the rule of law is that a mere offer to sell property, which can be withdrawn at any time, and which is made dependent on the accept- ance of the person to whom it is made, is a mere nudum pactum, how is it possible 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 part-, ing with the property has very much the same effect as the death of the owner, for it makes the performance of Sec. 1.] Heetzog v. Hebtzog. 173 tEe offer impossible. 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 hitn to accept the offer, and on that ground I am clearly of opinion that there was no binding con- tract 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. How- ever, 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.^ Heetzog v. Heetzog. 29 pennsylvania state, 465—1857. This suit was brought by John Hertzog to recover from the estate of his father compensation for services rendered the latter in his lifetime, and for money lent. The jury found a verdict for the plaintiff, and the court entered a judgment thereon. The remaining facts suffi- ciently appear in the opinion. LOWEIE, J. " Express contracts are, where the terms of the agreement are openly uttered and avowed at the time of the making: as, to de- liver an ox or ten loads of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate; and ■which, therefore, the law presumes that every man undertakes to per- form. As, if I employ a person to do any business for me, or perfonn any work, the law implies that I undertook and contracted to pay as much as his labor deserves. If I take up wares of a trades- man without any agreement of price, the law concludes that I eon- tracted to pay their real value." ' The bill was dismissed with costs. Baggalay, J. A., concurred. 174 Formation of Contracts. [Chap. I. This is the language of Blackstone (2 Comm. 44,3), and it is open to some criticism. There is some looseness of thought in supposing that reason and justice ever dic- tate any contracts between parties, or impose such upon them. All true contracts grow out of the intentions of the parties to transactions, and are dictated only by their mutual and accordant wUls. When this intention is expressed, we call the contract an express one. When it is not expressed, it may be inferred, implied, or pre- sumed, from circumstances as really existing, and then the contract, thus ascertained, is called an implied one. The instances given by Blackstone are an illustration of this. But it appears in another place (3 Conam. 159-166) that Blackstone introduces this thought about reason and justice dictating contracts, in order to embrace, under his definition of an implied contract, another large class of relations, which involve no intention to contract at all, though they may be treated as if they did. Thus, whenever, not our variant notions of reason and justice, but the common sense and common justice of the coun- try, and therefore the common law or statute law, impose upon any one a duty, irrespective of contract, and allow it to be enforced by a contract remedy, he calls this a case of implied contract. Thus out of torts grows the duty of compensation, and in many cases the tort may be waived, and the action brought in assumpsit. It it quite apparent, therefore, that radically different relations are classified under the same term, and this must often give rise to indistinctness of thought. And this was not at all necessary; for we have another well- authorized technical term exactly adapted to the office of making the true distinction. The latter class are merely constructive contracts, while the former are truly implied ones. In one case the contract is mere fiction, a form imposed in order to adapt the case to a given Sec. 1.] Heetzog v. Hertzog. 175 remedy ; in the other it is a fact legitimately inferred. In one, the intention is disregarded; in the other, it is ascertained and enforced. In one, the duty defines the contract ; in the other, the contract defines the duty. We have, therefore, in law three classes of relation called contracts. 1. Constructive contracts, which are fictions of law adapted to enforce legal duties by actions of contract, where no proper contract exists, express or implied. 2. Implied contracts, which arise under circumstances which,- according to the ordinary course of dealing and the common understanding of men, show a mutual intention to contract. 3. Express contracts, already sufficiently distin- guished. In the present case there is no pretense of a construc- tive contract, but only of a proper one, either express or implied. And it is scarcely insisted that the law would imply one in such a case as this ; yet we may present the principle of the case the more clearly, by showing why it is not one of implied contract. The law ordinarily presumes or implies a contract whenever this is necessary to account for other relations found to have existed between the parties. Thus if a man is found to have done work for another, and there appears no known relation between them that accounts for such service, the law presumes a contract of hiring. But if .a man 's house takes fire, the law does not presume or imply a contract to pay his neighbors for their services in saving the property. The common principles of human conduct mark self-interest as the motive of action in the one case, and kindness in the other; and therefore, by common custom, compensation is mutually counted on in one case, and in the other not. On the same principle the law presumes that the exclusive possession of land by a stranger to the title 176 Formation of Contracts. [ Chap, I. is adverse, unless there be some family or other relation that may account for it. And such a possession by one tenant in common is not presumed adverse to his co-tenants, because it is, prinia facie, accounted for by the relation. And so of possession of land by a son of the owner. And in Mayow's Case (Latch, 68) where an heir was in a foreign land at the time of a descent cast upon him, and his younger brother entered, he was presumed to have entered for the benefit of the heir. And one who enters as a tenant of the owner is not presumed to hold adversely even after his term has expired. In all such cases, if there is a relation adequate to account for the possession, the law accounts for it by that relation, unless the contrary be proved. A party who relies upon a contract must prove its existence ; and this he does not do by merely proving a set of circumstances that can be accounted for by another relation appearing to exist between the parties. Mr. Justice Eogers is entitled to the gratitude of the public for having, in several cases, demonstrated the force of this principle in interpreting transactions between parents and children : 3 Penn. R. 365 ; 3 Eawle, 249; 5 W. & S. 357, 513; and he has been faithfully fol- lowed in many other cases : 8 "Watts, 366 ; 8 Penn. State E. 213; 9 id. 262; 12 id. 175; 14 id. 201; 19 id. 251, 366; 25 id. 308; 26 id. 372, 383. Every induction, inference, implication, or presump- tion in reasoning of any kind, is a logical conclusion derived from, and demanded by, certain data or ascer- tained circumstances. If such circumstances demand the conclusion of a, contract to account for them, a con- tract is proved; if not, not. If we find, as ascertained circumstances, that a stranger has been in the employ- ment of another, we immediately infer a contract of hiring, because the principles of individuality and self- Sec. l.J Hbetzog v. Heetzog. 177 interest common to human nature and, therefore, the customs of society require this inference. But if we find a son in the employment of his father, "we do not infer a contract of hiring, because the prin- ciple of family affection is sufficient to account for the family association, and does not demand the inference of a contract. And besides this, the position of a son in a family is always esteemed better than that of a hired servant, and it is very rare for sons remaining in their father's family, even after they arrive at age, to become mere hired servants. If they do not go to work or busi- ness on their own account, it is generally because they perceive no sufficient inducement to sever the family bond, and very often because they lack the energy and independence necessary for such a course; and very seldom because their father desires to use them as hired servants. Customarily no charges are made for board- ing and clothing and pocket-money on one side, or for work on the other; but all is placed to the account of filial and parental duty and relationship. Judging from the somewhat discordant testimony in the present case, this son remained in the employment of his father until he was about forty years old; for we take no account of his temporary absence. While living with his father, in 1842, he got married, and brought his wife to live with him in the house of his parents. After- ward his father placed him on another farm of the father, and very soon followed him there, and they all lived together until the father's death in 1849. The farm was the father's, and it was managed by him and in his name, and the son worked on it under him. No accounts were kept between them, and the presumption is that the son and his family obtained their entire living from the father while they were residing with him. Does the law, under the circumstances, presume that the parties mutually intended to be bound, as by con- 12 178 Formation of Conteacts. [Chap. L tract, for tlie service and compensation of tlie son and Ms wife? It is not pretended that it does. But it is insisted that there are other circumstances besides these which, taken together, -are evidence of an express con- tract for compensation in some form, and we are to examine this. In this court it is insisted that the contract was that the farm should be worked for the joint benefit of the father and son, and that the profits were to be divided; but there is not a shadow of evidence of this. And more- over it is quite apparent that it was wages only that was claimed before the jury for the services of tlie son and his wife, and all the evidence and the charge point only in that direction. There was no kind of evidence of the annual products. Have we then any evidence of an express contract of the father to pay his son for his work or that of his wife ? We concede that, in a case of this kind, an express con- tract may be proved by indirect or circumstantial evi- dence. If the parties kept accounts between them, these might show it. Or it might be siifficient to show that' money was periodically paid to the son as wages ; or, if there be no creditors to object, that a settlement for wages was had, and a balance agreed upon. But there is nothing of the sort here. The court told the jury that a contract of hiring might be inferred from the evidence of Stamm and Roderick. Yet these witnesses add nothing to the facts already re- cited, except that the father told them, shortly before his death, that he intended to pay his son for his work. This is no making of a contract or admission of one; but rather the contrary. It admits that the son deserved some reward from his father, but not that he had a contract for any. And when the son asked Roderick to see the father about payirg him for his work, he did not pretend that Sec. 1.] Hektzog v. Heetzog. 179 there was any contract, but only that he had often spoken to his father about getting pay, and had always been put off. All this makes it very apparent that it was a con- tract that was wanted, and not at all that one already existed; and the court was in error in saying it might be inferred, from such talk, that there was a contract of any kind between the parties. The difficulty in trying causes of this kind often arises from juries supposing that, because they have the de- cision of the cause, therefore they may decide according to general principles of honesty and fairness, without reference to the law of the case. But this is a despotic power, and is lodged with no portion of this government. Their verdict may, in fact, declare what is honest between the parties, and yet it may be a mere usurpation of power, and thus be an effort to correct one evil by a greater one. Citizens have a right to form connections on their own terms and to be judged accordingly. When parties claim by contract, the contract proved must be the rule by which their rights are to be decided. To judge them by aiiy other rule is to interfere with the liberty of the citizen. It is claimed that the son lent $500 of his wife's money to his father. The evidence of the fact and of its date is somewhat indistinct. Perhaps it was when the farm was bought. If the money was lent by her or her husband, or both, before the law of 1848 relating to married women, we think he might sue for it without joining his wife. Judgment reversed and a new trial awarded. 180 FOEMATION OF CONTRACTS. [ChAP. I. Section 2. — Consideeatiok. A — Motive as distinguished from consideration. Thomas v. Thomas. 2 queen's bench reports, 851 — 1842. Assumpsit. The declaration stated an agreement between plaintiff and defendant that the defendant should, when thereto required by the plaintiff, by all necessary deeds, conveyances, assignments, or other assurances, grants, etc., or otherwise, assure a certain dwelling-house and premises, in the county of Glamor- gan, unto plaintiff for her life, or so long as she should continue a widow and unmarried, and that plaintiff should, at all times during which she should have pos- session of the said dwelling-house and premises, pay to defendant and one Samuel Thomas (since deceased), their executors, administrators or assigns, the sum of £1 yearly toward the ground rent payable in respect of the said dwelling-house and other premises thereto ad- joining, and keep the said dwelling-house and premises in good and tenantable repair. That the said agreement being made, in consideration thereof, and of plaintiff's promise to perform the agreement, Samuel Thomas and the defendant promised to perform the same; and that, although plaintiff afterward and before the commence- ment of the suit, to wit, etc., required of defendant to grant, etc., by a necessary and sufficient deed, etc., the said dwelling-house, etc., to plaintiff for her life, or whUe she continued a widow, and though she had then con- tinued, etc., and still was a widow and unmarried, and although she did, to wit, on, etc., tender to the defendant for his execution a certain necessary and sufficient deed, etc., proper and sufficient for the conveyance, etc., and although, etc. (general readiness of plaintiff to perform), Hec. 2-A.] Thomas v. Thomas. 181 yet defendant did not nor would then or at any other time convey, etc. Pleas. 1. Non assumpsit. 2. That there was not the consideration alleged in the declaration for the defend- ant's promise. 3. Fraid and covlq. Issues thereon. At the trial, before Ccfltman, J., at the Glamorgan- shire Lent Assizes, 1841, it appeared that John Thomas, the deceased husband of the plaintiff, at the time of his death, in 1837, was possessed of a row of seven dwelling- houses in Merthyr TidvU, in one of which, being the dwelling-house in question, he was himself residing ; and that by his will he appointed his brother Samuel Thomas (since deceased) and the- defendant executors thereof, to take possession of all his houses, etc., subject to cer- tain payments in the will mentioned, among which were certata charges in money for the benefit of the plaintiff. In the evening before the day of his death he expressed orally a wish to make some further provision for his wife; and on the following morning he declared orally in the presence of two witnesses, that it was his will that his wife should have either the house in 'which he lived and all that it contained, or an additional sum of £100 instead thereof. This declaration being shortly afterward brought to the knowledge of Samuel Thomas and the defendant, the executors and residuary legatees, they consented to carry the intentions of the testator so expressed into effect; and, after the lapse of a few days, they and the plaintiff executed the agreement declared upon; which, after stating the parties, and briefly reciting the will, proceeded as follows : "And, whereas the said testator, shortly before his death, declared, in the presence of several witnesses, that he was desirous his said wife should have and enjoy during her life, or so long as she should continue his 182 FOEMATION OF CONTEACTS. [ChAP. I. widow, all and singular the dwelling-house," etc., " or £100 out of his personal estate," in addition to the respective legacies and bequests given her in and by his said will; '* but such declaration and desire was not re- duced to writing in the lifetime of the said John Thomas and read over to him; but the said Samuel Thomas and Benjamin Thomas are fully convinced and satisfied that such was the desire of the said testator, and are willing and desirous that such intention should be carried into full effect. Now these presents witness, and it is hereby agreed and declared by and between the parties, that in consideration of such desire and of the premises," the executors should convey the dwelling-house, etc., to the plaintiff and her assigns during her life, or for so long a time as she should continue a widow and unmarried; " provided, nevertheless, and it is hereby further agreed and declared, that the said Eleanor Thomas, or her assigns, shall and will, at all times during which she shall have possession of the said dwelling-house, etc., pay to the said Samuel Thomas and Benjamin Thomas, their executors, etc., the sum of £1 yearly toward the ground rent payable in respect of the said dwelling-house and other premises thereto adjoining, and shall and will keep the said dwelling-house and premises in good and tenant- able repair;" with other provisions not affecting the questions in this case. The plaintitf was left in possession of the dwelling- house and premises for some time; but the defendant, after the death of his co-executor, refused to execute a conveyance tendered to him for execution pursuant to the agreement, and, shortly before the trial, brought an ejectment, under which he turned the plaintiff out of possession. It was objected for the defendant that, a part of the consideration proved being omitted in the declaration, there was a fatal variance. The learned judge overruled the objection, reserving leave to move Sec. 2-A.] Thomas v. Thomas. 183 to enter a nonsuit. Ultimately a verdict was found for the plaintiff on all the issues ; and, in Easter Term last, a rule nisi was obtained pursuant to the leave reserved. LoBD Denman, C.J. There is nothing in this case but a great deal of ingenuity, and a little willful blindness to the actual terms of the instrument itself. There is noth- ing whatever to show that the ground rent was payable to a superior landlord; and the stipulation for the pay- ment of it is not a mere proviso, but an express agree- ment. (His Lordship here read the proviso.) This is in terms an express agreement, and shows a sufficient legal consideration quite independent of the moral feel- ing which disposed the executors to enter into such a contract. Mr. Williams' definition of consideration is too large; the word causa in the passage referred to means one which confers what the law considers a bene- fit on the party. Then the obligation to repair is one which might impose charges heavier than the value of the. life estate. Patteson, J. It would be giving to causa too large a construction if we were to adopt a view urged for the defendant; it would be confounding consideration with motive. Motive is not the same thing with considera- tion. Consideration means something which is of some value in the eye of the law, moving from the plaintiff; it may be some benefit to the plaintiff, or some detriment to the defendant; but at all events it must be moving from the plaintiff. Now that which is suggested as the consideration here, a pious respect for the wishes of the testator, does not in any way move from the plaintiff; it moves from the testator; therefore, legally speaking, it forms no part of the consideration. Then it is said that, if that be so, there is no consideration at all, it is a mere voluntary gift ; but when we look at the agreement we find that this is not a mere proviso that the donee shall take the gift with the burdens ; but it is an express 184 FOKMATION OF CoNTKACTS. [ChAP. I. agreement to pay what seems to be a fresh apportion- ment of a ground rent, and. which is made payable not to a superior landlord, but to the executors. So that this rent is clearly not something incident to the assignment of the house, for in that case, instead of being payable to the executors, it would have been payable to the land- lord. Then as to the repairs, these houses may very possibly be held under a lease containing convenient covenants to repair; but we know nothing about it, for anything that appears the the liability to repair is first created by this instrument. The proviso certainly struck me at first as Mr. Williams put it, that the rent and repairs were merely attached to the gift by the donors ; and, had the instrument been executed by the donors only, there might have been some ground for that con- struction; but the fact is not so. Then it is suggested that this would be held to be a mere voluntary convey- ance as against a subsequent purchaser for value; pos- sibly that might be so, but suppose it would, the plain- tiff contracts to take it, and does take it, whatever it is, for better for worse, perhaps a bona fide purchase for a valuable consideration might override it, but that cannot be helped. CoLEEiDGE, J. The concessions made in the course of the argument have, in fact, disposed of the case. It is conceded that mere motive need not be stated, and we are not obliged to look for the legal consideration in any particular part of the instrument, merely because the consideration is usually stated in some particular part; ut res magis valeat, we may look to any part. In this instrument, in the part where it is usual to state the con- sideration, nothing certainly is expressed but a wish to fulfill the intentions of the testator, but in another part we find an express agreement to pay an annual sum for a particular purpose, and also a distinct agreement to repair. If these had occurred in the first part of the Sec. 2-B.] Hypothetical Case. 185 instrument, it could hardly have been argued that the declaration was not well drawn and supported by the evidence. As to the suggestion of this being a voluntary conveyance, my impression is that this payment of £1 annually is more than a good consideration, it is a val- uable consideration, it is clearly a good thing newly created and not part of the old ground rent. Rule discharged. ' B — What constitutes a consider,ation. A wrote out and delivered to B the following promise : " I hereby promise and agree to deliver to B on June 7, next two caldrons and three clocks, as witness my hand this 4th day of April, 1890. "Witnessed by us: J. K. (Signed) A." A failed to deliver. B brought his action for breach of agreement, setting forth the above instrument. A defended on the ground that there was no consideration for his agreement, and moved for a nonsuit. The court overruled this motion and said, " I take it that the an- cient notion about the want of consideration was for the sake of evidence only, for when it is reduced into writing as in covenants, specialties, bonds, etc., there was no ob- jection to the want of consideration, and the Statute of Frauds proceeded upon the same principle. In commer- cial cases, amongst merchants, the want of consideration is not an objection." — Verdict for plaintiff — judgment thereon. On appeal this judgment was reversed and the court said : ' ' But it is said that if this promise is in writing that takes away the necessity of consideration and ob- viates the objection of nudum pactum, for that cannot be where the promise is put in writing; and that after verdict, if it were necessary to support the promise that it should be in writing, it will after verdict be presumed that it was in writing, and this last is certainly true; X86 FOBMATION OF CONTEACTS. [ ChAP. I. but that there cannot be nudum pactum in writing, what- ever may be the rule of the civil law, there is certainly none such in the law of England. His lordship observed upon the doctrine of nudum pactum delivered by Wilmot, J., in the case of PUlans v. Van Mierop and Hopkins, 3 Burr. 1663, that he contradicted himself, and was also contradicted by Vinnius in his Comment on Justinian. "All contracts are by the laws of England distin- guished into agreements by specialty and agreements by parol, nor is there any such third class as some of the counsel have 'endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol and a consideration must be proved. But it is said that the Statute of Frauds has taken away the necessity of any consideration in this case. The Statute of Frauds was made for the relief of personal representa- tives and others, and did not intend to charge them further than by common law they were chargeable. ' ' The above case is made up from three cases, viz. : Williamson v. •Losh, reported in Chitty on Bills, 9th Ed., p. 75, note X. Pillans v. Van Mierop, 3 Burrow, 1663. Rann v. Hughes, 7 Term Reports, 350, note A. Bainbridge v. Fiemstoke. 8 adolphus & ellis, 743 — 1838. Assumpsit. The declaration stated that, whereas here- tofore, to wit, etc., in consideration that plaintiff, at the request of defendant, had then consented to allow de- fendant to weigh divers, to wit, two, boilers, of the plaintiff, of great value, etc., defendant promised that he would, within a reasonable time after the said weighing was effected, leave and give up the boilers in as perfect and complete condition and as fit for use by plaintiff as the same were in at the time of the consent so given by plaintiff; and that, although in pursuance of the consent Sec. 2-B.] Bainbridge v. Fiemstojste. 187 so given, defendant, to wit, on, etc., did weigh the same boilers, yet defendant did not nor would, within a reason- able time after the said weighing was effected, leave and give up the boilers in as perfect, etc., but wholly neg- lected and refused so to do, although a reasonable time for that purpose had elapsed before the commencement of this suit; and, on the contrary thereof, defendant afterward, to wit, on, etc., took the said boilers to pieces, and did not put the same together again, but left the same in a detached and divided condition, and in many different pieces, whereby plaintiff hath been put to great trouble, etc. Plea, non assumpsit. On the trial before Lord Denman, C.J., at the London sittings after last Trinity Term a verdict was found for the plaintiff. John Bayley now moved in arrest of judgment. The declaration shows no consideration. There should have been either detriment to the plaintiff or benefit to the de- fendant. (1 Selwyn's N. P. 45, 9th Ed.) It does not appear that the defendant was to receive any .remunera- tion. Besides the word " weigh " is ambiguous. LoED Denman, C.J. It seems to me that the declara- tion is well enough. The defendant had some reason for wishing to weigh the boilers, and he could do so only by obtaining permission from the plaintiff, which he did obtain by promising to return them in good condition. We need not inquire what benefit he expected to derive. The plaintiff might have given or refused leave. Patteson, J. The consideration is, that the plaintiff, at the defendant's request, had consented to allow the defendant to weigh the boilers, I suppose the defendant thought he had some benefit ; at any rate, there is a detri- ment to the plaintiff from his parting with the possession for even so short a time. "Williams and Coleeidgb, JJ., concurred. Rule refused. 188 Formation of Contracts. [Chap, I. Boston & M. E. E. v. Bartlett. 3 CUSH. 224 — 1849. This was a bill in equity for the specific performance of a contract in writing. The plaintiffs alleged, that the defendants, on the 1st of April, 1844, being the owners of certain land situated in Boston, and particularly described in the bill, " in consideration that said corporation would take into con- sideration the expediency of buying said land for their use as a corporation, signed a certain writing, dated April 1st, 1844," whereby they agreed to convey to the plaintiffs " the said lot of land, for the sum of $20,000, if the said corporation would take the same within thirty days from that date; " that afterward and within the thirty days, the defendants, at the request of the plain- tiffs, " and in consideration that the said corporation agreed to keep in consideration the expediency of taking said land," etc., extended the said term of thirty days, by a writing underneath the written contract above men- tioned, for thirty days from the expiration thereof; that, on the 29th of May, 1844, while the extended contract was in full force, and unrescinded, the plaintiffs elected to take the land on the terms specified in the contract, and notified the defendants of their election, and offered to pay them the agreed price (producing the same in money) for a conveyance of the land, and requested the defendants to execute a conveyance thereof, which the plaintiffs tendered to them for that purpose; and that the defendants refused to execute such conveyance, or to perform the contract, and had ever since neglected and refused to perform the same. The defendants demurred generally. Fletcher, J. In support of the demurrer, in this case, the only ground assumed and insisted on by the defend- ants is, that the agreement on their part was without consideration, and therefore not obligatory. In the view Sec. 2-B.] Boston & M. R. R. Co. v. Baktlett. 189 taken of the case by the court, no importance is attached to the consideration set out in the bill, namely, " that the plaintiffs would take into consideration the expe- diency of buying the land." The argument for the de- fendants, that their agreement was not binding because without consideration, erroneously assumes that the writing executed by the defendants is to be considered as constituting a contract at the time it was made. The decision of the court in Maine in the case of Bean v. Burbank, 16 Me. 458, which was referred to for the de- fendants, seems to rest on the ground assumed by them in this case. In the present case, though the writing signed by the defendants was but an offer, and an offer which might be revoked, yet while it remained in force and unrevoked, it was a continuing offer during the time limited for ac- ceptance; and, during the whole of that time, it was an offer every instant, but as soon as it was accepted, it ceased to be an offer merely, and then ripened into a con- tract. The counsel for the defendants is most surely in the right, in sayiiig that the writing when made was with- out consideration, and did not therefore form a contract. It was then but an offer to contract ; and the parties mak- ing the offer most undoubtedly might have withdrawn it at any time before acceptance. But when the offer was accepted, the minds of the parties met, and the contract was complete. There was then the meeting of the minds of the parties, which con- stitutes and is the definition of a contract. The accept- ance by the plaintiffs constituted a sufficient legal con- sideration for the engagement on the part of the defend- ants. There was then nothing wanting, in order to per- fect a valid contract on the part of the defendants. It was precisely as if the parties had met at the time of the acceptance, and the offer had then been made and ac- cepted and the bargain completed at once. 190 Formation of Contracts. [Chap. I. A different doctrine, however, prevails in France, and Scotland, and Holland. It is there held, that whenever an offer is made, granting to a party a certain time within which he is to be entitled to decide, whether he will accept it or not, the party making snch offer is not at liberty to withdraw it before the lapse of the appointed time. There are certainly very strong reasons in support of this doctrine. Highly respectable authors regard it as inconsistent with the plain principles of equity, that a person, who has been induced to rely on such an engage- ment, should have no remedy in case of disappointment. But, whether wisely and equitably or not, the common law unyieldingly insists upon a consideration, or a paper with a seal attached. The authorities, both English and American, in sup- port of this view of the subject, are very numerous and decisive ; but it is not deemed to be needful or expedient to refer particularly to them, as they are collected and commented on in several reports as well as in the text books. The case of Cooke v. Oxley, 3 Term R. 653, in which a different doctrine was held, has occasioned con- siderable discussion, and, in one or two instances, has probably influenced the decision. That case has been supposed to be inaccurately reported; and that in fact there was in that case no acceptance. But, however that may be, if the case has not been directly overruled, it has certainly in later cases been entirely disregarded, and cannot now be considered as of any authority. As, therefore, in the present case, the bill sets out a proposal in writing, and an acceptance and an offer to perform, on the part of the plaintiffs, within the time limited, and while the offer was in full force, all which is admitted by the demurrer, so that a valid contract in writing is shown to exist, the demurrer must be over- ruled. Sec. 2-B.] Schnell v. Nell. 191 Haeeison v. Cage.^ 5 MODERN, 511 — 1698. This is an action on the case, wherein the plaintiff de- clares that, in consideration the plaintiff would marry the defendant, the defendant promised to marry him, and that he had offered himself to her, but that she refused him, and had married the other defendant. Holt, C.J. Why should not a woman be bound by her promise as well as a man is bound by his? Either all is a nudum pactum or else the one promise is as good as another. You agree a woman shall have an action; nOw what is the consideration of a man's promise? Why it is the woman's. Then why should not his promise be a good consideration for her 's? There is the same parity of reason in the one case as there is in the other, and the consideration is mutual. Judgment for the plaintiff. Action on an agreement of marriage. Plea that the plaintiff, at the time of the agreement, was an infant of fifteen years : — Demurrer. ScHNELL V. Nell. 17 INDIANA, 29 — 1861. Appeal from Marion Common Pleas. Perkins, J. Action by J. B. Nell against Zacharias Schnell upon the following instrument: " This agreement entered into this l'3th day of February, 1856, between Zach. Schnell, of Indianapolis, Marion County, State of In- diana, as party of the first part, and J. B. Nell, of the same place, ^ Portions of the remarks of Holt and those of Turton and Rokeby omitted. 192 FOEMATIOK OP CONTEACTS. [ChAP. I. Wendelin Lorenz, of Stilesville, Hendricks County, State of Indiana, and Donata Lorenz, of Frickenger, Grand Duchy of Baden, Germany, as parties of the second part, witnesseth: The said Zacharias Schnell agrees as follows: Whereas his wife, Theresa Schnell, now deceased, has made a last will and testament, in which, among other provisions, it was ordained that every one of the above named second parties should receive the sum of $200; and whereas the said provisions of the will must remain a nullity, for the reason that no property, real or personal, was in the possession of the said Theresa Schnell, de>- eeased, in her own name, at the time of her death, and all property held by Zacharias and Theresa Schnell jointly therefore reverts to her husband; and whereas the said Theresa Schnell has also been a dutiful and loving wife to the said Zach. Schnell, and has materially aided him in the acquisition of all property, real and personal, now possessed by him; for and in consideration of all this, and the love and respect he bears to his wife; and, furthermore, in consideration of one cent, received by him of the second parties, he, the said Zach. Sclmell, agrees to pay the above-named sums of money to the parties of the second part, to-wit: $200 to the said J. B. Nell, $200 to the said Wendelin Lorenz, and $200 to the said Donato Lorenz, in the following installments, viz. : $200 in one year from the date of these presents; $200 in two years, and $200 in three years; to be divided between the parties in equal portions of $66% each year, or as they may agree, till each one has received his full sum of $200. "And the said parties of the second part, for, and in consideration of this, agree to pay the above-named sum of money (one cent), and to deliver up to said Schnell, and abstain from collecting any real or supposed claims upon him or his estate, arising from the said last will and testament of the said Theresa Schnell, deceased. " In witness whereof, the said parties have, on the 13th day of February, 1856, set hereunto their hands and seals. " Zachaeias Schnell, [seal] "J. B. Nell, [seal] " Wen. Lorenz. [seal] " The complaint contained no averment of a considera- tion for tlie instrument outside of those expressed in it; and did not aver that the one cent agreed to Be paid had been paid or tendered. A demurrer to the complaint was overruled. The defendant answered, that the instrument sued on was given for no consideration whatever. Sec. 2-B.] Schnell v. Nell. 193 He further answered, that it was given for no consid- eration, because his said wife, Theresa, at the time she made the will mentioned, and at the time of her death, owned neither separately, nor jointly with her husband or anyone else (except so far as the law gave her an in- terest in her husband's property), any property, real or personal, etc. The will is copied into the record but need not be into this opinion. The court sustained a demurrer to these answers, evidently on the ground that they were regarded as con- tradicting the instrument sued on, which particularly set out the considerations upon which it was executed. But the instrument is latently ambiguous on this .point. See Ind. Dig., p. 110. The case turned below, and must turn here, upon the question whether the instrument sued on does express a consideration sufficient to give it legal obligation, as against Zacharias Schnell. It specifies three distinct considerations for his promise to pay $600 : 1. A promise on the part of the plaintiffs to pay him one cent. 2. The love and affection he bore his deceased wife, and the fact that she had done her part, as his wife, in the acquisition of property. 3. The fact that she had expressed her desire, in the form of an inoperative will, that the persons named therein should have the sums of money specified. The. consideration of one cent will not support the promise of Schnell. It is true that as a general proposition, inadequacy of consideration will not vitiate an agreement. Baker v. Eoberts, 14 Ind. 552. But this doctrine does not apply to a mere exchange of sums of money, of coin whose value is exactly fixed, but to the exchange of something of, in itself, indeterminate value for money or, perhaps, for 13 194 FOBMATION OF CONTRACTS. [ChAP. I. some other thing of indeterminate value. In this case, had the one cent mentioned been some particular one cent, a family piece, or ancient, remarkable coin, pos- sessing an indeterminate value, extrinsic from its simple money value, a different view might be taken. As it is, the mere promise to pay $600 for one cent, even had the portion of that cent due from -the plaintiff been tendered, is an unconscionable contract, void, at first blush, upon its face, if it be regarded as an earnest one. Hardesty v. Smith, 3 Ind. 39. The consideration of one cent is plainly in this case merely nominal, and intended to be so. As the will- and testament of Schnell 's wife imposed no legal obligation upon him to discharge her bequests out of his property, and as she had none of her own, his promise to discharge them was not legally binding upon him on that ground. A moral consideration only will not support a promise. Ind. Dig. p. 13. And for the same reason, a valid consideration for his promise cannot be found in the fact of a compromise of a disputed claim ; for where such claim is legally groundless, a promise upon a com- promise of it, or a suit upon it is not legally binding. Spahr V. HoUingshead, 8 Blackf. 415. There was no mistake of law or fact in this case, as the agreement admits the will inoperative and void. The promise was simply one to make a gift. The past services of his wife, and the love and affection he had borne her, are objec- tionable as legal considerations for Schnell 's promise on two grounds: 1. They are past considerations. Ind. Dig., p. 13. 2. The fact that Schnell loved his wife, and that she had been industrious, constituted no considera- tion for his promise to pay J. B. Nell and the Lorenzes a sum of money. Whether, if his wife, in her lifetime, had made a bargain with Schnell that, in consideration of his promising to pay, after her death, to the persons named, a sum of money, she would be industrious and worthy of Sec. 2-B.] Hypothetical Case. 195 Ms affection, sucla a promise would have been valid and consistent with, puhlic policy, we need not decide. Nor is the fact that Schnell now venerates the memory of his deceased wife, a legal consideration for a promise to pay any third person money. The instrument sued on, interpreted in the light of the facts alleged in the second paragraph of the answer, will not support an action. The demurrer to the answer should have been overruled. See Stevenson v. Donley, 4 Ind. 519. Peb Cueiam. The judgment is reversed, with costs. Cause remanded, etc. A and B entered into a contract in writing for the sale of A's house in New York city to B. B's lawyer exam- ined the title to the property, and objected thereto on the ground that one C, who owned the property many years before, conveyed without having his wife join in the deed to bar her dower right. C died years before, but A hunted up Mrs. C and requested her to execute a release of dower on the property which he had prepared and then presented to her. This she refused to do. A then promised to pay her $2,000 in consideration of her exe- cuting the said release of dower, and upon that promise she did so. It subsequently turned out that Mrs. C had no dower right in the premises, because C was unmarried when he conveyed the premises and did not marry until later. A declined to pay the $2,000 because Mrs. C had no dower right to release. Mrs. C brought suit, and A's defense was that there was no consideration for the promise. 196 Formation of Contracts. [Chap. I. Teaver v. . 1 SIDERFIN, 57 — 1661. A woman, after the death of her husband, said to one of his creditors that, if he would prove that her hus- band owed him £20, she would pay it; and upon this assumpsit the creditor brought an action on the case against the woman, without any proof made before the action was brought; but in this action it was found by verdict that her husband owed him that amount. And it was moved in arrest of judgment that this action was not well brought, for he ought to hav6 proved the debt to entitle himself to the action, and ought to have proved it before action brought. But upon several debates the court held clearly that the action was well brought, and that the plaintiff should have judgment. And it is not requisite to make any proof of it before action brought, but it can more prop- erly and more naturally be tried in this action. And Twysden, J., cited a case, 15 Jac, between Grinden and , which was: ^' In consideration you'll prove I have beaten your son, I'll pay you so much " (nam- ing the sum), and adjudged that he can bring an action before any proof made, in which, if he proves it, be shall recover; and it was said the law is the same in the case of a wager. Also it was not denied by anyone but that this is a good consideration to support an action against the woman, though she was not an administratrix, sed qua stranger; for it was a trouble and charge to the plaintiff to make the proof, though it is not any benefit to the woman. NOTA.— (Anon., Palmer, 160.) A, upon receipt of Is. from B, assumed and promised that, if B could prove that A had beaten him in the chancel of such a church, he would pay him £20. B brought assumpsit upon this promise. A pleaded non assumpsit, and the issue was found for the plaintiff. And it was moved in arrest of judgment that he brought the action before any duty accrued to him; for there was no duty before he had proved a battery in the chancel; and if Sec. 2-B.] Brooks v. Ball. 197 that be found, then an action accrues to him. But Dodderidge and Chamberlaine (dbsentibiis the other justices) held clearly that the action lies before, and this trial and proof of the battery shall be by the same jury which tries the assumpsit. Otherwise if he had said "After that you have proved that I struck you, &c., then I do assume to pay you £20." And it was said that it was so in 18 E. 4, and that it was so adjudged in this court; and the clerk of the court so affirmed that it was ruled in this court. Brooks v. Ball. 18 JOHNSON, 337 — 1820. In error, to the Court of Common Pleas of Orange county. Ball brought an action of assumpsit against Brooks, in the court below. The declaration contained a special count, stating that the plaintiff claimed of the defendant the sum of $100, which the defendant denied that he owed to the plaintiff, but promised that if the plaintiff would make oath to the correctness of his claim, he, the defendant, would pay the amount thereof; and averred that the plaintiff did make oath to the truth and correctness of his claim, but that the defendant, notwith- standing his promise, refused to pay the $100, etc. The declaration also contained the common money counts. The defendant pleaded the general issue. After the plaintiff's co-unsel had stated his case, the de- fendant's counsel insisted that admitting the facts stated to be proved, they were not sufficient to support the action, because the promise of the defendant was without con- sideration and void, and the plaintiff could not lawfully support his claim on his own affidavit. He therefore, moved that the plaintiff should be nonsuited, but the ob- jection was overruled by the court. The plaintiff then went into the evidence in support of his case. It was proved that the defendant made the promise alleged ; that the plaintiff had made the affidavit and demanded pay- ment of the $100; and that the defendant had admitted 198 FOEMATION OF CoNTEACTS. ' [ChAP. I. his liability to pay the money, and intended to pay, but was advised to the contrary. The defendant's counsel then offered to prove that the plaintiff, in his afi&davit, had sworn falsely, or was grossly mistaken. This evidence was objected to and overruled by the court. And the counsel for the defend- ant tendered a bUl of exceptions. The jury, under the direction of the court, found a verdict for the plaintiff for $110.50. Spenceb, C.J., delivered the opinion of the court. The principal question presented by this case is, whether a promise to pay a sum claimed to be due by one party and denied by the other, if the party claiming would swear to the correctness of the claim, and he does so swear, is a valid promise. Another question was made on the trial, whether it was competent to the defendant below to prove that the plaintiff below either swore falsely or was grossly mistaken in the affidavit which he made. It has been frequently decided that a promise to pay money, in consideration that the plaintiff would take an oath that it was due, was a valid and binding promise. 'Thus in Bretton v. Prettitnan (T. Ravm. 153) the plain- tiff declared that the defendant promised, in considera- tion that the plaintiff would take an oath that money was due to him, he would pay him, and the plaintiff averred that he swore before a master in chancery. On demurrer it was adjudged for the plaintiff, and, as the reporter states, because it was not such an oath for which he may be indicted. In Anin & Andrews (1 Mod. 166) there was a promise to pay, if the plaintiff would bring two wit- nesses before a justice of the peace, who should depose that the defendant's father was indebted to the plaintiff; and two judges against one thought it not a profane oath, because it tended to the determining a controversy, and the plaintiff had ju.dgment. This case occurred before the Statute of Frauds ; the promise would now be holden Sec. 2-B.] Beooks v. Ball. 199 io be void unless in writing, it being to pay the debt of a third person. The case of Bretton v. Prettiman is differ ently stated in 1 Sid. 283 and 2 Keb. 26, 44. It is there stated to be a promise to pay, if the plaintiff would pro- <;ure a third person to make oath that the money was due. But this makes no difference in principle, for in either case the oath was extra-judicial. In Stevens and Others v. Thacker (Peake's N. P. Eep. 187) the defendant was sued as the acceptor of a bill, and alleged it to be a forgery, and offered to make affidavit "that he never had accepted it. The plaintiff agreed not to sue the defendant if he, would make the affidavit. The affidavit was drawn, but not sworn to. Lord Kenyon said that had the defendant sworn to the affidavit, he should have held that he had discharged himself, though the affidavit had been false; for the plaintiffs who had agreed to accept that affidavit, as evidence of the fact, should not, after having induced the defendant to com- mit the crime of perjury maintain an action on the bill. In Lloyd v. Willan (1 Esp. Eep. 178) the defendant's at- torney proposed to the plaintiff's attorney that the de- fendant should pay the demand, if the plaintiff's porter vpould make an affidavit that he had delivered the goods in question to the defendant. The affidavit was made, and Lord Kenyon held it to be conclusive, and that the defendant was precluded from going into any defense in the case. These cases, which stand uncontradicted, abundantly show that such a promise as the present is good in point ■of law, and that the making the proof or affidavit, whether by a third person or by the party himself, is a sufficient consideration for the promise. It is not mak- ing a man a judge in his own cause, but it is referring a disputed fact to the conscience of the party. It is beg- ging the question to suppose that it will lead to perjury. If the promise is binding, because the making the proof 200 FOBMATION OP CONTEACTS. [ChAP. I. or affidavit is a consideration for it, the defendant must necessarily be precluded from gainsayiug the fact. He voluntarily waives all other proof; and to allow him to draw in question the verity or correctness of the proof or affidavit would be allowing him to alter the conditions of his engagement and virtually to rescind his promise. Judgment affirmed. B had a certain letter which A desired, and promised B that he would pay him $1,000 in consideration of his giving him the letter. B thereupon gave A the letter. A expected to use the letter as evidence upon a certain trial, but it proved to be useless for that purpose, and was of no value to A. The letter had no pecuniary value. A refused to pay the $1,000, and B brought his action upon the promise. Defense, that there was no considera- tion for the promise. SeWAED v. MiTCHEL . 1 COLDWELL, 87 — 1860. Defendant appealed from judgment for plaintiff. Caeuthees, J. On the 16th October, 1856, Mitchell sold to Seward & Scales, for the consideration of $8,- 596.50, a tract of land in the county of Gibson, described in a deed of that date, by metes and bounds, " containing 521 acres, being a part of a 5000-acre tract granted to George Dougherty, and bounded as follows," etc. The title is warranted with the usual covenants, but nothing more said about the grants than what is above recited. Some time after the deed was made, the parties, differ- ing as to the quantity of land embraced in the tract, made an agreement, that it should be surveyed by Gillespie, and if there were more than five hundred and twenty-one Sec. 2-B.] Sewaed v. Mitchbl. 201 acres, the vendee should pay for the excess at the rate of $16.50 per acre, that being the price at which the sale was made, and if less, then the vendor should pay for the deficiency, at the same rate. It turned out that there was an excess of fifty-seven acres, and the tract embraced in the deed was five hundred and seventy-eight acres, in- stead of five hundred and twenty-one, as estimated in the sale. For this excess, the present suit was brought, and recovery had, for $1,079. It is objected here, that the court below erred in refus- ing to charge, as requested, that the agreement sued upon was void for want of a writing, and because there was no consideration for the promise. 1. The contract, or promise sued upon, is not for the sale of land, so as to require a writing, under the statute of frauds. The sale had already been reduced to writing. This was a subsequent collateral agreement in relation to the price, which was binding by parol and to which the statute can have no application whatever. This is too plain for argument. 2. There is more plausibility in the second objection, that there was no sufficient consideration for the promise. But this is also untenable. The argument is that the deed embraced the whole tract, and passed a perfect title to the extent of the boundaries, and consequently there was nothing passing as a consideration for the new prom- ise that the party did not own before by a perfect legal right. It is true that if the sale was by the tract and not by the acre, as appears from the deed, and no stipulations as to quantity, that the title was good for the whole and covered the excess. But, if the sale was not in gross, but by the acre, and the recitation in the deed would not be conclusive in a court of equity on that point, if the fact could be shown to be otherwise, then there would be 202 Formation of Conteacts. [Chap. I. mutual remedies for an excess or deficiency in proper cases, as we held in Miller v. Bents, 4 Sneed, and a more recent case; but, independent of that, and taking it to have been purely a sale in gross, and both parties desir- ing to act justly, and being of different opinions as to the quantity, mutually agreed to abide by an accurate survey to ascertain which was bound to pay, and recover from the other, and what amount. We see no good reason in law or morals, why such an agreement should not be binding upon them. The case of Howe v. O'Malley, 1 Murph. L. & Eq. E. 287, is precisely in point. The court there held that a promise to refund in case of deficiency, is a good consideration for a promise to pay for any excess over what is called for in the deed. That such mutual promises are sufficient considerations for each other. The case of Smith v. Ware, 13 Johns. 259, which is supposed to conflict with this, is entirely different; " there was no mutuality," because the promise sued upon was to pay for the deficiency, without any obliga- tion on the other party to pay for an excess, if any there had been. ' The principle of the North Carolina case, commends itself to our approbation, because of its equity and justice. Without further citation of authorities, we are satis- fied to hold that the promise in this case was binding upon the defendant, as his honor charged, and therefore affirm the judgment. Mrs. Sallie D. Stemmons, the step-grandmother of Albert E. Talbott, made with the latter the following agreement. "April 26, 1880. " I do promise and bind myself to give my grandson, Albert R. Talbott, $500 at my death if ho will never take another chew of Sec. 2-B.] Hamer v. Sidway. 203 tobacco or smoke another cigar during my life, from this date up to my death; and if he breakes this pledge, he is to refund double the amount to his mother. (Signed) "Albert R. TaijBOtt, " Sailie D. Stemmons." The grandmother died, and this action was instituted by the grandson against her personal representative to recover the $500, the plaintiff alleging that, from the date of the agreement to the filing of this action by him, he had not smoked a cigar or taken a chew of tobacco, etc. A general demurrer was filed to the petition that was sustained by the court below, and the action dismissed. It is insisted, now on appeal, by counsel for the personal representative that the agreement by the grandmother to pay the $500 is not based on a sufficient consideration either good or valuable, and being a mere gratuitious undertaking, cannot be enforced. Hamee v. Sidway.^ 124 N. Y. 538 — 1891. Appeal from order of the General Term of the Su- preme Court in the Fourth Judicial Department, made July 1, 1890, which reversed a judgment in favor of plain- tiff entered upon a decision of the court on trial at Special Term and granted a new trial. This action was brought upon an alleged contract. The plaintiff presented a claim to the executor of Wil- liam E. Story, Sr., for $5,000 and interest from February 6, 1875. She acquired it through several mesne assign- ments from William E. Story, second. The claim being rejected by the executor, this action was brought. It ap- pears that William E. Story, Sr., was the uncle of Wil- liam E. Story, second; that at the celebration of the 1 Statement of facts abbreviated and portions of opinion omitted. 204 FoEMATioN OP Contracts. [Chap. I. golden wedding of Samuel Story and wife, father and mother of William E. Story, Sr., on March 20, 1869, in the presence of the family and invited guests lie promised his nephew that if he would refrain from drinking, using tobacco, swearing, and playing cards or billiards for money until he became twenty-one years of age he would pay him a sum of $5,000. The nephew assented thereto and fully performed the conditions inducing the promise. When the nephew arrived at the age of twenty-one years, and on January 31, 1875, he wrote to his uncle informing him that he had performed his part of the agreement, and had thereby became entitled to the sum of $5,000. The uncle received the letter, and a few days later, on February 6th, he wrote and mailed to his nephew a letter in which he acknowledged receipt of the nephew's letter of the 31st, and said that the nephew should have the $5,000 as promised. The uncle died on January 29, 1887, without having paid over to his nephew any portion of the said $5,000 and interest. Paekeb, J. The question which provoked the most dis- cussion by counsel on this appeal, and which lies at the foundation of plaintiff's asserted right of recovery, is whether by virtue of a contract defendant's testator, William E. Story, became indebted to his nephew, Wil- liam E. Story, second, on his twenty-first birthday in the sum of $5,000. The trial court found as a fact that " on March 20, 1869, . . . William E. Story agreed to and with William E. Story, second, that if he would refrain from drinking liquor, using tobacco, swearing, and play- ing cards or billiards for money until he should become twenty-one years of age, then he, the said William E. Story, would at that time pay him, the said Willam E. Story, second, the sum of $5,000 for such refraining, to which the said William E. Story, second, agreed," and that he "in all things fully performed his part of said agreement." Sec. 2-B.] Hameb v. Sidway. 205 The defendant contends that the contract was with- out consideration to support it, and, therefore, invalid. He asserts that the promisee by refraining from the use of liquor and tobacco was not harmed, but benefited; that that which he did was best for him to do independ- ently of his uncle's promise, and insists that it follows that unless the promisor was benefitted, the contract was without consideration. A contention, which if well founded, would seem to leave open for controversy in many cases whether that which the promisee did or omitted to do was, in fact, of such benefit to him as to leave no consideration to support the enforcement of the promisor's agreement. Such a rule could not be tolerated, and is without foundation in the law. The Exchequer Chamber, in 1875, defined consideration as follows: "A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other. ' ' Courts ' ' will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any sub- stantial value to any one. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him." (Anson's Prin. of Con. 63.) ' ' In general a waiver of any legal right at the request of another party is a sufficient consideration for a prom- ise.'' (Parsons on Contracts, 444.) "Any damage or suspension or forbearance of a right will be sufficient to sustain a promise." (Kent, Vol. II, 465, 12th Ed.) Pollock, in his work on Contracts, page 166, after citing the definition given by the Exchequer Chamber already quoted, says: " The second branch of this judicial de- scription is really the most important one. Considera- tion means not so much that one party is profiting as 206 FOKMATIOBT OP CONTRACTS. [ChAP. I, that the other abandons some legal right in the present or limits his legal freedom of action in the future as an inducement for the promise of the first. ' ' Now, applying this rule to the facts before us, the promisee used tobacco, occasionally drank liquor, and he had a legal right to do so. That right he abandoned for a period of years upon the strength of the promise of the testator that for such forbearance he would give him. $5,000. We need not speculate on the effort which may have been required to give up the use of those stimulants. It is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of his uncle's agreement, and now having fully performed the conditions imposed, it is of no moment whether such performance actually proved a benefit to the promjsor, and the court will not inquire into it ; but were it a proper subject of inquiry, we see nothing in this record that would permit a determination that the uncle was not benefited in a legal sense. Few cases have been found which may be said to be precisely in point, but such as have been support the position we have taken. The order appealed from should be reversed and the judgment of the Special Term affirmed, with costs pay- able out of the estate. All concur. Order reversed and judgment of Special Term, affirmed. White v. Bluett.-' 23 .law journal reports, exchequer, n. s., 36 — 1853. The defendant was the son of the plaintiff's testator. The declaration contained a count upon a promissory note made by the defendant payable to the testator, and a count for money lent. ^ Facts abbreviated and verbiage of plea omitted. Sec. 2-B.] White v. Bluett. 207 Plea, as to the said first count, and as to so much of the residue of the declaration as relates to money pay- able by the defendant for money lent to him, that durmg the testator's lifetime, and after the accruing of the causes of action herein, the defendant complained to his father that he had not received so much money or so many advantages as the father's other children, and that after some controversy between them the father ad- mitted that the complaints were well founded, and it was agreed between them that the defendant should forever cease to make such complaints, and that in consideration thereof, and in order to do justice to the defendant, and also out of his love and affection toward the defendant, he would discharge him of and from all liability in respect of the causes of action to which the plea was pleaded, and would accept the agreement in full satisfac- tion and discharge thereof. Demurrer and joinder. Pollock, C.B. The plea is clearly bad. By the argu- ment a principle is pressed to an absurdity, as a bubble is blown until it bursts. Looking at the words merely, there is some foundation for the argument, and, follow- ing the words only, the conclusion may be arrived at. It is said the son had a right to an equal distribution of his father 's property, and did complain to his father because he had not an equal share, and said to him, ' ' I will cease to complain if you will not sue upon this note." Where- upon the father said, " If you will promise me not to complain I will give up the note. ' ' If such a plea as this could be supported, the following would be a binding promise: A man might complain that another person used the public highway more than he ought to do, and that other might say, " Do not complain, and I will give you £5." It is ridiculous to suppose that such promises could be binding. So, if the holder of a bill of exchange were suing the acceptor, and the acceptor were to com- 208 Formation op Conteacts. [Chap. I. plain that the holder had treated film hardly, or that the bill ought never to have been circulated, and the holder were to say, " Now if you will not make. any more com- plaints I will not sue you." Such a promise would be like that now set up. In reality, there was no consideration whatever. The son had no right to complain, for the father might make what distribution of his property he liked ; and the son 's abstaining from doing what he had no right to do can be no consideration. Paeke, B. I am of the same opinion. The agreement could not be enforced against the defendant. It is not immaterial also to observe that the testator did not give the note up. It was formerly doubted whether a simple agreement could be pleaded in bar (Lynn v. Bruce, 2 H. Bl. 317), but there have been many modern cases in which third persons have been parties to the agreement, and the agreement has been held to be an answer, and it may be that such an agreement would do, although third persons were not parties to it. But that question does not arise here, as there was no binding agreement at all by the defendant. Aldeeson, B. If this agreement were good, there could be no such thing as a nudum pactum. There is a consideration on one side, and it is said the consideration on the' other is the agreement itself; if that were so there could never be a nudum pactum. Platt, B., concurred. Judgment for the plaintiff. Dtjnton v. Dunton". 18 victoeian law reports, 114—1892. Hood, J. Louisa Dunton sued John Dunton in the County Court to recover the sum of £6 as the amount agreed to be paid by the defendant under a written Sec. 2-B.] Dunton v. Dunton. 209 agreement for the maintenance of the plaintiff. At the trial a question was raised as to whether the alleged agreement was binding upon the defendant, and that question was reserved for the opinion of this court. The document is called a memorandum of agreement, and apparently was signed by both parties. It recites that they had been married, but that the marriage had been dissolved on the petition of the husband, and it then proceeds as follows: "And whereas, notwithstanding the said dissolution, the said John Dunton is desirous of making provision for the said Louisa Dunton so long as she, the said Louisa Dunton, shall conduct herself with sobriety, and in a respectable, orderly, and virtuous manner. Now this agreement witnesseth that in consideration of the premises the said John Dunton agrees to pay the said Louisa Dunton the sum of £6 per month." It then contains a proviso that in the event of Louisa Dunton committing any act whereby she or the said John Dunton may be subjected to hate, contempt, or ridicule, or if she shall not conduct herself with sobriety, and in a reispectable, orderly, and virtuous manner, and with all respect to the said John Dunton, then he may put an end to the agreement. The motive of the defendant in signing this document is clear. He desired to provide for the woman'who had been his wife, and who was the mother of his children, in such a way as to induce her not to disgrace herself, him, or them. But the question we have to decide is whether this document constitutes a valid agreement, and we have nothing to do with the motives of the parties except so far as they are expressed in a binding le^al document. A man's motives cannot form any coriMdera' tion for a contract. If this document is to be held binding upon the defendant, it must be because there is some legal consideration moving from the plaintiff upon which "the defendant's promise is founded. In my opinion the 14 210 Formation of Contracts. [Chap. I. only consideration expressed on the face of the document is the defendant's desire to make provision for the plain- tiff, and that clearly would not be sufficient. It was, how- ever, contended that the real consideration is an implied promise by her that she will conduct herself with sobriety, and in a respectable, orderly, and virtuous man- ner, and that the benefit to the defendant would lie in the prevention of the annoyance and disgrace that might be caused to him and his children in the event of the plaintiff misbehaving herself. I cannot imply such a promise from the document, but even if it were expressed therein it would not, in my opinion, constitute a consider- ation for the defendant 's agreement. A promise in order to be a good consideration must be such as may be en- forced. It must, therefore, be not only lawful, and in itself possible, but it must also be reasonably definite. Now, a promise by a woman that she will conduct herself with sobriety, and in a respectable, orderly, and virtuous manner, seems to me to be about as vague a promise as can well be imagined. What are the acts which she is to do or refrain from doing? What is the meaning to be attached to the words if looked at in the light of a defi- nite promise? A promise by a woman that she will con- duct herself with sobriety may mean that she will not drink any intoxicating liquor at all, or that she will not get drunk, or it may mean that she may do either so long as she does not do so in public. So with conducting her- self in a virtuous manner. Is that in public or in private, and does it include anything short of unchastity? As to respectability and order, they are words of such vary- ing meaning that I cannot understand any agreement about them. All this makes me unable to see any prom- ise whatever made by the plaintiff in this document, and in any event forces me to the conclusion that such a promise is too uncertain to form the consideration for any legal agreement. A contract founded upon such an Sec. 2-5. J Dunton v. Dunton. 211 illusory consideration appears to me to be as invalid as a promise by a father made in consideration that his son would not bore him (White v. Bluett^) ; and it is not nearly so certain as an agreement by a married woman that she would attend upon her aged father and mother as long as they lived, and provide them with necessary services, and in consideration thereof her father should, when requested, transfer to her his interest in certain land; an agreement which the late Molesworth, J., con- sidered void for uncertainty (Shields v. Drysdale'). It must be remembered that we have not here to consider a case of a plaintiff being induced to alter her position by reason of a promise made by the defendant. The plaintiff does not allege that she did, or refrained from doing, anything depending upon the defendant's prom- ise. If she had stated that she did not get drunk, as she otherwise would have done, or that she remained chaste or orderly or respectable solely in consequence of the defendant's promise, and relying thereon, she might, perhaps, have brought herself under a different rule; but the very suggestion of such a statement shows to my mind the impossibility of its ever forming the considera- tion for the contract upon which alone she sues. For these reasons I find myself unable to concur in the judgment of the court. HiGGiFBOTHAM, C.J.^ I am of the opinion that this agreement is binding, and that it is not nudum pactum, or void for want of consideration. It has been contended for the defendant that the written agreement discloses no consideration for the defendant's promise to pay the plaintiff £6 per month, that his promise, therefore, was a purely voluntary one, and performance of it cannot be enforced by action. The agreement was signed by the 1 23 L. J. Ex., at p. 37, per Parke, B. "ey.h. R. Eq. 126. ^ Portions of opinion omitted. 212 FOEMATION OF CoNTEACTS. [ChAP. I. plaintiff. The terms of it clearly imply, in my opinion, a promise on her part that she will conduct herself with sobriety, and in a respectable, orderly, and virtuous manner. But it was said that this was only a promise to do that which the plaintiff was already bound to do, and that such a promise does not constitute a good con- sideration. It is true that if a person promises not to do something which he cannot lawfully do, and which, if done, would be either a legal wrong to the promisee, or an act forbidden by law, such promise is no consideration for the promise of the other party to the alleged contract founded on mutual promises. The case of Jamieson v. Eenwick,^ and the authorities there cited, support that rule. But they also show that a promise not to do, or to do something which the promisor may lawfully and with- out wrong to the promisee do or abstain from doing, is a good consideration. In the present case the plaintiff was released by the decree for the dissolution of mar- riage from her conjugal obligation to the defendant to ■conduct herself with sobriety, and in a respectable, orderly, and virtuous manner; and conduct of an oppo- site character would not necessarily involve a breach on her part of any human law other than the law of mar- riage, which had ceased to bind her. She was legally at liberty, so far as the defendant was concerned, to con- duct herself in these respects as she might think fit, and her promise to surrender her liberty and to conduct her- self in the manner desired by the defendant constituted, in my opinion, a good consideration for his promise to pay her the stipulated amount. I am of opinion, for this reason, that there was a good legal consideration to sup- port this agreement, and I answer the question accord- ingly. The proper order as to costs of the hearing of this case will be that they abide the event of the action. U7 V. L. R. 124. Sec. 2-B.] Dunton v. Dunton. 213 Williams, J. In my opinion there is a consideration for the agreement upon which the plaintiff sues, and it is binding upon the defendant as long as the plaintiff observes her undertaking, necessarily implied in the agreement that she will conduct herself with sobriety, and in a respectable, orderly, and virtuous manner. The plaintiff signs this agreement and she is bound by it, and the penalty upon her, if she fails to observe her undertaking, is that, immediately she does so fail, all benefit to her under the agreement ceases. The defend- ant's promise to pay her the £6 per month is stated in the agreement itself to be made ' ' in consideration of the premises," and one of those premises is the plaintiff's undertaking to conduct herself with sobriety, and in a respectable, orderly, and virtuous manner.. Then, it is said, this undertaking of hers is nothing, as it only amounts to an undertaking by her to do that which she was under a legal obligation to do. From this proposi- tion I dissent. She was under no legal obligation to the defendant, or to any one, not to get drunk in her own or any friend's house. She was under no legal obliga- tion to the defendant, or to any one, not to consort with persons, male or female, of bad moral character. She was under no legal obligation to the defendant, or to any one, not to allow a paramour to have sexual connec- tion with her. She was entitled in these and other respects to pursue her own course of conduct. Now, turning to the facts as gathered from the agreement and the evidence, it appears that the defendant had obtained a divorce from the plaintiff, and. that the issue of their marriage had been five young children, all living at the time the agreement was made. It is true, and it is most important to bear in mind, that with the dissolution of the marriage her conjugal obligations to the defendant ceased. It was, perhaps, by reason of this consequence that the defendant entered into this agreement with the 214 Formation of Conteacts. [Chap. I. plaintiff and procured her to enter into it witli him. It may have been, and probably was, of some moment to the defendant to hold out a substantial inducement to the plaintiff to agree to conduct herself, and to conduct her- self in the manner stipulated by himself. She had been his wife, she was no longer, but she still remained the mother of his five young children. Eemaining under no conjugal obligations to him, he probably deemed it advantageous and desirable that she, who remained the mother of his children, should conduct herself in such a way as not to bring discredit upon her offspring. In effect he says to her : " If you, who now owe me no duty as a wife, will agree to my stipulation, I will, so long as you observe that stipulation, pay you £6 per month." Thereupon she signifies her agreement and her assent to observe that stipulation by signing the agreement. The case of White v. Bluett^ is, in my opinion, not an authority against the view I have taken. In that case. Pollock, C.B., came to the conclusion that the agreement set up by the son was nudum pactum, and so no answer to the father's cause of action, upon the express ground that the son had no right to complain of the father's distribution of the property ; for the father might make what distribution of his property he liked, and the son's abstaining from doing what he had no right to do could be no consideration. My answer to the question stated is that there is suffi- cient consideration to support the agreement sued on. 1 23 L, J. Exch., p. 36. Sec. 2-B.] Carlill v. Carbolic Smoke Ball Co. 215 Caelill v. Carbolic Smoke Ball Company.^ law reports, 1 queen's bench, 256—1892. Appeal from a decision of Hawkins, J. The defendants, wlio were the proprietors and vendors of a medical preparation called " The Carbolic Smoke Ball," inserted in the Pall Mall Gazette of November 13, 1891, and in other newspapers, the following advertise- ment: "£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing 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. £1000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter. " During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventatives against this disease, and in ro 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." The plaintiff, a lady, on the faith of this advertise- ment, bought one of the balls at a chemist's, and used it as directed, three times a day, from November 20, 1891, to January 17, 1892, when she was attacked by influenza. Hawkins, J., held that she was entitled to recover the £100. The defendants appealed. LiNDLEY, L.J. [The Lord Justice stated the facts, and proceeded:] I come now to the last point which I think requires attention — that is, the consideration. It has been argued that this is nudum pactum — that there is no consideration. We must apply to that argument the usual legal tests. Let us see whether there is no advantage ^ Portions of opinions not relating to subject of consideration omitted. 216 FOEMATION OF CoNTKACTS. [ChAP. L to the defendants. It is said that the use of the ball is no advantage to them, and that what benefits them is the sale ; and the case is put that a lot of these balls might be stolen, and that it would be of no. advantage to the defendants if the thief or other people used them. The answer to that, I think, is as follows : It is quite obvious that in the view of the advertisers a use by the public of their remedy, if they can only get the public to have confidence enough to use it, will react and produce a sale which is directly beneficial to them. Therefore, the advertisers get out of the use an advantage which is enough to constitute a consideration. But there is another view. Does not the person who acts upon this advertisement and accepts the offer put himself to some inconvenience at the request of the de- fendants? Is it nothing to use this ball three times daily for two weeks according to the directions at the request of the advertiser? Is that to go for nothing? It appears to me that there is a distinct inconvenience, not to say a detriment, to any person who so uses the smoke ball. I am of opinion, therefore, that there is ample considera- tion for the promise. "We were pressed upon this point with the ease of Gerhard v. Bates, which was the case of a promoter of companies who had promised the bearers of share war- rants that they should have dividends for so many years, and the promise as alleged was held hot to show any consideration. Lord Campbell's judgment when you come to examine it is open to the explanation, that the real point in that case was that the promise, if any, was to the original bearer and not to the plaintiff, and that as the plaintiff was not suing in the name of the original bearer there was no contract with him. Then Lord Campbell goes on to enforce that view by showing that there was no consideration shown for the promise to him. I cannot help thinking that Lord Campbell's observa- Sec. 2-j5.J Caelill v. Carbolic Smoke Ball Co. 217 tions would have been very different if the plaintiff in that action had been an original bearer, or if the declara- tion had gone on to showwhat a societe anonyme was, and had alleged the promise to have been, not only to the first bearer, but to anybody who should become the bearer. There was no such allegation, and the court said, in the absence of such allegation, they did not know (judicially, of course) what a societe anonyme was, and, therefore, there was no consideration. But in the present case, for the reasons I have given, I cannot see the slightest difficulty in coming to the conclusion that there is con- sideration. It appears to me, therefore, that the defendants must perform their promise, and if they have been so unwary as to expose themselves to a great many actions, so much the worse for them. BowEN, L.J. I am of the same opinion. A further argument for the defendants was that this was a nudum pactum — that there was no consideration for the promise — that taking the influenza was only a condition, and that the using the smoke ball was only a condition, and that there was no consideration at all — in fact, that there was no request, express or implied, to use the smoke ball. Now I will not enter into an elab- orate discussion upon the law as to requests in this kind of contracts. I will simply refer to Victors v. Davies and Manning's note to Fisher v. Pyne, which everybody ought to read who wishes to embark in this controversy. The short answer, to abstain from academical discussion, is, it seems to me, that there is here a request to use in- volved in the offer. Then as the alleged want of considera- :ion. The definition of " consideration " given in Selwyn's Nisi Prius, 8th ed., p. 47, which is cited and adopted by Tindal, C.J., in the case of Laythoarp v. Bryant, is this : "Any act of the plaintiff from which the defendant derives a benefit or advantage, or any labor, detriment. 218 Formation of Conteacts. [Chap. I. or inconvenience sustained by the plaintiff, provided such act is performed or such inconvenience suffered by the plaintiff, with the consent either express or implied, of the defendant. ' ' Can it be said here that if the person who reads this advertisement applies thrice daily, for such time as may seem to him tolerable, the carbolic smoke ball to his nostrils for a whole fortnight, he is doing nothing at all — that it is a mere act which is not to count toward consideration to support a promise (for the law does not require us to measure the adequacy of the consideration). Inconvenience sustained by one party at the request of the other is enough to create a consideration. I think, therefore, that it is consideration enough that the plaintiff took the trouble of using the smoke ball. But I think also that the defendants re- ceived a benefit from this user, for the use of the smioke ball was contemplated by the defendants as being indi- rectly a benefit to them, because the use of the smoke balls would promote their sale. Then we were pressed with Gerhard v. Bates. In Gerhard v. Bates, which arose upon demurrer, the point upon which the action failed was that the plaintiff did not allege that the promise was made to the class of which alone the plaintiff was a member, and that, there- fore, there was no privity between the plaintiffs and the defendant Then Lord Campbell went on to give a second reason. If his first reason was not enough, and the plain- tiff and the defendant there had come together as con- tracting parties, and the only question was consideration, it seems to me Lord Campbell's reasoning would not have been sound. It is only to be supported by reading it as an additional reason for thinking that they had not come into the relation of contracting parties; but, if so, the language was superfluous. The truth is, that if in that case you had found a contract between the parties there would have been no diflSculty about consideration; but Sec. 2-5.] Hypothetical Cases. 219 you could not find such a contract. Here, in the same way, if you once make up your mind that there was a promise made to this lady who is the plaintiff, as one of the public — a promise made to her that if she used the smoke ball three times daUy for a fortnight and got the influenza, she could have £100, it seems to me that her using the smoke ball was sufficient consideration. I cannot picture to myself the view of the law on which the contrary could be, held when you have once found who are the contracting parties. If I say to a person, " If you use such and such a medicine for a week I wUl give you £5, ' ' and he uses it, there is ample consideration for the promise. A. L. Smith, L.J. Lastly, it was said that there was no consideration, and that it was nudem pactum. There are two considerations here. One is the consideration of the inconvenience of having to use this carbolic smoke ball for two weeks three times a day ; and the other more important consideration is the money gain likely to accrue to the defendants by the enhanced sale of the smoke balls, by reason of the plaintiff's use of them. There is ample consideration to support this promise. I have only to add that as regards the policy and the wagering points, in my judgment, there is nothing in either of them. Appeal dismissed. Baker signed the following paper, viz. : . " We, the undersigned, hereby severally promise and agree to and with the Trustees of the First Presbyterian Church, in consideration of $1 to each of us in hand paid and the agreements of each other in this contract contained, to pay on or before three years from the date hereof to said Trustees the sum set opposite to our respective names. The purpose of this subscription is to pay off the mortgage debt of $45,000." 220 FOEMATION OF CONTRACTS. [ChAP. I. The $1 recited was not paid. Baker subscribed $5,000. He paid $2,000. Before paying tbe remainder he died. The trustees of the church sued his executors for the balance. The pastor of a church which was in debt to the amount of $15,000 requested Adams to make a contribution to help pay off the debt. Adams promised to contribute $2,500 in consideration that the pastor would secure subscriptions for the balance. The pastor made the effort and secured subscriptions for the requisite amount. Adams declined to pay and the trustees of the church brought an action against Adams on his promise to contribute $2,500. ElCKETTS V. ScOTHOKSr. 57 NEBRASKA, 51 — 1898. Sullivan, J.^ In the District Court of Lancaster county the plaintiff Katie Scothorn recovered judgment against the defendant Andrew D. Eicketts, as executor of the last will and testament of John C. Eicketts, de- ceased. The action was based upon a promissory note, of which the following is a copy: "May the first, 1891. I promise to pay to Katie Scothorn on de- mand, $2000 to be at 6 per cent per annum. " J. C. RiCKETTS." In the petition the plaintiff alleges that the considera- tion for the execution of the dote was that she should surrender her employment as bookkeeper for Mayer Bros, and cease to work for a living. She also alleges that the note was given to induce her to abandon her occupation, and that, relying on it, and on the annual interest, as a ^ Citation of authorities omitted. Sec. 2-B.] Eicketts v. Scothokn. 221 means of support, she gave up the employment in which she was then engaged. These allegations of the peti- tion are denied by the executor. The material facts are undisputed. They are as follows: John C. Eicketts, the maker of the note, was the grandfather of the plaintiff. Early in May — presumably on the day the note bears date — he called on her at the store where she was work- ing. What transpired between them is thus described by Mr. Frodene, one of the plaintiff's witnesses: A. Well the old gentleman came in there one morning about 9 'clock — probably a little before or a little after, but early in the morning — and he unbuttoned his vest and took out a piece of paper in the shape of a note; that is the way it looked to me; and he says to Miss Scothorn, ' ' I have fixed out something that you have not got to work any more. ' ' He says, ' ' None of my grand- children work and you don't have to." Q. Where was she? A. She "took the piece of paper and kissed him ; and kissed the old gentleman and commenced to cry. It seems Miss Scothorn immediately notified her em- ployer of her intention to quit work, and that she did soon after abandon her occupation. The mother of the plaintiff was a witness and testified that she had a con- versation with her father, Mr. Eicketts, shortly after the note was executed, in which he informed her that he had given the note to the plaintiff to enable her to quit work ; that none of his grandchildren worked and he did not think she ought to. For something more than a year the plaintiff was without an occupation; but in September, 1892, with the consent of her grandfather, and by his assistance, she secured a position as bookkeeper with Messrs. Funke & Ogden. On June 8, 1894, Mr. Eicketts died. He had paid one year's interest on the note, and a short time before his death expressed regret that he had not been able to pay the balance. In the summer or fall 222 FOEMATION OF CoNTEACTS. [ChAP. I. of 1892, he stated to his daughter, Mrs. Scothorn, that if he could sell his farm m Ohio he would pay the note out of the proceeds. He at no time repudiated the obliga- tion. We quite agree with counsel for the defendant that upon this evidence there was nothing to submit to the jury, and that a verdict should have been directed peremptorily for one of the parties. The testimony of Flodene and Mrs. Scothorn, taken together, conclusively establishes the fact that the note was not given in consideration of the plaintiff pursuing, or agreeing to pursue, any particular line of conduct. There was no promise on the part of the plaintiff to do or refrain from doing anything. Her right to the money promised in the note was not made to depend upon an abandonment of her employment with Mayer Bros, and future abstention from like service. Mr. Ricketts made no condition, requirement, or request. He exacted no quid pro quo. He gave the note as a gratuity and looked for nothing in return. So far as the evidence discloses, it was his purpose to place the plaintiff in a position of independence, where she could work or remain idle as she might choose. The abandonment by Miss Scothorn of her position as bookkeeper was altogether voluntary. It was not an act done in fulfillment of any contract obligation assumed when she accepted the note. The instrument in suit being given without any valuable con- sideration, was nothing more than a promise to make a gift in the future of the sum of money therein named. Ordinarily, such promises are not enforceable even when put in the form of a promissory note. But it has often been held that an action on a note given to a church, college, or other like institution, upon the faith of which money has been expended or obligations incurred, could not be successfully defended on the ground of a want of consideration. In this class of cases the note in suit Sec. 2-B.] Ricketts v. Scothoen. 223 is nearly always spoken of as a gift or donation, but the decision is generally put on the ground that the expendi- ture of money or assumption of liability by the donee, on the faith of the promise, constitutes a valuable and sufficient consideration. It seems to us that the true reason is the preclusion of the defendant, under the doc- trine of estoppel, to deny the consideration. Such seems to be the view of the matter taken by the Supreme Court of Iowa in the case of Simpson Centenary College v. Tuttle (71 la. 596), where Eothrock, J., speaking for the court, said: " Where a note, however, is based on a promise to give for the sup- port of the objects referred to, it may still be open to this defense [want of consideration], unless it shall appear that the donee has, prior to any revocation, entered into engagements or made expenditures based on such promise, so that he must suffer loss or injury if the note is not paid. This is based on the equitable principle that, after allowing the donee to incur obligations on the faith that the note would be paid, the donor would be estopped from pleading want of consideration." And in the case of Eeimensnyder v. Grans (110 Pa. St. 17), which was an action on a note given as a donation to a charitable object, the court said : " The fact is that, as we may see from the case of Ryerss v. Trustees (33 Pa. St. 114), a contract of the kind here involved is enforceable rather by way of estoppel than on the ground of consideration in the original undertaking." It has been held that a note given in expectation of the payee performing certain services, but without any con- tract binding him to serve, will not support an action. But when the payee changes his position to his disad- vantage, in reliance on the promise, a right of action does arise. Under the circumstances of this case is there an equitable estoppel which ought to preclude the defendant from alleging that the note in controversy is lacking in one of the essential elements of a valid contract? We think there is. An estoppel in pais is defined to be *' a right arising from acts, admissions, or conduct which 224 Formation of Conteacts. [Chap. I. have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged." Mr. Pomeroy has formulated the following definition : ' ' Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, or contract, or of remedy, as against another person who in good faith relied upon such con- duct, and has been led thereby to change his position for the worse, and who on his part acquires some correspond- ing right either of property, of contract, or of remedy." 2 Pomeroy, Equity Jurisprudence, 804. According to the undisputed proof, as shown by the record before us, the plaintiff was a working girl, hold- ing a position in which she earned a salary of $10 per week. Her grandfather, desiring to put her in a posi- tion of independence, gave her the note, accompanying it with the remark that his other grandchildren did not work, and that she would not be obliged to work any longer. In effect he suggested that she might abandon her employment and rely in the future upon the bounty which he promised. He, doubtless, desired that she should give up her occupation, but whether he did or not, it is entirely certain that he contemplated such action on her part as a reasonable and probable consequence of his gift. Having intentionally influenced the plaintiff to alter her position for the worse on the faith of the note being paid when due, it would be grossly inadequate to permit the maker, or his executor, to resist payment on the ground that the promise was given without con- sideration. The petition charges the elements of an equi- table estoppel, and the evidence conclusively establishes them. If errors intervened at the trial they could not have been prejudicial. A verdict for the defendant would be unwarranted. The judgment is right and is affirmed. Sec. 2-B.] Bagge v. Slade. 225 Bagge v. Slade. 3 bulstrode, 162 — 1614. In a writ of error to reverse a judgment given against him in an action upon the case for a promise. In the town court of Yevell, in commitatu, Sommerset. The error assigned and insisted upon was this, because there wanted a good consideration to raise the promise, and so no cause of action. Coke, C.J. The case was this, two men were bound in a bond for the debt of a third man ; the obligation being forfeited, so that they both of them were liable to pay this. The plaintiff here in this writ of e'rror said to the other, " Pay you all the debt, and I will pay you the moiety of this again," the which he paid accordingly, and so made his request to have a repayment made to him of the moiety according to his promise, which to do he refused. Upon this he brought his action upon the case against the plaintiff upon his promise, and upon nonassumpsit pleaded, he had a verdict and judgment, and upon this judgment a writ of error was brought. In this case and in the declaration there is a good considera- tion set forth, the party's own contract here shall bind him, he hath no remedy for the money paid, but when this is paid, here is good assumpsit grounded upon a good consideration for repayment of the moiety by the plaintiff. Hatjghton, J. Notwithstanding this contract he is still least in danger of the first bond. Coke. I have never seen it otherwise, but when one draws money from another that this should be a good consideration to raise a promise. Doddeeidge, J. If the consideration puts the other to charge, though it be no ways at all profitable to him who made the promise, yet this shall be a good consideration to raise a promise. 15 226 FoEMATioN OP Contracts. [Chap. L Coke agreed witli him herein, also if a man be bound to another by a bill in £1000 and he pays unto him £500 in discharge of this bill, the which he accepts of accord- ingly, and doth upon this assume and promise to deliver up unto him his said bill of £1000, this £500 is no satis- faction of the £1000, but yet this is good and sufficient to make a good promise, and upon a good consideration, because he had paid money, £500, and he had no remedy for this again. Another matter was moved, that the entry of the judg- ment was not good, the same being in this manner, Ideo consideratum fuit, adtunc, and ibidem Me ad eandem Curiam, quod prcedictus querens recuperet. The whole court agreed this judgment to be well entered, and that the consideration here is good, and sufficient to raise the promise, and accordingly the rule of the court was quod judicium affirmeiur. Judgment affirmed per Curiam. KlEKSEY V. KlEKSEY. 8 ALABAMA, 131 — 1845. Eeeoe to the Circuit Court of Talladega. Assumpsit by the defendant, against the plaintiff in error. The question is presented to this court, upon a case agreed, which shows the following facts : The plaintiff was the wife of defendant's brother, but had for some time been a widow, and had several chil- dren. In 1840, the plaintiff resided on public land, under a contract of lease, she had held over, and was comfort- ably settled, and would have attempted to secure the land she lived on. The defendant resided in Talladega Sec. 2-B.] Kjeksey v. Kikksby. 227 county, some sixty or seventy miles off. On the lOtli October, 1840, he wrote to her the following letter : "Dear Sister Antillico, — Much to my mortification, I heard that brother Henry was dead, and one of his children. I know that your situation is one of grief and difficulty. * * * 1 do not know whether you have a preference on the place you live on or not. If you had, I would advise you to obtain your preference, and sell the land and quit the country, as I understand it is very unhealthy, and I know society is very bad. If you will come down and see me, I wUl let you have a place to raise your family, and I have more open land than I can tend; and on the account of your situation, and that of your family, I feel like I want you and the children to do well." Within a month or two after the receipt of this letter, the plaintiff abandoned her possession, without disposing of it, and removed with her family to the residence of the defendant, who put her in a comfortable house, and gave her land to cultivate for two years, at the end of which time he notified her to remove, and put her in a house, not comfortable, in the woods, which he afterward re- quired her to leave. A verdict being found for the plaintiff for $200, the above facts were agreed, and if they will sustain the action, the judgment is to be aJS&rmed, otherwise it is to be reversed. Oemod, J. The inclination of my mind is, that the loss and inconvenience, which the plaintiff sustained in break- ing up, and moving to the defendant's a distance of sixty miles, is a sufficient consideration to support the promise, to furnish her with a house, and land to cultivate, until she could raise her family. My brothers, however, think that the promise on the part of the defendant was a mere gratuity, and that an action will not lie for its breach. The judgment of the court below must therefore be re- versed, pursuant to the agreement of the parties. 228 FOEMATIOK OP CONTEACTS. [ChAP. I. TOLHUKST V. POWEES. 133 NEW YORK REPORTS, 460 — 1892. Appeal from judgment of the General Term of the Su- preme Court in the Third Judicial Department, entered upon an order made July 11, 1891, which affirmed a judg- ment in favor of defendant, entered upon the report of a referee. This action was brought to recover a balance of an ac- count originally due plaintiffs from one Clinton M. Ball for services in the construction and fitting of a dynamo and other electrical appliances, which it was claimed de- fendant had agreed to pay. The facts, so far as material, are stated in the opinion. Finch, J. We agree with the prevailing opinion of the General Term that there was no consideration to support the promise of Powers to pay Ball's debt to the plaintiffs. The latter originally constructed a dynamo, for which Ball became indebted to them, and after all payments he remained so indebted when the machine was ready for delivery. The builders, of course, had a lien upon it for the unpaid balance, but waived and lost their lien by a delivery to Ball without pajrment. He, being then the owner and holding the title free from any incumbrance, sold the dynamo to Crane on a contract apparently con- tingent upon the successful working of the machine. It did not work successfully, and was sent back to plaintiffs to be altered with a view of correcting its imperfections. At this point occurred the first intervention of the de- fendant Powers. He had not then obtained, so far as the case shows, any interest in the machine, and the complete title was either in Crane or Ball or in both ; but when the plaintiffs hesitated about entering upon the new work until their charges for it should be made secure. Powers agreed to pay them. The true character of that promise is immaterial, for when the work was done Powers did Sec. 2-B.] Tolhukst v. Powees. 229 pay according to Ms contract. Thereafter Ball and Pow- ers requiring a delivery of the dynamo, the plaintiffs undertook or threatened to retain the possession till the original debt should be paid. That they had no right to do. Their primary lien was lost by the delivery, and they acquired no new one by reason of the repairs which were paid for. Such refusal to surrender the possession was an absolute wrong without any color of right about it. After demand their refusal was' a trespass, and accord- ing to their own evidence the sole consideration for the promise which they claim that Powers made to pay the old debt of Ball was their surrender of possession. To that they were already bound, and parted with nothing by the surrender. They gave up no right which they had against any one, but extorted the promise by a threat of what would have been, if executed, a wrongful conver- sion. Doing what they were already bound to do fur- nished no consideration for the promise. It is said, however, that Ball made no demand, and untU he did the plaintiffs were not bound to deliver the possession, and that the delivery was to Powers and not to Ball. But there was certainly a request to ship the machine, and so part with the possession, and both the request and the shipment were with the concurrence of Ball. It was that very request that brought up the sub- ject of the old debt, and Ball stood by, plainly assenting, at least by omitting' any dissent or objection. The shipment to Bowers by name made it none the less a delivery to Ball, whose concurrence is explicitly found. Surely, after what happened, the latter could not have maintained an action for conversion on the ground that there had been no delivery to him. The undisputed fact is that the plaintiffs were seeking to withhold a delivery to the owner without the least right of refusal. There was no harm to plaintiffs, and no benefit conferred on Powers. The former parted with nothing of their own, 230 Formation of Conteacts. [Chap. I. and the latter gained notliing, for the shipment to him was a delivery to Ball, the owner, since made with his concurrence, and Powers obtained no right or interest in the property as the result of the delivery. He simply took it, if he took at all, which is doubtful, as the agent or bailee of ithe owner, and acquired no right in it until a later period. Until the mortgage made subsequently, his advances for repairs constituted only an unsecured debt against Ball. The turning point of the appellant's argument is the unwarranted assumption that the plain- tiffs agreed to deliver, and did deliver the dynamo to one whom they knew not to be the owner without the as- sent of Ball, who was the owner, but who, nevertheless, stood by and made no objection. No fair construction of the evidence will sustain the appellant's theory. The judgment should be affirmed with costs. All concur. Judgment affirmed. Stilk v. Myerick. 2 campbell, 317 — 1809. This was an action for seaman's wages, on a voyage from London to the Baltic and back. By the ship's articles, executed before the commence- ment of the voyage, the plaintiff was to be paid at the rate of £5 a month; and the principal question in the cause was, whether he was entitled to a higher rate of wages. In the course of the voyage two of the seamen deserted, and the captain, having in vain attempted to supply their places at Cronstadt, there entered into an agreement with the rest of the crew, that they should have the wages of the two who had deserted equally di- vided among them if he could not procure two other hands at Gottenburgh. This was found impossible, and the ship was worked back to London by the plaintiff and Sec. 2-B.] England v. Davidson. 231 eight more of the original crew, with whom the agree- ment had been made at Cronstadt. LoBD Ellbnborough. I think Harris v. Watson was Tightly decided; but I doubt whether the ground of public policy, upon which Lord Kenyon is stated to have proceeded, be the true principle on which the decision is to be supported. Here, I say the agreement is void for want of consideration. There was no consideration for the ulterior pay promised to the mariners who remained with the ship. Before they sailed from London they had undertaken to do all they could under all the emergencies of the voyage. They had sold all their services till the voyage should be completed. If they had been at liberty to quit the vessel at Cronstadt, the case would have been ■quite different ; or if the captain had capriciously dis- charged the two men who were wanting, the others might not have been compelled to take the whole duty upon themselves, and their agreeing to do so might have been sufficient consideration for the promise of an advance of wages. But the desertion of a part of the crew is to be considered an emergency of the voyage as much as their death, and those who remain are bound by the terms of their original contract to exert themselves to the utmost to bring the ship in safety to her destined port. There- fore, without looking to the policy of this agreement, I think it is void for want of consideration, and that the plaintiff can only recover at the rate of £5 a month. Verdict accordingly. England v. Davidson. 11 ADOLPHUiS & ELLIS, 856—1840. Assumpsit, The declaration stated that heretofore, to wit, etc., the defendant caused to be published a certain Tiandbill, placard, or advertisement, headed " Fifty pounds reward; " whereby, after reciting that, late on 232 Formation of Contracts. [Chap. I. the night of, etc., the mansion house of defendant, at, etc., was feloniously entered by three men, who effected their escape, that two men had been taken into custody on sus- picion of having been concerned in the felony, and that a third, supposed to belong to the gang, had been traced to Carlisle, and was of the following description, etc.; the defendant did promise a;nd undertake that whoever would give such information as should lead to the conviction of the offender or offenders should receive the above re- ward; that plaintiff, confiding, etc., did afterward, to wit, on, etc., gave such information as led to the conviction of one of the said offenders, to wit, one David Eobson ; and that afterward, to wit, at the assizes for Northum- berland, David Robaon, who was guilty of the said offense, to wit, the feloniously entering, etc., was in due course of law convicted of the said offense of feloniously entering, etc., in consequence of such information so given by plaintiff; of all which said several premises de- fendant afterward, to wit, on, etc., had notice, and was then requested by plaintiff to pay him the said sum of £50; and defendant afterward, to wit, on, etc., in consid- eration of the premises, then promised plaintiff to pay him the sum of £50 ; breach, that, although defendant, in part performance of his said promise and undertaking, to wit, on, etc., did pay to plaintiff the sum of £5 5s., in part payment of the said sum of £50, yet, etc. (breach, non- payment of the residue). Third plea. That heretofore, and long before and at the time when the house of defendant was so feloniously entered, and continually from thence hitherto, plaintiff was, and now is, a constable and police officer of the dis- trict where the said house of defendant is situate and the said offense was committed; and it then was the duty of plaintiff, as such constable and police officer, to have given, and to give, every information which might lead to the conviction of the said offender, and to appre- Sec. 2-5. J Reip v. Paige. 233 hend him and prosecute him to conviction, if guilty, with- out any payment or reward to him made in that behalf ; that, by the said advertisement partly set out in the dec- laration, defendant gave notice and promised that who- ever would give such information to plaintiff, therein described as police officer, Hexham, as should lead to the conviction of the offender or offenders, should receive the said reward in the said advertisement mentioned, and in no other manner whatever ; and that, by reason of the premises, the said promise was and is void in law. Verification. Demurrer, assigning for causes that the plea amounts to the general issue, and does not deny, or confess and avoid, and is multifarious, and tenders an mimaterial issue. Joinder. Deistman, C.J. I think there may be services which the constable is not bound to render, and which he may there- fore make the ground of a contract. We should not hold a contract to be against the policy of the law, unless the grounds for so deciding were very clear. LiTTLBDALE, Patteson, and Coleridge, JJ., concurred. Judgment for the plaintiff. Eeie v. Paige. 55 wisconsin repoets, 496 — 1882. Appeal from the Circuit Court for Winnebago county. During the afternoon of December 3, 1880, a hotel in the city of Oshkosh, known as the " Beckwith House," was destroyed by fire. The defendant and his wife lived in this hotel, occupying rooms in the fourth story. When the fire broke out Mrs. Paige was in those rooms and perished in the flames. The members of the fire depart- ment of Oshkosh placed a ladder at a window near where Mrs. Paige was supposed to be, and at least two firemen attempted to enter the window and rescue her, but were 234 FOBMATION OF CoNTEACTS. [ChAP. I. driven' back by the smoke and flames. The ladder was then removed, but subsequently was replaced at the same window. About this time, and after the fire had been raging thirty minutes or more, the defendant, who had been absent, reached the scene of the fire, and, as it is alleged in the complaint, offered and promised to pay a reward of $5,000 to any person who would rescue his wife from the burniag building, dead or alive. The plaintiff claims that he has earned the reward thus offered, and has brought this action to recover the same. The complaint alleges that the plaintiff, on being in- formed of such offer and promise, and confiding in and relying upon the same, entered such rooms in the fourth story of the burning building, at great peril to his life and health, removed therefrom the dead body of Mrs. Paige, and delivered the same to the defendant. Also that the plaintiff has performed all of the conditions of said contract on his part to be performed; that no part of the said $5,000 has been paid to him, and that the same is now due and payable. In his answer the defendant denies that he offered any reward for the rescue of his wife from the burning build- ing, and also denies an averment in the complaint that the fire department was unable to remove her therefrom. He alleges therein that the body of his wife was recov- ered by members of that department; that the plaintiff was an assistant engineer and a paid officer in that de- partment, and whatever he did in the recovery and re- moval of the body of Mrs. Paige was done as such officer and member of the fire department, and in the perform- ance of his duties as such. The testimony on the trial tended to prove that the defendant offered the reward, and that with knowledge of the offer and on the faith of it, and for the purpose of earning the reward, the plaintiff ascended the ladder, entered the building, and rescued the dead body of Mrs. Sec. 2-5.] Eeif v. Paige. 235 Paige from the flames, to the knowledge of the defendant. No formal notice was given by the plaintiff to the de- fendant before this action was commenced, that the former had acted in the premises upon such offer, and claimed the reward; and no demand therefor was made upon the defendant. The Circuit Court nonsuited the plaintiff, and judgment against him was entered accord- ingly. The plaintiff appealed from that judgment. Lyon, J. 1. It is maintained on behalf of the defend- ant that in no event was there a cause of action against him until after due notice to him that the plaintiff had rescued the body of his wife from the flames, with knowledge of the offer of a reward for so doing, and on the faith of that offer ; in other words, that such notice is a condition precedent to the plaintiff's right of action. If this position is correct, the performance of such condi- tion precedent must be averred in the complaint, either specifically or by authorized general averment, and, if denied, must be proved on the trial or the plaintiff can- not recover. The complaint alleges that " the plaintiff has fully performed all of the conditions of said contract upon his part to be performed. ' ' This mode of pleading performance of conditions precedent is authorized by statute, and hence the same are sufficiently pleaded. E. S. 728, § 2674. The answer does not deny that aver- ment of the complaint, either specifically or by general denial. Hence, the plaintiff was not required to prove the averment on the trial. Moreover, the failure to give such notice (if the notice was required) goes only in abatement of the action, and it may well be doubted whether even a general denial would make an issue on the question as to whether the notice had been given. It would seem that, regularly, mere matter in abatement of an action, to be available, should be pleaded, especially when, as in this case, such matter is negatived in the com- plaint. However, the point is not here determined. But 236 Formation of Contracts. [Chap. I. inasmuch as the defendant introduced evidence, without objection, tending to show that he received no such notice of the plaintiff's acceptance of the alleged offer of a re- ward, and as it is quite competent for the court to permit an amendment making the answer correspond with the proofs in that behalf, it becomes our duty to determine the question of the necessity of such notice. The offer of a reward by the defendant for rescuing the body of his wife, and the rescue of her remains by the plaintiff,, with knowledge of such offer, and with a view to obtaining the reward offered, constituted a contract between the parties, which was fully and completely executed by the plaintiff. The oft'er, which the proofs tend to show the defendant made, was, in substance, " I. will give $5,000 to any person who will bring the body of my wife out of that building, dead or alive." There were no restrictions or limitations to the offer, and no additional requirement upon the claimant of the offered bounty. Hence, when the plaintiff, with a view of ob- taining the offered reward, rescued the body of Mrs. Paige, he had done all that the offer required him to do, and if he has any cause of action it was then complete. There may be a conflict of authority on this question, but it seems to us that the better reasons are with the cases cited on behalf of the plaintiff, holding that in such a case the giving of the notice is not a prerequisite to main- taining an action for the reward. The soldiers' bounty cases in this court, cited in opposition to this view, are not in point, because in those cases it was absolutely necessary that the towns or municipalities should know when their quotas were full. Hence the necessity that each person who enlisted for the bounty should promptly notify the proper authorities of the town or city to which he was credited of the fact of his enlistment. No such reason exists here for requiring notice. There is no more hardship in this rule than in the rule which allows Sec. 2-B.] Reif v. Paige. 237 the endorsee and holder of an overdue negotiable promis- sory note to sue the maker thereon without giving him an opportunity to pay it without suit. The maker may have been ready and anxious to pay it at the time it became due, had he known where it was. Yet the holder may sue at his leisure, and compel the maker to pay costs, and, in general, the accrued interest as well. That hardship is possible because the contract evidenced by the note is complete, and nothing remains to be done by the holder after the note becomes due to give him a right of action upon it. On precisely the same principles we think in this case that after the plaintiff had performed the only condition stipulated for in the alleged offer, his right of action was complete, without doing any other act what- ever. 2. The learned circuit judge nonsuited the plaintiff on the ground that it was his duty as a paid officer and mem- ber of the fire department of Oshkosh to rescue persons as well as property from fires, and that it is against sound public policy to allow him to contract for a reward for recovering the body of Mrs. Paige. Also that in such a case there is no valid consideration for the offer, mov- ing from one whose duty it is to do the act. The learned counsel for the respective parties have argued this branch of the case (as well as the other), with great candor and abUity, and each has cited numerous adjudi- cations in support of his theory of the case. Their argu- ments and concessions have brought the question upon which the case must turn within very narrow limits. Counsel for the plaintiff concedes that if it was the duty of his client as a fireman to go into the burning building and remove therefrom the remains of Mrs. Paige, he cannot recover the reward, but contends that it was not his duty to do so under the circumstances of the case. Counsel for the defendant, while not contending that it was the duty of the plaintiff as a fireman to imperil his 238 Formation of Conteacts. [Chap. I. life by going into the building for Mrs. Paige, or that the act was not a very perilous one, maintains that it was in the nature of extra or extra hazardous services in the line or scope of his duty, and, being so, the law will not permit him to contract for a reward for doing the act. There was considerable discussion by counsel as to what are the duties of firemen. We know of no guide for ascertaining those duties other than the charter of the municipality in which they are employed, and the ordinances or by-laws enacted pursuant thereto. The ordinances of the city of Oshkosh in respect to its fire department were read in evidence, and reference made to the city charter in that behalf. We do not care to comment upon these, for we are clear that there is noth- ing in them which made it the duty of the plaintiff to enter the fourth story of the burning building and rescue the body of Mrs. Paige from the flames, at the imminent hazard of losing his own life. That he incurred such hazard there can be no doubt from the testimony. He did not, as does a soldier, contract to risk his life in the service. The most that can reasonably be claimed is that, short of risking his life, he contracted to use his best judgment and efforts in extinguishing fires, and in saving persons and property from destruction or injury. But it is quite doubtful whether a fireman employed under the charter and ordinances of Oshkosh owes any duty, as a fireman, to rescue persons from burning build- ings. Both charter and ordinances are silent on the sub- ject, although an ordinance requires them to aid in the removal of endangered goods and property. It may well be that for the rescue of persons in peril from a con- flagration the Legislature or common council relied upon the promptings of humanity which in such emergencies always insures the utmost efforts of all who can aid therein, whether firemen or not, to save the lives of those in perU. But whether a fireman owes any such duty by Sec. 2-B.] Ebip v. Paige. 239 reason of his employment is not here determined. We assume, for the purposes of this case, that he does, and have stated above the limits of that duty, if it exists. On this hypothesis, the precise question to be deter- mined is whether the fact that it was not, under the cir- cumstances, the duty of plaintiff as a fireman to rescue the body of Mrs. Paige, renders him competent to make a valid contract for a reward for so doing. It is difficult to perceive how it can properly be said that it was within the scope or line of the plaintiff's duty to do the act, when it was not his duty to do it. It is conceded, for the purposes of the case, that it was his duty as a fireman to rescue Mrs.- Paige from the flames if he could do so without hazarding his own life. It was not his duty to do so at the hazard of his life. Can it properly be said that it was in the line or scope of his duty to rescue her at the imminent peril of losing his life, when his duty did not require him to do so? We confess our inability to perceive any satisfactory grounds upon which this ques- tion may be answered affirmatively. In the law of agency we find that principals are often held responsible for the unauthorized acts of their agents because such acts are within the scope of the authority of such agents, although not within their actual author- ity. The principal is held in such a case because he has clothed his agent with apparent authority to do the act, and a person to whom the agent is accredited may deal with him on the faith that he has the authority to bind his principal which he appears to have, and may hold the principal as effectually as though the agent had actual authority in the premises. Hence, when it is said that a given act of an agent, although unauthorized, is within the scope of his authority, and therefore binds his prin- cipal, it only signifies that the principal has apparently given his agent authority to do the act, and, as against a person dealing with the agent in good faith, he shall not be heard to deny the agent's authority. 240 Formation of Conteacts. [Chap. I. But where the question is one of duty, there seems to be no room for the application of any such principle. If it is not the duty of a person to render a specified service, we fail to comprehend how it can correctly be said that the service is within the line or scope of his duty — that is to say, that although it is not actually his duty to render the service, yet, because it is his apparent duty to do so, he shall be held to the same consequences as though it were his actual duty. It seems to us that the mere statement of the proposition is sufficient to show that it is untenable. The respective counsel have cited and commented upon numerous cases bearing upon the question under con- sideration. There is some apparent conflict of doctrine in them. In many of those cited on behalf of the defend- ant claimants of rewards have been defeated because (as it is said) it was within the line or scope of their duties as officers, or otherwise, to render the services for which the rewards were offered. Yet in some of these cases it was held that it was the duty of the claimants to render those specific services. The cases cited on be- half of the plaintiff fully sustain the position of his coun- sel, that, unless it was the duty of the plaintiff as a fire- man to rescue the body of Mrs. Paige, he is in a position to claim the alleged reward. A reference to these cases will be found in the report of the arguments, and it is unnecessary to cite them here. To state these cases in detail, and to comment upon them here, would unreason- ably extend this opinion, which, perhaps, is already too long, and would serve no useful purpose. We must con- tent ourselves, therefore, with the foregoing general ob- servations upon them. It follows, from the views above expressed, that inas- much as the plaintiff could not rescue the body of Mrs. Paige from the burning building without imminent peril of losing his own life, and inasmuch as it was not his Sec. 2-B.] Haeeis v. Mobe. 241 duty as a paid officer and member of the fire department to do so, he is in a position to claim the reward alleged to have been offered by the defendant for such rescue. The judgment of nonsuit must be reversed, and the cause will be remanded for a new trial. By the Court. It is so ordered. Haekis v. Moee. 70 california reports, 502 — 1886. Appeal, from a judgment of the Superior Court of Santa Barbara county, and from an order refusing a new trial. The action was brought to recover for certain services performed under an agreement stated in the opinion. The further facts are stated in the opinion of the Court. Myeick, J. The defendants executed an agreement in writing to pay moneys to any person furnishing evidence which would lead to the conviction of persons implicated in the commission of a crime. The agreement was deliv- ered to the plaintiff. It contained a clause agreeing to pay plaintiff certain expenses in investigating the mat- ter of the offense. The plaintiff rendered services in re- gard to discovering evidence and causing the same to be produced at the trial. The plaintiff was deputy sheriff of Los Angeles jcounty, and the offense was committed and the trial had in another county. As the plaintiff had no legal duty to perform, by virtue of his office of deputy sheriff, in regard to discovering the evidence and causing it to be produced, having no writ to execute, and the offense having been committed and the trial had out of his county, we do not think the policy of the law forbade his receiving the compensation. It was not compensation for the performance of any duty enjoined upon him by law. 16 242 FOEMATION OF CONTRACTS. [ChAP. L No error appears in the transcript. Judgment and order affirmed. McKiNSTRY, J., and Mobbison, C.J., concurred. Hearing in Bank denied. A was a plaintiff in an action whicli was on trial. B was an important witness for A, and had been duly served with a subpoena to attend. B, on the day he was to be ex- amined, announced to A his immediate departure for Europe on important business. A urged B to stay and testify, and promised to pay him $1,000 in consideration of his remaining. In consideration of this promise B de- ferred his departure and testified in the action. A sub- sequently refused to pay the $1,000, and B brought his action against A for that amount, alleging the above facts. A demurred on the ground that no consideration was alleged. Hbkeing v. Doeell. 8 DOWLING, 604 — 1840. R. V. EiCHARDS showed cause against a rule nisi ob- tained by V. Williams for arrest of judgment or a new trial in this case. The case had been tried before the sheriff of Brecon, and a verdict found in* favor of the plaintiff for £2 10s. Id. The ground of seeking to arrest the judgment was, that no sufficient consideration for the promise by the defendant was disclosed on the face of the declaration. Coleridge, J. The question in this case, whether this was a good consideration or not, depends upon the sit- uation of Voss at the time of his discharge. Both he and Watkins had been taken under a joint execution. Wat- kins made certain terms with the plaintiff, and the latter Sec. 2-B.] Smith v. Monteith. 243 voluntarily discharged him. No terms were made as to the situation of Voss; his rights were, therefore, to be considered according to the situation in which the law had placed him. Suppose Watkins alone had been in custody, it is clear that the voluntary discharge of him would have been a discharge of the debt, and no other proceedings could have been taken to recover it. It seems to me in the same way that the discharge of Wat- kins operated to release Voss, his co-debtor. I think, therefore, both on principal and authority that this rule ought to be made absolute. Rule absolute. Smfxh v. Montbith. 13 meeson & welsby, 426 — 1844. Assumpsit.^ The declaration stated that an action had been commenced by plaintiffs against one Dunlop for the recovery of the sum of £83 6s. lid. ; that the said Dunlop after the commencement of the said action was about to leave England and had been arrested at the suit of the said plaintiffs, by virtue of a writ of capias, duly issued in the said action by the plaintiffs against the said tiunlop; and whereas costs and charges to the amount of £20 had been incurred by the plaintiffs in and about the prosecution of the said action, and the arrest of the said Dunlop; and thereupon, in consid- eration that the plaintiffs, at the request of the de- fendant, would discharge the said Dunlop out of the custody of the sheriff, the defendant undertook and promised the plaintiffs to pay to them the sum of £88, for the debt, interest, costs, and charges of the plaintiffs in the said action when he, the defendant, should be thereunto afterward requested. The declaration then averred that the plaintiffs, confiding in the said promise ^ The pleadings have been much condensed. 244 Formation of Contracts. [Chap. I. of the defendant, did then discharge the said Dunlop out of the custody of the said sheriff as to the said action, whereof the defendant afterward had notice, and was then requested by the plaintiffs to pay to them the sum of £88, for the debt, interest, costs, and charges afore- said; yet the defendant disregardiag his said promise and undertaking, did not pay to the said plaintiffs the said sum of £88, or any part thereof, and the said simi of £88, remains wholly due and unpaid to the plaintiffs. Plea, that the said Dunlop was sued, arrested, and detained in custody by the procurement of the plaintiffs, and the defendant further says, that there was not, at the time of commencing the said action against the said Dunlop, nor at any time thereafter, any claim or demand or cause of action, against the said Dunlop, in respect whereof the plaintiffs could or were entitled to recover the said sum which the defendant so promised to pay, or any other sum or sums, matter or thing; and the plaintiffs did not, by discharging the said Dunlop from custody, as in the said first count mentioned, give up or part with any available remedy against the said Dunlop, as the plaintiffs, well knew; but which the defendant, at the time of making the said undertaking and promise, did not know ; and the defendant says, that the said writ in the declaration mentioned, and the said arrest and detaining in custody, and proceedings in the said action in the said declaration mentioned, were on the part of the plaintiffs colorable only, and the same were not pro- cured, commenced, or prosecuted by the plaintiffs for the purpose or with the intent of trying any doubtful or contested question of law or fact. Verification. Special demurrer, assigning for causes, among others, that the plea does not in any manner answer the declara- tion ; that it neither traverses any allegation therein, nor confesses and avoids the cause of action therein stated; Sec. 2-B.] Smith v. Monteith. 245 that the contract of the defendant stated in the declara- tion is an original contract, founded on a new considera- tion, altogether distinct and different from the cause of action against the said Dunlop, such consideration for the defendant's promise being an act done by the plaintiffs for the benefit of the said Dunlop, at the request of the defendant, and such benefit to the said Dunlop being precisely the sapae whether the plain- tiffs had or had not any cause of action against him; and, therefore, the question whether the plaintiffs had any cause of action against the said Dunlop is in this; action wholly immaterial. The plaintiffs' points marked for argument were that the plea is bad in substance, and is no answer to the declaration. The consideration alleged is the discharge of Dunlop out of custody of the sheriff at the request of the defendant, which discharge was a benefit to Dunlop, which he could not have obtained without the act of the plaintiffs in giving the discharge to the sheriff, whether the plaintiffs could have proved their debt against Dunlop or not, and which discharge materially altered the situation of the plaintiffs by allowing Dunlop to leave the kingdom. And, therefore, the question as to whether there was another and what distinct consider- ation, not alleged in the declaration, is in this action immaterial. The plaintiffs will also contend that the plea, if it amounts to anything, is an argumentative denial of there being any consideration for the promise of the defendant, and is, therefore, bad as amounting to the general issue. Also that, supposing the want of consideration for the promise may be specially pleaded, the plea is bad, because it negatives one particular species of consideration only — namely, that of damage to the plaintiffs, whereas damage to the plaintiffs is not alleged in the declaration; and it is quite consistent with the plea that there was a good consideration for the prom- 246 FoEMATioN OP Contracts. [Chap. I. ise, eitlier by benefit to Dunlop at tbe request of the defendant, whicli in fact there was, or benefit to the defendant himself. Also that the plea, consisting of matter in denial only, ought not to have concluded with a verification. Also that the plea is double in alleging that there was no debt due from Dunlop, and that the arrest was colorable only, such defenses being separate and distinct, which cannot both be put in issue without rendering the replication double. And, lastly, that the plea contains no matter upon which any material issue can be taken. The defendant's points were that the declaration is insufficient and bad; that it does not disclose any suffi- cient consideration to support the action; that it is not alleged therein that there was a good cause of action or a doubtful claim on which the action mentioned in the declaration was founded, or that the plaintiffs had any right to continue Dunlop in custody; and that it is not shown that the plaintiffs sustained any damage by his discharge from custody. Pollock, C.B. I am of opinion that the plaintiffs are entitled to the judgment of the court. This is an action against the defendant, founded on a promise by him to pay a sum of money, in consideration of the discharge out of custody of a defendant in a former action, who had been arrested at the suit of the plaintiffs. For aught that appears that arrest was legal, and the party was iu lawful custody; this is not, therefore, a case of duress; neither can it be put as a case of fraud, for there is no sufficient allegation of fraud in any part of the plea. The substance of the plea is that there was not any claim or demand or cause of action, in respect of which the plain- tiffs were entitled to sue the defendant in the former action ; but there is no averment that the plaintiffs were aware of that; and for anything that is stated in the plea, the original inception of that action was perfectly Sec. 2-5. J Smith v. Monteith. 247 bona fide, although the plaintiffs may have been mis- taken as to their remedy or the form of proceedings adopted by them. The plea goes on to state that the plaiatiffs did not, by discharging Dunlop, give up or part with any available remedy against him. The words ^ ' available remedy ' ' are rather loose and vague ; they may mean several things; they would be satisfied by the fact of Dunlop being a mere pauper, for it is not stated that the plaintiffs had no legal right or remedy which they gave up, but merely that they had no available remedy. So also those words would be satisfied if there were some latent defect which might appear m pleading •or come out in evidence; yet the action might be hon- estly commenced, and the claim founded in justice; and it cannot be said that, because the proceedings were open to such latent defect, the defendant's promise would not be founded on a good consideration. And this is the only part of the plea as to which there is any averment of the plaintiff's knowledge. It then goes on to say that the action against Dunlop was not brought for the pur- pose of trying any doubtful or contested right. It seem to me that the declaration in its form calls for an answer, and that this plea is no sufficient answer. I agree with the general scope of Mr. Peacock 's argument. If a party does an illegal act, or if he abuses the process of the •court to make it the instrument of oppression or extor- tion, that is a fraud on the law; and if the original arrest, or the continuance of that arrest, were of that character, and were shown to be so by proper averments in the plea, that would very probably constitute a good defense to an action like the present. But this plea falls far short of that, the' arrest being legal, and there being no averment of knowledge on the part of the plaintiffs except that they knew they did not part with any avail- able remedy by discharging Dunlop out of custody. It does not, therefore, contain a sufficient statement in fact 248 FOEMATION OF CONTBACTS. [ChAP. I. to bring it within the scope of Mr. Peacock's argument or the cases cited by him. The judgment must, therefore, be for the plaintiffs. Paeke, B. I am also of opinion that the plaintiffs are entitled to judgment. In the first place, I think that the declaration is sufficient on general demurrer. It states that an action had been brought and was depending at the suit of the plaintiffs against a person of the name of Dunlop, and that he had been arrested and was in custody on a capias duly issued in that action. On such a state- ment, it must be intended, prima facie, that the action was well founded, and the writ regularly and properly issued. That doctrine is laid down in the case of Bidwell V. Catton, Hob. 216. That was an action of assumpsit on a promise by the defendant to pay £50 in considera- tion of the plaintiff's forbearing to prosecute a suit; and after verdict it was objected in arrest of judgment, first, that it was not alleged that the plaintiff had any just cause of action, and, secondly, that the action still re- mained. But the court nevertheless gave judgment; " for, first, suits are not presumed causeless, and the promise argues cause, in that he desired to stay off the suit; secondly, though this did not require a discharge of the action, yet it requires a loss of the -writ •and a delay of the suit, which was both benefit to the one and loss to the other." Therefore, I think, prima facie, this declaration is sufficient, the former action being presumed to be for cause, and the capias being presumed to have been prop- erly issued. There is another case which I may advert to, to the same effect, of Pooley v. Lady Gilberd, 2 Bulstr. 41. There it is stated that : "the plaintiff had preferred a bill in Chancery against the defendant for marriage-money by her received. The defendant upon this, in consideration that the plaintiff would stay the suit there by him com- menced, did assume to pay him £100, and also to deliver up a bond of £40 which she had. Upon this promise the plaintiff made stay of his suit, but the defendant not performing the promise, upon this Sec. 2-B.] Smith v. Montbith. 249 the action was brought, and a verdict found for the plaintiff. It was moved for the defendant, in arrest of judgment, that the declaration was not good, for that there was no good ground to raise the promise, there being no sufficient consideration for the same, for it doth not appear in the declaration that the suit in Chancery was a lawful suit to be there determined, and so if the suit was not lawful, the con- sideration to forbear such a suit was no good consideration to raise a promise." But the court say tliat "if the plaintiff had only a subpoena out of Chancery against the defendant, and did not make the cause thereof known to him — if he, in consideration that he would not prosecute any further against him, did assume to pay him so much, this clearly is a good consideration to raise a promise." Upon these authorities and upon principle this declara- tion is sufficient. Then the question is whether the plea, which must be construed most strongly against the defendant, discloses any answer. I agree with Mr. Crompton, that it is diffi- cult to see upon what principle the plea is constructed. No doubt it shows a prima facie case of hardship and injustice upon the defendant in the former action, but the question is whether it discloses a legal defense to this action. It does not show that the arrest was illegal; and it certainly is not sufficient on the ground of fraud, because there is no averment of any false statement or misrepresentation of fact in order to procure the arrest ; still less does it disclose any ground of duress, since all the averments show that the imprisonment was lawful. If it be good at all, it must be on the ground of want of consideration for the defendant's promise. Now it seems to me that the plea does not disclose sufficient matter to show a want of consideration. Taking it most strongly against the defendant, in substance it is no more than this, that the plaintiffs had no claim or cause of action which could have been enforced against Dunlop; but it does not allege that the plaintiffs knew 250 FOKMATION OF CoNTEACTS. [ChAP. I. that fact. It must be taken, therefore, that the capias on which Dunlop was arrested was regularly and duly- obtained; and the plea does not show that the plaintiffs were guilty of any illegal conduct, that they acted ille- gally in making the arrest, or from malicious motives, or that the arrest was without reasonable or probable cause. Dunlop, therefore, as it must be assumed, was in custody at the suit of the plaintiffs, under process which was legal and regular; and that being so, the discharge from such an arrest is quite a sufficient consideration to support the promise laid in this declaration; and I entirely agree that we cannot inquire into the quantimi or amount of consideration. Upon the face of the plea, therefore, there was a legal arrest, and the discharge from that arrest, under which the payment of the debt might have been obtained, was a benefit to Dunlop, quite sufficient to found a consideration for a promise to pay that debt. For these reasons I am of opinion that the plea furnishes no sufficient answer to the declaration, and that our judgments must be for the plaintiffs. Gtjeney, B. I am of the same opinion. To make the plea a sufficient answer it ought to have shown, either that the plaintiffs acted illegally or fraudulently in making the arrest or that they practised some fraud on the defendant. It shows neither, and, therefore, is no sufficient answer. Judgment for the plaintiffs. SiBEEE V. Trtpp.^ 15 MEESON & WELSBY, 22 — 1846. Assumpsit. The first count was upon a promissory note for £50; the second and third counts were for 1 The opinions of Parke and Piatt, BB., and also facts concerning admission of memorandum omitted. Sec. 2-B.] Sibeee v. Teipp. 251 money had and received, and on an account stated, the sum laid in each of them being £1,000. The defendant pleaded (with non assumpsit and other pleas), fifthly, as to the sum of £500, parcel of the sum in the second and last couats mentioned, that the accounts stated in the last count was stated of and con- cerning the said sum of £500, parcel, etc., in the said second count mentioned, and no other; that, after the said causes of action as aforesaid arose, the plaintiff commenced, in the Tolzey Court of Bristol, an action of debt against the defendant, for the recovery of the said sums of £500 and £500 ; that the defendant disputed the said supposed debt, and denied that he owed or was liable to pay the same, or that the plaintiff could recover it; and thereupon, to terminate the said dispute and difference, and the claim and demand of the plaintiff in the said debt and action, and finally to determine the said action, the plaintiff and defendant agreed that the said action should be settled by the defendant making and delivering to the plaintiff three promissory notes in writing, by which the defendant should promise to pay to the plaintiff, or order, the sums of £125, £125, and £50 respectively, and that the plaintiff should accept and receive the same in full satisfaction and discharge of the said sums of £500 and £500, and all damages and costs, and that the plaintiff should discontinue the said action. Averment, that the defendant made and delivered to the plaintiff the said three promissory notes, and that the plaintiff accepted the same in full satisfaction and dis- charge of the said sums of £500 and £500, and the damages and costs, etc. Verification. Eeplication, that no such agreement was ever made modo et forma, etc. ; on which issue was joined. At the trial, before Pollock, C.B., at the London sittings after last Trinity Term, it appeared that this action was brought to recover the sum of £50 due upon 252 FoBMATioN OP Contracts. [Chap, I. a promissory note, and also the sum of £500, whicli had, in August, 1843, been deposited by the plaintiff with the defendant for the purpose of a speculation in Spanish stock. At the time of the deposit, the following memo- randum was given by the defendant to the plaintiff : "Bristol, August 14, 1843. " Memorandum. Mr. Sibree has this day deposited with me £500, on the sale of £10,300, £3 per cent Spanish, to be returned on demand. "James T. Tripp." The defendant then proved, in support of his plea, that an action had been brought against him by the plaintiff in the Tolzey Court at Bristol, for the recovery of the sum of £500 ; when it was agreed between them that the defendant should give, in settlement of the action, three promissory notes, two for £125 each, and the third for £50, payable to the plaintiff or his order, which he accord- ingly did; and the following agreement was thereupon indorsed by Mr. Hinton, the plaintiff's attorney, upon the process served on the defendant: " This action is settled by the defendant giving three promissory notes — viz., one at three months, £125; one at four months, £125; and one at twelve months, £50 ; upon payment of which several promis- sory notes, I undertake to deliver to Foskett Savery, Esq. [the de- fendant's attorney], the several papers and letters in my possession in reference to this action. " January 6th, 1844. J. P. Hinton." The two promissory notes for £125 each were paid when due, but the third, for £50, was refused payment by the defendant, on the ground of its not having been indorsed. The present action was thereupon brought. Upon these facts, it was contended, on behalf of the plaintiff, that the fifth plea was not proved; for that, in order to support that plea, it was necessary to prove not only that the notes were given in satisfaction of the debt, but also that they had been paid. The Lord Chief Baron was of opinion that the plea was proved, and accordingly directed a verdict for the defendant on that Sec. 2-B.] Sibkeb v. Tbipp. 253 issue, giving the plaintiff leave to move to enter a verdict for him for £200. In Michaelmas Term last. BxjTT obtained a rule to show cause why the verdict should not be entered for the plaintiff accordingly, or why there should not be judgment for the plaintiff not- withstanding the verdict on the above issue. Pollock, C.B.^ The motion of Butt in this ease was to enter a verdict for the plaintiff on the issue joined on the fifth plea, or for judgment, notwithstanding the verdict found for the defendant on that issue. With respect to the first part of the motion, it involves these two points: First, whether the plaintiff's case was made out of the memorandum proved in evidence; and, sec- ondly, if it was, whether the answer given by the de- fendant was available to put an end to the plaintiff's right of action. The other part of the rule is to enter judgment for the plaintiff non obstante veredicto, on the ground that the giving of these notes could not in point of law be a satisfaction of a liquidated claim for a larger amouat. If the case of Cumber v. Wane were law, and a binding authority upon us, undoubtedly we could not come to a conclusion in favor of the defendant. That case was one of assumpsit for £15, to which the defendant pleaded that he gave the plaintiff a promissory note for £5 in satisfaction, and that the plaintiff received it in satisfaction, and it was held, on writ of error, after judg- ment for the plaintiff, that the plea was ill. It does not appear from the report, whether the note was payable presently, or whether is was negotiable or not. The facts are not sufficiently stated to make it a binding authority. Pratt, C.J., says, in delivering the judgment of the court : "As the plaintiff had a good cause of action, it can only be extin- guished by a satisfaction he agreed to accept; and it is not his agree- ment alone that is sufficient, but it must appear to the court to be a * Portions of opinion omitted. 254 Formation of Conteacts. [Chap. I. reasonable satisfaction; or at least the contrary must not appear, as it does in this case. If £5 be, as is admitted, no satisfaction for £15, why- is a simple contract to pay £5 a satisfaction for another simple con- tract of three times the value? In the case of a bond, another has never been allowed to be pleaded in satisfaction, without a bettering of the plaintiff's case, as by shortening the time of payment." From the latter part of the judgment I must, with every respect for the great authority of that learned judge, express my dissent. Undoubtedly at that time it was not law; for in Pinnel's Case, 5 Eep. 117, it was laid down as clear matter of law, that, in the case of a bond for £500, due on January 1st, if the obligee accepted £100 in satisfaction the day before, he was at liberty to do so ; and the court never inquired whether the satisfaction was reasonable; they left it to the agreement of the par- ties. However, it does not appear, in the case of Cumber v. Wane, that the promissory note was nego- tiable, and, therefore, that the plaintiff had any benefit from it. The marginal note of that case — " Giving a satisfaction for £15 " — was expressly denied to be law by Lord EUenborough in argument in Heathcote v. Crookshanks ; and BuUer, J., referred to a case of Hard- castle V. Howard, in which it had been so denied to be law. But whether the case of Cumber v. Wane has been overruled or not, it appears to me that it cannot be sustained as an authority that the acceptance of a nego- tiable security may not be a satisfaction of a claim to a larger amount. Sard v. Ehodes is a distinct authority that the acceptance of a negotiable security may be pleaded in satisfaction of a simple contract debt for a like amount, and the only question is whether the same doctrine is applicable where the original claim was for a larger amount. I think it is. It is admitted that if there had been an acceptance of a chattel in satisfaction of the debt, the court would not examine whether that satisfaction was a reasonable one, but merely whether the parties came to that agreement; and the acceptance Sec. 2-5. J Foakes v. Beee. 255 of a negotiable security appears to me to be of the same nature. Again, if a claim is bona fide disputable, Longridge v. Dorville, 5 B. & Aid. 117, E. C. L. E., vol. VII, is an authority to show that the party may be barred by the acceptance of a much less sum in satis- faction of it. Here the demand is apparently for a liqui- dated amount; but under the count for money had and received, that amount may be very disputable, and the plea avers that in the former action the defendant dis- puted the said supposed debt, and denied that he owned or was liable to pay it, and thereupon to terminate the dispute and difference, etc., the plaintiff and defendant agreed that the action should be settled by the giving of promissory notes. If so, that was an admission by the plaintiff that the claim was so far disputable as to justify him in coming to such an agreement. Upon the whole, I am of opinion that this plea is a good answer to the action, and that it was proved at the trial, and, therefore, that this rule ought to be discharged. Rule discharged. FoAKEs V. Beee. LAW REPORTS. 9 APPEAL CASES, 605 — 1884. Appeal from an order of the Court of Appeal. On August 11, 1875, the respondent recovered judg- ment against the appellant for £2077 17s. 2d. for debt and £13, Is. lOd. for costs. On December 21, 1876, a memorandum of agreement was made and signed by the appellant and respondent in the following terms: "Whereas the said John Weston Foakes is indebted to the said Julia Beer, and she has obtained a judgment in Her Majesty's High Court of Justice, Exchequer Division, for the sum of £2090 19s. And whereas the said Johii Weston Foakes has requested the said Julia Beer to give him time in which to pay such judgment, which she has agreed to do on the following conditions. Now this agree- ment witnesseth that in consideration of the said John Weston Foakes 256 Formation of Conteacts. [Chap. I. paying to the said Julia Beer on the signing of this agreement the sum of £500, the receipt whereof she doth hereby acknowledge in part satisfaction of the said judgment debt of £2090 19s., and on condition of his paying to her or her executors, administrators, assigns or nominee the sum of £150 on July 1st and January 1st or within one calendar month after each of the said days respectively in every year until the whole of the said sum of £2090 19s. shall have been fully paid and satisfied, the first of such pajrments to be made on July 1st next, then she the said Julia Beer hereby undertakes and agrees that she, her executors, administrators or assigns, will not take any proceedings whatever on the said judgment." The respondent having in June, 1882, taken out a summons for leave to proceed on the judgment, an issue was directed to be tried between the respondent as plain- tiff and the appellant as defendant whether any and what amount was on July 1, 1882, due upon the judg- ment. At the trial of the issue before Cave, J., it was proved that the whole sum of £2090 19s. had been paid by instal- ments, but the respondent claimed interest. The jury under his Lordship's direction found that the appellant had paid all the sums which by the agreement of Decem- ber 21, 1876, he undertook to pay and within the times therein specified. Cave, J., was of opinion that whether the judgment was satisfied or not, the respondent was, by reason of the agreement, not entitled to issue execu- tion for any sum on the judgment. The Queen's Bench Division (Watkin, Willianms and Mathew, JJ.) discharged an order for a new trial on the ground of misdirection. The Court of Appeal (Brett, M.E., Lindley, and Fry, L.J J.) reversed that decision and entered judgment for the respondent for the interest due, with costs. LoED Blackbxjen.^ My Lords, the first question raised ^ The opinions of Earl of Selbdme, L. C, and Lords Watson and Fitzgerald omitted. Sec. 2-B.] Foakes v. Beeb. 257 is as to what was the -true construction of the memoran- dum of agreement made on December 21, 1876. What was it that the parties by that writing agreed to? The appellants contend that they meant that on pay- ment down of £500, and payment within a month after July 1st and Jamlary 1st in each ensuing year of £150, until the sum of £2090 19s. was paid, the judgment for that sum and interest should be satisfied, for an agree- ment to take no proceedings on the judgment is equiva- lent to treating it as satisfied. This construction of the memorandum requires that after the tenth payment of £150 there should be a further payment of £90 19s. made within the next six months. This is the construction which all three courts below have put upon the memorandum. The respondent contends that the true construction of the memorandum was that time was to be given on those conditions for five years, the judgment being on default of any one payment enforceable for whatever was still unpaid, with interest from the date the judgment was signed, but that the interest was not intended to be forgiven at all. If this is the true construction of the agreement the judgment appealed against is right and should be affirmed, whether the reason on which the Court of Appeal founded its judgment was right or not. I am, however, of opinion that the courts below, who on this point were unanimous, put the true construction on the memorandum. I do not think the question free from difficulty. It would have been feasy to have expressed, in unmistakable words, that on payment down of £500, and punctual payment at the rate of £300 a year till £2090 19s. was paid, the judgment should not be enforced either for principal or interest ; or language might have been used which should equally clearly have expressed that, though time was to be given, interest was to be 17 258 FOEMATION OF CONTRACTS. [ChAP. I. paid in addition to the instalments. The words actually used are such that I think it is quite possible that the two parties put a different construction on tne words at the time ; but I think the words ' ' till the said sum of £2090 19s. shall have been fully paid and satisfied " cannot be construed as meaning '' till that sum, with interest from the day judgment was signed, shall have been fully paid and satisfied," nor can the promise " not to take any proceedings whatever on the judgment " be cut down to meaning any proceedings except those necessary to enforce payment of interest. I think, therefore, that it is necessary to consider the ground on which the Court of Appeal did base their judgment, and to say whether the agreement can be en- forced. I construe it as accepting and taking £500 in satisfaction of the whole £2090 19s., subject to the con- dition that unless the balance of the principal debt was paid by the instalments, the whole might be enforced with interest. If, instead of £500 in money, it had been a horse valued at £500, or a promissory note for £500, the authorities are that it would have been a good satisfac- tion, but it is said to be otherwise as it was with money. This is a question, I think, of difficulty. In Coke, Littleton 212&, Lord Coke says : " Where the condition is for payment of £20, the obligor or feoffor cannot at the time appointed pay a lesser sum in satisfaction of the whole, because it is apparent that a lesser sum of money cannot be a satisfaction of a greater * * *. jf the obligor or feoffor pay a lesser sum either before the day or at another place than is limited by the condition, and the obligee or feoffee receiveth it, this is a good satisfaction." For this he cites Pinnel's Case (5 Rep. 117a). That was an auction on a bond for £16, conditioned for the payment of £8 10s. on November 11, 1600. Plea that defendant, at plaintiff's request, before the said day, to wit, on October 1st, paid to the plaintiff £5 2s. 2d., which the plaintiff accepted in full satisfaction of the Sec. 2-B.] Foakes v. Beee. 259 £8 10s. The plaintiff had judgment for the insufficient pleading. But though this was so, Lord Coke reports that it was resolved by the whole Court of Common Pleas " that payment of a lesser sum on the day in satisfaction of a greater cannot be any satisfaction for the whole, because it appears to the judges that by no possibility a lesser sum can be a satisfaction to the plaintiff for a greater sum; but the gift of a horse, hawk, or robe, etc., in satisfaction is good, for it shall be intended that a horse, hawk, or robe, etc., might be more beneficial to the plaintiff than the money, in respect of some circumstance, or otherwise the plaintiff would not have accepted of it in satisfaction. But when the whole sum is due, by no intendment the acceptance of parcel can be a satisfaction to the plaintiff; but in the case at bar it was resolved that the payment and acceptance of parcel before the day in satisfaction of the whole would be a good satisfaction in regard of circumstance of time; for per- adventure parcel of it before the day would be more beneficial to him than the whole at the day, and the value of the satisfaction is not material; so if I am bound in £20 to pay you £10 at Westminster, and you request me to pay you £5 at the day at York, and you will accept it in full satisfaction for the whole £10, it is a good satisfaction for the whole, for the expenses to pay it at York is sufficient satisfaction." There are two things here resolved. First, that where a matter paid and accepted in satisfaction of a debt certain might by any possibility be more beneficial to the creditor than his debt, the court will not inquire into the adequacy of the consideration. If the creditor, with- out any fraud, accepted it in satisfaction when it was not a sufficient satisfaction it was his own fault. And that payment before the day might be more beneficial, and consequently that the plea was in substance good, and this must have been decided in the case. There is a second point stated to have been re- solved — viz, : " That payment of a lesser sum on the day cannot be any satis- faction of the whole, because it appears to the judges that by no pos- sibility a lesser sum can be a satisfaction to the plaintiff for a greater sum." This was certainly not necessary for the decision of the case; but though the resolution of the Court of 260 Formation op Conteacts. [Chap. I. Common Pleas was only a dictum, it seems to me clear that Lord Coke deliberately adopted the dictum, and the great weight of his authority makes it necessary to be cautious before saying that what he deliberately adopted as law was a mistake, and though I cannot find that in any subsequent case this dictum has been made the ground of the' decision, except in Fitch v. Sutton (5 East, 230), as to which I shall make some remarks later, and in Down v. Hatcher (IQ A. & E. 121), as to which Parke, B., in Cooper v. Parker (15 C. B. 828), said: '' Whenever the question may arise as to whether Down V. Hatcher (10 A. & E. 121), is good law, I should have a great deal to say against it," yet there certainly are cases in which great judges have treated the dictum in Pinnel's Case (5 Eep. 117a), as good law. For instance, in Sibree v. Tripp (15 M. & W. 33, 37), Parke, B., says: " It is clear if the claim be a liquidated and ascertained sum, pay- ment of part cannot be satisfaction of the whole, although it may, under certain circumstances, be evidence of a gift of the remainder." And Alderson, B., in the same case, says : " It is undoubtedly true that pajrment of a portion of a liquidated demand, in the same manner as the whole liquidated demand which ought to be paid, is payment only in part, because it is not one bargain, but two — viz., payment of part, and an agreement without considera- tion to give up the residue. The Courts might very well have held the contrary, and have left the matter to the agreement of the parties, but undoubtedly the law is so settled." After such strong expressions of opinion, I doubt much whether any judge sitting in a court of the first instance would be justified in treating the question as open. But as this has very seldom, if at all, been the ground of the decision even in a court of the first instance, and certainly never been the ground of a de- cision in the Court of Exchequer Chamber, still less in this House, I did think it open in your Lordships' House Sec. 2-B.] Foakes v. Beek. 261 to reconsider this question. And, notwithstanding the very high authority of Lord Coke, I think it is not the fact that to accept prompt payment of a part only of a liquidated demand, can never be more beneficial than to insist on payment of the whole. And if it be not the fact, it cannot be apparent to the judges. I wUl first examine the authorities. If a defendant pleaded the general issue, the plaintiff could join issue at once, and if the case was not defended get his verdict at the next assizes. But by pleading a special plea, the plaintiff was obliged to reply, and the defendant often caused the plaintiff, merely by the delay occasioned by replying, to lose an assize. If the replication was one to which he could demur he made this sure. Strangely enough it seems long to have been thought that if the defendant kept within reasonable bounds, neither he nor his lawyers were to blame in getting time in this way by a sham plea — that a chattel was given and accepted in satisfaction of the debt. The recognized forms were giving and accepting in satisfaction a beaver hat. Young V. Eudd (5 Mod. 86), or a pipe of wine (3 Chit. Plead., 7th ed., 92). All this is now antiquated. But while it continued to be the practice, the pleas founded on the first part of the resolution in Pinnel's Case were very common, and that law was perfectly trite. No one for a moment supposed that a beaver hat was really given and accepted; but every one knew that the law was that if it was really given and accepted it was a good satis- faction. But special pleas founded on the other reso- lution in Pinnel's Case, on what I have ventured to call the dictum, were certainly not common. I doubt if a real defense of this sort was ever specially pleaded. When there really was a question as to whether a debt was satisfied by a payment of a smaller sum the defendant pleaded the general issue, and it was proved to the satis- faction of the jury that a smaller sum had been paid and 262 Formation of Contkacts. [Chap. I. accepted in satisfaction of a greater, if objection was raised the jury might, perhaps, as suggested by Hol- royd, J., in Thomas v. Heathorn (2 B. & C. 482), find that the circumstances were such that the legal effect was to be as if the whole was paid down and a portion thrown back as a god's-penny. This, however, seems to me to be an unsatisfactory and artificial way of avoiding the effect of the dictum, and it could not be applied to such an agreement as that now before this House. For whatever reason it was, I know of no case in. which the question was raised, whether a payment of a lesser sum could be satisfaction of a liquidated demand from Pinnel's Case down to Cumber v. Wane (5 Geo. 1; 1 Sm. L. C, 8th ed., 357), a period of 115 years. . In Adams v. Tapling (4 Mod. 88), where the plea was bad for many other reasons, it is reported to have been said by the court that : " In covenant where the damages are uncertain, and to be recovered, as in this case, a lesser thing may be done in satisfaction, and there * accord and satisfaction ' is a good plea." No doubt this was one of the cases which Parke, B., would have cited in support of his opinion that Down v. Hatcher (10 A. & E. 121), was not good law. The court are said to have gone on to recognize the dictum in Pinnel's Case, or at least not to dissent from it, but it was not the ground of their decision. In every other re- ported case which I have seen the question arose on a demurrer to a replication to what was obviously a sham or dilatory plea. Some doubt has been made as to what the pleadings in Cumber v. Wane (1 Str. 426), really were. I have ob- tained the record. The plea is that after the promises aforesaid, and before the issuing of the writ, it was agreed between the said G-eorge and Edward Cumber that he, the said George, " daret eidem Edwardo Cumber quandm notam in script vocatam, a promissory note, Sec. 2-B.] Foakes v. Beer. 263 manu propria ipsius Georgii subscript pr. solucon eidem Edwardo Cumber vel ordini quinque librarum," four- teen days after date, in full satisfaction and exoneration of the premises and promises, which said note in writing the said George then gave to the said Edward Cumber, and the said Edward Cumber then and there received from the said George the said note in full satisfaction and discharge of the premises and promises. The replication is that " the said George did not give to him Edward any note in writing called a promissory note with the hand of him George subscribed for the pay- ment to him Edward or his order of £5, fourteen days after date in full satisfaction and discharge of the prem- ises and promises." To this there is a demurrer and judgment in the Common Pleas for the plaintiff " that the replication was good in law." The reporter, oddly enough, says there was an imma- terial replication. The effect of the replication is to put in issue the substance of the defense — namely, the giving in satisfaction; Young v. Eudd (5 Mod. 86), and certainly that was not immaterial. But for some reason, I do not stop to inquire what, Pratt, C.J., prefers to base the judgment affirming that of the Com- mon Pleas on the supposed badness of the plea rather than on the sufficiency of the replication. It is impos- sible to doubt that the note, which it is averred in the plea was given as satisfaction, was a negotiable note. And, therefore, this case is in direct conflict with Sibree V. Tripp, Two cases require to be carefully considered.. The first is Heathcote v. Crookshanks (2 T. R. 24). The plea there pleaded would, I think, now be held perfectly good, see Norman v. Thompson (4 Ex. 755) ; but Buller, J., seems to have thought otherwise. He says: " Thirdly, it was said that all the creditors were bound by this agree- ment to forbear, but that is not stated by the plea. It is only alleged 264 FoBMATioN OF Contracts. [Chap. L that they agreed to take a certain proportion, but that is a nuckmir pactum, unless they had afterward accepted it. In the case in which Cumber v. Wane (1 Str. 426), was denied to be law, Hardeastle v. Howard (26 Geo.' 3, B. R.), the party actually accepted. But as the plaintiff in the present case refused to take less than the whole demand, the plea is clearly bad." That decision goes entirely on the ground that accord without satisfaction is not a plea. I do not think it can be fairly said that BuUer, J., meant by saying " that is a nudum pactum, unless they had afterward accepted it," to exjpress an opinion that if the dividend had been accepted it would have been a good satisfaction. But he certainly expresses no opinion the other way. In Fitch V. Sutton (5 East, 230), not only did the plain- tiff not accept the payment of the dividend in satisfac- tion, but refused to accept it at all, unless the defendant promised to pay him the balance when of ability, and the defendant assented and made the promise required, so that but for the fact that other creditors were parties to the composition there could have been no defense. There was no point of pleading in that case, the whole being open under the general issue. And in Steinman v. Magnus (11 East, 390), it was pretty well admitted by Lord EUenborough that the decision in Fitch v. Sutton (5 East, 230), would have been the other way, if they had understood the evidence as the reporter did. But though this misapprehension of the judges as to the facts, and the absence of any acceptance of the dividend, greatly weaken the weight of Fitch v. Sutton, still it re- mains that Lord EUenborough, a very great judge in- deed, did, however hasty or unnecessary it may have been to express such an opinion, say: "It is impossible to contend that acceptance of £17 10s. is an ex- tinguishment of a debt of £50. There must be some consideration for the relinquishment of the residue; something collateral, to show a pos- sibility of benefit to the party relinquishing his further claim, other- wise the agreement is nudum pactum. But the mere promise to pay Sec. 2-B.] Foakes v. Beer. 265 the rest when of ability put the plaintiff in no better condition than he was before. It was expressly determined in Cumber v. Wane (1 Str. 426), that acceptance of a security for a lesser sum cannot be pleaded in satisfaction of a similar security for a greater. And though that case was said by me in argument in Heatheote v. Crookshanks (2 T. R. 24), to have been denied to be law, and in confirmation of that Buller, J., afterward referred to a ease (stated to be that of Hardcastle v. Howard, H. 26 Geo. 3), yet I cannot find any case of that sort, and none has been now referred to ; on the contrary, the decision in Cumber V. Wane is directly supported by the authority of Finnel's Case (5 Eep. 117a), which never appears to have been questioned." I must observe that, whether Cumber v. Wane was, or was not denied to be law in Hardcastle v. Howard, it cer- tainly was denied to be law in Sibree v. Tripp, and that, though it is quite true that Pinnel's Case, as far as re- gards the points actually raised in the case, has not only never been questioned, but is often assented to, I am not aware that in any case before Fitch v. Sutton, unless it be Cumber v. Wane, has that part of it which I venture to call the dictum ever been acted upon; and as I have pointed out, had it not been for the composition with other creditors, there could have been no defense in Fitch V. Sutton, whether the dictum in Pinnel's Case was right or wrong. Still this is an authority, and I have no doubt that it was on the ground of this authority and the adhesion of Bayley, J., to it in Thomas v. Heathorn (2 B. & C. 477), that Barons Parke and Alderson expressed themselves as they did in the passages I have cited from Sibree v. Tripp. And I think that their expressions justify Mr. John William Smith in laying it down as he does in his note to Cumber v. Wane, in the second edition of his Leading Cases, that " a liquidated and undisputed money demand, o£ which the day of pay- ment is passed (not founded upon a bill of exchange or promissory note), cannot even with the consent of the creditor be discharged by mere payment by the debtor of a smaller amount in money in the same manner as he was bound to pay the whole." 266 FOEMATION OF CONTEACTS. [ChAP. I. I am inclined to think that this was settled in a court of the first instance. I think, however, that it was originally a mistake. What principally weighs with me ia thinking that Lord Coke made a mistake of fact is my conviction that all men of business, whether merchants or tradesmen, do every day recognize and act on the ground that prompt payment of a part of their demand may be more bene- ficial 'to them than it would be to insist on their rights and enforce payment of the whole. Even where the debtor is perfectly solvent, and sure to pay at last, this often is so. Where the credit of the debtor is doubtful it must be more so. I had persuaded myself that there was no such long-continued action on this dictum as to render it im- proper in this House to reconsider the question. I had written my reasons for so thinking ; but as they were not satisfactory to the other noble and learned lords who heard the case, I do not now repeat them nor persist in them. I assent to the judgment proposed, though it is not that which I had originally thought proper. Order appealed from affirmed, and appeal dismissed with costs. BiDDEE V. BeIDGES. LAW REPORTS, 37 CHANCERY DIVISION, 406 — 1887. The action in this case was brought for the purpose of establishing certain rights of common. The action was tried before Kay, J., who gave judg- ment on October 27, 1885, in favor of the defendants with costs. The plaintiffs appealed from this judgment, and the appeal was dismissed with costs on August 2, 1886. The costs of the judgment and the appeal were taxed, and the certificates of the Taxing Master were given on Sec. 2-B.] Biddeb v. Bridges. 267 May 27, 1887, from which it appeared that the amount of the taxed costs of the judgment payable to the defendant, H. Davis, was £465 17s. lOd., and of the taxed costs of the appeal, £144 7s. 4d. Mr. C. A. Russ was the solicitor acting for H. Davis in the action, and he was prepared to file the certificates when he received a letter from Messrs. Rooke & Sons, the solicitors for the plaintiffs, asking him to call on them to settle the costs, and not to put his clients to the expense of filing the certificates. Mr. Norris, the managing clerk of Mr. Russ, accord- ingly called on Messrs. Rooke & Sons, on May 28, 1887, when Mr. F. H. Rooke handed him a check for £609 5s. 2d., being the amount of the taxed costs of the judgment and appeal, less £1, which was deducted on account of the certificates not being filed. Mr. Norris then signed re- ceipts for the costs, which were indorsed upon the certifi- cates, and he then handed over the certificates to Mr. F. H. Rooke. The form of the receipt on the certificate of the costs of the judgment was as follows : "Received by cheek tie within-mentioned costs of £465 17s. lOd., less 10s., remitted. " Chakles a. Russ.— H. G. N. " And a similar receipt was given for the costs of the appeal. The check was drawn by Rooke & Sons in favor of C. A. Russ, Esq., or order, and was duly paid. Mr. Rooke in his affidavit stated that he objected to pay for the filing of the certificates on the ground that they had been taken out without giving notice to his firm of the final appointment to dispose of certain outstand- ing queries and in their absence, and also on the ground that filing the certificates was an unnecessary expense; and that he gave the check in full satisfaction of all Davis' claims against the plaintiffs under the certificates. Mr. Norris, however, made a counter affidavit stating that all the queries were finally disposed of in the pres- 268 Formation of Conteacts. [Chap. I. ence of a representative of Messrs. Eooke & Sons. Noth- ing was said at the time about interest on the costs, but on July 11, 1887, Mr. Russ wrote a letter- to .Messrs. Eooke & Sons, ia which he said: "When you handed me check for the amount of taxed costs you omitted to include interest on the respective certificates. This interest, calculated at 4 per cent from the respective dates of the judgment and appeal, must be paid in the usual way, and I should be obliged by your procuring and handing me a cheek for £33 16s. Id., the amount of interest as aforesaid." Messrs. Eooke & Sons having deelined to pay the in- terest claimed, Mr. Euss wrote to them to return the certificates in order that he might take further proceed- ings on them; and enclosed in their place a separate re- ceipt for the money which had been paid. Messrs. Eooke & Sons refused to give up the certificates, and the de- fendant Davis then moved before Stirling, J., that the plaintiffs be ordered to file, or to attend before the proper officer of the court, and produce to such officer the certificates of the Taxing Master of May 27, 1887, for the purpose of enabling the defendant Davis to issue a writ of fi. fa. for the interest on the costs thereby certi- fied and due from the plaintiffs to Davis. The motion came on for hearing before Stirling, J., on November 18, 1887. Stieling, J. This is an application of a very unusual character. The notice of motion is [Ms Lordship read it and continued] : It appears that the action of Bidder v. Bridges was dismissed by Kay, J., with costs to be paid to all the defendants, including Henry Davis. The de- cision was affirmed by the Court of Appeal, and again the plaintiffs were ordered to pay the costs. The costs have been taxed in pursuance of the orders. What has taken place since is in evidence in the affidavit of the clerk of the solicitor who acted for the defendant Davis, and who had the conduct of the taxation. It is to the Sec. 2-5.] Bidder v. Bridges. 269 effect tliat tlie costs were duly taxed at £465 17s. lOd., and £144 7s. 4d., making together £610 5s. 2d. [His Lordship read the letters which passed between the solicitors in May, 1887, and continued.] Upon the affi- davits there is to a certain extent a conflict of evidence. Possibly, in one view, that conflict may be immaterial, but if there should be further litigation it may be ma- terial. It is plain, however, that there was a discussion about the amount to be paid. The solicitor for the plain- tiffs insisted upon a reduction of £1 being made in refer- ence to the filing of the certificates — it having been agreed that they should not be filed ; and he also insisted that the clerk of the defendant's solicitor should take his check for the reduced amount; and to my mind, as the matter then stood, the meaning of both parties was that if the check should be honored it was to be taken in pay- ment for the bills of costs. That is not in dispute, what- ever may be the legal effect of the transaction. The check was honored. It has the indorsement of the de- fendant's solicitor upon it. Then according to the evi- dence of that solicitor's clerk he discovered a week or two afterward that the interest had been omitted to be charged. That is an incorrect statement, because when he went to the plaintiff's solicitors' office he knew that the interest was not included in the amount to be paid. What he did discover was a decision of the Court of Appeal showing that the defendant might claim interest, and hence this motion. In the first place it was contended that I have no juris- diction to make the order asked for. I do not think it necessary to go into that question, but I am not prepared to say that in a proper case I have not jurisdiction. If I found that one solicitor had by fraud or trickery got from another a document which ought to be filed, and if by its not being filed he might be deprived of his just rights, I would try to see whether it could not be placed 270 Formation of Conteacts. [Chap. I. upon the files of the court; but that is not this ease. This was a perfectly plain, honest, and honorable trans- action upon both sides. In regard to it the plaintiffs have obtained an advantage honorably got, and why should I take it away from them? It is plain that the certificates were not to be filed, and as plain that it was competent to the parties to enter into such an arrange- ment ; if any mistake was made, it was a mistake of law, and therefore I do not see why the advantage gained should be taken from the plaintiffs. The agreement be- ing clear that the certificates should not be filed, I' do not think that I ought to interfere. If there be any other remedy open to the defendant he can pursue it. Pos- sibly that is enough to dispose of the motion. If, how- ever, there be jurisdiction, and I am to exercise it, I must be clear that the Taw is in favor of the applicant. The object in view is to have the certificates filed so that the applicant may immediately afterward proceed to obtain the interest. The dispute between the parties in regard to the check being given, is shown in the evidence, which is oath against oath and nothing more, and all that I could do, if I made an order, would be to put the matter in such a position as that the defendant should obtain a decision upon the conflict of evidence ; but why should I put the plaintiffs, who have got an advantage, to a disadvantage, to which they ought not to be exposed? After the arguments I may be justified in seeing whether the authorities are in favor of the applicant. What was done by the applicant ? He accepted, as it appears to me, in full satisfaction of the plaintiffs' liability for costs, the check of their solicitors payable to order, and that check was duly honored. "VVliat in law is the effect of that? The state of the law is very peculiar in regard to the acceptance of a smaller sum in satisfaction of a larger debt. The law has been recently discussed in the Sec. 2-5.] Bidder v. Bbidges. 271 case of Foakes v. Beer, the head-note of whieh states that: "an agreement between judgment debtor and creditor, that in con- sideration of the debtor paying down part of the judgment debt and costs, and on condition of his paying to the creditor or his nominee the residue by instalments, the creditor will not take any proceedings on the judgment, is nudum pactum, being without consideration, and does not prevent the creditor after payment of the whole and costs from proceeding to enforce payment of the interests upon the judgment." That decision was founded upon the doctrine laid down so long ago as Pinnel's Case, and it will be sufficient for my purpose here if I refer to what Lord Blackburn said in his speech as to that case : " That was an action on a bond for £16 conditioned for the payment of £8 10s. on November 11, 1600. Plea that defendant, at plaintiff's request, before the said day, to wit, on October 1st, paid to the plaintiff £5 2s. 2d. which the plaintiff accepted in full satisfaction of the £8 10s. The plaintiff had judgment for the insuf&cient pleading," And his lordship went on to state that Lord Coke reports that the court resolved: " that payment of a lesser sum on the day in satisfaction of a greater cannot be any satisfaction for the whole . . . but the gift of a horse, hawk, or robe, etc., in satisfaction is good, for it shall be intended that " «ither " might be more beneficial to the plaintiff than the money; " And after referring further to that case Lord Black- burn said: " There are two things here resolved. First, that where a matter paid and accepted in satisfaction of a debt certain might by any pos- sibility be more beneficial to the creditor than his debt, the court will not inquire into the adequacy of the consideration." And, secondly, " that payment of a lesser sum on the day cannot be any satisfaction of the whole." There were, therefore, two resolutions in Pinnel's Case, and the decision of the House of Lords affirmed the second; but, as I understand that decision, it did 272 FOKMATION OF CONTRACTS. [ChAP. I. not in any way disaffirm the other. Therefore the first resolution referred to by Lord Blackburn is just as much binding on me as the second. Then comes the question here, Is a negotiable instrument such a mat- ter as may be " paid and accepted in satisfaction of a debt certain ? ' ' The applicant accepted not a negotiable instrument of his debtors, but that of their solicitors. He took the check of different persons. Was that an ac- cord and satisfaction according to the authorities? No doubt the case of Cumber v. Wane (1 Sir. 426 ; 1 Sm. L. 6, 8th ed., p. 357), was one in reference to a promissory note. In Foakes v. Beer (9 App. Cas. 605) the record of Cumber v. Wane is fully stated at page 619. The de- cision was that giving a promissory note for £5 cannot be pleaded as a satisfaction for £15, but this has been denied by a series of authorities to be laW. Thus in Sibree v. Tripp (15 M. & W. 23) it was held that a promissory note taken for a less sum than the demand was a good satisfaction; that a negotiable instrument for a smaller sum may be given in satisfaction of a larger debt. Then there is the case of Curlewis v. Clark (3 Ex. 375), and also that of Goddard v. O'Brien (9 Q. B. D. 37), which goes even further than I am required to go in this case. It was contended that these three au- thorities went upon the view that Cumber v.. Wane was bad law, and that this was inconsistent with the decision in Foakes v. Beer. I do not, however, understand the House of Lords to approve of the application made in Cumber v. Wane of the doctrine laid down in Pinnel's Case (5 Eep. 117a; Co, Litt. 212&). In that case there was a qualifica- tion added that if a thing of a different kind be given, that is a good satisfaction. That qualification was dis- regarded in Cumber v. Wane ; and in Foakes v. Beer this circumstance is commented upon by both Earl Selborne and Lord Blackburn. If further authority is required I may refer to the notes of the late Willes, J., and of Keat- Sec. 2-B.] Shadwell v. Shadwell. 273 ing, J., to the case of Cumber v. "Wane in Smith's Lead- ing Cases, where they state the law to be that a demand may be discharged by payment of a thing different from that contracted to be paid though of less pecuniary value, and they give as an instance a negotiable instrument binding the debtor or a third person to pay a smaller sum. Under these circumstances, having regard to the current authorities, which appear to me to be unaffected by the decision of the House of Lords, I hold that the check of a third party given as this check was, was a satisfaction of the debt and was a good payment. There- fore, both as to the form and upon the merits, the appli- cation fails and must be refused with costs. From this decision the defendant Davis appealed.^ • Shadwell v. Shadwell. 30 law journal repoets, common pleas, 145 — 1860. The declaration stated that the testator, in his life- time (in consideration that the plaintiff would marry Ellen Nicholl), agreed with and promised the plaintiff, who was then unmarried, in the terms contained in a writing in the form of a letter, addressed by the said testator to the plaintiff, which writing was and is in the words, letters, and figures following — that is to say : "Gray's Inn, August 11, 1838. " My Dear Lancey : I am glad to hear of your intended marriage ■with Ellen Nicholl; and, as I promised to assist you at starting, I am happy to tell you that I will pay to you £150 yearly during my life, and until your annual income derived from your profession of a Chancery barrister shall amount to 600 guineas, of which your own admission will be the only evidence that I shall receive or require. " Your ever affectionate uncle, " Chaeles Shadwell." ^ AfiSimed on appeal. The opinions omitted. 18 274 FOEMATION OF CONTRACTS. [ChAP. L Averment that tlie plaintiff did all things necessary^ and all things necessary happened, to entitle him to have the said testator pay to him eighteen of the said yearly sums of £150 each respectively, and that the time for the payment of each of the said eighteen yearly smns elapsed after he married the said Ellen Nicholl, and in the life- time of the said testator, and that the plaintiff's annual income derived from his profession of a chancery bar- rister never amounted to 600 guineas, which he was al- ways ready and willing to admit and state to the said testator, and the said testator paid to the plaintiff twelve of the said eighteen yearly sums which first became pay- able, and part, to wit, £12 of the thirteenth; yet the said testator made default in paying the residue of the said thirteenth yearly sum, which residue is still in arrear and unpaid, and in paying the five of the said eighteen yearly sums which last became payable, and the said five sums are still in arrear and unpaid. Fourth plea, that before and at the time of the making of the supposed agreement and promise in the declara- tion mentioned, the said marriage had been and was without any request by or on the part of the testator touching the said intended marriage, but at the request of the plaintiff, intended and agreed upon between the plain- tiff and the said Ellen Nicholl, of which the testator be- fore and at the time of making the supposed agreement and promise also had notice, and the said marriage was after the making of the supposed agreement and promise duly had and solemnized as in the declaration mentioned, at the request of the plaintiff, aiid without the request of the testator. And the defendants further say, that save and except as expressed and contained in the writing set forth in the declaration, there never was any considera- tion for the supposed agreement and promise in the declaration mentioned, or for the performance thereof. Fifth plea, to part of the claim of the plaintiff, to wit, Sec. 2-B.] Shadwell v. Shadwell. 275 to so mucli thereof as accrued due in and after tlie year 1855, the defendants say that although the supposed agreement and promise in the declaration mentioned were made upon the terms then agreed on by the plaintiff and the testator, that the plaintiff should continue in practice and carry on the profession of such chancery barrister as aforesaid, and should not abandon the same ; yet that after the making of the said agreement and promise, and before the accruing of the supposed causes by this plea pleaded to and in the declaration mentioned, or any part thereof, the plaintiff voluntarily, and without the leave or license of the testator, relinquished and gave up and abandoned the practice of the said profession of a chancery barrister, which before and at the time of the said making of the said supposed agreement and prom- ise, he had so carried on as aforesaid; and although the plaintiff could and might, during the time in this plea and in the declaration mentioned, have continued to prac- tice and carry on that profession as aforesaid, yet the plaintiff, after such abandonment thereof, never was ready and willing to practice the same as aforesaid, but practiced only as a revising barrister — that is to say, as a barrister appointed yearly to revise the list of vot- ers for the year, for the county of Middlesex, according to the provisions of the statutes in that behalf, by holding open courts for such revision at the times and places in that behalf provided by the said statutes. Second replication to the fourth plea, that the said agreement declared on was made in writing, signed by the said testator, and was and is in the words, letters and figures following, and in none other — that is to say [setting out the letter as in the declaration above]. Averment that the plaintiff 'afterward married the said Ellen NichoU, relying -on the said promise of the said testator, which at the time of the said marriage was in full force, not in any way vacated or revoked, and that 276 Formation of Contracts. [Chap. I. lie so married while his annual income derived from his profession of a chancery barrister did not amount, and was not by him admitted to amount, to 600 guineas. Second replication to the fifth plea, that the said agree- ment declared on was in writing, signed by the said tes- tator, and was and is in the words, letters, and figures set out in the next preceding replication, and in none other, and that the terms upon which it is in the fifth plea alleged that the said agreement and promise were made were no part of the agreement and promise declared on, and the performance of them by the plaintiff was not a condition precedent to the plaintiff's right to be paid the said annuity. Demurrers to the replications to the fourth and fifth pleas. Joinder in demurrer. Erlb, C.J., now delivered the judgment of himself and Keating, J. The question raised by the demurrer to the replication to the fourth plea is, whether there was a consideration to support the action on the promise to pay an annuity of £150 per annum. If there be such a consideration it is a marriage ; therefore the promise is within the Statute of Frauds, and the consideration must appear in the writing containing the promise — that is, in the letter of August 11, 1838 — and in the surrounding circumstances to be gathered therefrom, together with the averments on the record. The circumstances are that the plaintiff had made an engagement to marry Ellen NichoU, his uncle promising him to assist him at starting, by which, as I understand the words, he meant on commencing his married life. Then the letter contain- ing the promise declared on is said to specify what the assistance would be — namely, £150 per annum during the uncle's life, and until the plaintiff's professional in- come should be acknowledged by him to exceed 600 guineas ; and a further averment, that the plaintiff, rely- ing upon his promise, without any revocation on the part of the uncle, did marry Ellen NiehoU. Then, do these Sec. 2-5.] ShadweliL v. Shadwell. 277 facts show that the promise was in consideration, either of the loss to be sustained by the plaintiff, or the benefit to be derived from the plaintiff to the uncle at his, the uncle's request? My answer is in the affirmative. First, do these facts show a loss sustaiued by the plaintiff at the uncle's request? When I answer this in the affirma- tive, I am aware that a man's marriage with the woman of his choice is in one sense a boon, and in that sense the reverse of a loss; yet, as between the plaintiff and the party promising an income to support the marriage, it may be a loss. The plaintiff may have made the most material changes in his position, and have induced the object of his affections to do the same, and have incurred pecuniary liabilities resulting in embarrassments, which would be in every. sense a loss if the income which had been promised should be withheld; and if the promise was made in order to induce the parties to marry, the promise so made would be, in legal effect, a request to marry. Secondly, do these facts show a benefit derived from the plaintiff to the uncle at his request? In answer- ing again in the affirmative, I am at liberty to consider the relation in which the parties stood, and the interest in the status of the nephew which the uncle declares. The marriage primarily affects the parties thereto; but in the second degree it may be an object of interest with a near relative, and in that sense a benefit to him. This benefit is also derived from the plaintiff at the uncle's request, if the promise of the annuity was intended as an "inducement to the marriage; and the averment that the plaintiff, relying on the promise, married, is an averment that the promise was one inducement to the marriage. This is a consideration averred in the declaration, and it appears to me to be expressed in the letter, construed with the surrounding circumstances. No case bearing a strong analogy to the present was cited,, but the import- ance of enforcing promises which have been made to in- 278 FOEMATION OF CONTBACTS. [ChAP. I. duce parties to marry has been often recognized, and the eases of Montefiori v. Montefiori and Bold v. Hutchinson are examples. I do not feel it necessary to add anything about the numerous authorities referred to in the learned arguments addressed to us, because the decision turns on a question of fact, whether the consideration for the promise is proved as pleaded.- I think it is, and there- fore my judgment on the first demurrer is for the plain- tiff. The second demurrer raises the question, whether the plaintiff's continuing at the bar was made a condi- tion precedent to the right to the annuity. I think not. The uncle promises to continue the annuity untU the pro- fessional income exceeds the sum mentioned, and I find no stipulation that the annuity shall cease if the profes- sional diligence ceases. My judgment on this demurrer is also for the plaintiff, and I should state that this is the judgment of my Brother Keating and myself, my Brother Byles differing with us. Byles, J. I am of opiaion that the defendant is entitled to the judgment of the court on the demurrer to the second replication to the fourth plea. It is alleged by the fourth plea that the defendant's testator never re- quested the plaintiff to enter into the engagement to marry, or to marry, and that there never was any con- sideration for the testator's promise, except what may be collected from the letter itself set out ia the declara- tion. The inquiry, therefore, narrows itself to this ques- tion. Does the letter itself disclose any consideration for the promise? The consideration relied on by the plain-' tiff's counsel being the subsequent marriage of the plain- tiff, I think the letter discloses no consideration. It is in these words [his Lordship read it]. It is by no means clear that the words ' ' at starting ' ' mean ' ' on marriage with Ellen NichoU," or with any one else. The more natural meaning seems to me to be " at starting in the profession, ' ' for it will be observed that these words are Sec. 2-5.] Shadwell v. Shadwell. 279 used by the testator in reciting a prior promise, made when the testator had not heard of the proposed mar- riage with Ellen Nicholl, or, so far as appears, heard of any proposed marriage. This construction is fortified by the consideration that the annuity is not, in terms, made to begin from the marriage, but, as it should seem, from the date of the letter. Neither is it in terms made de- feasible if Ellen Nicholl should die before marriage. But even on the assumption that the words " at starting " mean " on marriage," I stUl think that no consideration appears sufficient to sustain the promise. The promise is one which, by law, must be in writing ; and the fourth plea shows that no consideration or request, dehors the letter, existed, and, therefore, that no such consideration or request can be alluded to by the letter. Marriage of the plaintiff at the testator's express request would be, no doubt, an ample consideration, biit marriage of the plaintiff without the testator 's request is no consideration to the testator. It is true that marriage is, or may be a ■detriment to the plaintiff; but detriment to the plaintiff is not enough, unless it either be a benefit to the testator or be treated by the testator as such, by having been suffered at his request. Suppose a defendant to promise a plaintiff, ** I will give you £500 if you break your leg," would that detriment to the plaintiff, should it happen, be any consideration? If it be said that such an accident is an involuntary mischief, would it have been a binding promise if the testator had said, ** I wUl give you £100 a year while you continue in your present chambers " ? I conceive that the promise would not be binding for want of a previous request by the testator. Now, the testator in the case before the court derived, so far as appears, no personal benefit from the marriage. The question, therefore, is still further narrowed to this point, Was the marriage at the testator's request? Express request there was none. Can any request be implied? The only 280 Formation of Contracts. [Chap. I. words from whicli it can be contended that it is to be implied are the words, " I am glad to hear of your in- tended marriage with Ellen NichoU." But it appears from the fourth plea that that marriage had already been agreed on, and that the testator knew it. These words,, therefore, seem to me to import no more than the satis- faction of the testator at the engagement as an accom- plished fact. No request can, as it seems to me, be in- ferred from them. And, further, how does it appear that the testator's implied request, if it could be implied, or his promise, if that promise alone would suffice, or both together, were intended to cause the marriage, or did cause it, so that the marriage can be said to have taken place at the testator's request, or, in other words, in con- sequence of that request? It seems to me, not only that this does not appear, but that the contrary appears ; for the plaintiff before the letter had already bound himself to marry by placing himself not only under a moral, but, under a legal obligation to marry, and the testator knew it. The well-known cases which have been cited as the bar in support of the position that a promise, based on the consideration of doing that which a man is already bound to do, is invalid, apply to this case ; and it is not necessary, in order to invalidate the consideration, that the plaintiff's prior obligation to afford that considera- tion should have been an obligation to the defendant. It may have been an obligation to a third person. See Her- ring V. Dorrell (8 Dowl. P. C. 604), and Atkinson v. Settree (Willes, 482). The reason why the doing what a man is already bound to do is no consideration, and it is not only because such a consideration is in judgment of law of no value, but because a man can hardly be al- lowed to say that the prior legal obligation was not his determining motive. But whether he can be allowed to say so or not, the plaintiff does not say so here. He does, indeed, make an attempt to meet this difficulty by alleg- Sec. 2-7?.] Scotson v. Pegg. 281 ing, in the replication to the fourth plea, that he married relying on the testator's promise; but he shrinks from alleging that though he had promised to marry before the testator's promise to him, nevertheless, he would have broken his engagement, and would not have married without the testator's promise. A man may rely on en- couragements to the performance of his duty who yet is prepared to do his duty without those encouragements. At the utmost, the allegation that he relied on the testa- tor's promise seems to me to import no more than that he believed the testator would be as good as his word. It appears to me, for these reasons, that this letter is no more than a letter of kindness, creating no legal obliga- tion. In their judgment on the other portions of the record I agree with the rest of the court. Judgment for the plaintiff. ScoTsoN V. Pegg. 6 HURLSTONE & NORMAN, 295 — 1861. Declaeation. For that in consideration that the plain- tiffs, at the request of the defendant, would deliver to the defendant a certain cargo of coals, then on board a certain ship of the plaintiffs, the defendant to take the same from and out of the said ship, the defendant prom- ised the plaintiffs to unload and discharge the same at the rate of 49 tons of the said coals during each working day, after the said ship was ready to unload and dis- charge the same. And although the plaintiffs did after- ward deliver the said cargo to the defendant, and were always ready and willing to suffer and permit him to take the same from and out of the said ship as aforesaid, and although all things were done, and conditions prece- dent to be performed by the plaintiffs were performed by the plaintiffs, to entitle 'the plaintiffs to a 282 Formation of Contracts. [Chap. I. performance of the said promise by the defend- ant. Yet the defendant did not imload and discharge the said cargo at the rate aforesaid during each working day after the said ship was ready to unload and discharge the same, and the defendant wholly neglected and refused so to do for five days longer and more than he ought to have done according to his said promise ; and the plaintiffs were put to expense in and about the main- taining and keeping the master and crew of the said ship, etc. Plea. That before the making of the said promise the plaintiffs, by another contract made by and between the plaintiffs and certain other persons, agreed with the said certain other persons, for certain freight therefore pay- able by the said other persons to the plaintiffs, to carry the said coals on a certain voyage in the said ship, and to deliver the said coals to the order of the said other per- sons, which contract was in full force thence, untU, and at the time of the niaking of the said promise and the de- livery of the said coals. And the defendant says that before the making of the said promise, and after the making the said other contract, and while the last-men- tioned contract was in force, he bought the coals of the said other persons, who thereupon ordered the plaintiffs to deliver the same to the defendant, under and accord- ing to the said contract with the said other persons, of which the plaintiffs before the making of the said prom- ise had notice. And the defendant says that the said order was in full force until and at the time of the making of the said promise, and thence until and at the delivery of the said coals, of which the plaintiffs always had notice. And the defendant says the then future delivery to the defendant of the said coals on the terms in the de- claration mentioned which was the consideration for the said promise, was the delivery of the said coals to the order of the said other persons, which the plaintiffs had Sec. 2-B.] Scotson v, Pegg. 283 by the said contract witli such other persons so agreed to make as aforesaid, and which before and at the time of the making of the said promise, until and at the time of the said delivery, the plaintiffs were, by, under, and ac- cording to the said contract with the said other persons bound to make as aforesaid. And the defendant says that there never was any consideration for his said prom- ise other than the doing of that which by the said con- tract with the said other persons they, the plaintiffs, be- fore and at the time of the making of the said promise, and thence until the plaintiffs did it were bound to do. Demurrer and joinder therein. Dowdeswell in support of the demurrer. The plea is bad. It admits a promise by the defendant to unload the coal at the rate of 49 tons a day ; and the delivery of the same by the plaintiffs is a sufficient consideration to sup- port the promise. The defendant, having made an ex- press promise, is not relieved from his obligation to perform it because the plaintiff has entered into a pre- vious contract with another person to deliver to his order. The defense would be available under the gen- eral issue ; but the plea was allowed on the authority of Shadwell v. Shadwell, C. B., M. T. 1860. This is an at- tempt to question the decisions on this subject, which have been uniform from the time of Jesson v. Solly, 4 Taunt. 52. The court then called on C. Pollock to support the plea. There is no considera- tion to support the promise. The plea shows that the consideration alleged in the declaration is the doing that which the plaintiffs, by their contract with other persons, were bound to do. The charter party only specifies the time and mode in which the cargo is to be dis- charged, as between the charterer and ship-owner. [Mabtin, B. You must establish this, that if a person says to another, " The goods which I have in my ship are 284 Formation op Conteacts. [Chap. L yoTirs, but I will not deliver them iialess you pay my lien for freight," which the latter agrees to do, the delivery of the goods is no consideration to support the promise to pay.] The cargo is the property of the defendant, and the agreement to deliver to him that which he was entitled to have was a nudum pactum. In Black. Com., Vol. II, p. 450, it is said : " If a man buys his own goods ia a fair or market, the contract of sale shall not bind him, so that he shall render the price, unless the prop- erty had been previously altered by a former sale." [Wilde, B. That is the case of a purchase of goods, the property in them being already in the purchaser, but here the plaintiffs will not deliver the cargo to the defendant, whereupon the defendant says, " If you wUl deliver it to me, I will discharge it in a certain manner."] The plaintiffs were under a prior legal obligation to deliver the cargo, and, therefore, the promise to the defendant to do the same thing was void. Where a plaintiff dis- charged one of two joint debtors, it was held that a promise by a third person to pay the debt, in order to obtain the discharge of the other debtor, was void for want of consideration. Herring v. Dorell, 8 Dowl. P. C. 604. So if A be illegally arrested by B for debt, a prom- ise by C to pay the debt claimed by B,'in consideration of B's releasing A out of custody, is void. Atkinson v. Settree, Willes, 482. [Wilde, B. In those cases there was a legal right to the performance of the very act which was bargained for; it is not so here. Mabtin, B. Suppose a man promised to marry on a certain day, and before that day arrived he refused, on the ground that his income was not sufficient, whereupon the father of the intended wife said to him : " If you marry my daugh- ter, I will allow you £1000 a year." Could not that contract be enforced?] There would be no considera- tion for such a promise, the party being already under an obligation to marry. A promise by a captain to pay his sailors increased wages for performing their duty Sec. 2-B.] Scotson v. Pegg. 285 during a storm is void for want of consideration. [Mabtin, B. That proceeds on the ground of puhlic policy, WiLDB, B. It often happens that when goods arrive in a ship, and there is a lien upon them, a mer- chant who wants to get possession of the goods promises to pay the lien if the master will deliver them to him. A man may be bound by his contract to do a particular thing, but while it is doubtful whether or no he will do it, if a third person steps in and says, ' ' I will pay you if you will do it, ' ' the performance is a valid consideration for the payment. Maetin, B. If a builder was under a contract to finish a house on a particular day, and the owner promised to pay him a sum of money if he would do it, what is to prevent the builder from recovering the money?] As the plaintiffs would be doing a wrong by not fulfilling their contract, it must be presumed that the prior legal obligation, and not the subsequent promise, was the motive for their delivery of the cargo. Martin, B. I am of the opinion that the plea is bad, both on principle and in law. It is bad in law because the ordinary rule is, that any act done whereby the con- tracting party receives a benefit is a good consideration for a promise by him. Here the benefit is the delivery of the coals to the defendant. It is consistent with the declaration that there may have been some dispute as to the defendant's right to have the coals, or it may be that the plaintiffs detained them for demurrage; in either case there would be good consideration that the plain- tiffs, who were in possession of the coals, would allow the defendant to take them out of the ship. Then is it any answer that the plaintiffs had entered into a prior contract with other persons to deliver the coals to their order upon the same terms, and that the defendant was a stranger to that contract? In my opinion it is not. We must deal with this case as if no prior contract had been entered into. Suppose the plaintiffs had no chance of 286 Formation of Contbacts. [Chap. L getting their money from the other persons, who might perhaps have become bankrupt. The defendant gets a benefit by the delivery of the coals to him, and it is imma- terial that the plaintiffs had previously contracted with third parties to deliver their order. Wilde, B. I am also of opinion that the plaintiffs are entitled to judgment. The plaintiffs say, that in con- sideration that they would deliver to the defendant a cargo of coals from their ship, the defendant promised to discharge the cargo in a certain way. The defendant, in answer, says: "You made a previous contract with other persons that they should discharge the cargo in the same way, and therefore there is no consideration for my promise." But why is there no consideration? It is said, because the plaintiffs, in delivering the coals, are only performing that which they were already bound to do. But to say that there is no consideration is to say that it is not possible for one man to have an interest ia the performance of a contract made by another. But if a person chooses to promise to pay a sum of money in order to induce another to perform that which he has already contracted with a third person to do, I confess I cannot see why such a promise should not be binding. Here the defendant, who was a stranger to the original contract, induced the plaintiffs to part with the cargo, which they might not otherwise have been willing to do, and the delivery of it to the defendant was a benefit to him. I accede to the proposition that, if a person con- tracts with another to do a certain thing, he cannot make the performance of it a consideration for a new promise to the same individual. But there is no authority for the proposition that where there has been a promise to one person to do a certain thing, it is not possible to make a valid promise to another to do the same thing. Therefore, deciding this matter on principle, it is plain to my mind that the delivery of the coals to the Sec. 2-5.] Meeeick v. Giddings. 287 defendant was a good consideration for his promise, although the plaintiffs had made a previous contract to deliver them to the order of other persons. Judgment for the plaintiffs. Meeeick v. Giddings. 1 MAOKEY, 394 — 1882- The case is stated in the opinion. James, J., delivered the opinion of the court.* The declaration in this case alleges, substantially, that the plaintiffs were retained by the State to aid by certain legal proceedings, mainly before the Supreme Court of the United States, in the recovery of certain bonds, or the proceeds thereof, in the possession of certain per- sons without right, and belonging to said State, upon a contingent compensation of 20 per centum of the amount of such of the said bonds or proceeds as might, by means of such aid, be in any way recovered by said State ; that while plaintiffs were acting under that retainer and conducting those proceedings, the defendant, with plain- tiffs' consent, was retained by said State as her other and further attorney and counsel, but upon a separate and additional compensation to be paid him, to aid in the recovery and collection of said bonds or proceeds; that afterward, and while plaintiffs and defendant were respectively so employed, the defendant, with the con- sent of said State, and in consideration that plaintiffs would, by means of their legal proceedings, cause the title of said State to said bonds to be therein adjudged and decreed; but would, with the consent of the State, refrain from any attempt to reduce them into possession, and suffered the defendant, with like consent, to reduce them into possession for said State, agreed with plaintiffs * Portions of the opinion and the citation of authorities omitted. 288 Formation of Conteacts. [Chap. I. that Ee would retain for their sole use, and pay over to them, out of any of the said bonds or proceeds thereafter collected or recovered by him, as such other attorney, into his actual possession, 20 per centum thereof; that plain- tiffs, with the consent of the State, and by means of their proceedings before the Supreme Court, did procure the title of the State to be adjudged as required, and did refrain as agreed, and did, with like consent, permit defendant alone, as such other attorney, to reduce said bonds into actual possession for the State; and defend- ant did, by means of the adjudication procured by plain- tiffs, and by force of such refraining and possession of the plaintiffs, recover into his actual possession for the said State proceeds of said bonds to the amount of $339,240.12, but did not retain for the use of or pay over to the plaintiffs 20 per centum, or any part of such pro- ceeds, to the damage of plaintiffs in the sum of $70,000. To this are added the common counts for money payable by defendant to plaintiffs, and money received by de^ fendant for the use of plaintiffs. For the sake of more intelligent brevity, it may be repeated that the cause of action set forth in the special count is a breach of defendant's promise to retain and pay over to the plaintiffs, out of moneys which should be, and which actually were collected by him, the fee which the State of Texas had agreed to pay them; the consideration for this promise being the performance of certain services by them, and their forbearance to per- form themselves, and their suffering defendant to perform certain other services. Four bills of exception were signed at the trial, but all of them are, in proper form, made part of the last one, and the hearing in this court has been upon the latter only. It shows that : " after the evidence had been given, as set forth in the foregoing bills of exception . . . the plaintiffs announced that they rested their case. Sec. 2-5.J Merrick v. Giddings. 289 Thereupon the defendant prayed the Court to instruct the jury that upon the whole evidence their verdict should be for the defendant." The bill further sets forth certain reasons on which "the court based its conclusions, and then adds : "And the Court, therefore, gave to the jury the instruction prayed, and the jury, under instruction, returned a verdict for the defendant." It is claimed by the plaintiffs that upon this evidence — which we have stated as facts only on the theory of a demurrer to evidence — two contracts are established — namely, first, a contract made by the defendant directly with the plaintiffs to retain and pay over to them the compensation for which they stipulated with the State; and, second, a contract made by the defendant in terms with the State, but for the benefit of the plaintiffs; and ihat the first of these is set up in the special count, but ihat a recovery may be had upon either of them under the common count alone, on the ground that both have been completely executed on the part of the plaintiffs. The theory of the first of these contracts, insisted upon T)y the plaintiffs, is, that the evidence has established the following facts: First, an actual promise, made by the defendant some time in the year 1875, that he would retain and pay over to the plaintiffs the compensation for which they had stipulated with the State; second, that the services rendered by the plaintiffs in the pro- ceeding against Chiles were the consideration by which this promise was supported, and that these services were a sufficient consideration, because they constituted a benefit conferred by the plaintiffs on the defendant at the defendant's request; and third, that the promise was made with the consent of the State of Texas, to which the moneys so to be held and paid over belonged. It is next insisted that the services rendered by the plaintiffs in the proceeding against Chiles constituted a I)enefit conferred by the plaintiffs upon defendant at his 19 290 Formation of Conteacts. [Chap. L request, and, therefore, furnished a consideration which supports the subsequent promise. A somewhat curious and important question here presents itself, which does not appear to have been well settled yet. If these services were in fact the very- services which the plaintiffs were already bound to per- form by virtue of a subsisting contract with the State of Texas, were they capable of serving as the consideration for any promise by the defendant, notwithstanding they might result, and did result, in a benefit to him? "We have examined several cases bearing upon this question. Mr. Frederick Pollock, in his treatise on the Principles of Contract (p. 163), seems to suppose that this case involved a new promise by the plaintiff, and not merely the act of delivering on the strength of defendant's promise. He says: " In the ease -where the party is already bound to do the same thing, but only by contract -with a third person, there is some difference of opinion. But there seems to be no valid reason -why the promise should not be good in itself, and therefore a good consideration. It creates a new and distinct right, -which must be al-ways of some value in la-w, and may be of appreciable value in fact. There are many ways in -which B. may be very much interested in A.'s performing his contract -with C, but yet so that the circumstances -which give him an interest in fact do not give him any interest -which he can assert at la-w. It may -well be worth his while to give something for being enabled to insist in Ms own right on the thing being done. This opinion has been expressed and acted on in the Court of Exchequer (Scotson v. Pegg), and seems implied in the judgment of the majority of the Court of Common Pleas some weeks earlier." The rule established by these authorities is, that a promise made in consideration of the doing of an act which the promisee is already under obligation to a third party to do, though made as an inducement to secure the doing of that act, is not binding because it is not sup- ported by a valuable consideration. "We conceive this to be clearly true when the act done on the part of the promisee involves nothing more than performance of the Sec. 2-B.] Meeeick v. Giddings. 291 original obligation toward the party to whom it was due. On the other hand, if the promise be made in considera- tion of a promise to do that act, entered into directly with the promisor, as indicated by Mr. Pollock, or in consideration that some dispute is thereby determined, or that some right is waived, as suggested by the re- marks of Martin, B., in Scotson v. Pegg, then the promise is binding, because not made in consideration of the performance of a subsisting obligation to another person, but upon a new consideration moving between the promisor and promisee. We do not perceive that Shadwell v. Shadwell or Scotson v. Pegg are opposed to this view; though some observations were thrown out by the learned judges during the argument which we cannot reconcile with it, and which we cannot assent to. We think that the consideration on which this de- fendant's promise to the plaintiffs is alleged to have been founded is governed by the rule which we have stated. It is claimed that the services rendered by the plaintiffs in the proceeding against Chiles, in the Su- preme Court of the United States, were rendered at the request of the defendant, and constituted the considera- tion for his subsequent promise. But it appears that, at the time when they are said to have carried on these proceedings at his request, they had already been retained by and were under a legal obligation to the State of Texas to perform these serv- ices; and it is not shown that they promised the de- fendant that they would continue them, or that they were induced by defendant's request to determine any dispute as to their obligations, or to waive any claim. In a word, no other consideration for any promise by the defendant, than the performance of what they were legally bound to perform by a subsisting contract with another party, is shown ; and the plaintiffs have shown, on the other hand, in their own behalf, that they actually 292 Formation of Conteacts. [Chap. I. did perform that act under their prior contract. We hold that these services could not serve as a considera- tion for any promise by the defendant, even if it had been made at the time of the request for their perform- ance. It may be added that, even if they could serve this purpose, they are not shown by any evidence to have beeny as a matter of fact, the consideration on which the promise here insisted on was based. What the consid- eration for a promise was is a matter of evidence, and this consideration is not shown to have been referred to, or to have been in the minds of the parties. We know of no principle which would have authorized a jury to assume, in the absence of affirmative proof, that some past benefit, conferred at a party's request, was intended to serve as a reason or consideration of a subsequent promise, whose terms in no way referred to it, merely because it was an event which had once happened be- tween the same parties. The antecedents of parties are not to be sifted for a consideration. Again, it should appear in some way that these serv- ices were, in fact, rendered in consequence of defendant's request. If the plaintiffs were already bound by their contract with another party to perform them, and were actually performing them at the time of defendant's re- quest ; ia other words, if they were already moved by a sufficient legal cause, the mere fact of a request by a new party is not evidence that they were caused by that request; and this record discloses no other affirmative evidence tending to show that the plaintiffs did, in fact, act upon that request. Indeed, by showing, in their own behalf, that they obtained judgment against Chiles under their contract with the State of Texas (Eec. 15), they have shown that they did not act upon defendant's request. Judgment is accordingly affirmed. Sec. 2-B.] Abbott v. Doane. 293 Abbott v. Doane, 163 massachusetts reports, 433 — 1895. Conteact upon a promissory note for $500, dated December 27, 1892, payable in tbree months after date to the order of the plaintiff, and signed by the defendant. The answer set up want of consideration. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff, and the defendant alleged exceptions. The facts appear in the opinion. • Allen, J.^ The plaintiff had given his accommodation note to a corporation, which had had it discounted at a bank, and left it unpaid at its maturity. The defend- ant, being a stockholder, director, and creditor of the corporation, wishing to have the note paid at once for his own advantage, entered into an agreement with the plain- tiff whereby he was to give to the plaintiff his own note for the amount, and the plaintiff was to furnish money to enable the defendant to take up the note at the bank. This agreement was carried out, and the defendant now contends that his note to the plaintiff was without con- sideration, because the plaintiff was already bound in law to take up the note at the bank. It is possible that, for one reason or another, both the bank and the plaintiff may have been willing to wait a whUe, but that the defendant's interests were imperiled by a delay, and indeed required that the note should be paid at once, and that the corporation, whose duty it was primarily to pay it, was without present means to do so. Since the defendant was sane, sui juris, was not imposed upon, nor under duress, knew what he was about, and probably acted for his own advantage, it would certainly be unfortunate if the rules of law required us to hold his note invalid for want of a sufficient consideration, when he has had all the benefit that he expected to get from it. Citation of authorities omitted. 294 Formation of Contkacts. [Chap. I. In this Commonwealth it was long ago decided that, even between the original parties to a building contract, if after having done a part of the work the builder re- fused to proceed, but afterward, on being promised more pay by the owner, went on and finished the buUding, he might recover the whole sum so promised. But when one who is imwilling or hesitating to go on and perform a contract which proves a hard one for him is requested to do so by a third person who is interested in such performance, though having no legal way of compelling it, or of recovering damages for a breach, and who accordingly makes an independent promise to pay a sum of money for such performance, the reasons for holding him bound to such payment are stronger than where an additional sum is promised by the party to the original contract. Take an illustration. A enters into a contract with B to do something. It may be to pay money, to render service, or to sell land or goods for a price. The con- tract may be not especially for the benefit of B, but rather for the benefit of others ; as, e.g., to erect a monu- ment, an archway, a memorial of some kind, or to paiat a picture to be placed where it can be seen by the public. The consideration moving from B may be executed or executory; it may be money, or anything else in law deemed valuable ; it may be of slight value as compared with what A has contracted to do. Now A is legally bound only to B, and if he breaks his contract nobody but B can recover damages, and those damages may be slight. They may even be already liquidated at a small sum by the terms of the contract itself. Though A is legally bound, the motive to perform the contract may be slight. If after A has refused to go on with his under- taking, or while he is hesitating whether to perform it or submit to such damages as B may be entitled to recover, other persons interested in having the contract per- Sec. 2-B.] Lattimoee v. Harsen. 295 formed intervene, and enter into a new agreement with A, by which A agrees to do that which he was already hound by his contract with B to do, and they agree jointly or severally to pay him a certain sum of money, and give their note or notes therefor, and A accordingly does what he had agreed to do, but what perhaps he might not otherwise have done, no good reason is perceived why they should not be held to fulfill their promise. They have got what they bargained for, and A has done what- otherwise he might not have done, and what they could not have compelled him to do. Without dwelling further on the reasons for the doc- trine, it seems to us better to hold, as a general rule, that if A has refused or hesitated to perform an agreement with B, and is requested to do so by C, who will derive a benefit from such performance, and who promises to pay him a certain sum therefor, and A thereupon undertakes to do it, the performance by A of his agreement in con- sequence of such request and promise by C is a good consideration to support C's promise. Exceptions overruled. Lattimoee v. Haesest. 14 JomsrsoN, 330 — isir. This was a motion to set aside the report of referees. It appeared from the affidavits which were read that the plaintiffs entered into an agreement under seal dated November 14, 1815, with Jacob Harsen and the defend- ant, Cornelius Harsen, by which the former in consider- ation of the sum of $900, agreed to open a cartway in Seventeenth street, in the city of New York, the dimen- sions and manner of which were stated in the agreement, and bound themselves under the penalty of $250 to a performance on their part. Some time after the plain- tiffs entered upon the performance they became dissatis- 296 Formation of Contracts. [Chap. L fied with their agreement, and determined to leave off the work, when the defendant, by parol, released them from their covenant, and promised them that if they would go on and complete the work and find materials he would pay them for their labor by the day. The plaintiffs had received more than the sum stipulated to be paid to them by the original agreement. The action was brought for the work and labor and materials found by the plaintiffs under the subsequent arrangement, and the referees reported the sum of $400.05 in favor of the plaintiffs. The case was submitted to the court without argu- ment. Per Curiam, The only question that can arise in the case is whether there was evidence of a contract between the plaintiff and the present defendant to perform the services for which this 'suit is brought. From the evi- dence it appears that a written contract had been entered into between the plaintiffs and the defendant, together with his father, Jacob Harsen, for the performance of the same work, and that after some part of it was done the plaintiffs became dissatisfied with their con- tract, and determined to abandon it. The defendant then agreed if they would go on and complete the work he would pay them by the day for such service and the materials found without reference to the written contract. This is the allegation on the part of the plaintiffs, and which the evidence will fairly support. If the contract is made out there can be no reason why it should not be considered binding on the defendant. By the former contract the plaintiffs subjected themselves to a certain penalty for the nonfulfillment, and if they chose to incur this penalty they had a right to do so, arid notice of such intention was given to the defendant, upon which he entered into the new arrangement. Here was a sufficient Sec. 2-B.] Feetebman v. Pakkeb. 297 consideration for this promise; all payments made on th-e former contract have been allowed, and perfect justice appears to have been done by the referees, and no rules or principles of law have been infringed. The motion to set aside the report, therefore, ought to be denied. Motion denied. In Ferterman v. Parker, 10 Ind. 474, the plaintiff con- tracted to put in operation a sawmill for the defendant for $100, part of which was paid at the time. The plain- tiff afterward refused to go on with the work, because the price was too low, and defendant then sent plaintiff word to do the work and he would pay what was right. The plaintiff did the work and sued for his compensation. The court said: " On the part of the plaintiff it is in- sisted that, although the first contract was not rescinded, yet the parties were at liberty to vary it. There is no doubt of this proposition; but it will be recollected that the variation of a contract is as much a matter of con- tract as the original agreement, it equally requires the concurrence of intention in the parties, it cannot be varied at the mere wUl and pleasure of either. But in what was the contract varied ; not in the work to be done, that was not altered in the slightest manner; the plain- tiff came under no new obligation, he was to do the same work he had previously bound himself to do. It was varied, says the plaintiff, in this, that the defendant promised to give an additional $50 if he would build the mill. Let it be admitted that the defendant, under the circumstances, had, in so many words, promised the plaintiff that he would give him $50 more, or $150 for building the mill, would that have been in law a valid promise? I concur in the opinion that it would not. A consideration is an essential ingredient to the legal existence of every simple contract. This consideration 298 Formation of Conteaots. [Chap.L consists, as defined by Mr. Smith, ia his Treatise on Contracts, p. 87, to be " any benefit to the person making the promise, or any loss, trouble, or inconvenience to, or charge upon, the person to whom it is made. ' ' The case states that the $100 originally promised had been paid by the defendant, and the controversy is for the $50 under the alleged promise. What loss, trouble, or incon- venience, or charge resulted to the plaintiff by his executing the work? He was bound to build the mUl by his original contract, and he was to do and did nothing more. What benefit was to result to the defendant by the promise to pay the additional $50? None whatever. He was to receive from the plaintiff precisely the same quantum of work without it as with it. The promise, therefore, if made, was purely a nudum pactum, not binding in law, however it may be so in honor and Vandekbilt v. Schbeyee. 91 NEW YORK, 392 — 1883. Appeal from judgment of the General Term of the Supreme Court, in the First Judicial Department, en- tered upon an order made June 1, 1880, which reversed a judgment in favor of the plaintiff, entered upon a decision of the court on trial at a Special Term and dismissed the complaint. The nature of the action and the material facts are stated in the opinion. EuGEE, C.J.^ This was an action to foreclose a mort- gage for $5,000 given September 5, 1873, by one James ^ Taken from the opinion of Day J. in Ayres v. C. R. I. & P. R. Co., 52 Iowa Reports, 478. ^ Citation of some authorities and portions of opinion not relating to the question of consideration omitted. Sec. 2-5.] Vandeebilt v. Scheeyee. 299 Dunseitli and wife to John Schreyer, and by Mm assigned to the plaintiff on May 5, 1874. Schreyer was made a party defendant, and it was sought to charge him with the payment of any deficiency that might arise upon a sale of the mortgaged premises, upon the ground that he had guaranteed the payment of the mortgage debt. Schreyer answered, and after admitting the assign- ment and the guaranty of payment alleged by way of defense, that on February 2, 1874, the plaintiff entered iuto a contract with George Gebhard and Matthew L. Eitchie for the erection by him of certain buildings for them upon certain lots in the city of New York, for which he was to receive $8,175, to be paid as follows: " When the said houses are topped out, a payment of $5,000 by assignment of a bond and mortgage held by John Schreyer on the property of Anna Maria Schreyer, No. 350 West Forty-second street, New York city," and the balance, amounting to $3,175, when the houses should be fully completed. Vanderbilt commenced performance of his contract and continued until he became entitled to the assignment of the $5,000 mortgage. Schreyer there- upon offered to assign it to the plaintiff, but the latter refused to accept an assignment unless Schreyer would also guarantee payment. The defendant refused to do this, and Vanderbilt then suspended work upon the build- ings for about two months. The defendant then under protest, and believing as he alleges, that he was acting under compulsion, executed the assignment with the guaranty in question. The plaintiff then completed his contract and received the balance of the consideration. The answer further states " that it was neither under said contract or otherwise made a condition of the plain- tiff's accepting the assignment of said mortgage that this defendant or any other person should guarantee the pay- ment thereof," and further " that no consideration ever 300 Formation of Contkacts. [Chap. I. passed to Mm or his principals for such guaranty, and the same was and is null and void. ' ' Upon the trial of the action at Special Term the plain- tiff produced and proved the mortgage in question and also an assignment from defendant to plaintiff in the usual form, but containing the following clause: "And I hereby guarantee the payment of said bond and mort- gage for $5,000 and interest from May 5, 1874, by due foreclosure and sale." The assignment and guaranty were sealed and executed in the presence of a subscrib- ing witness. The plaintift' thereupon rested, and the de- fendant offered to prove in substance the facts alleged in his answer, which offer was objected to and excluded upon the ground that such answer did not set up facts constituting a defense. The defendant excepted to such ruling. The court thereupon held that said guaranty was absolute, and ordered judgment against Schreyer for the deficiency which had previously been ascertained by a sale of the premises. An appeal was taken to the General Term, which reversed the judgment and directed a dismissal of the complaint upon the ground that Schreyer was improperly made a defendant, because the guaranty in question was in effect a guaranty of collec- tion only, and that no right of action arose thereon until after the amount of the deficiency had been ascertained by a judicial sale of the mortgaged premises. We differ in our conclusion from that reached by both of the courts below. A more serious question, however, arises under the ex- ception taken to the rulings of the Special Term exclud- ing the evidence offered by the defendant to prove the facts stated in his answer, showing that the guaranty was without consideration. In considering this question the allegations in the an- swer must be assumed to be true, and that the defendant would have proved them if he had not been precluded by Sec. 2-5.] Vandekbilt v. Schkeyer. 301 the rulings of the court from doing so. The answer, while perhaps inartificially drawn, certainly alleged all of the facts necessary to show that neither Gebhardt and Bitchie, nor the defendant, had received any considera- tion for the guaranty in question. This he should have been allowed to prove. The production of the assign- ment in evidence, purporting to be executed " for value received, ' ' and being under seal was prima facie evi- ' dence only of a valuable consideration. It was not con- clusive and could be disproved if it was in the defend- ant's power to do so. The incorporation of this guaranty into the assign- ment for which there was a consideration does not af- fect the question. It was not essential to the assignment, and was, so far as its legal effect was concerned, a separate instrument, and must be supported upon a suffi- cient consideration or treated as nudum pactum. It is quite clear that the plaintiff had no right to de- mand this guaranty by the terms of his original contract with Gebhardt and Ritchie. That was satisfied by a mere naked transfer of his interest in the mortgage. It was held in Van Eps v. Schenectady (12 Johns'. 436) that an agreement to execute a deed of lands was satis- fied by the execution of a deed, without warranty or covenants. So it has been held that a party has no right to impose any conditions to the performance of a con- tract, except those contained in the contract itself. It be- ing clear that Vanderbilt had no legal right to require, as a condition to the fulfillment of his contract, the per- formance of an act not required by the contract, it is difficult to see what benefit he has bestowed or what in- convenience he has suffered in return for the undertak- ing assumed by the defendant. He promises to do only that which he was before legally bound to perform. Even though it lay in his power to refuse to perform his con- tract, he could do this only upon paying the other party 302 FOEMATION OF CONTEACTS. [ChAP. I. the damages occasioned by his nonperformance, and that in contemplation of law would be equivalent to perform- ance. He had no legal or moral right to refuse to per- form the obligation of the contract into which he had upon a good consideration voluntarily entered. There is no evidence in support of a claim that this guaranty was given as a compromise of any dispute aris- ing with reference to the obligations of the plaintiff under his contract with Gebhhardt and Eitchie. The case is not, therefore, brought within the cases in which a promise has been upheld on the theory that it was made in settlement of a controversy over disputed claims. The authorities seem quite uniformly to show the inadequacy of the consideration alleged for the guaranty in ques- tion. In G-eer v. Archer (2 Barb. 420), the defendant visited the plaintiff to pay her an instalment upon a mortgage given by him a few weeks before on a purchase of land. She complained that she had not received the fair value of her land upon such purchase. The defend- ant offered to give her his note for $200 to satfefy her complaints. She replied that she would be satisfied with that, whereupon the note in question was given. It was held that this note was void for want of consideration. So where land was sold and described in the deed as con- taining a certain quantity, and a deficiency was after- ward discovered, it was held that there was no obliga- tion on the grantor to compensate the grantee for such deficiency, and a promise to pay the same was without consideration. Pollock states the rule as follows: That " neither the promise to do a thing, nor the actual doing of it, will be a good consideration if it is a thing which the party is bound to do by the general law, or by a subsisting con- tract with the other party." (Pollock on Principles of Contracts, 161 ;) " Nor is the performance of that which the party was under a previous valid, legal obligation to Sec. 2-B.] Vanderbilt v. ScHEEyEK. 303 do a sufficient consideration for a new contract." (2 Par- sons on Contracts, 437.) When certain sailors had signed articles to complete a voyage, but at an inter- mediate port refused to go on, and the captain there- upon promised to pay them increased wages, it was held that the promise was without consideration. A firm hav- ing a contract to build a railroad found the contract un- profitable, whereupon the railroad company promised if they would go on and complete the contract they would repay to the contractors all of the obligations which they had or would incur in consequence of their completion of the work. Held no consideration. (Ayres v. The C, R. I. & P. R. Co., 52 Iowa, 478.) When a mortgagor, as a condition to the payment of his mortgage, exacted from the mortgagee an obligation that he would procure the cancellation of a certain out- standing bond executed by the mortgagor, or pay him the stun of $100, said bond being given to indemnify against some apparent incumbrance, it was held, that it not being shown that there was any incumbrance existing against the land, the obligation was without considera- tion. (Conover v. Stillwell, 34 N. J. L. 54.) When the plaintiff agreed to enter the military service of the United States to the credit of the town of Tobin for $100, and on arriving at the place of enlistment, being offered an advanced price by others, refused to perform unless they would pay him $250 additional, held that an obliga- tion to pay him the additional amount was void for want of consideration. (Reynolds v. Nugent, 25 Ind. 328.) A sailor signed articles for a voyage to Melbourne and home at £3 per month; several of the crew deserted at Melbourne. The captain, to induce plaintiff to remain, signed fresh articles for six pounds per month. Held no consideration for the promise. (Harris v. Carter, 3 Ellis & Blackburn, 559; to same effect Stilk v. Myrick, 2 Camp. 317.) When defendants gave plaintiff's notes to 304 EOKMATION OF CONTBACTS. [ChAP. I. provide funds to take up obligation, which plaintiff had previously contracted to pay, held no consideration. (Mallalieu v. Hodgson, 16 Ad. & El. [N. S.] 689.) A promise to pay an attorney additional compensation to attend as a witness, after he had been duly subpoenaed, is without consideration. The attorney did nothing ex- cept what he was legally bound to do. (Smithett v. Blythe, 1 Barn. & Ad. 514.) It would doubtless be competent for parties to cancel an existing contract and make a new one to complete the same • work at a different rate of compensation, but it seems that it would be essential to its validity that there should be a valid cancellation of the original contract. Such was the case of Lattimore v. Harsen (14 Johns. 330). It necessarily follows from these authorities that the plaintiff had no right to impose, as a condition to the performance of his contract, that the payment of said mortgage should be guaranteed. Although the defend- ant was not a party to the original contract, and the con- sideration and contract between him, Gebhardt and Eitchie does not appear, yet we must assume that he acted at the request of Gebhardt and Ritchie and was re- quired only by such contract to execute such an assign- ment as Gebhardt and Eitchie had contracted to give. The answer at all events sets up that he received no con- sideration from any one for the guaranty sued upon. The answer also alleges that the sole consideration re- ceived for this guaranty was the performance by the plaintiff of his contract with Gebhardt and Eitchie. We think this answer sets forth a defense to the action, and inasmuch as the defendant has been erroneously de- prived of the opportunity of proving it, if in his power to do so, that a new trial should be ordered. The judgment, therefore, of the General Term dismiss- ing the complaint should be reversed, and its order re- Sec. 2-B.] King v. Duluth, M. & N. Eailway Co. 305 versing the judgment ordered against the defendant at Circuit affirmed, and a new trial ordered, with costs to abide the event. All concur, except Andrews and Danpoeth, JJ., not voting. Judgment accordingly. King v. Duluth, M. & N. Railway Co. 61 MINNESOTA, 482 — 1896. Appeal by defendant from an order of the District Court for St. Louis county, Ensign, J., overruling a de- murrer to both causes of action in the complaint. Re- versed as to the first cause of action. Affirmed as to the second cause of action. Start, C.J.^ This is an action brought by the plaintiff, as surviving partner of the firm of Wolf & King, to re- cover a balance claimed to be due for the construction of a portion of the defendant's line of railway. The com- plaint alleges two supposed causes of action, to each of which the defendant demurred on the ground that neither states facts constituting a cause of action. From an order overruling the demurrer the defendant appealed. 1. The complaint for a first cause of action alleges, among other things, substantially, that in January, 1893, the firm of Wolf & King entered into three written con- tracts with the president and representative of the de- fendant for the grading, clearing, grubbing, and con- struction of the roadbed of its railway for a certain stipu- lated price for each of the general items of work and labor to be performed; that the firm entered upon the performance of such contracts, but in the latter part of February, 1893, in the course of such performance, un- ^ Buck, J., took no part. Citation of authorities omitted. 20 306 Formation of Contkacts. [Chap. L foreseen difficulties of construction, involving unexpected expenses, and such as were not anticipated by the parties to the contracts, were encountered. That the firm of "Wolf & King found that by reason of such difficulties it would be impossible to complete the contracts, within the time agreed upon without employing an additional and an unusual force of men and means, and at a loss of not less than $40,000 to them, and consequently they notified the representative of the defendant that they would be unable to go forward with the contracts, and unable to complete or prosecute the work. Thereupon such repre- sentative entered into an agreement with them modifying the written contracts, whereby he agreed that if they would " go forward and prosecute the said work of con- struction, and complete said contract," he would pay or cause to be paid to them an additional consideration therefor, up to the full extent of the cost of the work, so that they should not be compelled to do the work at a loss to themselves; that in consideration of such promise they agreed to forward the work rapidly, and force the same to completion, in the manner provided in the specifi- cations for such work, and referred to in such contracts. That in reliance upon the agreement modifying the former contracts, and in reliance upon such former con- tracts, they did prosecute and complete the work in ac- cordance with the contracts as so modified by the oral agreement, to the satisfaction of all parties in interest. That such contracts and the oral contract modifying them were duly ratified by the defendant, and that the actual cost of such construction was not less than $30,000 in excess of the stipulated amount provided for in the original written contracts. It is claimed by appellant that the complaint shows no consideration for the alleged promise to pay extra com- pensation for the work ; that it is at best simply a prom- ise to pay the contractors an additional compensation if Sec. 2-B.] King v. Duluth, M. & N. Eailway Co. 307 they would do that which, they were already legally bound to do. The general rule is that a promise of a party to a contract to do, or the doing of that which he is already under a legal obligation to do by the terms of the contract, is not a valid consideration to support the prom- ise of the other party to pay an additional compensation for such performance. In other words, a promise by one party to a subsisting contract to the opposite party to prevent a breach of the contract on his part is without consideration. If the allegations of the complaint, when taken to- gether, are in legal effect simply that the contractors, finding by the test of experience in the prosecution of the work that they had agreed to do that which involved a greater expenditure of money than they calculated upon, that they had made a losing contract, and there- upon notified the opposite party that they were unable to proceed with the work, and he promised them extra compensation if they would perform their contract, the ease is within the rule stated, and the demurrer ought to have been sustained as to the first cause of action. It is claimed, however, by the respondent, that such is not the proper construction of the complaint, and that its allegations bring the case within the rule adopted in sev- eral states, and at least approved in our own, to the effect that if one party to a contract refuses to perform his part of it unless promised some further pay or benefit than the contract provides, and such promise is made by the other party, it is supported by a valid consideration, for the making of the new promise shows a rescission of the original contract and the substitution of another. In other words, that the party, by refusing to perform his contract, thereby subjects himself to an action for dam- ages, and the opposite party has his election to bring an action for the recovery of such damages or to accede to the demands of his adversary and make the promise ; and 308 Formation op Conteacts. [Chap. I. if lie does so it is a relinquishment of the original con- tract and the substitution of a new one. The doctrine of these cases as it is frequently applied does not commend itself either to our judgment or our sense of justice, for where the refusM to perform and the promise to pay extra compensation for performance of the contract are one transaction, and there are no ex- ceptional circumstances making it equitable that an in- creased compensation should be demanded and- paid, no amount of astute reasoning can change the plain f&ct that the party who refuses to perform, and thereby coerces a promise from the other party to the contract to pay him an increased compensation for doing that which he is legally bound to do, takes an unjustifiable advantage of the necessities of the other party. To hold, under such circumstances, that the party making the promise for extra compensation is presumed to have voluntarily elected to relinquish and abandon all of his rights under the original contract, and to substitute therefor the new or modified agreement, is to wholly disregard the nat- ural inference to be drawn from the transaction, and in- vite parties to repudiate their contract obligations when- ever they can gain thereby. There can be no legal presumption that such a trans- action is a voluntary rescission or modification of the original contract, for the natural inference to be drawn from it is otherwise in the absence of any equitable con- siderations justifying the demand for extra pay. In such a case the obvious inference is that the party so re- fusing to perform his contract is seeking to take advan- tage of the necessities of the other party to force from him a promise to pay a further sum for that which he is already legally entitled to receive. Surely it would be a travesty on justice to hold that the party so making the promise for extra pay was estopped from asserting that the promise was without consideration. A party cannot Sec. 2-B.] King v. Dxjluth, M. & N. Railway Co. 309 lay the foundation of an estoppel by Ms own wrong. If it be conceded that by the new promise the party obtains that which he could not compel — viz., a specific perform- ance of the contract by the other party — stUl the fact re- mains that the one party has obtained thereby only that which he was legally entitled to receive, and the other party has done only that which he was legally bound to do. How, then can it be said that the legal rights or obligations of the party are changed by the new promise? It is entirely competent for the parties to a contract to modify or to waive their rights under it, and ingraft new terms upon it, and in such a case the promise of one party is the consideration for that of the other; but where the promise to the one is simply a repetition of a subsisting legal promise there can be no consideration for the promise of the other party, and there is no warrant for inferring that the parties have voluntarily rescinded or modified their contract. But where the party refusing to complete his contract does so by reason of some unforeseen and substantial difficulties in tFe performance of the contract, which were not known or anticipated by the parties when the con- tract was entered into, and which cast upon him an addi- tional burden not contemplated by the parties, and the opposite party promises him extra pay or benefits if he will complete his contract, and he so promises, the prom- ise to pay is supported by a valid consideration. In such a case the natural inference arising from the transaction, if unmodified by any equitable considerations, is rebut- ted, and the presumption arises that by the voluntary and mutual promises of the parties their respective rights and obligations under the original contract are waived, and those of the new or modified contract substituted for them. Cases of this character form an exception to the general rule that a promise to do that which a party is already legally bound to do is not a sufficient considera- 310 Formation of Contracts. [Chap. I. tion to support a promise by the other party to the con- tract to give the former an additional compensation or benefit. On the other hand, where no unforeseen additional bur- dens have been cast upon a party refusing to perform his contract, which make his refusal to perform, unless promised further pay, equitable, and such refusal and promise of extra pay are all one transaction, the promise of further compensation is without consideration, and the case falls within the general rule, and the promise cannot be legally enforced, although the other party has completed his contract in reliance upon it. This propo- sition, in our opinion, is correct on principle and sup- ported by the weight of authority. What unforeseen difficulties and burdens will make a party's refusal to go forward with his contract equitable, so as to take the case out of the general rule and bring it within the exception, must depend upon the facts of each particular case. They must be substantial, unforeseen, and not within the contemplation of the parties when the contract is made. They need not be such as would legally justify the party in his refusal to perform his contract, unless promised extra pay, or to justify a court of equity in relieving him from the contract ; for they are sufficient if they are of such a character as to render the party's demand for extra pay manifestly fair, so as to rebut all inference that he is seeking to be relieved from an un- satisfactory contract, or to take advantage of the necessi- ties of the opposite party to coerce from him a promise for further compensation. Inadequacy of the contract price, which is the result of an error of judgment, and not of some excusable mistake of fact, is not sufficient. The cases of Meech v. City of Buffalo, 29 N. Y. 198, where the unforeseen difficulty in the execution of the contract was quicksand, in place of expected ordinary earth excavation, and Miehaud v. MacGregor, supra, p. Sec. 2-B.] King v. Duluth, M. & N. Eailway Co. 311 198, 63 N. W. 479, where the unforeseen obstacles were rocks below the surface of the lots to be excavated, which did not naturally belong there, but were placed there by a third party, and of the existence of which both parties to the contract were ignorant when the contract was made, are illustrations of what unforeseen difficulties wUl take a case out of the general rule. Do the allegations of fact contained in plaintiff's first alleged cause of action bring his case within the excep- tion? Clearly not; for eliminating all conclusions, and considering only the facts alleged, there is nothing to make the case exceptional, other than the general state- ment that the season was so extraordinary that in order to do the stipulated work it would require great and un- usual expense, involving a large use of powder and extra time and labor for the purpose of blasting out the frozen earth and other materials which was encountered. What the character of this material was we are not told, or what the other extraordinary conditions of the ground were. The court will take judicial knowledge of the fact that frozen ground on the Missabe Range, where the work was to be performed, in the month of February, is not unusual or extraordinary. It was a matter which must have been anticipated by the parties, and taken into con- sideration by them when this contract was made. The most that can be claimed from the allegations of the com- plaint is that the contractors had made a losing bargain, and refused to complete their contract, and the defend- ant, by its representative, promised them that if they would go forward and complete their contract it would pay them an additional compensation, so that the total compensation should be equal to the actual cost of the work. 2. The second cause of action is supported by a differ- ent and a valid consideration. It fairly appears from the allegations of the complaint as to this cause of action 312 Formation of Contracts. [Chap. I. that the defendant, by changing its line and by its de- faults, had so far delayed the work of construction as to legally excuse the contractors from their obligation to complete the work within the time originally agreed upon, and that to execute the work within such time would involve an additional expense. Thereupon, in considera- tion of their waiving the defaults and the delays occas- ioned by the defendant, and promising to complete the work in time, so that it could secure the bonds, it prom- ised to pay or give to them the extra compensation. This was a legal consideration for such promise, and the alle- gations of the second general subdivision of the com- plaint state a cause of action. So much of the order appealed from as overruled the defendant's demurrer to the supposed first cause of action in the plaintiff's complaint must be reversed, and as to so much of it as overruled the demurrer to the sec- ond cause of action it must be affirmed, and the case re- manded to the District Court of the county of St. Louis with the direction to modify the order appealed from so as to sustain the demurrer as to the first cause of action, with or without leave to the plaintiff to amend, as such court may deem to be just. So ordered. A owes B $1,000, and B is about to bring suit. A promises that if B will agree to extend the time of pay- ment six months he will at once pay $250 on account of the $1,000. B is anxious to have some money at once, and agrees to extend the time six months, upon which A pays the $250. The same day B brings suit against A for the balance of $750. A defends by setting up in his answer the agreement to extend time of payment six months. Demurrer to this answer — should it be sustained? Sec. 2-5.] Kellogg v. Olmsted. 313 A owes B $1,000. A's property is so tied up and con- cealed tliat B knows a judgment would be worthless. A offers to pay B $400 if B will agree to give up the claim. Upon consideration of the payment of $400, which A then pays, B agrees to forego and give up the remainder. B at once begins suit for the remaining $600, and A sets up the agreement as a defense. Judgment for A or B? K owes B $6,400, but has no money or property of any kind, and therefore cannot pay the debt. K stated to B that he could borrow $3,500 from friends if the payment of that amount would be accepted in full payment of the debt. B acquiesced in this proposal and promised to take $3,500 as full payment in consideration that K would borrow the $3,500 as suggested. K took much trouble to collect this amount from his friends who loaned it to him upon the understanding that he was to be entirely cleared of his debt to B. He paid the $3,500 upon B 's promise that he took it in settlement of the entire debt. Subse- quently B brought an action for the balance of $2,900. K sets up B's promise in defense. Is the defense valid? Kellogg v. Olmsted. 25 N. Y. 189.— 1862. Appeal from the Supreme Court. Action on a note for $600, made by the defendants and one John I. McPher- son, since deceased, dated October 1, 1855, payable one year .after date, with interest semi-annually, to one George E. D. Covil or bearer. The answer admitted the making and delivery of the note to Covil and the transfer of it to the plaintiff, but set up as a defense, that on the 8th day of October, 1856, 314 Formation of Contkacts. [Chap. I. and after" the note became due, and while Covil was the holder of the note, it was mutually agreed between Covil and the defendants, " that in consideration that the de- fendants would keep the principal sum of the said note untU the. 1st day of April, 1857, and pay the same with interest on that day, he, the said Covil, would extend the time of payment of the principal of said note until the 1st day of April, 1857 ; that the said defendants then and there assented to said proposition, and then and there agreed to and with said Covil, to keep said principal sum of said note until the 1st day of April, 1857, and to pay the same with interest on that day; " and that the note was transferred to the plaintiff by Covil, after the agree- ment so made by him with the defendants ; and the plain- tiff took the note with full knowledge thereof. On the trial of the action before a referee, the defend- ants offered to prove the defense so specially set up, but the referee ruled out the evidence, upon the ground that the agreement or matters thus specially set up as a de- fense, if proved, would be no defense. To this ruling the defendants excepted. The appeal to this court was from the judgment of the Supreme Court in the Eighth District, affirming the judgment entered on the report of the referee. SouTHEELAND, J. I cauuot avoid thinking that this case presents an ingenious attempt on the part of the appellants to avoid the application of the well settled principle, that an agreement by a creditor, to postpone the payment of a debt due, until a future day certain, in consideration of no other or further consideration than the agreeement of the debtor to pay the debt with in- terest on that day, is void for want of consideration. It has been decided over and over again, if the creditor whose debt is due, receives part payment of it, and in consideration of such payment, promises to postpone or extend the time of payment of the balance, that such Sec. 2-B.] Kellogg v. Olmsted. 315 promise is void for want of consideration. (Miller v. Holbrook, 1 Wend. 317; Gibson v. Benne, 19 id. 390; Pobodie v. King, 12 John. 426; Eeynolds v. Ward, 5 Wend. 501; Fulton v. Matthews & Wedge, 15 John. 433.) These cases certainly assume that a promise by a creditor, no part of whose debt is paid, to extend the time of payment of the whole debt to a future day cer- tain, in consideration of the promise of the debtor to pay the debt with interest on that day, would be void. A creditor promising to extend the time of payment until a certain day, would not expect or ask his debtor to make a formal express promise in consideration of such extension, to pay his debt on that day, and not before that day ; nor would the debtor, relying on such promise of extension, be very apt to make any such formal ex- press promise; but if the promise of extension on the part of the creditor were held valid, such a promise on the part of the debtor would necessarily be implied. It would be implied from his acceptance of and reliance on the promise of the creditor. No court would ever hold the promise on the part of the creditor valid and bind- ing without holding that there was a corresponding- obligation on the part of the debtor to pay at the time fixed by the promise of extension, and not to pay before ; that is, in the language of the defendant's answer, to keep the money until the day fixed by the promise of ex- tension. Hence the cases before cited necessarily as- sume, that the agreement, or mutual agreements, spe- cially set up in the defendant's answer would be nudum pactum and void, and would not have been a defense if proved; for these cases must have been decided on the assumption, if the promise on the part of the creditor to extend the time of payment was valid, or should be held valid, that there was or would be a corresponding valid obligation or promise on the part of the debtor not only to pay at the time fixed by the agreement of extension, 316 Formation of Conteacts. [Chap. I. but also not to pay before. These cases then, in effect, decide, if a creditor whose debt is due, in consideration of the payment of a part of it, and of a promise on the part of his debtor to pay the balance on a certain future day, and not before, promises to extfend the time of pay- ment of such balance until that day, that such promise is without consideration and void. In this case, the defendants paid no part of the debt. The sole alleged consideration of the plaintiff's promise to extend the time of payment of the whole debt, until the 1st of April, 1857, was a promise, on the part of the defendants, to pay the debt with interest on that day, and not before that day. The promise on the part of the de- fendants is not stated in the answer, in these precise words, but is substantially this. But upon principle, and without reference to cases, the counsel for the appellants concedes, that their prom- ise to pay interest was no consideration for Covil to delay payment, because, if Covil had delayed payment without such promise, he would have been entitled to such interest ; but he insists that their promise not to pay the principal until the 1st of April, and then to pay it, was a sufficient consideration for the promise of delay on the part of Covil, because it deprived them of the right to pay the money at any time, and secured to CovU the right to compel the defendants to keep the money until the 1st of April. This, I think, is fanciful. The appel- lants were to pay only legal interest for the use of the money. The rate of interest, or value of the use of money, being fixed by law, the law cannot hold the delay of payment to be either a disadvantage to the debtor, or an advantage to the creditor. The one paying, and the other receiving the legal rate of interest for the use of the money only. The law cannot hold it to be a disad- vantage to a man, to agree to keep the money of another Sec. 2-B.] Kellogg v. Olmsted. 317 for a time certain, for tlie use of wMch he is only to pay tlie rate of interest fixed by the law. My conclusion is, that the judgment of the Supreme Court should be affirmed, with costs, Wright, Gould, Allen and Smith, JJ., concurred. Davis, J. (dissenting). The question presented for de- cision is, whether the agreement offered in evidence was founded on a sufficient consideration. I am unable to see why not. It was undeniably a benefit to the holder of the note to invest his money for a further term of six months at lawful interest, and it is not clear that it was a disad- vantage to the defendants to pay that rate of interest for that term. Money lenders regard it as advantageous to themselves to loan their money securely, and the benefit to them seems to me to be a sufficient consideration for a promise to permit the lender (borrower?) to have it a given length of time, he paying the lawful interest thereon. Such contracts and agreements are frequently made, and the benefit or injury to the lender or borrower depends mainly upon the state of the money market. When the current rate of interest is less than the lawful rate, the benefit is to the lender and the injury to the borrower. The two cases cited from the New Hampshire reports are in point, and sustain the position of the defendants. In Wheat v. Kendall (6 N. H. 504), Parker J., says: " We are not prepared to accede to the argnment that a contract to delay for legal interest would not be on a sufficient consideration because the original contract gave that, if nothing further had been agreed to be paid. The security which the creditor would acquire by such agreement, that the payment should be delayed, and that he should receive interest for the whole of the extended time, might well form a sufficient consideration." In Bailey v. Adams (10 N. H. 162), the court is more emphatic and pointed. The court says : " the agreement to pay simple interest may be a sufficient consideration for such a contract to delay, if there is in the contract for delay a 318 Formation of Conteacts. [Chap. I. stipulation by which it is secured to the creditor for any specified time. As for instance, if the creditor, the note being due, should agree with the principal to delay the payment six months on the consideration that the principal promised to pay the interest for that period of time, this would be a contract upon a sufficient consideration. The promise to pay the interest under such circumstances would bind the principal to the payment of it for the period agreed on, and thus secure the creditor a right beyond what he had before, even if the note contained a promise to pay interest; because the debt being due, the principal or surety, before the new agreement, might pay it at any time, and the original contract did not therefore secure the creditor interest for a single day to come." The reasoning of the Court in these cases is satis- factory and conclusive to my mind. I have examined the cases referred to in the opinion of the Supreme Court, and I do not find anything there which would lead to a different result. I incline to reverse the judgment of the Supreme Court and order a new trial. Denio, C.J., also dissented. Judgment affirmed. Benson v. Phipps. 87 TEXAS, 578 — 1895. Gaines, C.J.^ The plaintiff was surety for one Hosack, the principal maker upon a promissory note payable to the defendant in error. Some days after the note fell due, Hosack wrote defendant in error requesting an ex- tension, to which request defendant replied by letter as follows.: " I will extend the time of payment one year, and look with con- fidence for the accrued interest within sixty days, hoping it will not inconvenience you. After that, if it is your pleasure to make the interest on the extension payable semi-annually, it will help me." ^ Citation of authorities omitted. Sec. 2-B.] Benson v. Phipps. 319 The defendant in error testified to having received the letter from Hosack requesting an extension, and that the foregoing was his reply, but the contents of Hosack 's communication were not otherwise shown. He also testi- fied, that he was paid nothing for the extension, and that Hosack never paid the accrued interest. Suit having been brought on the note by the payee against all the makers, the plaintiff in error pleaded his suretyship, and the facts as stated above having been proved, the trial court gave judgment for the plaintiff in that court. That judgment upon appeal was afi&rmed by the Court of Civil Appeals. It is the right of the surety at any time after the maturity of the debt to pay it and to proceed against the principal for indemnity. This right is impaired if the creditor enter into a valid contract with the principal for an extension of the time of payment. The obligation of the surety is strictly limited to the terms of his contract, and any valid agreement between the creditor and the principal by which his position is changed for the worse, discharges his liability. For this reason it is universally held, that a contract between the two, which is binding in law, by which the principal secures an extension of time, releases the surety, provided the surety has not become privy to the transaction by consenting thereto. If the creditor is not bound by his promise to extend, it is clear there is no release. In order to hold him boimd by his promise there must be a consideration. Whether a mere agreement for an extension by the debtor is sufficient to support a promise to extend by the creditor, is a question upon which the authorities are not in accord. We are of opinion, however, that the question should be resolved in the affirmative, at least in eases in which it is contem- plated by the contract that the debt should bear interest during the time for which it is extended. If the new agreement was that the debtor should pay at the end 320 Formation of Contbacts. [Chap. 1. of tlie period agreed upon for the extension precisely the same sum which was due at the time the agreement was entered into, the case might be different. But a promise to do what one is not bound to do, or to forbear what one is not bound to forbear, is a good consideration for a contract. In case of a debt which bears interest either by- convention or by operation of law, when an extension for a definite period is agreed upon by the parties thereto, the contract is, that the creditor wUl forbear suit during the time of the extension, and the debtor foregoes his right to pay the debt before the end of that time. The latter secures the benefit of the forbearance ; the former secures an interest-bearing investment for a definite period of time. One giving up his right to sue for a peri6d in consideration of a promise to pay interest during the whole of the time ; the other relinquishes his right to pay during the same period, in consideration of the promise of forbearance. To the question, why is this not a contract, we think no satisfactory answer can be given. It seems to us it would be a binding contract, even if the agreement was that the debt should be ex- tended at a reduced rate of interest. That an agreement by the debtor and creditor for an extension for a definite time, the debt to bear interest at the same rate or at an increased but not usurious rate, is binding on both, is held in many cases. In many cases which seemingly support the contrary doctrine, there was a mere promise by the creditor to forbear, without any corresponding promise on the part of the debtor not to pay during the time of the promised forbearance. In such cases, it is clear that there is no consideration for the promise. In others, where there was a mutual agreement for the extension, it may be that interest during the period of extension was not allo-\yed by law, and the agreement did not provide for the payment of interest. Sec. 2-5. J Austin Eeal Estate & Abst. Co. v. Bahn. 321 In this ease, as we construe the correspondence be- tween Hosack and the defendant in error, there was a request for an extension of the debt for twelve months on the part of the former, and an unconditional accept- ance on the part of the latter. We infer, that Hosack must have written something about the payment of accrued interest — probably that he hoped to be able to pay it in sixty days. The presumption is, that the latter was in the possession of the defendant in error at the time of the trial. He did not produce it. In any event, he should have known its contents, and if Hosack made his request for an extension, conditional upon his pay- ment of the accrued interest, he should have testified to the fact, we conclude, therefore, that there was a bind- ing promise for an extension, and that the plaintiff in €rror was, therefore, released. There is error in the judgment, for which it must be reversed; and since it may be shown upon another trial that Hosack 's offer contained a condition that he would pay the interest in sixty days, the cause is remanded. Reversed and remanded. The Austin Eeal Estate and Abstbact Company v. Bahn. 87 TEXAS, 582 — 1 895. On motion for rehearing. Gaines, C.J. This is a motion for a rehearing of an application, based upon the ground that our ruling in this ease is in conflict with that made in the case of Benson v. Phipps, recently decided in this court. When the application now before us was filed, it was considered that it probably involved the same question which was raised in Benson v. Phipps, and upon which a writ of error had been granted. Action .upon the appli- •cation was accordingly suspended until that case was 21 322 FOBMATION OF CONTRACTS. [ChAP. L decided; and then it was discovered that although the question of the validity of a promise for an extension of a contract of indebtedness was involved in each case, the two were clearly distinguishable. In this case with refer- ence to this question, the trial court found the facts as follows: " That a few days after the note sued on became due, and just before it was assigned to the plain- tiff, N. E. Fain presented same to the defendant for payment, when said Stacy, as president of defendant company, requested that an extension of one week from that date be given on said note, and that the same be not placed in the hands of an attorney for collection until one week; and agreed, if this was done, that he would pay the note within that time, etc." Here the creditor agrees to extend for one week, and the debtor agrees to pay within the week. He does not agree that he will not pay untU the end of the week, or that in case he does pay, he will pay interest for the entire period of the extension. Hence there was no consideration for the promise of the creditor. In Benson v. Phipps, the prin- oipal maker of the note and the payee agree upon an extension for twelve months; from which the promise was implied on the part of the former not to sue, and upon the latter not to pay within the stipulated time. The promise of the debtor to forego his right to pay at any time after the note was originally due, secured to the creditor the absolute right to receive the interest for the entire time of the extension, and constituted the con- sideration for the creditor's promise. In the case before us, it was the right of the company to pay at any time, notwithstandiiig Fain's promise, and hence there was no consideration , to support that promise. The motion for a rehearing is overruled. Motion overruled. Sec. 2-C.] Callishee v. Bischoffsheim. 323 (a) A was under contract with B to go to Boston on July 1st. C promised to pay A $100 in consideration of his going to Boston on July 1st. A went to Boston on July 1st. (fe) A was under contract with B to go to Philadelphia on March 1st. On FeBruary 15th, A in consideration of C's promise to pay him $100 promised C to go to Philadelphia on March 1st. Was there a contract between A and ia either of the above cases? A owed B $1,000. B was about to bring an action to recover this sum when C promised to pay him $1,500 in consideration of his forbearance to sue. Did a contract arise between B and C? C — Compromise _and forbearance. Callisher v. Bischoffsheim, l.aw reports, 5 queen's bench, 449 — 1870. Dbclabation, that the plaintiff had alleged that certain moneys were due and owing to him, to wit, from the government of Honduras, and from Don Carlos Guttierez, and others, and had threatened and was about to take legal proceedings against the said government and persons to enforce payment of the same ; and there- upon, in consideration that the plaintiff would forbear from taking such proceedings for an agreed iime, the defendant promised to deliver to the plaintiff certain securities, to wit, bonds or debentures, called Honduras Eailway Loan Bonds, for sums to the amount of £600, immediately the bonds should be printed. Averment, that the plaintiff did not take any proceedings during the agreed period or at all; and that all conditions had been fulfilled necessary to entitle him to sue in respect 324 .Formation of Contracts. [Chap. I. of the matters before stated. Breach, that the defendant had not delivered to the plaintiff the bonds, or any of them. Plea, that at the time of making the alleged agreement no moneys were due and owing to the plaintiff from the government and other persons. Demurrer and joinder. CocKBUEN, C.J. Our judgment must be for the plain- tiff. No doubt it must be taken that there was, in fact, no claim by the plaintiff against the Honduras govern- ment which could be prosecuted by legal proceedings to a successful issue; but this does not vitiate the contract and destroy the validity of what is alleged as the con- sideration. The authorities clearly establish that if an agreement is made to compromise a disputed claim, forbearance to sue in respect of that claim is a good consideration; and whether proceedings to enforce the disputed claim have or have not been instituted makes no difference. If the defendant's contention were adopted, it would result that in no case of a doubtful «laim could a compromise be enforced. Every day a compromise is effected on the ground that the party making it has a chance of succeeding in it, and if he bona fide believes he has a fair chance of success, he has a reasonable ground for suing, and his forbearance to sue will constitute a good consideration. When such a person forbears to sue he gives up what he believes to be a right of action, and the other party gets an advan- tage, and, instead of being annoyed with an action, he escapes from the vexations incident to it. The defend- ant's contention is unsupported by authority. It would be another matter if a person made a claim which he knew to be unfounded, and, by a compromise, derived an advantage under it; in that case his conduct would be fraudulent. If the plea had alleged that the plaintiff knew he had no real claim against the Honduras Sec. 2-C] Callishbe v. Bischoffsheim. 325 government, tliat would have been an answer to the action. Blackburn, J. I am of the same opinion. The declaration, as it stands, in effect states that the plaintiff, having alleged that certain moneys were due to him from the Honduras government, was about to enforce pay- ment, and the defendant suggested that the plaintiff's claim, whether good or bad, should stand over. So far the agreement was a reasonable one. The plea, however, alleges that at the time of making the agreement no money was due. If we are to infer that the plaintiff be- lieved that some money was due to him, his claim was honest, and the compromise of that claim could be bind- ing, and would form a good consideration, although the plaintiff, if he -had prosecuted his original claim, would have been defeated. This case is decided in Cook v. Wright, 1 B. & S. 559, 570; 30 L. J. (Q. B.) 321, 324. In that case it appeared from the evidence that the defend-' ant knew that the original claim of the plaintiff was in- valid, yet he was held liable, as the plaintiff believed his claim to be good. The court say that " the real consider- ation depends on the reality of the claim made, and the bona fides of the compromise." If the plaintiff's claim against the Honduras government was not bona fide, this ought to have been alleged in the plea ; but no such allegation appears. Melloe, J. I am of the same opinion. If the plain- tiff's claim against the Honduras government was fraudulent, the defendant ought to have alleged it. Lush, J., concurred. Judgment for the plaintiff. 326 Formation of Contbaots. [Chap. I. Foster v. Metis. 55 mississippi, 77 — 1877. Actiok upon promissory note. Defendants demurred; demurrer sustained. Error to the Circuit Court. Two hundred dollars belonging to the plaintiff in error, Foster, were stolen from the United States mail by a carrier employed by the defendants in error, Metts & Co., who were contractors for carrying the mail from LouisvUle to Artesia. At first, Metts & Co. denied any liability to Foster for the loss, but finally, upon consid- eration that Foster would wait a few months for pay- ment, Metts & Co. gave to him their promissory note for the amount lost. The note not being paid at maturity, this action was brought upon it. Campbell, J} In this case the money was stolen by the mail-carrier. As to that, he certainly was not the agent of the contractors for whom he was riding, and, if they were liable for his acts within the scope of his employment, they were not liable for his wilful! wrongs and crimes. As the defendants in error were not liable for the money " extracted " from the mail by the carrier, they did not make themselves liable by giving their prom- issory note for it. It is without consideration. The compromise of doubtful rights is a sufficient considera- tion for a promise to pay money, but compromise implies mutual concession. Here there was none on the part of the payee of the note. His forbearance to sue for what he could not recover at law or in equity was not a sufficient consideration for the note. Judgment affirmed. ^ A portion of the opinion and citation of authorities omitted. Sec. 2-C.J Manteb v. Churchill. 327 MaNTER v. GHURCHHiL. 127 MASSACHUSETTS REPORTS, 31 — 1879. Contract upon an account annexed for money paid. Answer, a general denial. Trial in the Superior Court, without a jury, before Brigham, C.J., who allowed a bill of exceptions in substance as follows: Ephraim ChurchUl, the father of the defendant, died in the fall of 1865, then owner of one-quarter part of a schooner and left a widow, Martha H. Churchill, and four children. In November, 1865, Martha H. was appointed administratrix of the estate of Ephraim. The plaintiff became part owner and managing agent of the schooner in 1869, and transacted all the business which related to the interest of the estate of Ephraim in the schooner with Martha H. in her character of administratrix. In this character she joined in a bill of sale of the schooner in March, 1876, and prior thereto received from the plain- tiff one-quarter of the profits of the schooner's business. The personal estate of Ephraim remaining in the hands of the administratrix, after the payment of debts, was never distributed among the heirs-at-law of Ephraim, and they have hitherto allowed the administratrix to use it for her maintenance, and treat it as her own property. The business of the schooner was conducted, in the year prior to the sale, with such loss that on June 1, 1876, when the final accounts were made up by the plaintiff, the sum of $110 was due to the plaintiff from the estate of Ephraim, being one-quarter of the loss for the previous year's business, and the further sum of $3.29 was due to the plaintiff from the estate, being one- quarter of the loss for the year prior to 1875. These sums, amounting to $113.29, the plaintiff sought to re- cover in this action, less the sum of $62.50, paid since this action, as hereinafter stated, on the ground of a special oral promise of the defendant to pay the same, in con- 328 FOEMATION OF CoNTEACTS. [ChAP. I. sideration of the plaintiff's forbearing, for the period of about 'three months, to bring an action against the administratrix, the defendant or other heirs-at-law of Ephraim to recover the same. The plaintiff also claimed to recover upon an implied promise of the defendant to pay the sum sought to be recovered in this action, in con- sideration of the plaintiff's forbearing, for a consider- able period of time, to bring an action against either the administratrix, the defendant, or the other heirs-at-law of Ephraim. The judge found that the defendant made an oral promise to pay the account declared on to the plauitiff's attorney, and also to the plaintiff; that this promise in- duced the plaintiff to forbear, and he did forbear, bring- ing this action, for the period of three months, against the administratrix, the defendant or the other heirs-at- law of Ephraim ; that the defendant solicited the plaintiff to forbear bringing an action against the administratrix, assuring the plaintiff that she had a disposition to pay, and would, from sources which were specified by the defendant, have the means of paying the account, and, by his declarations and conduct, intentionally caused the plaintiff to believe that the account would be paid by the administratrix, and, if not paid by her, would be paid by the defendant, or by the heirs-at-law, within one year, and thus induced the plaintiff to forbear; and that he did forbear bringing this action against the administratrix for the period of at least one year. After this action was brought, the defendant's sisters paid the plaintiff $62.50, on account of the sum sought to be recovered in this action, and, before such payment, the defendant and the other heirs proposed to convey to the plaintiff land which had been a part of the estate of Ephraim, in payment of the account declared on, and a deed was made to carry into effect this proposition, but was not executed, by reason of the disagreement of the Sec. 2-C.] Mantek v. Churchill. 329 parties as to the price at which the land should be re- ceived by the plaintiff, in settlement of his account. The defendant also relied upon the Statute of Frauds. The plaintiff contended that the defense was not open under the pleadiags; and the judge did not base his finding upon that defense. Upon these facts the judge ruled that the action could not be mairitaiiied, and ordered judgment for the defendant, and the plaintiff alleged exceptions. LoED, J. It is entirely clear that there was no evidence tending to hold the defendant as an original promisor. The only question is whether he was liable to pay the debt of his mother, Martha H. Churchill. His liability for that debt is not denied upon the ground that he did not promise in writing to pay it. The Statute of Frauds is not pleaded, the plaintiff contends that that defense is not open, because not pleaded, and the Chief Justice of the Superior Court states expressly that his finding for the defendant was not based upon the Statute of Frauds. He finds that the defendant promised to pay the debt; and the question presented for our consideration is, whether such promise was founded upon a sufficient consideration, or whether it was mere nudum pactum. Mere forbearance to sue is not a sufficient considera- tion for a promise to pay the debt of another. Meoorney V. Stanley, 8 Cush. 85, An agreement to forbear and actual forbearance under such agreement is a sufficient consideration. Eobinson v. Gould, 11 Cush. 55. In this case, the presiding judge, although he finds there was forbearance to sue, and finds that the plaintiff was induced to forbear because of the request of the defendant, yet does not find that there was upon the part of the plaintiff any agreement to forbear. The plaintiff, therefore, was under no obligation, legal or moral, not to bring suit; and he might at any moment have commenced an action against the mother of the de- 330 Formation of Conteacts. [Chap. I. fendant, without any cause for complaint on the part of the defendant that he had violated any promise or en- gagement to him; and although the forbearance was at the request of the defendant, and at his solicitation, still it is not found to have been by virtue of an agreement. There are cases in which the fact of forbearance, and the circumstances under which it exists, may be properly left to the jury as evidence tending to show a promise to forbear. Boyd v. Freize, 5 Gray, 553. But in this case decided by the court without the intervention of a jury, it is to be presumed that the evidence did not sat- isfy the court of an agreement to forbear, and the court, therefore, found the promise to be without consideration, and that no action could be maintained upon it. Exceptions overruled. Ceeaks v. Huntee. law reports, 19 queen's bench division, 341 — 1887. Appeal from the order of the Queen's Bench Division (Day and Wills, JJ.) setting aside the verdict and judgment for the plaintiff at the trial. The facts in substance appeared to be as follows : The action was on a promissory note, the defense being that there was no consideration for the making of the note by the defendant. The defendant's father, since deceased, had, before the defendant came of age, borrowed the sum of £200 from the plaintiff, promising that his son, the defendant, when of age, would become surety for the debt. In 1877, the defendant being then of age, the plaintiff brought a promissory note stamp to the defendant's father's house, where the defendant then was, and the promissory note now sued upon was then drawn up and signed by the Sec. 2-C.] Cbeabsv. Hunteb. 331 defendant's father and the defendant. By snch note they jointly and severally promised to pay to the plain- tiff or order " the sum of £200, being money lent, with interest on the same from Martinmas last past half- yearly at the rate of 5 per cent per annum. ' ' There was no evidence as to anything being said by the parties in relation to the signing of the note. Interest had been paid upon the note. It appeared that on several occasions such interest was paid in the defendant's presence, and the receipts for such payments of interes-t were made out to the defendant's father and the defendant jointly. The principal being still due, the plaintiff brought his action on the note against the defendant Hunter and his father's executor. The learned judge at the trial, A. L. Smith, J., ap- peared, in substance, to have told the jury that, if the note was signed by the defendant in order that the plain- tiff might give time to his father, and the plaintiff did give time, there would be a good consideration for the making of the note by the defendant, and he left it to the jury to say whether there was such consideration. The jury found for the plaintiff. The Divisional Court set aside the verdict on the ground that there was no evidence of consideration, and entered judgment for the defendant. LoBD EsHEK, M.R. In this case the defendant's father had borrowed money of the plaintiff, and was actually liable to pay the amount so borrowed. The plaintiff purchased a promissory note stamp and went with it to the house of the defendant 's father, and there found the defendant's father and the defendant, who was at that time under no obligation whatever to the plaintiff. A promissory note was drawn up, which does not, it is true, on the face of it provide for any delay in payment of the amount due by the father, because the father's liabil- ity on the note arose immediately after it was signed, if 332 FoEMATioN OF Contracts. [Chap. I. the plaintiff had chosen to sue on it. The note does nevertheless indicate on the face of it that, though there was no binding agreement to forbear, the parties did con- template that the note might not be sued on for some time, because provision is made for the payment of in- terest half-yearly by the son jointly with the father. It may be true that there was no evidence of any request in express terms by the son that the plaintiff would for- bear to sue the father, but what was the substance of the transaction contemplated in the minds of the parties? Was not the understanding obviously that, if the plain- tiff would forbear to sue the father, the defendant would become liable on the note ? I take it to be undoubted law that the mere fact of forbearance would not be a con- sideration for a person's becoming surety for a debt. It is quite clear, on the other hand, that a binding promise to forbear would be a good consideration for a guarantee. The question is whether, if the guarantor requests the creditor to forbear from suing and the creditor on such request, although he does not- at the time bind himself to forbear, does in fact afterward forbear to sue, there is a good consideration for the guarantee. It seems to me that it was laid down in Oldershaw v. King (2 H. & N. 399, 517) that there would in such a case be a good con- sideration, and I do not think that any of the cases cited to us is really to the contrary. Earle. J., there said : " Looking at the whole letter and the circumstances under which it was written, and considering the importance of further advances, I come to the conclusion that the consideration contemplated was that further advances should be made and time given by the creditor before he would press for payment of the existing debt. Though the contract did not bind the creditor to make further advances or to give time, unless he chose to do so, it is clear that, if he did make the advances and did give time, that which was contingent at the time when the instrument was written became an absolute and binding contract." It clearly follows from what he there says that, if at the request of the guarantor the creditor does in fact Sec. 2-C] Ceeabs v. Huntee. 333 forbear, there is a sufficient consideration to bind the guarantor, who has promised to pay the debt. It was argued that the request to forbear must be express. But it seems to me that the question whether the request is express or is to be inferred from the circumstances is a mere question of evidence. If a request is to be implied from the circumstances, it is the same as if there were an express request. The question is, therefore, whether there was sufficient evidence in this case to entitle the jury to infer that the understanding between the plain- tiff and defendant was that, if the plaintiff would give time to the father, the defendant would make himself responsible. I am of opinion that there was evidence to go to the jury that what the parties really understood in their minds was that, if the plaintiff would give the de- fendant's father time to turn round, the defendant would guarantee the payment of the principal in the end and in the meantime interest at the rate .of 5 per cent, per annum half-yearly. I not only think that there was evidence of such an understanding, but I entirely agree with the in- ference drawn by the jury. I cannot see any other reasonable explanation of the transaction than that the understanding was as I have said. For these reasons I think that the verdict and judgment at the trial were right, and that the decision of the Divisional Court must be reversed. LiNDLEY, L.J. I am of the same opinion. In this case the plaintiff obtained a verdict in an action on a prom- issory note, the question left to the jury being whether there was any consideration for the defendant's giving the note. The Divisional Court have set aside the ver- dict and entered judgment for the defendant on the ground that there was no evidence of any consideration. "We, therefore, have to consider whether there was any evidence of a good consideration for the signature of the note by the defendant. Looking at the document and the 334 FOEMATIOK OF CONTRACTS. [ChAP. I. history of the transaction, I cannot invent any rational theory by which to account for the defendant's giving the note except that it was for the purpose of benefiting his father by procuring for him time to pay the debt. To say otherwise appears to me inconsistent with human, nature and the whole character of the transaction. It may be that there is no evidence that the defendant actually said that he would be liable if the plaintiff would give his father time. But, except on the theory that such was the understanding between the parties, the defendant's conduct is inexplicable. I cannot thiak that there was no evidence for the jury that there was forbearance by the plaintiff at the request of the defendant. On the contrary, the evidence to the effect that there was seems to me overwhelming. Then the question arises whether that would constitute a sufficient consideration. Upon looking into the authorities it seems to me to be the result of other cases besides Oldershaw v. King (2 H. &N. 517), and Mills v. New Zealand Alford Estate Company (32 Ch. D. 266), that it is not essential that the plaintiff should have agreed to forbear ; it is quite sufficient if he did forbear at the request of the defendant. It is argued that in thus deciding we contravene the decision in the case. Crofts v. Beale, (1 C. B. 172.) But I do not so read that case. There the question was left to the jury whether there was consideration or not, the judge having told them that, if the note was given to prevent legal proceed- ings against the principal debtor, there was sufficient consideration for it. The jury found for the defendant — i. e., that there had been no request and no considera- tion. In this case the jury found that there was consideration. Lopes, L.J. In this case the question is whether there was evidence of a consideration for the making of this note by the defendant. The law appears to bo that a promise to forbear is a good consideration, but also that Sec. 2-Cj Strong v. Sheffield. 335 actual forbearance at the request, express or implied, of the defendant would be a good consideration. Taking the latter of these two alternatives, it is undisputed that there was actual forbearance from suing in this case. That by itself would not be sufficient; such forbearance must have been at the request, express or implied, of the defendant. There is no evidence here of any express request. It seems, however, clear that there is evidence of an implied request, and I think the jury was justified in finding that there was such a request. Unless it were to procure forbearance, it is inconceivable why the de- fendant should have signed the note at all. The case is strengthened when it is borne in mind that the note pro- vides for the payment of interest half-yearly by the father and son jointly, thus clearly indicating to my mind that forbearance was contemplated at the request of the son. For these reasons I think the judgment of the court below should be reversed. Appeal allowed. Strong v. Sheffield. 144 NEW YOEK REPORTS, 3i92 — 1895. Appeal from judgment of the General Term of the Supreme Court in the Second Judicial Department, entered upon an order made December 12, 1892, which reversed a judgment in favor of plaintiff, entered upon a verdict, and also affirmed an order denying a motion for a new trial. This was an action upon a promissory note. The facts, so far as material, are stated in the opinion. Andrews, C.J= The contract between a maker or indorser of a promissory note and the payee forms no exception to the general rule that a promise, not sup- ported by a consideration, is nudum pactum. The law 336 Formation or Contracts. [Chap. I. governing commercial paper which precludes an inquiry into the consideration as against bona fide holders for value before maturity, has no application where the suit is between the original parties to the instrument. It is undisputed that the demand note upon which the action was brought was made by the husband of the defendant and indorsed by her at his request and delivered to the plaintiff, the payee, as security for an antecedent debt owing by the husband to the plaintiff. The debt of the husband was past due at the time, and the only considera- tion for the wife's indorsement, which is or can be claimed, is that as part of the transaction there was an agreement by the plaintiff when the note was given to forbear the collection of the debt, or a request for for- bearance, which was followed by forbearance for a period of about two years subsequent to the giving of the note. There is no doubt that an agreement by the creditor to forbear the collection of a debt presently due is a good consideration for an absolute or conditional promise of a third person to pay the debt, or for any obligation he may assume in respect thereto. Nor is it essential that the creditor should bind himself at the time to forbear collection or to give time. If he is requested by his debtor to extend the time, and a third person undertakes in con- sideration of forbearance being given to become liable as surety or otherwise, and the creditor does in fact for- bear in reliance upon the undertaking, although he enters into no enforceable agreement to do so, his acquiescenca in the request, and an actual forbearance in consequence thereof for a reasonable time, furnishes a good consider- ation for the collateral undertaking. In other words, a request followed by performance is sufficient, and mutual promises at the time are not essential, unless it was the understanding that the promisor was not to be bound, except on condition that the other party entered into an immediate and reciprocal obligation to do the thing re- Sec. 2-C.] Strong v. Sheffield. 337. quested. Tlie general rule is clearly, and in the main accurately, stated in the note to Forth v. Stanton (1 Sound, 210, note &). The learned reporter says: "And in all cases of forbearance to sue, such forbearance must be either absolute or for a definite time, or for a reasonable time; for- bearance for a little, or for some time, is not sufficient." The only qualification to be made is that in the absence of a specified time a reasonable time is held to be in- tended. The note in question did not in law extend the payment of the debt. It was payable on demand, and although being payable with interest it was iu form con- sistent- with an intention that payment should not be immediately demanded, yet there was nothing on its face to prevent an immediate suit on the note against the maker or to recover the original debt. In the present case the agreement made is not left to inference, nor was it a case of request to forbear, fol- lowed by forbearance, in pursuance of the request, with- out any promise on the part of the creditor at the time. The plaintiff testified that there was an express agree- ment on his part to the effect that he would not pay the note away, nor put in any bank for collection, but (using the words of the plaintiff) ' ' I will hold it until such time as I want my money, I will make a demand on you for it. ' ' Upon this alleged agreement the defendant indorsed the note. It would have been no violation of the plaintiff's promise if, immediately on receiving the note, he had commenced suit upon it. Such a suit would have been an assertion that he wanted the money and would have fulfilled the condition of forbearance. The debtor and the defendant, when they became parties to the note, may have had the hope or expectation that forbearance would follow, and there was forbearance in fact. But there was no agreement to forbear for a fixed time or for a reasonable time, but an agreement to forbear for such time as the plaintiff should elect. The considera- 22 338 FOBMATION OF CoNTEACTS, [ChAP. I. tion is to be tested by the agreement, and not by what was done under it. It was a case of mutual promises, and so intended. We think the evidence failed to dis- close any consideration for the defendant's indorsement, and that the trial court erred in refusing so to rule. The order of the General Term reversing the judg- ment should be affirmed, and judgment, absolute directed for the defendant, on the stipulation, with costs in all courts. All concur except Gray and Baetlett, JJ., not voting, and Haight, J., not sitting. Ordered accordingly. A sues B, and alleges that he had threatened to bring an action against B upon a promissory note for $1,0Q0. That although they both knew the note to be void, yet, to avoid the annoyance of litigation, B promised to pay A $250 upon -consideration that A would never begin suit on the void note. B demurs, on the ground that the com- plaint does not state facts constituting a cause of action. 1st. Because there is not a consideration stated for the promise. 2d. Because if there was a consideration, it was not yet performed, and the action was premature. A amended his complaint by alleging that the considera- tion was that A should not begin suit for six months, and that more than six months had elapsed and no suit had been brought. B demurred to amended complaint. A threatens to sue B for $1,000, knowing that he has no cause of action against B. B, supposing that A has a cause of action, and to avoid litigation, proraises to pay A $250 if he will compromise the matter and not bring Sec. 2-D.] Lee v. Muggeeidge et al. 339 his action. A does not begin the action, and releases B from all claim. A brings suit for $250 on B's promise. A threatens to sue B for $1,000. Each honestly be- lieves it to be a doubtful claim. B promises to pay $250 in settlement, and they compromise at that and effect a settlement. Afterward facts develop which show that A had no cause of action, and B refuses to pay the $250. Suit by A. D — Moral Obligation as a so-called moral consideration. Lee v. Muggeeidge and Anothee, Executors of Maey Muggeeidge, Deceased. 5 TAUNTON, 36 — 1813. ^Assumpsit upon the following facts. Mrs. Mary Mug- geridge, prior to her marriage to John Muggeridge, set- tled her extensive estate in trust, the income to be paid to her for life, and upon her death, surviving her hus- band, the principal to go to her estate. During her hus- band's life one Hillier, her son by a former marriage, applied to her for a loan. As it was not then convenient for her to advance the money, she applied to the plain- tiff, who made the loan, taking heu bond for £2,000 pay- able at her death to secure the amount advanced to her son. Mrs. Muggeridge survived her husband, and dur- ing her widowhood, promised that the bond, given as above stated, would be settled by her executors. She died without making provision for the payment, but left the remainder of her. estate, after payment of certain legacies, to the defendant Muggeridge. ' Facts greatly condensed, only those material to the decision being given. 340 Formation of Contracts. [Chap. I. Plea. — The general issue. Trial thereon and verdict for the plaintiff. Shepherd moved in arrest of judgment, on the ground that no sufficient consideration was shown for the prom- ise of the deceased. The court granted a rule nisi. Lens and Best in this term showed cause. Shepherd and Vaughan, contra. Mansfield, C.J. The counsel for the plaintiff need not trouble themselves to reply to these cases; it has been long established, that where a person is bound morally and conscientiously to pay a debt, though not legally bound, a subsequent promise to pay will give a right of action. The only question therefore is, whether upon this declaration there appears a good moral obligation. Now I cannot conceive that there can be a stronger moral obligation than is stated upon this record. Here is this debt of £2,000 created at the desire of the testatrix, lent in fact to her, though paid to Hillier. After her hus- band's death, she knowing that this bond had been given, that her son-in-law had received the money, and had not repaid it; knowing all this, she promises that her execu- tors shall pay ; if then it has been repeatedly decided that a moral consideration is a good consideration for a prom- ise to pay this declaration is clearly good. This case is not distinguishable in principle from Barnes v. Hedley; there not only the securities were void, but the contract was void; but the money had been lent, and, therefore, when the parties had stripped the transaction of its usury, and reduced the debt to mere principal and inter- est, the promise made to pay that debt was binding. Lord Mansfield's judgment in the case of Doe on the demise of Carter v. Straphan is extremely applicable. Here in like manner the wife would have been grossly dishonest if she had scrupled to give a security for the money ad- vanced at her request. As to the cases cited, of Lloyd v. Lee and Barber v. Fox, there was no forbearance, and Sec. 2-D.] Lee v. Muggeeidge et al. 341 those cases proceeded on the ground that no good cause of action was shown on the pleadings. Heath, J. I am of the same opinion. Promises with- out consideration are not enforced, because they are gratuitous, and the law leaves the performance to the liberality of the makers. The notion that a promise may be supported by a moral obligation is not modern ; in Charles the Second's time it was said, if there be an iota of equity it is enough consideration for the promise. Chambeb, J. There cannot be a stronger or clearer ease of moral obligation than this. The gentleman has done this lady a great favor in going to this expense and accepting an invalid security ; and when she could give a better security, it became her duty so to do, and she has done it. In the cases cited it was the plaintiff's fault if, having it in his power to state a good consideration on the record, he neglected so to do. GiBBS, J. I agree in this case the plaintiff is entitled to recover. It cannot, I think, be disputed now that where- ever there is a moral obligation to pay a debt, or perform a duty, a promise to perform that duty, or pay that debt, will be supported by the previous moral obligation. There cannot be a stronger case than this of moral obligation. . The counsel for the defendant did not dare to grapple with this position, but endeavored to show that there was no case, in which a subsequent promise had been sup- ported, where there had not been an antecedent legal obligation at some time or other ; from whence he wished it to be inferred, that unless there had been the ante- cedent legal obligation, the mere moral obligation would not be a sufficient consideration to support the promise. But in Barnes v. Hedley, certainly Hedley never was for a moment legally bound to pay a farthing of that money for which he was sued; for it appears to have been ad- vanced upon a previously existing usurious contract, and whatever was advanced upon such a contract certainly 342 Formation of Contbacts. [Chap. L could not be recovered at any one moment. The bor- rower, availing himself of the law, so far as he honestly might, and no further, reducing it to mere principal and interest, does that which every honest man ought to do in like circumstances, promises to pay it, and that prom- ise was held binding. As to the cases of Lloyd v. Lee and Barber v. Fox, they have sufficiently been answered by my Lord and my Brother Chambre, that if a man will state on his declaration a consideration which is no con- sideration, and shows no other consideration on his declaration, although another good consideration may exist, when that which he does show fails, he cannot suc- ceed upon the proof of the other which he has not alleged. Now in the first of those cases there was clearly no for- bearance, because forbearance must be a deferring to prosecute a legal right, but no legal right to recover previously existed. Whatever other consideration might exist for the promise, it was not stated in the declara- tion; it is therefore clear that this rule must be dis- charged upon the ground, that wherever there is an ante- cedent moral obligation, and a subsequent promise given to perform it, it is of sufficient validity for the plaintiff to be able to enforce it. Rule discharged. Eastwood v. Kenyoii. 11 adolphus & ellis, 438 — 1840. Assumpsit. The declaration stated that one John Sut- cliffe made his will, and appointed plaintiff executor thereof, and thereby bequeathed certain property in manner therein mentioned; that he afterward died with- out altering his will, leaving one Sarah Sutcliffe, an in- fant, his daughter and only child and heiress-at-law, sur- viving; that after making the will John Sutcliffe sold the property mentioned therein, and purchased a piece of Sec. 2-D.] Eastwood v. Kenyon. 343 land upon wMcli he erected certain cottages, but the same were not completed at the time of his death, which piece of land and cottages were at the time of his death mort- gaged by him; that he died intestate in respect of the same, whereupon the equity of redemption descended to the said infant as heiress, at law ; that after the death of John Sutcliffe, plaintiff duly proved the will and admin- istered to the estate of the deceased ; that from and after ihe death of John Sutcliffe untU the said Sarah Sutcliffe e rule. But then it appears as Mr. Serjt. Williams observes in 1 Saund. 320 d (and the Lord Chief Baron, in delivering the judg- ment of this court in Ellen v. Topp, adopts the observa- tion), the reason of the decision in that and similar cases, besides the inequality of damages, seems to be, that where a person has received part of the consideration for which he entered into the agreement, it would be un- just that, because he had not the whole, he should there- fore be permitted to enjoy that part without either pay- ment or doing anything for it. Therefore the law obliges him to perform the agreement on his part, leaving him to his remedy to recover any damage he may have sus- tained in not having received the whole consideration. Mr. Serjt. Williams goes on to observe that it must ap- pear upon the record that the consideration was executed in part This may appear by the instrument declared on itself, whereby a valuable right, part of the considera- tion, is conveyed, as in Campbell v. Jones or Boone v. Eyre, or by averment in pleading. When that appears, it is no longer competent for the defendant to insist upon the nonperformance of that which was originally a con- dition precedent; and this is more correctly expressed, than to say it was not a condition precedent at all. In this case, if the stipulation that the names of the vessels should be stated as soon as the wools were ship- ped was originally a condition precedent, it is so still. No other benefit was taken under the contract itself, as the consideration for the promise to pay the money, than the shipment and delivery of the goods by the named ves- 616 Conditions in Contract. [Chap. II. sels; nor was any subsequently received by the accept- ance of the goods or any part thereof. After such accept- ance, the defendants would have been bound to pay the price, or the residue of it, and could not have insisted on the neglect to name in due time, but, if there had been any such neglect, would nevertheless have had their remedy for the damage by cross-action on the contract to declare the names. In the state of things on this record, the simple quesiton is, whether this contract was originally a condition precedent or not. Looking at the nature of the contract, and the great importance of it to the object with which the contract was entered into with the knowledge of both parties, we think it was a condi- tion precedent, quite as much indeed as the shipping of the goods at Odessa, with all despatch, after the end of August. And with respect to the shipment itself, Mr. Blackburn did not venture to contend that the perform- ance of the plaintiff's contract in that respect was not a condition precedent. The defendants, therefore, have a right to object to fulfill the contract on their part, as the plaintiff did not fulfill his, though they could no longer object to the plain- tiff's nonperformance had they afterward taken any benefit under the contract. Judgment for the defendants. Thompson v. Gillespy. 5 ellis & blackburn, 209 — 1855. The first count of the declaration alleged that a char- ter-party was made and entered into by and between plaintiffs and defendant, of which the following is a copy: " London, 14th October, 1854. ■' It is this day mutually agreed between Messrs. R. Thompson & Sons, owners of the good ship or vessel called the Mary Graham, whereof is master, of the measurement," &e., " now at Sunderland, and Sec. 1-B.] Thompson v. Gillespy. 617 Thomas Gillespy, of London, merchant, that the said ship, being tight, staunch, and strong, and every way fitted for the voyage, shall, with all convenient speed, at Sunderland, load from the factors of the said merchant, in the customary manner and in regular turn, a full and com- plete cargo of Londonderry or Lambton's Wallsend coals, whichever is readiest; which the said merchant binds himself to ship, not exceed- ing what she can reasonably stow and carry over and above her tackle," &c. "And, being so loaded, shall therewith proceed to Constantino- ple for orders, to deliv€r there, or Stenea or Beicos Bay, or at Varna, or a safe place in the Black Sea, or so near thereunto as she may safely get, and deliver the same, in her regular turn, into craft, steamer, or depot ship, at any wharf or pier where she may safely lie, as may be directed by the consignee, being paid freight on the quantity delivered in the manner after mentioned at the rate of 34^ per kiel of 2175 tons, if discharges at Constantinople, St«nea, or Beicos," &c. (other rates for a discharge elsewhere), "in full of all port charges, consulages, pilot- ages, Ramsgate and Dover dues ; the act of God," &c., excepted. " The balance of freight to be paid by an approved bill on London, at three months' date from the production of the consignee's certificate of the right delivery of the cargo at as aforesaid, agreeably to bills of lading, or in cash equal thereto, at charterer's option." Then followed stipulations as to rate of unloading, running days for the same, and demurrage for excess; and other clauses not now material. " One-fourth of the freight to be advanced to the owner's agent in London, on the ship having sailed, less five per cent thereon for insur- ance, interest, and commission : penalty for non-performance of this agreement, the estimated amount of freight.'' Signed by defendant and plaintiffs. Averment: That the persons in the said charter-party mentioned and described as Messrs. E. Thompson & Sons, were and are plaintiffs, and that the person therein mentioned and described as Thomas Gillespy was and is defendant. That defendant caused the ship to be loaded with a full and complete cargo of coals, to wit, pursuant to the said charter-party; and that the said ship, being so loaded, sailed, to wit, for Constantinople, pursuant to the said charter-party. That plaintiffs did, and were ready to do, all things necessary on their part, and that 618 Conditions in Conteact. [Chap.'II. all things necessary happened and were done, to entitle plaintiffs, to wit, by their agent in London, to receive, and to render defendant liable to pay to their agent in London, the one-fourth part of the said freight, by the said charter-party agreed to be advanced to the plain- tiff's agent in London on the ship having saUed, less £5 per cent thereon for insurance and commission. That the said one-fourth part of the freight, less £5 per cent as aforesaid, amounted to a large, etc., to wit £214. Yet defendant hath not paid the same, or any part thereof, to plaintiffs, or to their agent in London. Second count, for money payable by defendant to plaintiffs for freight for the conveyance by plaintiffs for defendant, at his request, of goods in ships; and for money found to be due from defendant to plaintiffs on accounts stated between them. Pleas : 1. To the first count : That the said ship did not sail as alleged. 2. To the first count: That the said ship was not, at the commencement of the said voyage, tight, staunch, and strong, and every way fitted for the voyage; and that, by reason of the premises, the said ship and the said cargo of coals were wholly lost. 3. To the first count: That the plaintiffs not only wrongfully and negligently sent the said ship, so loaded as in the said first count mentioned, out to sea in an un- seaworthy state, and without a proper and sufficient crew to navigate her on the said voyage, and when she was not fitted for the said voyage, and at a time when it was very dangerous for the said ship to proceed to sea; but the defendant says that, after the said ship had been so as aforesaid sent to sea, and while she was on the high seas near to the sea-shore, the plaintiffs wrongfully and negligently caused and permitted the master of the said ship to leave the said ship, and go ashore, and wrong- Sec. 1-B.] Thompson v. Gillespy. 619 fully and improperly caused and permitted the said ship to be left there, to wit, on the high seas, near to the sea- shore, for a great length of time, without a master, with- out a proper and sufficient crew to manage and navigate her: during which time the said ship, by reason of the premises, sunk and was wholly lost; and the said cargo of coals was also, by reason of the premises, wholly lost. 4. To the residue of the declaration: Never indebted. The plaintiffs joined issue on all four pleas, and also demurred to the second and third. Joinder in demurrer. [His Lordship stated the pleading.] ^We are of opinion that the second plea is a bar to the action, on the ground that it shows that the advance of freight had never become payable. Freight, generally speaking, is not payable till the goods have been delivered at the port of destination. Here, by special stipulation, one-quarter of the amount was to be paid in advance on a certain event, viz., the ship having sailed from Sunderland for Constantinople, in pursuance of the charter-party. The charter-party required that when she sailed, she should be " tight, staunch, and strong, and every way fitted for the voy- age. ' ' If she sailed on the voyage in a seaworthy condi- tion, the merchant was to advance one-fourth of the freight, which he could not recover back if the ship, hav- ing so sailed, should afterward be lost by the perils of the sea without having delivered any part of her cargo. Pro tanto the risk was transferred from the shipowners to the merchant ; and the arrangement between them was that the amount to be advanced was to be insured by him, as appears clearly from the deduction of 5 per cent for insurance, interest and commission. By a policy of insurance, the merchant was to be indemnified to the ex- * A few words upon another point omitted. 620 Conditions in Contract. [Chap. II. tent of the sum lie was to advance. But he could not have the benefit of this indemnity unless, at the com- mencement of the voyage, the ship was seaworthy. He must be considered to have promised to pay one-fourth of the freight in advance, if, when the ship saUed, she was in such a condition as that a policy of insurance on the freight would attach, and enable him to recover the money back in case of a subsequent loss. But the plea avers that the ship was not seaworthy at the commence- ment of the voyage, and that, by her unseaworthiness, the cargo of coals was wholly lost. It was argued, for the plaintiff, that the loss after the sailing is for this purpose immaterial, "and that, although unseaworthy when she sailed, she might have completed the voyage and delivered the cargo in safety. In that case the full freight certainly would have been earned, and would have been payable : but still the conjuncture never would have arisen upon which a part of the freight was to be paid in advance. For these reasons we think that the second plea is sufficient. There is a third plea, upon which, as it is demurred to, we are bound to give our opinion. This plea has some introductory observations about the ship having been sent to sea in an unseaworthy state, but it contains no allegation to that effect, and we consider the substance and gist of the plea to be that, after the ship sailed and while she was on the high seas, the plaintiffs were guilty of negligent and improper conduct with regard to the management of the ship, by reason whereof the ship and cargo were wholly lost. This plea, we thinli, is bad, as it admits that the ship sailed on the voyage from Sunder- land in pursuance of the charter-party. If this be true, one-fourth of the freight thereupon became payable in advance; and any subsequent default or misconduct of the plaintiffs would only be the subject of a cross-action. Judgment for defendant on the second plea; for the plaintiffs on the third. Sec. 1-B.] Simpson v. Ceippin. 621 Simpson v. Ckippin. law reports, -8 queen's bench, 14 — 1872. Declabation on a contract to supply from 6,000 to 8,000 tons of coal, to be delivered in equal monthly quantities during the period of twelve months, from the 1st of July, 1871. Breach: that the defendants did not deliver the coal monthly, and had refused wholly to deliver the coal and to perform the contract. Plea, inter alia: That the plaintiffs were not ready and willing to accept the coals, and that the defendants were prevented from delivering the coals, and performing the agreement, by the acts, neglects, and defaults of the plaintiffs. At the trial before Lush, J., at the Liverpool Spring Assizes, 1872, it appeared that the defendants were coal proprietors, and the plaintiffs were coal merchants. On the IQth of June, 1871, the plaintiffs wrote to the defendants the following letter: "We agree to take from you about 6,000 to 8,000 tons of your best Wigan four-feet coal, at 5s 6d. pei ton of 21 cwt. to the ton, put into our wagons at the colliery. Delivery to commence from the 1st of July next, and to be taken in about equal monthly quantities over the next twelve months. It is understood that you are not bound to supply in case of accidents or strikes. Terms, cash monthly, less 2% per cent discount " The defendants, by letter also dated the 10th of June, replied as follows: " We agree to supply you from 6,000 to 8,000 tons of our best four- feet Wigan coal, properly screened, and free from slack, to be de- livered into your wagons at our collieries, in equal monthly quantities during the period of twelve months from the 1st of July next — strikes of our workmen, accidents, and other circumstances beyond our control excepted — at 5s 6d. per ton of 21 cwt. Terms, cash monthly, less 2% per cent discount." On the 8th of July the defendants wrote, complaining that the first week for the fulfillment of the contract had terminated without the plaintiff's sending wagons or orders for coals. The correspondence continued, the defendants requesting that wagons might be sent, and 622 Conditions in Conteact. [Chap. II. the plaintiffs promising to comply. During the month of July the plaintiffs took from the defendants only 158 tons of coal. On the 1st of August the defendants wrote to the plaintiffs, that inasmuch as the latter had only taken 158 tons during the month of July, and as the sole inducement for the defendants to entertain the contract was the regular and punctual withdrawal by the plain- tiffs of the stipulated quantity during the summer months, which they had failed to perform, the defend- ants gave notice that the contract was cancelled. On the 2d of August the plaintiffs replied, stating that they would not allow the contracts to be cancelled. On these facts the learned judge told the jury, that as the plaintiffs did not intend to break the contract month by month, and only broke it for the first month's delivery, that did not justify the defendants, in point of law, in cancelling the contract, and left the question of damages to them. The jury found a verdict for the plaintiffs for £475, leave being reserved to move to enter a verdict for the defendants. A rule was afterward obtained upon the ground that under the circumstances the plaintiffs had disentitled themselves to sue for the breach of the contract, and that the defendants were entitled to cancel the contract, and refuse to deliver the residue of the coal. Blackbxjen, J. I think that the rule ought to be discharged. It cannot be denied that the plaintiffs were bound in every month to send wagons capable of carrying at least 500 tons, and that by failing to perform this term they have committed a breach of the contract ; and the question is, whether by this breach the contract was determined. The defendants contend that the sending of a sufficient number of wagons by the plaintiffs to receive the coal was a condition precedent to the con- tinuance of the contract, and they rely upon the terms of the letter of the 1st of August. No sufficient reason Sec. 1-B.] Simpson v. Ckippin. 623 has been urged why damages should not be a compensa- tion for the breach by the plaintiffs, and why the defend- ants should be at liberty to annul the contract; but it is said that Hoare v. Rennie is in point, and that we ought not to go counter to the decision of a court of co-ordinate jurisdiction. It is, however, difficult to understand upon what principle Hoare v. Rennie was decided. If the principle on which that case was decided is that, wherever a plaintiff has broken his contract first he cannot sue for any subsequent breach committed by the defendant, the decision would be opposed to the authority of many other cases. I prefer to follow Pordage v. Cole. No reason has been pointed out why the defendants should not have delivered the stipulated quantity of coal during each of the months after July, although the plaintiffs in the month failed to accept the number of tons contracted for. Hoare v. Rennie was questioned in Jonassohn v. Young. Melloe, J. I agree generally with what my brother Blackburn has said; and I think that it is difficult to reconcile. Hoare v. Rennie with some of the other cases which have been cited; but I cannot distinguish that case from the present. Where the facts are not dis- tinguishable, I think we are bound to give effect to the judgment of a court of co-ordinate jurisdiction. I should have thought, therefore, if the decision depended upon me, that in deference to that case we ought to make the rule absolute, and leave the plaintiffs to appeal. Lush, J. I am of opinion that the rule should be dis- charged. I cannot understand the judgments in Hoare V. Rennie. The court must have interpreted the contract in that case as if time were of its essence ; there are no words here which import such a condition. If the par- ties intended that a breach of this kind should put an end to the contract, they ought to have provided for it by express stipulation. Rule discharged. 624 Conditions in Contkact. [Chap. II. Feeeth v. Buke. law reports, 9 common pleas, 208 — 1874. ^The cause was tried before Brett, J., at the Sittings in London after last Hilary Term. The plaintiffs and the defendant were iron merchants and manufacturers. In November, 1871, the plaintiffs agreed to buy of the defendant 250 tons of pig-iron, and on the 28th of that month bought and sold notes were exchanged. The bought-note, signed by the plaintiffs, was as follows: I;ONDON, 28th November, 1871. Bought of Messrs. D. M. Burr & Co. two hundred and fifty tons of pig-iron, at fifty-six shillings per ton alongside our wharf, Millwall. Half to be delivered in two weeks, remainder in four weeks. Payment, net cash 14 days after delivery of each parcel. The market was rising, and early in February the plaintiffs wrote to the defendant, remonstrating with him for not having delivered any of the iron. About the 15th of that month IOI/2 tons were sent alongside the plaintiff's wharf; and on the 20th the plaintiffs wrote to the defendant as follows: We are much surprised you should have sent such a paltry lot as 10 tons on account of contract for 250 tons which should have been de- livered last December. We must request you will give us a definite time for delivery of at least 50 tons, which must be delivered at once, or we shall have again to buy against you. On the 17th of May, 1872, the defendant wrote to the plaintiffs as follows: We are informed that the lighter which we sent with 30 tons Kent- ledge pig-iron to your wharf on the 10th instant is still lying there unloaded, and that this has arisen through an undue preference being allowed by you to other barges in discharging, or from some other cause for which you are to blame. We have, therefore, to intimate that we shall hold you liable for demurrage from and after 13th instant. ^ The statement of pleadings and concurring opinions of Keating & Denman, JJ., have been omitted. Sec. 1-B.] Fheeth v. Buee. 625 On the 18th the plaintiffs wrote to the defendant : In answer to yours of the 17th instant, your barge has been dis- charged some days. Do you intend to deliver the remainder, or shall we buy against you? To this the defendant replied on the 21st : It is our intention to deliver remainder of pig-iron, and do not wish you to buy against us. We inclose invoice of last lot. On the 29th of May, 126 tons in all having by that time been delivered, the defendant wrote to the plaintiffs : Would you kindly forward us cheque in pajmient of the ballast iron we have delivered to you, and we shall proceed at once to send on the remainder. The plaintiffs, under an erroneous impression that they were entitled to set off against the defendant's claim any loss which they might incur in case the defend- ant should fail to deliver the remainder of the iron con- tracted for, refused to pay for the 125 or 126 tons which had been delivered; and their attorney, in reply to a letter from the defendant's attorney demanding pay- ment, put forward a claim for £250, being £2 per ton on the 125 tons undelivered. On the 12th of June, the defendant's attorneys wrote to the plaintiffs' attorney: We hardly think it necessary to refer to your clients' claim for 2501., as it is purely hypothetical and could not possibly arise, as your clients by their own default have obliged our client to refuse to make any further delivery of iron. We must request your clients' immediate at- tention to the settlement of amount (352Z. 15s. lOd.) mentioned in our letter of the 5th instant. The plaintiffs paid ultimately (but not until after an action had been brought' for it) for the first 125 tons of iron; and this action was brought against the defendant for the breach of his contract in refusing to deliver the second 125 tons. 40 626 Conditions in Contkact. [Chap. IL On the part of the defendant, it was considered that the plaintiffs' refusal to pay for the first parcel of the iron amounted to an abandonment of the contract by them, and absolved the defendant from his obligation further to perform it on his part. Hoare v. Rennie was relied on. The learned judge ruled that the mere refusal by the plaintiffs to pay for the first 125 tons did not exonerate the defendant from his obligation under the contract to deliver the second 125 tons, and consequently that the plaintiffs were entitled to recover such damages as they had sustained from the nondelivery; and he directed a verdict to be entered for the plaintiffs for £148 16s, re- serving leave to the defendant to move to enter a non- suit, if the Court should be of opinion that the refusal by the plaintiffs to pay for the iron delivered amounted to an abandonment of the contract. Garth, Q. C, in Easter Term last, obtained a rule nisi accordingly. Watkin Williams, Q. C, and E. Clarke, who appeared to show cause, were stopped by the court. Garth, Q. C, and PMlbrick, in support of the rule. LoKD CoLEEiDGE, C.J. The questiou in this case arises upon a contract for the sale of iron entered into between the plaintiff and the defendant on the 28th of November, 1871, in the following terms : " Bought of Messrs. D. M. Burr & Co. 250 tons of pig-iron, at 56s. per ton alongside our wharf, Millwall. Half to be delivered in two weeks, remainder in four weeks. Payment, net cash fourteen days after delivery of each parcel." The material facts were these : There was no delivery in the terms of the contract of either parcel of the iron. In point of fact, the delivery of the first 125 tons was by mutual arrangement delayed, and the last delivery of that parcel did not take place until the 12th of May, 1872. Sec. 1-B.] Feeeth v. Bukb. 627 There was a correspondence between the parties, pressure by the purchasers for delivery, and excuses by the vendor for the nondelivery. That the former were anxious for the completion of the contract appears to be clear, as well from the tenor of the correspondence as from the fact that the market was rising. A few days after the full delivery of the first parcel, viz., on the 29th of May, 1872, the defendant demanded payment for the 125 tons, which the plaintiffs refused, claiming to set off damages for the defendant's breach of con- tract. The plaintiffs afterward demanded delivery of the remaining 125 tons; and upon the defendant's refusal to comply with that demand this action was brought. The question is whether the fact of the plaintiffs' refusal to pay for the 125 tons delivered was such a refusal on the part of the purchasers to comply with their part of the contract as to set the seller free and to justify his refusal to continue to perform it. This certainly appears, viz., that there was an extension by mutual consent of the time for the delivery of the iron from December, 1871, to May, 1872, with constant pressure on the one side and excuses and resistance on the other. I mention that because it is impor- tant to express my view that, in cases of this sort, where the question is whether the one party is set free by the action of the other, the real matter for consideration is whether the acts or conduct of the one do or do not amount to an intimation of an intention to abandon and altogether to refuse performance of the contract. I say this in order to explain the ground upon which I think the decisions in these cases must rest. There has been some conflict amongst them. But T think it may be taken that the fair result of them is as I have stated, viz., that the true question is whether the acts and conduct of the party evince an intention no longer 628 Conditions in Contract. [Chap. II. to be bound by tbe contract. isTow, nonpayment on tlie one hand, or nondelivery on the other, may amount to such an act, or may be evidence for a jury of an intention wholly to abandon the contract and set the other party free. That is the true principle on which Hoare v. Rennie was decided, whether rightly or not upon the facts, I will- not presume to say. Where, by the non- delivery of part of the thing contracted for, the whole object of the contract is frustrated, the party making default renounces on his part all the obligations of the contract. That is the ground upon which it is said in Jonassohn v. Young that that case may be supported. In Withers v. Reynolds there was an express refusal by the plailitiff to perform the contract ; and Patteson, J., says : " If the plaintiff had merely failed to pay for any particular load, that of itself might not have been an excuse to the defendant for delivering no more straw; but the plaintiff here expressly refuses to pay for the loads as delivered; the defendant, therefore, is not liable for ceasing to perform his part of the contract." Wightman, J., certainly, and Crompton, J., by infer- ence, in Jonassohn v. Young, both uphold that case upon the principle on which I rely. The principle to be applied in these cases is, whether the nondelivery or the non- payment amounts to an abandonment of the contract or a refusal to perform it on the part of the person so making default. That being so, and my brother Brett having ruled that the mere nonpayment for the first por- tion of the iron contracted for, unattended by any other act on the part of the purchasers, did not put an end to the contract so as to disentitle the purchasers to main- tain an action for the nondelivery of the second portion, but only gave the seller a remedy by cross-action (of which he has availed himself), I am of opinion that his ruling was correct, and that the rule should be discharged. Rule discharged. Sec. 1-B.] Mbksey Steel, Etc., Co. v. N., B. & Co. 629 The Meksey Steel & Iron Co., Limited, v. Naylob, Benzon & Co. LAW REPORTS, 9 APPEAL CASES, 434—1884. Appeal from an order (dated June 13, 1882) of the Court of Appeal (Jessel M.E., Lindley and Bowen, L.JJ.) reversing an order of Lord Coleridge, C.J. The facts are fully set out in the report of the decisions below. All the facts material to the present report are stated in the head note. It may be added that the referee havuig found that the damages due to the defendants for nondelivery amounted to £1723, being in excess of the £1713 admitted to be due to the plaintiffs for the price of the steel delivered, the Court of Appeal by an order dated April 13, 1883, gave judgment for the de- fendants with costs. The plaintiffs appealed from this order also. Earl of Selborne, L.C.^ I do not think it desirable to lay down larger rules than the case may require, or than former authorities may have laid down for my guidance, or to go into possible cases differing from the one with which we have to deal. I am content to take the rule as stated by Lord Coleridge in Freeth v. Burr, which is in substance, as I understand it, that you must look at the actual circumstances of the case in order to see whether the one party to the contract is relieved from its future performance by the conduct of the other; you must examine what that conduct is, so as to see whether it amounts to a renunciation, to an absolute refusal to perform the contract, such as would amount to a rescis- sion if he had the power to rescind, and whether the other party may accept it as a reason for not perform- ing his part ; and I think that nothing more is necessary in the present ease than to look at the conduct of the parties, and see whether anything of that kind has taken ^A portion of the opinion upon another point omitted. 630 Conditions in Contkact. [Chap. II. place here. Before doing so, however, I must say one or two words in order to show why I cannot adopt Mr. Cohen's argument, as far as it represented the pay- ment by the respondents for the iron delivered as in this case a condition precedent, and coming within the rules of law applicable to conditions precedent. If it were so of course there would be an end of the case ; but to me it is plain beyond the possibility of controversy, that upon the proper construction of. the contract it is not and cannot be a condition precedent. The contract is for the purchase of 5,000 tons of steel blooms of the company's manufacture; therefore it is one contract for the pur- chase of that quantity of steel blooms. No doubt there are subsidiary terms in the contract, as to the time of delivery, " Delivery 1000 tons monthly commencing Jan- uary next ; ' ' and as to the time of payment, ' ' Payment, net cash within three days after receipt of shipping documents;" but that does not split up the contract into as many contracts as there shall be deliveries for the purpose, of so many distinct quantities of iron. It is quite consistent with the natural meaning of the con- tract, that it is to be one contract for the purchase of that quantity of iron, to be delivered at those times and in that manner, and for which payment is so to be made. It is perfectly clear that no particular payment can be a condition precedent of the entire contract, because the delivery, under the contract was most certainly to pre- cede payment; and that being so, I do not see how, without express words, it can possibly be made a condi- tion precedent to the subsequent fulfillment of the un- fulfilled part of the contract, by the delivery of the undelivered steel. But quite consistently with that view, it appears to me, according to the authorities and according to sound reason and principle, that the parties might have so con- ducted themselves as to release each other from the Sec. 1-B.] Meesey Steel, Etc., Co. v. N., B. & Co. 631 contract, and that one party might have so conducted himself as to leave it at the option of the other party to relieve himself from a future performance of the contract. The question is whether the facts here justify that conclusion? Now the facts relied upon, without reading all the evidence, are these. The company at the time when the money was about to become payable for the steel actually delivered fell into difficulties, and a petition was presented against them. There was a section in the Companies Act, 1862 (§ 153), which ap- peared to the advisers of the purchasers to admit of the construction, that until in those circumstances the peti- tion was disposed of by an order for the company to be wound up or otherwise there would be no one who could Teceive, and could give a good discharge for, the amount due. There is not, upon the letters and documents, the slightest ground for supposing either that the pur- chasers could not pay, or that they were unwilling to pay, the amount due; but they acted as they did, evi- dently bona fide, because they doubted, on the advice of their solicitor, whether that section of the act, as long as the petition was pending, did not make it impossible for them to obtain the discharge to which they had an un- questionable right. And, therefore, the case which I put during the argument is analogous to that which according to the advice they received they supposed to exist — namely, the case of a man who has died between the delivery and the time when payment ought to be made, Jae being the only person to whom payment is due ; and of course until there is a legal personal representative of that person no receipt can be given for the money. By the act of Parliament, in the event of a winding up order being made, it would date from the time when the petition was presented ; and this clause, which no doubt according to its true construction, only deals with aliena- tions of the property of the company, was supposed by 632 Conditions in Contract. [Chap. II. the solicitor of the purchasers to make it questionable whether the payment of a debt due to the company, to the persons who if there had been no petition would have had a right to receive it, might not be held, in the event of a winding-up order being made, to be a payment of the property of the company to a wrong person and, there- fore, an alienation. I cannot ascribe to their conduct, under these circumstances, the character of a renuncia- tion of the contract, a repudiation of the contract, a refusal to fulfill the contract. It is just the reverse ; the purchasers were desirous of fulfilling the contract; they were advised that there was a difficulty in the way, and they expressed anxiety that that difficulty should be as soon as possible removed, by means which were sug- gested to them, and which they pointed out to the solici- tors of the company. The company evidently took up the attitude, in that state of things, of treating the default as one which released them from all further obligation. On February 10th, which was before the winding-up order was made, and while that state of things still continued, the company by their secretary wrote to say that they thought (being so far correct and thinking rightly) that the objection was not well founded in law ; and they added : " We shall therefore consider your refusal to pay for the goods already delivered as a breach of contract on your part and as releasing us from any further obligations on our part." I think that they were wrong in that conclusion, and that there is no principle deducible from any of the authorities which supports that view of such — I hardly like to call it a refusal — of such a demur, such a delay or postponement, under those circumstances. The company, until they were wound up, never re- ceded from that position which they took upon Feb- ruary 10, 1881 ; and it appears to me to be clear that the liquidator adopted it, and never departed from it, and Sec. 1-B.] Mersey Steel, Etc., Co. v. N., B. & Co. 633' that the repudiation of the contract on insufficient grounds on the part of the company, which had taken place while the petition was pending and before the winding-up order was made, was adhered to after the winding-up order was made, on the part of the liquidator. On the other hand, it seems to me that, fairly and reason- ably considered, the conduct of the respondents was justifiable. Upon February 17, 1881, after the making of the winding-up order, they state that there are instal- ments which ought to have been delivered, but which have not been delivered, in respect of which they would have a claim for damages, and that they apprehend that they would have a right to deduct those damages from any payments then due from them ; and, according to the view which has been taken in the Court of Appeal of the effect of section 10 of the Act of 1875, and in which view I believe your Lordships agree, that was the right way of looking at the matter. Then the respondents go on .to say, that they are prepared to accept all deliveries which the liquidator may make under the contract, and to pay everything due, only requesting that those pay- ments may be considered as made upon this understand- ing, in substance, that the right to the set-off which exists in law for the damages shall not be prejudiced — a per- fectly reasonable, defensible, and justifiable proposal. And the solicitor who writes the letter adds, " Or I think it probable that my clients would consent to accept delivery now and waive the damages," a thing which in a later letter they express their willing- ness to do. In my judgment, they have not in any por^ tion of the proceeding acted so as to show an intention to renounce or to repudiate the contract, or to fail in its performance on their part. Therefore, I think that the judgment of the court below is right, and that this appeal should be dismissed with costs, and I so move your Lordships. 634 Conditions in Conteaot. [Chap. II. Lord Blackbxjkn. My Lords, I am of the same opin- ion. On the effect of section 10 of the Act of 1875, 1 will only say that I perfectly agree with what the court below have said and with what has been said by the Lord Chancellor. As to the first point I, myself, have no doubt that Withers v. Reynolds correctly lays down the law to this extent, that where there is a contract which is to be performed in future, if. one of the parties has said to the other in effect, " If you go on and perform your side of the contract I will not perform mine " (in Withers v. Eeynolds it was ' ' You may bring your straw, but I will not pay you upon delivery as under the contract I ought to do. I will always keep one bundle of straw in hand so as to have a check upon you "), that in effect amounts to saying, ' ' I will not perform the contract. ' ' In that case the other party may say, ' ' Your have given me distinct notice that you will not perform the contract. I will not wait until you have broken it, but I will treat you as hav-. ing put an end to the contract, and if necessary I will sue you for damages, but at all events I will not go on with the contract." That was settled in Hochster v. De la Tour in the Queen's Bench, and has never been doubted since, because there is a breach of the contract although the time indicated in the contract has not arrived. That is the law as laid down in Withers v. Eeynolds. That is, I will not say the only ground of defense, but a sufficient ground of defense. In Freeth v. Burr, it was also so laid down; and Lord Coleridge here thinks the facts were such as to bring the case within that prin- ciple. I will not at this time of the day go through them, but when the facts are looked at it is to me clear that that is not so. So far from the respondents saying that when the iron was brought in future they would not pay for it, they were always anxious to get it, and for a- very good reason, that the price had risen high above the Sec. 1-B.] Meesey Steel, Etc., Co. v. N., B. & Co. 635 contract price. There was a statement that for reasons which they thought sufficient they were not willing to pay for the iron at present; and if that statement had been an absolute refusal to pay, saying, " Because we have power to do wrong we will refuse to pay the money that we ought to pay," I will not say that it might not have been evidence to go to •the jury for them to say whether it would not amount to a refusal to go with the contract in future, for a man might reasonably so consider it. But thei"e is nothing of that kind here; it was a bona fide state- ment, and a very plausible statement. I Avill not say more. I refrain from weighing its value at this moment ; but, as I said before, it prevents the case from coming within the authority of Withers v. Eeynolds and Freeth V. Burr, and consequently, as I understand it. Lord Cole- ridge made a mistake in the ground on which he went. The rule of law, as I always understood it, is that where there is a contract in which there are two parties, each side having to do something (it is so laid down in the notes to Pordage v. Cole, if you see that the failure to perform one part of it goes to the root of the contract, goes to the foundation of the whole, it is a good defense to say: " I am not going on to perform my part of it when that which is the root of the whole and the substantial consideration for my perform- ance is defeated by your misconduct." But Mr. Cohen contended that whenever there was a breach of the contract at all I think he hardly continued to contend that after a little while, but he said whenever there was a breach of a material part of the contract) it necessarily went to the root of the matter. I cannot agree with that at all. I quite agree that when there were a certain number of tons of the article delivered, it was a material part of the contract that the man was to pay, but it was not a part of the contract that went to 636 Conditions in ConteAct. [Chap. II. the root of the consideration in the matter. There was a delay in' fulfilling the obligation to pay the money, it may have been with or without good reason (if that would have made any difference), but it did not go to the root or essence of the contract, nor do I think that there is any sound principle upon which it could do so. I repeatedly asked Mr. Cohen whether or not he could find any authority which justified him in saying that every breach of a contract, or even a breach which in- volved in it the nonpayment of money which there was an obligation to pay, must be considered to go to the root of the contract, and he produced no such autliority. There are many cases in which the breach may do so ; it depends upon the construction of the contract. With regard to the casfe of Hoare v. Rennie it has been said that the Chief Baron there went so far as to say that it was the essence and substance of the contract that the whole of the 166 tons of iron, and no less, should be delivered. If it was so, it would follow that when in the present case the January shipment had not been made, and the company could only deliver part of the quantity, it went to the essence of the contract. The question depends upon whether the whole and no less is the essence of it. And again in Honck v. MuUer, which has been referred to, it is expressly and pointedly shown that that was the ground taken, and the noble and learned Lord opposite (Lord Bramwell) stated that in his opinion the contract of the one party was to deliver and of the other to take 2,000 tons of iron, and that inasmuch as it was to be by three instalments and the first was gone, and there never could be more than two-thirds of the quantity, the thing bargained for being the whole quantity of iron and no less, the defendant was not bound to deliver two-thirds when the plaintiff required the two-thirds only. Supposing that that was the true construction of the contract, I think that that Sec. 1-B.] Norkington v. Wright. 637 would be the right conclusion. The present Master of the Rolls seems, if I understand him rightly, to have thought that that was not the true construction of the contract; whether it was or not I do not express any opinion, except to point out that whatever be the con- struction of other contracts, there is not in my mind tho slightest pretext for saying that such is the construction of this contract; and that being so, these cases have really no bearing upon the matter. The circumstances being as I have said, the contract not being such as to make this payment a condition precedent, or to make punctual payment for one lot of iron which has been delivered a matter causing the con- tract to deliver other iron afterward to be a dependent contract, being of opinion that that is not the meaning of the contract, I think that the decision of the Court of Appeal was right.^ Orders appealed from affirmed, and appeal dismissed with costs. Lords' Journals, March 28, 1884. Norrin'gton'i^. Wright. 115 united states reports 188 — 1885. This was an action of assumpsit, brought by Arthur Norrington, a citizen of Great Britain, trading under the name of A. Norrington & Co., against James A. Wright and others, citizens of Pennsylvania, trading under the name of Peter Wright & Sons, upon the fol- lowing contract : "Philadelphia, January 19, 1880. " Sold to Messrs. Peter Wright & Sons, for account of A. Norrington & Co., London, five thousand (5000) tons old T iron rails, for ship- ment from a European port or ports, at the rate of about one thousand Lords Watson, Bramwell and FitzGerald concurred. 638 Conditions in Contract. [Chap. II. (1000) tons per month, beginning February, 1880, but whole contract to be shipped before August 1st, 1880, at forty-five dollars ($45) per ton of 2240 pounds custom-house weight, ex ship Philadelphia. Settle- ment cash on presentation of bills accompanied by custom-house cer- tificate of weight. Sellers to notify buyers of shipments with vessels' names as soon as known by them. Sellers not to be compelled to replace any parcel lost after shipment. Sellers, when possible, to secure to buyers right to name discharging berth of vessels at Philadelphia. " Edwaed J. Etting, " Uetal Broker." The declaration contained three counts. The first count alleged the contract to have been for the sale of about 5,000 tons of T iron rails, to be shipped at the rate of about 1,000 tons a month, beginning in February, and ending in July, 1880. The second count set forth the contract verbatim. Each of these two counts alleged that the plaintiffs in February, March, April, May, June, and July shipped the goods at the rate of about 1,000 tons a month, and notified the shipments to the defend- ants; and further alleged the due arrival of the goods at Philadelphia, the plaintiff's readiness to deliver the goods and bills thereof, with custom-house certificates of weight, according to the contract, and the defendants' refusal to accept them. The third count differed from the second only in averring that 400 tons were shipped by the plaintiff in February and accepted by the defend- ants, and that the rest was shipped by the plaintiffs at the rate of about 1,000 tons a month in March, April, May, June, and July. The defendants pleaded non- assumpsit. The material facts proved at the trial were as follows: The plaintiff shipped from various European ports 400 tons by one vessel in the last part of February, 885 tons by two vessels in March, 1,571 tons by five vessels in April, 850 tons by three vessels in May, 1 ,000 tons by two vessels in June, and 300 tons by one vessel in July, and notified to the defendants each shipment. Sec. 1-B.] Noreington v. AVright. • 639 The defendants received and paid for the February shipment upon its arrival in March, and in April gave directions at what wharves the March shipments should be discharged on their arrival; but on May 14th, about the time of the arrival of the March shipments, and hav- ing been then for the first time informed of the amounts shipped in February, March, and April, gave Etting written notice that they should decline to accept the shipments made in March and April, because none of them were in accordance with the contract; and, in answer to a letter from him of May 16th, wrote him on May 17th as follows : " We are advised that what has occurred does not amount to an acceptance of the iron under the circumstances and the terms of the contract. You had a right to deliver in parcels, and we had a right to expect the stipulated quantity would be delivered until the time was up in which that was possible. Both delivering and receiving were thus far conditional on there being thereafter a complete delivery in due time and of the stipulated article. On the assumption that this time had arrived, and that you have ascertained that you did not intend to, or could not, make any further deliveries for the February and March shipments, we gave you the notice that we declined accepting those deliveries. As to April, it is too plain, we suppose, to require any remark. If we are mistaken as to our obligation for the February and March shipments, of course we must abide the consequences; but if we are right, you have not performed your contract, as you certainly have not for the April shipments. There is then the very serious and much debated question, as we are advised, whether the failure to make the stipulated shipments in February or March has absolved us from the contract. If it does, we of course will avail ourselves of this advantage." On May 18th Etting wrote to the defendants, insisting on their liability for both past and future shipments, and saying, among other things : "In respect to the objection that there had not been a complete delivery in due time of the stipulated article, I beg to call your atten- tion to the fact that while the contract is for 5000 tons, it expressly stipulates that deliveries may be made during six months, and that they are only to be at the rate of about 1000 tons per month." "As to April, 640 - Conditions in Contkact. [Chap. II. while it seems to me ' loo plain to require any remark,' I do not see how it can seem so to y&a, unless you intend to accept the rails. If you object to taking all three shipments made in that month, I shall feel authorized to deliver only two of the cargoes, or, for that matter, to make the delivery of precisely 1000 tons. But I think I am entitled to know definitely from you whether you intend to reject the April ship- ments, and, if so, upon what ground, and also whether you are decided to reject the remaining shipments under the contract. You say in your last paragraph that you shall avail yourselves of the advantage, if you are absolved from the contract; but as you seem to be in doubt whether you can set up that claim or not, I should like to know definitely what is your intention." On May 19th the defendants replied : " We do not read the contract as you do. We read it as stipulating for monthly shipments of about 1000 tons, beginning in February, and that the six months' clause is to secure the completion of whatever had fallen short in the five months. As to the meaning of ' about,' it is settled as well as such a thing can be ; and certainly neither the Febru- ary, March, nor April shipments are within the limits." "As to the proposal to vary the notices for April shipments, we do not think you can do this. The notice of the shipments, as soon as known, you were bound to give, and cannot afterward vary it if they do not conform to the contract. Our right to be notified immediately that the shipments were known is as material a provision as any other, nor can it be changed now in order to make that a performance which was no per- formance within the time required." " You ask us to determine whether we will or will not object to receive further shipments because of past defaults. We tell you we will if we are entitled to do so, and will not if we are not entitled to do so. We do not think you have the right to compel us to decide a disputed question of law to relieve you from the risk of deciding it yourself. You know quite as well as we do what is the rule and its uncertainty of application." On June 10th Etting offered to the defendants the al- ternative of delivering to them 1,000 tons strict measure on account of the shipments in April. This offer they immediately declined. On June 15th Etting wrote to the defendants that two cargoes, amounting to 221 tons, of the April shipments, and two cargoes, amounting to 650 tons, of the May shipments (designated by the names of the vessels), had Sec. 1-B.] Noekington v. Wright. 641 been erroneously notified to them, and that about 900 tons had been shipped by a certain other vessel on ac- count of the May shipments. On the same day the de- fendants replied that the notification as to April ship- ments could not be corrected at this late date, and after the terms of the contract had long since been broken. From the date of the contract to the time of its rescis- sion by the defendants, the market price of such iron "was lower than that stipulated in the contract, and was constantly falling. After the arrival of the cargoes, and their tender and refusal, they were sold by Etting, with the consent of the defendants, for the benefit of whom it might concern. At the trial the plaintiff contended, first, that under the contract he had six months in which to ship the 5,000 tons, and any deficiency in the earlier months could be. made up subsequently, provided that the defendants could not be required to take more than 1,000 tons in any one month. Second, that if this was not so, the contract was a divisible contract, and the remedy of the defend- ants for a default in any month was not by rescission of the whole contract, but only by deduction of the damages caused by the delays in the shipments on the part of the plaintiff. But the court instructed the jury that if the defend- ants, at the time of accepting the delivery of the cargo paid for, had no notice of the failure of the plantiff to ship about 1,000 tons in the month of February, and im- mediately upon learning that fact gave notice of their intention to rescind, the verdict should be for them. The plaintiff excepted to this instruction, and, after verdict and judgment for the defendants, sued out this writ of error. Geay, J., delivered the opinion of the court. After stating the facts in the language reported above, he continued : 41 642 Conditions IN CoNTBACT. [Chap. IL In the contracts -of merchants time is of the essence. The time of shipment is the usual and convenient means of fixing the probable time of arrival, with a view of pro- viding funds to pay for the goods, or of fulfilling con- tracts with third persons. A statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be re- garded as a warranty, in the sense in which that term is used in insurance and maritime law — that is to say, a condition precedent, upon the failure or nonperform- ance of which the party aggrieved may repudiate the whole contract. Behn v. Burness, 3 B. & S. 751 ; Bowes v. Shand, 2 App. Cas. 455; Lowber v. Bangs, 2 Wall. 728; Davison v. Von Lingen, 113 U. S. 40. The contract sued on is a single contract for the sale and purchase of 5,000 ton or iron rails, shipped from a European port or ports for Philadelphia. The sub- sidiary provisions as to shipping in different months, and as to paying for each shipment upon its delivery, do not split up the contract into as many contracts as there shall be shipments or deliveries of so many distinct quantities of iron. Mersey Co, v. Naylor, 9 App. Cas. 434, 439. The further provision, that the sellers shall not be compelled to replace any parcel lost after ship- ment, simply reduces, in the event of such a loss, the quantity to be delivered and paid for. The times of shipment, as designated in the contract, are " at tlie rate of about 1000 tons per month, beginning February, 1880, but whole contract to be shipped before August 1st, 1880." These words are not satisfied by shipping one-sixth part of the 5,000 tons, of about 833 tons, in each of the six months which begin with February and end with July. But they require about 1,000 tons to be shipped in eaQh of the five months from February to June inclusive, and Sec. 1-B.] Nokeington v. Weight. 643 allow no more than slight and unimportant deficiencies in the shipments during those months to be made up in- the month of July. The contract is not one for the sale of a specific lot of goods, identified by independent cir- cumstances, such as all those deposited in a certain ware- house, or to be shipped in a particular vessel, or that may be manufactured by the seller, or may be required for use by the buyer, in a certain mill, in which case the mention of the quantity, accompanied by the qualification of " about," or " more or less," is regarded as a mere estimate of the probable amount, as to which good faith is all that is required of the party making it. But the contract before us comes within the general rule : " When no such independent circumstances are referred to, and the engagement is to furnish goods of a certain quality or character to a certain amount, the quantity specified is material, and governs the con- tract. The addition of the qualifying words 'about,' 'more or less,' and the like, in such cases, is only for the purpose of providing against accidental variations, arising from slight and unimportant excesses or deficiencies in number, measure, or -weight." Brawley v. United States, 96 U. S. 168, 171-172. The seller is bound to deliver the quantity stipulated, and has no right either to compel the buyer to accept a less quantity, or to require him to select part out of a greater quantity; and when the goods are to be shipped in certain proportions monthly, the seller's failure to ship the required quantity in the first month gives the buyer the same right to rescind the whole contract that he would have had if it had been agreed that all the goods should be delivered at once. The plaintiff, instead of shipping about 1,000 tons in February and about 1,000 tons in March, as stipulated in the contract, shipped only 400 tons in February, and 885 tons in March. His failure to fulfill the contract on his part in respect to these first two instalments justified the defendants in rescinding the whole contract, pro- 644 Conditions in Contract. [Chap. II. vided they distinctly and seasonably asserted the right of rescission. The defendants, immediately after the arrival of the March shipments, and as soon as they knew that the quantities which had been shipped in February and in March were less than the contract called for, clearly and positively asserted the right to rescind, if the law en- titled them to do so. Their previous acceptance of the single cargo of 400 tons shipped in February was no waiver of this right, because it took place without notice, or means of knowledge, that the stipulated quantity had not been shipped in February. The price paid by them for that cargo being above the market value, the plain- tiff suffered no injury by the omission of the defendants to return the iron; and no reliance was placed on that omission in the correspondence between the parties. The case wholly differs from that of Lyon v. Bertram, 20 How. 149, in which the buyer of a specific lot of goods accepted and used part of them with full means of pre- viously ascertaining whether they conformed to the contract. The plaintiff, denying the defendants' right to rescind, and asserting that the contract was still in force, was bound to show such performance on his part as entitled him to demand performance on their part, and having failed to do so, cannot maintain this action. For these reasons, we are of opinion that the judgment below should be affirmed. But as much of the argument at the bar was devoted to a discussion of the recent Eng- lish cases, and as a diversity in the law, as administered on the two sides of the Atlantic, concerning the interpre- tation and effect of commercial contracts of this kind, is greatly to be deprecated, it is proper to add that upon a careful examination of the cases referred to they do not appear to us to establish any rule inconsistent with our conclusion Sec. 1-B.] Nobrington v. Weight. 645 In the leading case of Hoare v. Eennie, 5 H. & N. 19, wliicli was an action upon a contract of sale of 667 tons of bar iron, to be shipped from Sweden in June, July, August, and September, and in about equal portions each month, at a certain price payable on delivery, the declar- ation alleged that the plaintiffs performed all things necessary to entitle them to have the contract performed by the defendants, and were ready and willing to per- form the contract on their part, and in June shipped a certain portion of the iron, and within a reasonale time afterward offered to deliver to the defendants the por- tion so shipped, but the defendants refused to receive it, and gave notice to the plaintiffs that they would not accept the rest. The defendants pleaded that the ship- ment in June was of about 20 tons only, and that the plaintiffs failed to complete the shipment for that month according to the contract. Upon demurrer to the pleas, it was argued for the plaintiffs that the shipment of about one-fourth of the iron in each month was not a condition precedent, and that the defendants' only remedy for a failure to ship that quantity was by a cross action. But judgment was given for the defendants. Pollock, C B., saying: " The defendants refused to accept the first shipment, because, as they say, it was not a performance, but a breach of the contract. Where parties have made an agreement for themselves, the courts ought not to make another for them. Here they say that in the events that have happened one fourth shall be shipped in each month, and we cannot say that they meant to accept any other quantity. At the outset, the plaintiffs failed to tender the quantity according, to the contract; they tendered a much less quantity. The defendants had a right to say that this was no performance of the contract, and they were no more bound to accept the short quantity than if a single delivery had been contracted for. Therefore the pleas are an answer to the action.'' 5 H. & N. 28. So in Coddington t^. Paleologo, L. E. 2 Ex. 193, while there was a division of opinion upon the ques- tion whether a contract to supply goods " delivering on 646 Conditions in Contract. [Chap. II. April 17tli, complete May Sth, ' ' bound the seller to begin delivering on April 17th, all the judges agreed that if it did, and the seller made no delivery on that day, the buyer might rescind the contract. On the other hand, in Simpson v. Crippin, L. E. 8 Q. B. 14, under a contract to supply from 6,000 to 8,000 tons of coal, to be taken by the buyer's wagons from the seller's colliery in equal monthly quantities for twelve months, the buyer sent wagons for only 150 tons during the first month ; and it was held that this did not entitle the seller to annul the contract and decline to deliver any more coal but that his only remedy was by an action for dam- ages. And in Brandt v. Lawrence, 1 Q. B. D. 344, in which the contract was for the purchase of 4,500 quarters, 10 per cent more or less, of Eussian oats, " shipment by steamer or steamers during February," or, in case of ice preventing shipment, then immediately upon the opening of navigation, and 1,139 quarters were shipped by one steamer in time, and 3,361 quarters were shipped too late, it was held that the buyer was bound to accept the 1,139 quarters, and was liable to an action by the seller for refusing to accept them. Such being the condition of the law of England as declared in the lower courts, the case of Bowes v. Shand, after conflicting decisions in the Queen's Bench Division and the Court of Appeal, was finally determined by the House of Lords. (1 Q. B. D. 470; 2 Q. B. D. 112; 2 App. Cas. 455.) In that ease two contracts were made in London, each for the sale of 300 tons of " Madras rice, to be shipped at Madras or coast, for this port, during the months of March ^-^f April, 1874, per Rajah of Cochin." The 600 tons filled 8,200 bags, of which 7,120 bags were put on board and bills of ladmg signed in February ; and for the rest, consisting of 1,030 bags put on board in Sec. 1-5. J NoKEiNGTON V. Weight. 647 February, and 50 in March ; the bill of lading was signed in March. At the trial of an action by the seller against the buyer for refusing to accept the cargo, evidence was given that rice shipped in February would be the spring crop, and quite as good as rice shipped in March or April. Yet the House of Lords held that the action could not be maintained, because the meaning of the contract, as apparent upon its face, was that all the rice must be put on board in March and April, or in one of those "months. In the opinions there delivered the general principles underlying this class of eases are most clearly and satis- factorily stated. It will be sufficient to quote a few pas- sages from two of those opinions. Cairns, L.C., said: " It does not appear to me to be a question for your Lordships, or for any court, to consider whether that is a contract which bears upon the face of it some reason, some explanation, why it was made in that form, and why the stipulation is made that the shipment should be during these particular months. It is a mercantile contract, and merchants are not in the habit of placing upon their contracts stipula- tions to which they do not attach some value and importance." 2 App. Cas. 463. "If it be admitted that the literal meaning would imply that the whole quantity must be put on board during a specified time, it is no answer to that literal meaning, it is no observation which can dispose of, or get rid of, or displace, that literal meaning, to say that it puts an additional burden on the seller, without a corresponding benefit to the purchaser; that is a matter of which the seller and the purchaser are the best judges. Nor is it any reason for saying that it would be a means by which purchasers, without any real cause, would frequently obtain an excuse for rejecting contracts when prices had dropped. The non-fulfillment of any term in any contract is a means by which a purchaser is able to get rid of the contract when prices have dropped; but that is no reason why a term which is found in a contract should not be fulfilled." Pp. 465^66. " It was suggested that even if the construction of the contract be as I have stated, still if the rice was not put on board in the particular months, that would not be a reason which would justify the appellants in having rejected the rice altogether, but that it might afford a ground for a cross action by them if they could show that any par- 648 Conditions in Conteact. [Chap. II. ticular damage resulted to them from the rice not having been put on board in the months in question. My Lords, I cannot think that there is any foundation whatever for that argument. If the construction of the contract be as I have said, that it bears that the rice is to be put on board in the months in question, that is part of the description of the subject-matter of what is sold. What is sold is not 300 tons of rice in gross or in general. It is 300 tons of Madras rice to be put on board at Madras during the particular months." " The plaintiff, who sues upon that contract, has not launched his case until he has shown that he has tendered that thing which has been contracted for, and if he is unable t5 show that, he cannot claim any damages for the non-fulfil- ment of the contract." Pp. 467-4:68. Lord Blackburn said: " If the description of the article tendered is different in any respect, it is not the article bargained for, and the other party is not bound to take it. I think in this case what the parties bargained for was rice, shipped at Madras or the coast of Madras. Equally good rice might have been shipped a little to the north or a little to the south of the coast of Madras. I do not quite know what the boundary is, and probably equally good rice might have been shipped in February as was shipped in March, or equally good rice might have been shipped in May as was shipped in April, and I dare say equally good rice might have been put on board another ship as that which was put on board the Rajah of Cochin. But the parties have chosen, for reasons best known to themselves, to say : ' We bargain to take rice, shipped in this particular region, at that particular time, on board that particular ship ; ' and before the defendants can be compelled to take anything in fulfilment of that contract is must be shown not merely that it is equally good, but that it is the same article as they have bargained for, otherwise they are not bound to take it." 2 App. Cas. 480-i81. Soon after tliat decision of the House of Lords, two cases w.ere determined in the Court of Appeal. In Reuter v. Sala, 4 C. P. D. 239, under a contract for the sale of " about 25 tons (more or less) black pepper, October '^^^ November shipment, from Penang to London, the name of the vessel or vessels, marks and full particulars to be declared to the buyer in writing within sixty days from date of bill of lading," the seller, within the sixty days, declared 25 tons by a particular vessel, of which only 20 tons were shipped in Sec. 1-B.] Noreington v. Wkight. 649 November, and 5 tons in December ; and it was held that the buyer had the right to refuse to receive any part of the pepper. In Honck v. MuUer, 7 Q. B. D. 92, imder a contract for the sale of 2,000 tons of pig iron, to be deliv- ered to the buyer free on board at the maker's wharf " in November, or ■equally over November, December, and January next," the buyer failed to take any iron in November, but de- manded delivery of one-third in December and one-third in January; and it was held that the seller was justified in refusing to deliver, and in giving notice to the buyer that he considered the contract as canceled by the buy- er's not taking any iron in November. The plaintiff in the case at bar greatly relied on the very recent decision of the House of Lords in Mersey Co. V. Naylor, 9 App. Cas. 434, affirming the judgment of the Court of Appeal in 9 Q. B. D. 648, and following the de- cision of the Court of Conunon Pleas in Freeth i). Burr, L. E. 9 C. P. 208. But the point there decided was that the failure of the buyer to pay for the first instalment of the goods upon delivery does not, unless the circumstances evince an intention on his part to be no longer bound by the con- tract, entitle the seller to rescind the contract and to decline to make further deliveries under it. And the grounds of the decision, as stated by Selborne, L.C., in moving judgment in the House of Lords, are applicable only to the case of a failure of the buyer to pay for, and not to that of a failure of the seller to deliver the first instalment. The Lord Chancellor said: " The contract is for the purchase of 5000 tons of steel blooms of the company's manufacture; therefore it is one contract for the pur- chase of that quantity of steel blooms. No doubt there are subsidiary terms in the contract, as to the time of delivery, * Delivery 1000 tons monthly commencing January next ; ' and as to the time of payment, 650 Conditions in Contkact. [Chap. II. ' Payment net cash within three days after receipt of shipping docu- ments ; ' but that does not split up the contract into as many contracts as there shall be deliveries for the purpose, of so many distinct quan- tities of iron. It is quite consistent with the natural meaning of the contract, that it is to be one contract for the purchase of that quantity of iron to be delivered at those times and in that manner, and for which payment is so to be made. It is perfectly clear that no particular pay- ment can be a condition precedent of the entire contract, because the delivery under the contract was most certainly to precede payment; and that being so, I do not see how, without express words, it can possibly be made a condition precedent to the subsequent fulfilment of the unfulfilled part of the contract by the delivery of the undelivered steel." 9 App. Cas. 439. Moreover, although in the Court of Appeals dicta were uttered tending to approve the decision in Simpson V. Crippin, and to disparage the decisions in Hoare v. Eennie and Honck v. MuUer, above cited, yet .in the House of Lords Simpson v. Crippin was not even refer- red to, and Lord Blackburn, who had given the leading opinion in that case, as well as Lord Bramwell, who had delivered the leading opinion in Honck v. MuUer, distin- guished Hoare v. Eennie and Honck v. MuUer from the case in judgment. 9 App. Cas. 444, 446. Upon a review of the English decisions the rule laid down in the earlier cases of Hoare v. Rennie and Cod- dington v. Paleologo, as well as in the later cases of Eeuter v. Sala and Honck v. MuUer, appears to us to be supported by a greater weight of authority than the rule stated in the intermediate cases of Simpson v. Crippin and Brandt v. Lawrence, and to accord better with the general principles affirmed by the House of Lords in Bowes V. Shand, while it in nowise contravenes the de- cision of that tribunal in Mersey Co. v. Naylor. In this country there is less judicial authority upon the question. The two cases most nearly in point, that have come to our notice, are Hill v. Blake, 97 N. Y. 216, which accords with Bowes v. Shand, and King Philip MUls V. Slater, 12 R. I. 82, which approves and foUows Sec. 1-B.] Nokrington v. Wkight. 651 Hoare v. Rennie. The recent cases in the Supreme Court of Pennsylvania, cited at the bar, support no other conclusion. In Shinn v. Bodine, 60 Penn. St. 182, the point decided was that a contract for the purchase of 800 tons of coal at a certain price per ton, "coal to be delivered on board vessels as sent for during months of August and Sept-ember," was an entire contract, under which nothing was payable until delivery of the whole, and therefore the seller had no right to rescind the contract upon a refusal to pay for one cargo before that time. In Morgan v. McKee, 77 Penn. St. 228, and in Scott v. Kittanning Coal Co., 89 Penn. St. 231, the buyer's right to rescind the whole con- tract upon the failure of the seller to deliver one instal- ment was denied, only because that right had been waived, in the one case by unreasonable delay in assert- ing it, and in the other by having accepted, paid for, and used a previous instalment of the goods. The decision of the Supreme Judicial Court of Massachusetts in Win- chester V. Newton, 2 Allen 492, resembles that of the House of Lords in Mersey Co. v. Naylor. Being of opinion that the plaiatiff's failure to make such shipment in February and March as the contract required prevents his maintaining this action, it is need- less to dwell upon the further objection that the ship- ments in April did not comply with the contract, because the defendants could not be compelled to take about 1,000 tons out of the larger quantity shipped in that month, and the plaintiff, after once designating the names of vessels as the contract bound him to do, could not substitute other vessels. See Busk v. Spence, 4 Camp. 329 ; Graves v. Legg ; Renter v. Sala. Judgment affirmed. The Chief Justice was not present at the argument and took no part in the decision of this case. 652 Conditions in Contbact. [Chap. II. Cunningham v. Judson. 100 new york reports 179 — 1885. Appeal^ from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made June 1, 1883, which affirmed a judg- ment in favor of defendant, entered upon a verdict. This action was brought to recover damages for an alleged breach of contract of purchase and sale. On the 20th of January, 1880, the plaintiffs, who were dealers in iron, having offices in New York and Philadel- phia, contracted to sell iron to the defendant, who was a dealer in iron in New York, through a bought-and-sold note, of which the following is a copy: " New Yore, January 20, 1880. " Bought of Messrs. Winthrop, Cunningham & Sons for account of Mr. B. r. Judson, about five hundred tons No. 1 ' Eglington ' Scotch pig, iron, for shipment in March, 1880, from Great Britain to New York by sail or steam vessels, at seller's option, deliverable ' ex vessels,' on arrival at this port, at $31.75 per ton (of 2,240 lbs.), payable by buyer's notes to his own order, with interest at 6% per annum, at 90 days from delivery of U. S. weigher's returns, which are to decide quantity to be paid for. Interest for three days grace to be included. " T. D. Hazard, Broker." Across the face is written "Accepted, B. F. Judson." The plaintiffs did not ship the iron, but in the latter part of April they entered into negotiations with E. S. Wheeler & Co. for the purchase from them of 500 tons or iron of the kind and quality specified which that firm had shipped on the bark Jennie Harkners, from Glasgow, March 26, and secured the option to purchase the same and subsequently paid therefor and secured title. The iron arrived at the port of New York May 7, on which day the plaintiff's telegraphed to defendant from Phila- delphia notifying him that his iron had arrived and asking him whether they should bond or pay duties. 1 Statement of fact condensed. Sec. 1-B.] Cunningham v. Judson. 653 On the 12th of May one of the plaintiffs called upon the defendant at his office, and he testifies that he then tendered him the delivery order for the iron and offered to deliver the iron to him, and that he declined to take it, and he further testified: " He said we should have advised him of this vessel being in port and that we had not any iron on board of it. I told him that we had iron on board of her and we owned iron on board of her and we offered to deliver it to him then and there, and he declined 'to take it." The defendant in his testimony denied some of these facts but admitted that some kind of an offer was made to him. The plaintiffs repeatedly wrote asking for in- structions and notifying the defendant of the necessity for action. Ultimately the plaintiffs forwarded the requisite documents of title to the defendant. He promptly returned them because the iron had not been shipped by the plaintiffs. The jury rendered a verdict in favor of the defendant Upon plaintiff's appeal to the General Term the judg- ment entered upon the verdict was affirmed upon the sole ground that the plaintiffs did not ship the iron from Great Britain. Eaele, J. If the proper construction of the contract between these parties entitled the defendant to receive iron shipped by the plaintiffs from Great Britain, then the judgment is right. In that event the description of the iron purchased required that it should be iron ship- ped by the plaintiffs, and however unimportant that cir-. cumstance might be, it entered into the contract of the parties, and the defendant could not be required to take any other iron. (Hill v. Blake, 97 N. Y. 216.) But as that circumstance is unimportant, it should not be im- ported into the contract by a liberal construction of the language used; nor should it be put there if there is a reasonable doubt whether the parties intended it to be included in the description of the iron in reference to 654 Conditions in Contract. [Chap. II. wliicli they were dealing. The iron was to be No. 1 Eglinton Scotch pig iron, and it was to be shipped in March from Great Britain to New York. These were material stipulations and sufficiently described the iron. It was immaterial to the defendant whether it was ship- ped by a sailing or a steam vessel, and hence the option was given to the plaintiffs to deliver iron shipped by the one or the other. The words " for shipment " must mean the same as " shipped " and thus we have the phrase " shipped in March, 1880, from Great Britain to New York, by steam or sail vessels at sellers' option." This may mean that the sellers were to have the option to deliver iron shipped by them by sail or steam, or it may mean that they were to have the option to deliver iron shipped by either method in the month named. We think the latter meaning the most probable and reason- able and therefore adopt it. This iron, therefore, which was shipped from Great Britain to New York by sail, and which was bought by the plaintiffs while upon the vessel, answered the descrip- tion prescribed in the contract and was deliverable in fulfillment thereof. It remains only to be determined whether the plaintiffs did all they were bound to do to put the defendant in default after the iron arrived in New York. There is no dispute about the material facts. They are mostly to be found in the writings put in evidence. It is clear that the plaintiffs were willing and anxious to perform and intended to perform on their part ; and it is equally clear that the defendant, in consequence of the large decline in the price of iron, was unwilling to perform, and did not, at any time after notification of the arrival of the iron, mean to perform. There can be no doubt that he was manoeuvring to get out of a disadvantageous contract, Sec. 1-B.J Cunningham v. Judson. 655 and we must hold upon the undisputed facts that he was not successful. The plaintiffs had control of the iron npon its arrival, which was made more complete by their final contract with the owners on the 14th of May. They could at any time make complete title to it as it came from the vessel and passed the hands of the government weighers, and then they could have delivered it to the defendant in precise accordance with the terms of the contract if he had expressed any willingness to take it. Their repeated requests for directions, and repeated offers to deliver, were sufficient to call for some action on the part of the defendant. His conduct was such as to justify them in storing the iron, and hence their offer to deliver the iron on the first of June, when they had paid for, the iron and obtained all the necessary documents, was ample and complete, and placed the defendant in default. He could not then complain of delay for which he was responsible, and that the delivery was not then ex vessel which he had prevented. The court would, therefore, have been justified in directing a verdict for the plain- tiffs, and there was at least error in portions of the charge excepted to and in the refusals to charge as requested. The judgment should be reversed and new trial granted, costs to abide the event. All concur except Danforth J., who votes for affirmance on the ground stated by the General Term, and Andrews, J., not voting. Judgment reversed. 656 Conditions in Contract. [Chap. II, Tobias v. Lissbekgeb. 105 new york reports — 1887. Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made "at the October Term, 1884, which affirmed a judgment in favor of plaintiffs entered upon a verdict directed by the court, and affirmed an order denying a motion for a new trial. The nature of the action and the material facts are stated in the opinion. Danfoeth, J.^ This action is for not accepting certain goods according to a contract made through brokers in these words: " New York, Feb. 2d, 1881. " Sold to Mr. L. Lissberger, New York, for account, Messrs. C. Tobias & Co., New York. "About 100 tons old iron vignol rails, for prompt shipment by sail from Europe, and for delivery on dock at the port of New York (dangers of the sea excepted), at $28 per ton of 2,240 lbs. weight, as per United States weighmaster's return. Terms of settlement as fol- lows : 80 per cent cash, payable when rails are landed on dock, and balance payable on receipt of United States weigher's certificate." " Mann & JonbSj Brokers." "Accepted, L. Lissberger." The complaint, after setting out the agreement, alleges " that the plaintiffs promptly shipped by sail from Europe a lot of about 100 tons of such rails and duly performed all the conditions of the contract on their part, and on the 14th of June, 1881, were ready and willing to deliver, and duly tendered " the rails to the defendant, who refused to accept or pay for them; that upon notice to defendant they sold the rails on his ac- count, and after applying the proceeds there remained due $345.15, for which, with interest from June 14, 1881, they ask judgment. The defendant by answer expressly '■ Citation of authorities omitted. Sec. 1-B.] Tokias v. Lissbeegee. 657 admits the contract, and that on the 14th of June the plaintiffs were willing to deliver, and then tendered to him, the rails mentioned in the complaint, a refusal on his part to accept, and that the plaintiffs after notice sold the same; he denies, however, the other allegations in the complaint, and particularly denies that the goods were promptly shipped from Europe, and say that, on the contrary, there was a delay of two months or there- abouts in such shipment, in consequence of which the goods were of less value in the market than they would have been if promptly shipped; that in this omission the plaintiffs failed to perform the contract on their part, and he, therefore, refused to accept the rails Upon the trial of these issues the plaintiffs read the deposition of the captain of the ship Brunn, to the effect that his vessel, then lying at Stettin, in Germany, was chartered on the 1st of January, 1881, for different kinds of goods for New York. Stettin was about forty miles from the sea, situated upon a river. That on the 3d of February, 1881, he received on board from the ship- pers, Ignatz Bosenthals, Wie & Co., 535 pieces of old rails deliverable in New York, on payment of freight. The bill of lading then given by him, dated February 3, 1881, and produced by the plaintiifs, is to the same effect, and pur- port to be endorsed in blank, " Ignatz Bosenthals, Wie & Co." It also appeared from the captain's testimony that when these rails were shipped the river was frozen fast, the ice being two or three feet thick. It was then expected the ice would break up in March. But the river, which had become closed to navigation about the 20th of January, remained so until the 2d or 3d of April, on which last named day the vessel sailed, and after a voy- age of the ordinary length arrived in New York. Usually the ice had broken up at Stettin late in February or early in March, but the winter of 1881 was of extraordinary 42 658 Conditions in Conteact. [Chap. IL severity. It was shown in evidence that rails of the kind described in the contract could have been obtained at any time in other European ports, where detention by ice was unknown — ports even in Germany as well as in France and England, and among others, London and Liverpool. They seem to have been common in the mar- kets, and to be easily procured. It is stated by the respondent that the only question litigated at the trial was whether the goods were promptly shipped according to the terms of the contract, and the record sustains that view. The trial judge, against the exception of the defendant, directed a ver- dict for the plaintiffs. Upon denying a new trial, he was of opinion that " prompl; shipment," under the words of the contract, was within the shipment proven, saying also that ' ' if the defendant wished to provide against a distant port in Europe, or any other delaying cause, it was in his power to make it part of the contract " and failing to do this, says : "I think the point he makes cannot be sustained. ' ' But he added : " I do not put the decision of the case on the grounds above stated, but upon the ground that after the contract, after notice of shipment, the defendant waited until after the arrival here before making the objection now made. ' ' The Gren- eral Term discusses only the ground first stated by the trial judge, and by a divided court sustained his decision. The minds of the parties met when the sold note was communicated to and accepted by the defendant. It is the only evidence of the contract, and upon its proper construction the rights of the plaintiffs depend. Their action is upon the theory that the contract imposed upon them the obligation of bringing the goods to New York, and then having them ready for delivery. They were, therefore, to furnish the rails either' by selection from their own stock, or by purchase or other means, but, however obtained, the rails were to be got from Europe Sec. 1--B.] Tobias v. Lissbergee. 659 by sailing vessel at the expense and at tlie risk of the vendors. They were to ship the rails in such vessels as they chose, on such terms as they and the master could agree upon ; they were to land them on the dock in New York, and at that moment only did any duty attach to the defendant, who was then to pay a certain proportion of the price. The vendors were to procure the weighmas- ter's return, and on its receipt the balance became due. The plaintiffs then have sold a quantity of iron, and the question arises as to how the condition shall be per- formed which will enable them to make delivery and en- title them to demand payment from the vendee. No time is specified, and if there was nothing else in the contract, it would undoubtedly be the duty of the vendors to make delivery of the thing sold within a reasonable time and to determine whether the plaintiff had been able to. do so, the facts and circumstances attending the transaction would have to be considered. But although the contract specifies neither month nor day, nor duration of time within which or on which they must perform, it does specify the manner of doing the act which makes per- formance possible. The contract provides for " prompt shipment," and it is this condition on which all other stipulations hang. So the plaintiffs understood it, and, as we have seen, they alleged as a condition precedent to the right of action that they " promptly shipped " the iron. This implies expedition, admits of less delay than would be permitted under a covenant to act merely within a reasonable time, and in effect the plaintiffs interpret it as meaning ' ' directly " or " at once. ' ' Such, indeed, was their conduct. The contract was made in New York on the 2d of February, 1881, and the plain- tiffs rely upon a bill of lading showing that on the very next day, at Stettin, iron rails, answering in descrip- tion to those named in the contract, were put on board a vessel chartered • for New York. Therefore the re- 660 Conditions in Contract. [Chap. IT. spondents contention is that the whole condition is satis- fied, and "if any delay thereafter occurred to the prejudice of the defendant, he must look to the ship for his indemnity." The last porsition fails when we see that no privity- existed between the defendant and the vessel or its master, and that his only contract relation was with the plaintiffs. The sole object of prompt shipment was to secure a speedy arrival for delivery in New York. Until then the goods were at plaintiff's risk, and only then could the defendant's liability attach. Before that event happened there was to be neither transfer of title nor transfer of possession. It is quite unimportant to inquire how it might be as between the master of the vessel and the plaintiffs, or the shipper, one of whom may be assumed to be the owner, and the other, by virtue at least of the bill of lading, entitled to possession. In the case before us it is more reasonable to construe the condition of prompt shipment as a precedent to de- livery, and so relating to the actual commencement of the voyage that the known unnavigable condition of the river could furnish no excuse for the delay. The de- fendant was entitled to such timely delivery as would follow an effective shipment ; in other words, to an exact performance by the plaintiffs of their contract to ship and deliver, not two things separable in their nature, but two steps to a single end. That involves not only a pur- pose to transport, but an expectation that transportation would commence, if not at once, certainly within a reasonable time. Shipment cannot be said to have been made from Europe, when the port selected had no passageway or outlet. Nor can it be fairly argued even that the iron was shipped " for delivery in New York," if it was apparent to the shipper that the vessel could not leave the docks where it took in freight. Something more than shipment was bargained for, viz., prompt Sec. 1-B.] Tobias v. Lissbergee. 661 shipment, and the delivery was to be within such time as, dangers of the sea only excepted, might reasonably follow. Nothing less conld have been in the minds of the parties than expedition, or immediate and effective, or beneficial shipment as a step toward delivery. Pay- ment was postponed to delivery, both to be made in New York. The sale was for shipment from Europe, altogether at the vendor's expense and risk, and no exception was provided for save " dangers of the sea," among which a certain and safe confinement in port is not included. In Duncan v. Topham (8 Com. B. 225), the order was for certain goods to be put on board directly. The com- plaint alleged an order for goods to be delivered within a reasonable time, and the plaintiff failed in his action because the proof did not support the declaration, it being held that a " reasonable time " was a more pro- tracted delay than " directly." The contract here goes further. "Prompt" is synonymous with "quick," " sudden," " precipitate." Indeed, one who is ready is said to be prepared at the moment, one who is prompt is said to be prepared beforehand. Such represents the condition of the plaintiffs. Their immediate loading of the vessel shows that they were prepared beforehand, but if their construction of the contract is correct, the qualifying word might as well be one of postponement and delay. The fault was with the plaintiffs. It was optional with them to ship from any port in Europe. If at the time of shipment the plaintiffs or their agents knew or might have known that detention and delay at the place of shipment and before ground could be broken for the voyage, even unavoidable and to be expected, they must also have known that the delivery could not be made as contracted for, and the subsequent tender was too late. It was not a " prompt .shipment," and the defendant was not bound to receive the cargo. 662 Conditions in Contbact. [Chap. IL It is now contended, however, by the plaintiffs, that the appellant is estopped from denying that the rails were shipped in accordance with the terms of the eon- tract. This might, under some circumstances, furnish a question for the jury. It cannot be said, as matter of law, that those now relied on have that effect. It appears that the usual length of a voyage from Stettin to New York is forty-nine days. On the first of March the defendant was notified by the plaintiffs that the 100 tons of rails sold to him " are shipped * * * from Stettin," but the date of sailing was not given, and in answer to defend- ant's inquiry concerning it, the plaintiffs replied they were not informed. On the nineteenth of March they told him the bill of lading was dated February third, but that they had " no date of the vessel's sailing." On the fourth of May they wrote: " According to New York maritime register, the Ger. Bk., * Ferdinand Brunn,' with 100 tons rails sold to you, sailed from Stettin April 6th, for New York." The vessel arrived at New York, and on the fourteenth of June when tendered by the plaintitfs, the defendant in writing refused to receive them, saying the rails were not shipped according to contract. We find nothing in these letters which would authorize a court to say that the defendant had waived perform- ance by the plaintiffs. There is no evidence that he knew the cireumistances attending or causing the delay, none that he was informed that the vessel, .when loaded, was ice-bound, nor of its detention from that cause. More- over, the sole act relied upon in the complaint as a breach of the contract on defendant's part, a refusal to accept the rails tendered, took place, as is there alleged, and is admitted in the answer on the fourteenth of June. Then the plaintiffs say they were ready and willing to deliver, and duly tendered the goods, and the defendant Sec. 1-B.] Tobias v. Lissbeegek. 663 refused to receive them. If I am right in my view of the contract he was under no obligation to do so. I have not overlooked the argument of the plaintiffs, by which our attention is directed to the difference between " shipment " and " sailing," nor failed to examine the definitions and decisions upon which the argument is founded. The context of the cases cited, however, prevents the application of the decisions to the one before us ; and while the terms are, no doubt, well defined, there is no definition nor adjudged case which implies that an agreement to deliver goods after prompt shipment is satisfied by merely placing them on board a vessel, which, although it should weigh anchor or cast off moorings, and make other preparation to depart, could not for a considerable period of time — in this case exceeding the customary length of the intended voyage — leave the spot where the cargo was received. Such a shipment would be colorable and deceptive. If it answered the letter of the contract, it defeated its purpose. It would not, in fact, be the inception of the voyage, and the burden of showing a bona fide shipment would not be sustained. In all the cases referred to by the respondents, the obligation to ship at or within a certain period was held to be unperformed, unless the ship might also sail at or within the time stated. Nothing else would be beneficial to the purchaser. The evident object of expressing the time of shipment, as declared in those cases, was to provide that the article purchased should come forward at such time as would, in the opinion of the purchaser, make the venture profitable, or as to time of arrival, or payment, suit his convenience. Another class of cases, also cited by the respondents, shows that when goods are sold and are to be delivered on board of vessels, either provided by the purchaser or by his appointment, putting on board is a good ship- ment, whether the vessel is in condition or is expected 664 Conditions in Contract. [Chap. 11. to sail or not. The principle on which these cases were decided is not involved here, and the others do not lessen the strength of the appellant's case. The time and manner and place of shipment might, indeed, have heen accepted by the defendant as in com- pliance with the contract, and whether it was or not, and whether with full knowledge of the facts there was on his part a waiver of the strict performance of the con- dition on the plaintiff's part, were questions for the jury. The trial court, therefore, erred in directing a verdict for the plaintiff. It follows that the judgment should be reversed, and a new trial ordered, with costs to abide tlie event. All concur, except Eugee, Ch.J., dissenting. Judgment reversed. Clark v. Fey. 121 new york reports, 470—1890. Appeal from judgment of the General Term of the Supreme Court in the First Judicial Department, entered upon an order made January 28, 1889, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at circuit. This action was brought to recover damages for an alleged breach of a written contract for the sale by plaintiffs to John Fey, defendant's intestate, of 500 tons of " old iron ' T ' rails," at $37.50 per ton. The terms of the contract as to delivery and payment were as follows: "Delivery Shipment from the other side January or February or March, Seller's option. "Payment. Thirty-two (32.50) dollars and fifty cents cash accord- ing to invoice weights on handing order on vessels, balance on handing weighmaster's return." Sec. 1-B.] Hypotheticaij Case. 665 The facts, so far as material, are stated in the opinion. Finch, J.^ It is not disputed that the rails, which were finally tendered to the vendee and then sold for his account and risk, producing a deficiency below the contract price, which deficiency forms the subject of the action, were not the rails which the vendee bought and the vendors sold. By the original written contract those rails were to be 500 tons shipped " from the other side, January or February or March, seller's option." It is the settled rule that, in a case like the present, the date of the shipment is a material element in the identification of the property. (Hill v. Blake, 97 N. Y. 216; Tobias v. Lissberger, 105 N. Y. 404.) It was not 500 tons of rails generally that were the subject of the contract, but a specific quantity shipped from the other side during the three named months, and unless such were tendered the contract was not performed. The offer of other rails would impose no obligation upon the purchaser. It is clear, therefore, that the tender finally made was not of the property specified in the contract, and left no liability upon the vendee resulting from his refusal to accept, unless there is something else about the ease. We discover no ground upon which the judgment can be deemed erroneous, and it should be affirmed, with. costs. All concur. Judgment affirmed. P in California entered into a contract with N, in New York, for the purchase of scrap iron. The following memorandum was signed by N and delivered to P: ^A portion of the opinion upon other points omitted. 666 Conditions in Contract. [Chap. II. " P, San Francisco, Cal. " New York, May 31, 1884. "Dear Sir: I have this day sold to you about 1,000 tons of 2,240 lbs. No. 1 wrought scrap iron, American specification as per description on back of this contract, for December shipment by sailing vessel or vessels from Europe at $24 per ton of 2,240 lbs., delivered alongside railroad wharf, Oakland, custom-house weight, duty paid, cash on delivery, against invoice and custom-house weight, certificate deciding quantity. Yours truly, N." (Description of iron was given on back of contract.) N did not ship any iron, and in the latter part of January, 1885, P began an action against N for breach of the above contract, alleging in his complaint that no iron had been shipped, that there was but a small supply of scrap iron on the California coast, and that it would be necessary for P to at once contract for a supply in order to make sure of obtaining it in time to supply his works. N demurred to this complaint on the ground that it did not state a cause of action in that it did not aver that the time for delivery {i. e., a reasonable time for sailing vessels departing from Europe, December 31, to arrive at Oakland, Cal., in ordinary course) had passed, and that it did not aver readiness and willingness on plaintiff's part to perform. Wells v. Calnan. 107 massachusetts reports, 514 — 1871. Contract on a written agreement dated December 22, 1868, by which the plaintiff agreed to sell and the de- fendant to buy " the farm now occupied by " the plain- tiff " and his father " (describing it by metes and bounds), for $3,250, which the defendant agreed to pay on April 10, 1869, and it was provided that " no wood should be cut and removed from the premises save firewood for use in the house," Sec. 1-B.] WelxiS v. Calnan. 667 that the plaintiff on receiving payment should execute and deliver to the defendant a proper deed for the con- veying and assuring to him of " the fee simple of the said premises," and that for the due performance of the agreement, each party was bound to the other in the sum of $500, " which said sum is to be taken as liqui- dated damages." The declaration alleged the making of the agreement, and that the plaintiff executed a good and proper deed for conveying and assuring to the defendant in fee simple " the premises described in said agreement," and tendered said deed to the defendant on April 10, 1869, and demanded payment of the $3,250 of the defendant, but that the defendant refused to pay the same, and also refused to pay the $500 as liquidated damages ; and that the defendant owed the plaintiff $500. The answer admitted the making of the agreement, but denied the making or tender of a good and sufficient deed, and all the other allegations of the declaration. At the trial in the Superior Court, before Pitman, J., it appeared that the plaintiff tendered a deed in due form on April 10, 1869; that the farm-house and out- buildings on the land were burned on the preceding day ; that the defendant for that reason refused to accept the deed or pay the price; that the estate at the time of the contract was worth at least $3,250, but after the fire was worth not more than $2,000; and that the plaintiff had obtained insurance upon the buildings in the sum of $2,000; and had received of the insurance company, in settlement of his claim against them, the sum of $1,600. The defendant offered to show that the insurance com- pany, before the commencement of this action, offered the plaintiff to take from him a quitclaim deed of the estate, and pay him the full contract price. But the judge excluded the evidence as immaterial. The plaintiff contended that he was entitled to the ■ $500 as liquidated damages, while the defendant con- 668 Conditions in Contkagt. [Chap. IT. tended that it was to be treated as a penal sum. But the judge ruled " that this question was of no importance, because, if the plaintiff was entitled to demand payment of the contract price notwithstanding the loss of the buildings, he had sustained damage to a larger amount by the defendant's refusal." The defendant requested the court to instruct the jury that they might consider the amount received by the plaintiff from the insurance company in their estimate of his damages, and might return a verdict for nominal damages only; but the judge instructed them to the contrary. The jury returned a verdict for the plaintiff in the sum of $546.83, being the amount claimed, with interest; and the case was reported to this court; if error ap- peared in the. rulings, the verdict to be set aside and a new trial had; otherwise, judgment to be entered on the verdict. Gbay, J.^ The principles of law, upon which the rights of the parties to this case depend, appear to have been overlooked at the trial. When property, real or personal, is destroyed by fire, the loss falls upon the party who is the owner at the time ; and if the owner of a house and land agrees to sell and convey it upon the payment of a certain price which the purchaser agrees to pay, and before full payment the house is destroyed by accidental fire, so that the vendor cannot perform the agreement on his part, he cannot recover or retain any part of the purchase-money. For these reasons, in Thompson v. Gould, 20 Pick. 134, where, after the making of an oral agreement for the sale and purchase of a house and land, and the purchaser's entry into possession and payment of part of the price, but before delivery or tender of the deed, the house was ^ Citation of authorities omitted. Sec. 1-B.] Wells v. Calnan. 669 destroyed by fire, it was held by this court, in an elaborate judgment delivered by Mr. Justice "Wilde, that he was entitled to recover back the money paid, on the ground of a failure of the consideration. In Bacon v. Simpson, 3 M. & W. 78, the plaintiff had agreed to sell, and the defendant to purchase, a lease for years of a dwelling-house at a certain price, and the fur- niture, tenant's fixtures, and other property therein at a valuation to be made by appraisers. Before fulfillment of the agreement, or delivery of possession to the defendant, the greater part of the. house and the property therein was consumed by fire. The plaintiff brought an action on the agreement, averring readiness to perform from the time of making the agreement and ever since, which was traversed by the defendant. It was held by the Court of Exchequer that by reason of the fire the plain- tiff could not perform the agreement, and, therefore, could not maintain the action. In Taylor v. Caldwell, 3 B. & S. 826, by a written contract one party agreed to give the other the use of a certain music hall on four specified days, for the pur- pose of holding concerts, with no express stipulation for the event of its destruction by fire. The Court of Queen's Bench held that upon the destruction of the building on an earlier day, by an accidental fire, both parties were excused from the performance of the con- tract; and, while rec'ognizing as undoubted the rule that one who makes a positive contract to do a thing not in itself unlawful must perform it or pay damages for not doing so, declared it to be also well settled that that rule is only applicable where the contract is positive and absolute, and not subject to any condition, express or implied ; and that where, from the nature of the contract, it appears that the parties must from the beginning have contemplated the continuing existence of some particular specified thing as the foundation of what was to be done, there, in the absence of any express or implied warranty 670 Conditions in Contract. [Chap. II. that the thing shall exist, the contract is not to be con- strued as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the accidental perishing of the thing without the fault of either party. The doctrine as there stated has been approved in the later English cases. And it is illustrated by the previous decisions of this court, by which it has been held that a person who agrees to build a house on the land of another is not discharged by the destruction of the house by fire before its completion ; but that, where one agrees to repair another's house already built, such destriiction of the house puts an end to the contract. In the present case, the agreement between the parties manifestly contemplates the conveyance of the buildings already upon the land as an important part of the subject-matter of the contract. It describes the property to be conveyed as the farm occupied by the vendor and his father, and contains a provision that until the day appointed for the delivery of the deed no wood shall be cut and removed from the premises, save firewood for use in the house. The vendor agrees to execute and deliver a proper deed for the conveying and assuring to the purchaser of the fee-simple " of the said premises." The price stipulated to be paid is an entire sum ; and the report states that it appeared in ^idence at the trial that the estate at the time of the contract was worth at least that sum, and after the fire was not worth two- thirds as much. The case differs from those in which a lessee is held liable to pay rent or make repairs according to his cove- nants, notwithstanding the destruction of the buildings by fire or other accident during the term. There the lessor, by the execution and delivery of the lease, has fully performed the contract on his part ; and the lessee, having thereby become the owner of the leasehold in- Sec. l-B.] Cohen v. Platt. 671 terest, miist bear the same risk of fire or casualty as any other owner of property, and is not excused from per- forming his own express covenants. But in the case at bar the defendant has only agreed to pay the purchase-money upon tender of a deed of the whole estate contracted for, including the buildings as well as the land; and, the buUdings having been wholly destroyed by fire on the day before that appointed for the conveyance, the plain- tift did not and could not tender such a conveyance as he had agreed to make or as the defendant was bound to accept, and was not, therefore, entitled to maintain any action against the defendant for the agreement. It was contended at the argument that this defence was not open under the pleadings. But the declaration alleges that the plaintiff tendered to the defendant a good and proper deed for the conveying and assuring to the defendant the premises described in the agree- ment ; and this allegation is met by a direct denial in the answer. The result is, that the rulings of the Superior Court were erroneous, because inapplicable to the case; that there has been a mistrial, and that the Verdict must be set aside, and a new trial had. Cohen v. Platt. 69 new york reports, 348 — 1877. Appeal from a judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff entered upon a verdict. (Eeported below, 8 J. & S. 483.) This action was brought to recover damages for the alleged breach^ of a contract of purchase and sale. The facts appear sufficiently in the opinion. ^ Only so much of the opinion is given as relates to this point. 672 Conditions in Contkact. [Chap. II. Eael, J. In September, 1872, at the city of New York, the plaintiff sold to the defendants 10,000 boxes of glass, at 7I/2 per cent discount from the tariff price of July, 1872, to be paid for in gold, at New York iipon delivery of invoice and bill of lading by bUls of exchange on Antwerp. The glass was to be of approved standard qualities, and was to be shipped on board of sailing ves- sels at Antwerp, and to be at the risk of the defendants as soon as shipped, and they were to insure and pay the freight and custom duties. The glass was to be de- livered during the months of October, November, and December, 1872, and January, 1873. In pursuance of this contract, the plaintiff delivered to the defendants 4,924 boxes of glass, for which they paid. They refused to receive any more, and this action was brought to re- cover damages consequent upon such refusal. The defendants claimed, and gave evidence tending to prove, that the glass delivered was not of approved standard quality, and hence that they had the right to refuse to take the balance. While some months after the glass was delivered the defendants complained of its quality, they at no time offered to return it, or gave plaintiff notice to retake it. They receive it under the contract, and it is not important in this action to de- termine, as no counterclaim is set up, whether or no"t a right of action for damages an account of the inferior quality of the glass survived the acceptance. The fact that the glass delivered and received upon the contract was inferior did not give them the right to repudiate the contract altogether. They could demand better glass, and when the plaintiff offered to deliver the balance, if it was inferior, they could refuse to accept it. But if the plaintiff was ready and willing to deliver for the balance such glass as the contract -called for, they were bound to receive it. Here the plaintiff requested them to take the balance of the glass, and they refused to take Sec. 1-B.] Beecher v. Coneadt. 673 any more, and thus repudiated and put an end to the contract. There was no proof that the plaintiff insisted upon delivering inferior glass, or that he was not ready and willing to deliver glass of the proper quality. They did not take the position that they were willing to receive glass of approved standard quality, but refused to take any more glass under the contract. There was, there- fore, such a breach of contract as entitled the plaintiff to recover such legal damages as he sustained by the breach. All concur. Judgment reversed.^ ■ Beecher v. Conradt. 3 KEKNAN, 108 — 1855. Action commenced in the Supreme Court, in 1851, to recover the amount agreed to be paid by the defendant in and by the contract hereinafter mentioned. The com- plaint alleged the making of the contract; that it had been duly transferred to the plaintiff; that the party of the first part to the contract and the plaintiff had always fulfilled and kept all things therein contained on their part to be performed; that the defendant had neglected to pay the amount agreed to be paid by him; and that the whole amount of the principal and interest named in the contract was due and unpaid, and judgment for this amount was demanded. The answer put all the allegations of the complaint in issue. The cause was tried at the Oneida County Circuit, held by Mr. Justice Oridley. The plaintiff read in evidence the contract mentioned in the complaint. It was dated the third day of January, 1839, and executed by Abraham Varick, as ^ Upon other grounds. 43 674 Conditions in Contkact. [Chap. IL surviving executor of the will of one "Walker, deceased, as party of the first part, and by the defendant as party of the second part. By the terms of this contract the party of the first part, in consideration of one cent to him paid, and " upon the express condition that the party of the second part shall and do well and faithfully perform the covenants hereinafter men- tioned, and to be performed on his part,'' covenanted for himself and- his assigns to execute and deliver to the party of the second part a deed of con- veyance in fee, containing covenants of warranty against the acts of the grantor, of and 'for a parcel of land which was described in the contract; and the defendant, the party of the second part, covenanted to pay to the party of the first part or his assigns " the sum of three hundred and ninety-six dollars in five equal annual payments, with interest annually on all sums unpaid." The plaintiff further proved that the land mentioned in the contract was conveyed and the contract assigned to him in December, 1850, and rested. Thereupon the counsel for the defendant moved the court to nonsuit the plaintiff, on the ground, among others, that inasmuch as the action was brought to recover the whole amount of the purchase-money after the same had become due by the contract, the plaintiff could not recover without prov- ing that he tendered a conveyance of the land, or offered to convey the same to the , defendant before the com- mencement of the action. The court overruled the objec- tion, refused to nonsuit the plaintiff, and decided that he was entitled to recover the amount of the purchase- money mentioned in the contract. The counsel for the defendant excepted. The judgment rendered at the circuit was affirmed by the Supreme Court at a General Term, held in the Fifth District. The defendant appealed to this couat. Sec. 1-B. j Beecheb v. Coneadt. 675 Gardiner, C.J. The plaintiff has neither averred nor was there proof of any other breach of the contract upon the part of the defendant, except the nonpayment of the purchase-money. The plaintiff had a right to sue for each instalment as they severally became payable: but this right he has waived, and now seeks to recover the whole purchase-money in this action, without an aver- ment or proof of a tender of a conveyance or a readiness or willingness to convey. It is not denied by the court below that, if the several payments had been made as they fell due, and the suit had been commenced for the last instalment alone, the plaintiff must have made such an averment and sustained it by proof, if questioned;, the point is too plain to admit of discussion. It is, how- ever, said that a right of action accrued as the instal- ments became payable, which the nonperformance of the plaintiff would not discharge. This doctrine assumes a right, upon the part of the plaintiff, to divide his cause of action into as many suits as there were instalments. The first answer to this suggestion is, that the considera- tion for the conveyance by the vendor was an entire sum, to be paid by instalments ; that the whole was due at the commencement of the action, and the plaintiff has sued for the whole purchase-money without attempting to distinguish, in his complaint or evidence, between the different instalments. The second answer is, that the plaintiff having elected to wait until the fifth and last instalment became due, and upon the payment of which, as this case stands, the defendant would be entitled to a deed, cannot now sustain his action for either instal- ment without proof of performance or readiness to perform on his part. The covenants, as to the four first instalments, were originally independent; but the plain- tiff, by his omission to insist upon a strict performance by the defendant, has lost the right to bring more than one suit for the money which formed the consideration 676 Conditions in Contbact. [Chap. IL for his conveyance. The defendant, by a tender of the whole, which he has now a right to pay, would be entitled to his deed. The plaintiff on the other hand must estab- lish his right to the consideration as an entirety, or he cannot recover anything. If he recovered iti this action but $50, the judgment would be a complete bar to any further claim for the purchase-money, and when that judgment was paid the defendant would be entitled to his deed. The defendant could not protect himself against an action by an offer to pay the first, or all of the four first instalments ; as the consideration was entire, and all due, the plaintiff could insist upon the whole. And yet, if because the covenants were originally independent they must always continue so, the defendant" must have the right to discharge by payments what the plaintiff could enforce by action. The truth is, the parties by lapse of time are in the same situation as though the purchase-money was aU payable at one time. The defendant has lost his right to pay the instalments separately, and the plaintiff his right to enforce collection by separate suits. There is but a single cause of action, one and indivisible. The ■defendant, if he would obtain his deed, must pay all, and the plaintiff, if he would recover, must show such a per- formance on his part as would entitle him to all the unpaid consideration. The condition attaches to the whole debt and every part of it. The judgment of the Supreme Court should be reversed, and a new trial ordered. Denio, Johnson, Maevin, and Dean, JJ., concurred. Cbippen, J. (dissenting). The first and fifth grotmds on which the motion for a nonsuit was asked may prop- erly be resolved into one, and considered together, as they both present the same identical question. If the plaintiff was bound to prove the tender of a deed, or an Sec. 1-B.] Beeohee v. Conbadt. 677 offer to give such a deed to the defendant as the contract called for, prior to bringing his action to recover the purchase-money, then he failed to maintain the action, and the court in that event erred in refusing the nonsuit. In order to determine this question, it will be necessary to refer with care to the terms of the agreement between Varick, the trustee, and the defendant. By this contract Varick agred to convey lot No. 3, in Walker 's patent, on the condition of a full and faithful performance of all the covenants contained in the contract to be performed by the defendant. On the part of the defendant, the first covenant made by him was that he would pay the trustee, Mr. Varick, his heirs or assigns, the just and full sum of $396 in five equal annual payments, with interest annually on all sums unpaid. The contract bears date on the third day of January, 1839 ; consequently, the last annual payment became due on the third day of January, 1844. This covenant of the defendant is not made to depend on any contingency or act of the other party, or on any condition to be found in the contract. When, then, let us inquire, did the defendant become entitled to the deed of said premises? The parties, by the plain language of the contract, have said that the defendant shall be entitled to such deed on the express condition that he shall pay the sum of $396 in five equal annual payments, from the third day of January, 1839, with annual interest. It is not easy to mistake the meaning of parties, when they use language so plain and emphatic in making their contracts. The defendant most clearly was not entitled to a deed when the first, second, third, or fourth instalments became due, even if they had been punctually paid by him. So, also, in relation to the last instalment, the time for the payment was fixed by the agreement ; when the time arrived the money became due and payable from the defendant. No act was agreed to be performed 678 Conditions in Conteaot. [Chap. II. on the part of the trustee or the plaintiff, as assignee of the contract, in order to entitle him to the money due on the last payment. The premises were to he conveyed on the express condition of the payment of the whole amount of the purchase-money. No act whatever was agreed to be done by the trustee to entitle him to the money; or, in other words, the de- fendant agreed that he had no right to call for a con- veyance, except upon the express condition that he paid the whole amount of the purchase-money. The case is clearly distinguishable from that of Grant v. Johnson, 1 Selden, 247. In that case the contract did not require the defendant to pay the whole amount of the purchase- money before obtaining a deed. He was entitled, by the terms of the agreement, to receive both the possession of the premises and a deed thereof before he could be called upon for the payment of the instalment in con- troversy in that action. Not so in the case at bar; and in this particular the cases are manifestly and clearly different. The defendant in this action had no right to ask for a deed, except upon the express condition that he first paid the full amount of the purchase-money. I have not been able to find any adjudged case conflicting with the plaintiff's right to recover in this action the amount due upon the contract. The judgment should be affirmed. Hand, J. (dissenting). I am of the opinion that the covenants to pay the purchase-money and to convey the land are independent. . The defendant agreed to pay the purchase-money, and at certain specified times; and the vendor agreed to convey " upon the express condition " that he did so. No suit was commenced until all of the purchase-money became due. But that circumstance did not make the covenants de- pendent which before were independent. Where the last payment and the conveyance are to be simultaneous acts, Sec. 1-B.] Eddy v. Davis. 679 and the prior payments have not been made, in a suit for the purchase-money, a performance or an offer to perform is necessary. Johnson v. Wygant, 11 Wend. 48; Grant v. Johnson, 1 Seld. 247. But that is not this case as I understand this contract. The .payment of all the purchase-money vras a condition precedent to the right of the defendant to demand a conveyance. Having covenanted absolutely to pay certain sums at the expira- tion of certain fixed periods, and the vendor having jjrom- ised a deed on condition that the payments were made, the clear intention of the parties must have been that payment of all the money should precede the conveyance. There was no duty for the vendor to perform until the vendee had performed all the covenants on his part. By inserting the word " condition " or " sub con- ditione," a condition is created. 10 Co. 42a; 2 Bac. Abr., "Condition," (A); Piatt on Covenants, 72. " Upon condition "is an expression from which a con- dition precedent usually arises. (Piatt on Covenants, supra.) The agreement here was not merely to convey " upon " payment being made, but " upon the express condition " that the vendee should perform; while the covenant to pay is without condition. And besides, the meaning of the words " upon condition " has been set- tled by construction, which should not be disturbed. For this reason I think the judgment should be affirmed. Judgment reversed. Eddy v. Davis. 116 new york reports, 247 — 1889. Appeal, from order of the General Term of" the Supreme Court in the Third Judicial Department, made May 4, 1886, which reversed a judgment in favor of 680 Conditions in Contbact. [Chap. II. plaintiffs, entered upon a decision of the court on trial at Special Term and granted a new trial. The action was brought to recover from defendant unpaid instalments alleged to be due upon a contract to purchase land.. By the contract, which was executed March 1, 1875, plaintiff agreed to sell to defendant a lot of land in the village of Westport, upon which there was a brick store, for the sum of $1,600, payable in annual instalments varying from. $100 to $200. The contract provided that possession should be given on payment of the first instalment, and contained the following provisions : " The party of the second part (defendant) is to have one hundred feet depth of land including the store running east and west, running north and south the width of th* store.'' " The said parties of the first part agree that on receiving the sum of eight hundred dollars at the time and manner above mentioned, that they will execute and deliver to the said party of the second part, at their own proper cost and expense, a good and sufficient deed of said property by the party of the second part giving to the parties of the first part a bond and mortgage on said property for the remaining sum unpaid." "And the said party of the first part agrees to keep open a right of way back of said building." " It is understood that the party of the second part is to put up during the coming year a building on the east end of said store, to cost not less than six hundred dollars." Defendant paid the first instalment under the contract, entered into possession, and erected the building called for by the contract. He made other payments in amount about sufficient to pay the interest on the purchase- money. At the time of the commencement of the action two instalments, amounting to $300 were not due. At the time the agreement was made the plaintiffs owned other property adjoining the lot sold defendant, on the north, and bounded on the west by the principal street of the village; and over this property access could be had from the street to the rear of defendant's lot. Sec. 1-5. J Eddy v. Davis. 681 In June, 1875, plaintiffs sold to one Joseph Hutchings all the rest of the property owned by them, without any reservation of a right of way to defendant's lot, and at the time of the commencement of this action they owned no property over which they could give a right of way to the rear of defendant's store. Further facts appear in the opinion. Beown, J.^ The trial court found, as conclusions of law, that the defendant " was not entitled to a conveyance of property, or of such right of way until the fuU sum of $1600, the consideration provided by said con- tract, was paid, and that the provision in said contract for deeding the premises to the defendant, upon the payment of $800 and interest, was for his (defendant's) benefit, and he could avail himself of it at his option, by paying such money at the times provided in the contract, and -demanding a deed and tendering a bond and mortgage ; not having paid or made such demand or tender, and having waived his right to make any claim under this provision, as appears in the sixth finding of fact, the contract was to be treated as if it had been omitted, and the action having been brought to recover instalments due, no tender of a deed by the plaintiffs was necessary to enable them to maintain this action." The sixth finding of fact referred to was as follows : " That immediately before the commencement of this action the plain- tiffs, by their attorneys, applied to said defendant and informed him that plaintiffs were ready and willing, to perform said contract on their part, if he was ready to pay, to which defendant replied that he could not pay, and said he wanted to give up the property, and there- upon plaintiffs commenced this action." It is undisputed that within two months after the de- fendant entered into possession of the property plain- tiffs sold all their adjoining land, and thus put it out of their power to comply with their agreement with defend- ant, and keep open a right of way to the rear of his store ; and at the time of the offer mentioned in the finding of fact I have quoted the plaintiffs were powerless to fulfil Citation of some authorities omitted. 682 Conditions in Contkact. [Chap. II. their agreement. The finding, therefore, that they were ready to perform, or that their- offer and defendant 's refusal constituted a waiver of tender of the deed cannot he sustained. A tender imports not only readiness and ahility to perform, hut actual production of the thing to be delivered. The formal requisite of a tender may be waived, but to establish a waiver there must be an exist- ing capacity to perform. Here there was no existing capacity, as, having sold all the adjacent lands, plaintiffs, could not perform their covenant " to keep open a right of way " back of de- fendant 's store. The conclusion of a waiver is not, there- fore, sustained. If, however, the construction put upon the contract by the learned trial court, in the conclusion of law I have quoted, is correct, then the finding of a waiver of tender of performance is unimportant. Never having paid $800 of the purchase-money, de- fendant was not in a position to demand the conveyance, and there being in the contract, as construed by the trial court, no covenant on the part of the plaintiff to deliver the deed until the full consideration was paid, tender of the conveyance as a condition precedent to recover for unpaid instalments was not necessary, and no question as to the sufficiency of the facts to constitute a waiver of tender could legitimately arise. Where a contract for the sale of land provides for par- tial payments of the purchase-money prior to the de- livery of the deed, the vendor may sue for such instal- ments when due without tendering a conveyance. But when, after the instalments are all due, the vendor brings an action for the purchase-money, he is not en- titled to recover without proving an offer before suit to convey the land to the defendant on receiving the pur- chase price. When the last instalment falls due the pay- ment of the whole of the unpaid purchase-money and the Sec. 1-B.] Eddy v. Davis. 683 conveyance of the land become dependent acts. Beecher V. Conradt, 13 N. Y. 108. And the same rule applies when an action is brought for any instalment payable at or after the term fixed for the delivery of the deed. Grant v. Johnson, 5 N. Y. 247 ; Pordage v. Cole, 1 Saund. 320b, William's note. So that if the fair interpretation of the contract is, as was held by the trial court, that there was no obligation on plain- tiffs' part to deliver a deed until the whole of the pur- chase-money was paid, except in case of a demand there- for by defendant after payment of $800 and tender of a bond and mortgage for the balanee.of the purchase price, then the judgment was right and must be affirmed. We come, therefore, to the consideration of the ques- tion whether the learned trial judge was right in his con- struction of the contract that the provision for a delivery of the deed, when $800 was paid, was one for the benefit of the defendant, enforceable only on his demand, or whether it was a covenant on the part of the plaintiffs to deliver the conveyance at the time named. We can find no support for the construction adopted .by the trial court in the agreement itself, and it is not based upon any finding of fact. The construction is harsh, unfair, and unnecessary. The parties appear to have provided expressly for all matters between them. We expect naturally to find mutual obligations in the contract. The vendee agrees to pay the purchase-money, and we look for an agree- ment on the part of the vendor to convey. If it is not contained in the clause of the contract under discussion, it does not exist in express terms, and we are forced to imply it from the nature of the instrument. In Robb V. Montgomery, 20 Johns. 15, cited by appel- lants, there was an express covenant to convey on pay- TOfiTit of the purchase-money, and a further provision that if, after the first payment was made, defendant 684 Conditions in Contract. [Chap. II. ■wished to get a deed, and to give a bond and mortgage for securing the last two payments, plaintiff would give a deed. Thus the intent of the parties was clear that it was to be optional with the vendee whether he would take a deed on making the first payment. Here 'there is no express covenant to give a deed at all, unless it is in the provision cited. The language used in this part of the contract does not express an option, but is that of a positive undertaking. It is : " Parties of the first part agree, on receiving the sum ol eight hun- dred dollars, . . . that th^llwill execute and deliver . . a sufficient deed." We think the intent of the parties is plainly inferable from the language used, that this was a covenant on plaintiff's part to convey at the time and under the cir- cumstances mentioned. We have, therefore, an action to recover unpaid instal- ments brought after the time stipulated for the delivery of the deed, and in such case, to entitle plaintiffs to re- cover, it was incumbent upon them to show an offer made before suit, to convey on receiving the stipulated part of the purchase-money. Grant v. Johnson and Beecher v. Conradt, supra. The facts of this case are very similar to the cases cited. In Grant v. Johnson the contract was to sell the land for $950; $200 of which was payable in April, 1846, and $200 in April, 1847, and the balance in two annual payments thereafter. The seller was to give possession in November, 1845, and a deed in May, 1846. The action was for the instal- ment due in April, 1847, and this court held that delivery of the deed was a condition precedent to the payment of the second instalment, and having made no tender, plaintiff could not recover. In Beecher v. Conradt the purchase-money was pay- able in five instalments. None were paid, and after they Sec. 1-B.J Eddy v. Davis. 685 were all due plaintiff brought an action for the whole purchase-money. This court held that while the cove- nants as to the first four instalments were originally independent, when the last instalment fell due, convey- ance and payment were dependent acts, and that no part of. the purchase-money could be recovered without tender of a conveyance before commencement of the action. The determination of the question what are and what are not dependent covenants is not one free from difficulty, and many of the cases are so irreconcilable that they are studied with little profit or assistance to the judgment. Each case must be determined by the cardinal rule of interpreting all contracts — viz., to ascertain the inten- tion of the parties to the agreement; and here we think there is no doubt the intention was to deliver the deed of the property when $800 of the purchase-money was paid. For all the instalments falling due prior to that time plaintiffs might have brought their action and re- covered without proof of offer to convey, but having waited until after the time fixed for the delivery of the deed, payment and conveyance became dependent and concurrent acts, and tender of performance was essen- tial on their part to an enforcement of defendant's obli- gations under the contract. The case seems to fall di- rectly within the spirit of the second rule suggested by WUliams in his note to Pordage v. Cole, supra: " When a day is appointed for the payment of money, and the day is to happen after the thing which is the consideration is to be performed, no action for the money can be sustained without averring a per- formance ;" and the rights of the parties under such circumstances as exist in this case are clearly stated by Gardner, J., in Beecher v. Conradt as follows : " The defendant has lost his right to pay the instalments separately, and the plaintiff his right to enforce collection by separate suits. 686 Conditions in Conteact. [Chap. II. There is but a single cause of action, one and indivisible. The defend- ant, if he •would obtain his due, must pay all, and the plaintiff, if he would recover, must show such a performance on his part as would entitle him to all the unpaid consideration." None of the cases cited by the appellant are in conflict with the rule stated, under the construction we have given the contract. Eobb V. Montgomery, 20 Johns. 15, in one respect, I think, must be erroneously reported. The case states that the declaration averred nonpayment of all the in- stalments. If we are to understand by this that the action was brought to recover the whole purchase-money, and to regard the court as holding that no tender of conveyance was necessary, then the case is in conflict with all the later authorities. But if the action was to recover the first instalment only, then the decision is intelligible. I think the action must have been for the first instalment. The case as reported arose upon a demurrer by defend- ant to a replication to a plea in the answer and involved the single question whether the assignment of the con- tract and the conveyance of the land to Bemus by the vendor, before the first instalment was due (Bemus be- ing ready and willing and having the capacity to convey to defendant), was a bar to the recovery. The court held that it was not, and in so deciding is in harmony with later decisions, which hold that in an action by a vendor for an instalment of purchase-money falling due prior to the time limited for the delivery of the deed, want of title in the vendor is not a defence. These and all kindred eases will be found, I think, to have arisen on independent covenants in contracts, and the rule established by them has no application in an application in an action by a vendor for purchase- money brought subsequent to the day stipulated for the delivery of the deed. Seg. 1^} James v. Buechell. 687 The appellant makes the point that the agreement to keep open the right of way was a personal covenant, having no relation to the title, and its violation fur- nished no excuse for refusal to pay the purchase-money. The appellant is not in a position to raise such a ques- tion, being concluded by the finding of the trial court, that such right of way was necessary to the proper en- joyment of the store, and that the parties intended that defendant should have such way, and that it should be conveyed to him with the store ; and we think a right of way, which the trial judge found to constitute in value one-half of the property agreed to be sold, cannot be regarded as an immaterial part of the consideration of the defendant's obligation. Having put it out of their power to convey the property which they had agreed to sell, the plaintiffs were not able to make a valid offer of performance, and hence not entitled to recover the unpaid purchase-money. The order of the General Term was right and should be affirmed, and judgment absolute rendered for the de- fendant on the stipulation, with costs. All concur. Order affirmed and judgment accordingly. James v. Buechell. 82 new yokk reports, 108 — 1880. Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, affirming a judgment in favor of defend- ant, entered upon a decision of the court on trial without a jury. Eeported below, 7 Daly, 531. This action was brought to recover damages for the alleged failure of defendant to perform a contract. 688 Conditions IN CoNTBACx^ [Chap, II. On January 11, 1871, the parties entered into a con- tract by which the plaintiff, Sarah James, in considera- tion of $1, agreed " to sell and convey, or cause to be conveyed, ' ' as thereinafter stated, to the defendant, four lots of land in the city of New York, for the sum of $11,- 000 for each lot. It was further covenanted that the defendant should commence the erection of four houses upon the lots on or before February 10, 1871, and com- plete the same within seven months from that date ; the plaintiffs to advance $4,000 on each house to aid in its erection, and upon being paid and reimbursed the price of said lots and advances thereon, either in cash or the bonds of the defendant, secured by mortgages on the premises, then the plaintiffs agreed " to convey or cause to be conveyed " the same to the defendant, in fee by a full covenant warranty deed free from all reasonable objections and from all incumbrances, except such in- cumbrances as should be made, or caused or suffered to be made by the defendant ; the latter agreed to complete the contract and to take title within eight months. The plaintiffs also covenanted that Sarah James was seized in her own right of a good title to said premises in fee simple. It was also agreed that the plaintiffs at their election might mortgage each of said lots to the amount of $15,000, and convey the same subject to said mort- gages in lieu of purchase-money for the same amount. The court found that on the same day the contract was made plaintiffs conveyed the premises by warranty deed to Isaac B. PinduU, subject to no incumbrances whatever. Defendant never entered into possession of the premises, but refused to erect the buildings because the plaintiffs could give no valid title to the property. It appeared that some months after, but before the ex- piration of the eight months, FinduU reconveyed to Mrs. James. FinduU was a former clerk of James, and the conveyance to him was without consideration. He knew Sec. 1-B.] James v. Buechell. 689 at the time lie received the deed of the contract between the parties. MiLLEK, J. The plaintiffs, in their contract with the defendant, covenanted that Sarah James, one of them, was seized in her own right of a good title to the prem- ises in fee simple which were to be conveyed to the de- fendant ; and it was further provided, that the plaintiffs, if they so desire, could mortgage each of the lots to the amount of $15,000, On the same "day after the contract bears date, and when the parties acknowledged its exe- cution, the plaintiffs conveyed the premises by warranty deed to one FinduU, subject to no incumbrances what- ever. The question presented is, whether the plaintiffs had a right thus to impair the title, or in any other man- ner than by the mortgages provided for ; and, as this con- veyance was made to FinduU, whether the plaintiffs had not violated the covenant, and the defendant was thereby released from any liability under the contract? The plaintiffs' counsel insists that the fact that another per- son held the legal title for a portion of the intervening time, or that the defendant, prior to the time fixed for taking title, was required by independent covenants to do certain acts and things toward the performance of the contract on his part, is immaterial. We think he is in error in this respect, and, under the provisions of the contract, the transfer of the title to FinduU by. the plain- tiffs was important and material. By the contract, as will be seen by reference to the same, the defendant agreed to erect buildings upon the lots, of a certain style and quality, and of considerable value, within seven months from the date, the plaintiffs' to advance money from time to time on each of such buildings. The lots were to be conveyed by the plaintiffs by warranty deed, free from incumbrances, except such as should be caused or suffered by the defendant, who was to take title and pay for the same within eight months from date. It is 44 690 Conditions in Contkact. [Chap. II. apparent from the terms of the contract that the defend- ant must have relied to a considerable extent upon the personal responsibility of the plaintiffs. Upon the faith of an existing and perfect title in Mrs. James, he was to take possession, erect valuable buildings, and expend large amounts of money. The covenant that Mrs. James was seized and the permission given to mortgage the premises was not only an inducement for the expenditure of $60,000, to be made by the defendant, as the contract provided, but a guaranty that no other incumbrances should be placed upon the property. The covenant of seizin would be of no benefit if the plaintiffs could convey to a stranger without its violation, and compel the defendant to erect the buildings upon lands to which he might never acquire any title, and, in that event, to trust entirely to an action at law against the plaintiffs for reimbursement or indemnity. From the contract, it is evident that the intention of .the parties was that the defendant should be protected in taking possession of the premises, and in the erection of buildings thereon, and, under the circumstances of the case, that the title should remain unimpaired in Mrs. James until the con- veyance was delivered. Instead of this, on the very day the contract was acknowledged the plaintiffs conveyed the premises to FinduU, who had been a clerk of Mr. James, and who took it in trust for Mrs. James and paid no consideration for the conveyance. They thus parted with all their right and title to the lot, and subjected the defendant to the hazard of losing what might be ex- pended upon the same. As the testimony stood, we think the defendant was not bound to proceed and complete the contract after the plaintiffs had parted with their title by a conveyance to a stranger. The conveyance by the plaintiffs and the execution of the mortgages by the defendant, according to the con- tract for the price of the lots and advances, were to be Sec. l-i?.J James v. Buechell. 691 simultaneous acts. In such case the covenants are de- pendent, and there must be an existing capacity in the one who is to convey, to give a good title. This distinc- tion is stated fully by Spencer, J., in Eobb v. Montgom- ery, 20 Johns. 15. The expenditure to be made, which was very large, should not, in view of the peculiar pro- visions of the contract, be regarded as an ordinary pay- ment on account of the purchase-money, as the covenants were manifestly intended and must be considered as mutual and dependent. Judson v. Wass, 11 Johns. 525 ; Tucker v. Woods, 12 Johns. 190. We have carefully ex- amined all the cases cited to sustain the proposition con- tended for by the plaintiffs' counsel, and we think that none of them uphold the doctrine that in a case present- ing the characteristic features of the one at bar, a con- veyance to a third party is not material. Some stress is laid by the appellants' counsel upon the provision in the contract that the plaintiffs agreed " to sell and convey, or cause to be conveyed." This is not controlling ; and taking the whole contract to- gether, we think that the testimony shows that the de- fendant did not intend- to accept any other warranty than that of the plaintiffs. That FinduU knew of the contract with the defendant at the time he took the deed, and therefore he took it subject to the rights of the defend- ant and could have been compelled to convey, is not im- portant, for, as we have seen, the defendant lost the benefit of the plaintiffs' responsibility by the transfer of the title without any consideration whatever to a per- son of at least doubtful responsibility, and thus was not sufficiently protected in making . the large expenditure required for the building of the houses. The defendant had a right to rely upon the responsibility of the plain- tiffs under the contract, and the want of it may well have prevented the defendant from taking possession and 692 Conditions in Conteact. [Chap. II. from erecting the buildings as was intended. The subse- quent reconveyance by FinduU to Sarah James could have no effect in restoring the defendant's rights which were affected by the conveyance to FinduU. The convey- ance from FinduU to the plaintiffs was not made until some months after the conveyance by the plaintiffs to him, and was recorded even long after that, and it is not proved to have been brought to the knowledge of the de- fendant. The defendant, with knowledge of the want of title in the plaintiffs, was not, under the covenants in the contract, bound to take possession and proceed with the erection of the buildings. The question whether the deed to FinduU was made and delivered before or after the making and delivery of the contract is not vital, as in either contingency the plaintiffs had broken the covenant of seizin, and as the covenants were dependent and- mutual, the defendant was under no obligation to proceed and erect the build- ings and fulfill the terms of the contract. In view of the covenants which have been considered, the contract was at an end when the conveyance was made to FinduU. The finding of the judge, that the contract was executed and delivered upon. January 11, 1871, being the time of its acknowledgment instead of the day of its date, is therefore not material, and even if erroneous, cannot affect the result. For the same reason, the refusal to find that the deed was delivered after the date of the contract, was not erroneous. There was no error in re- fusing to send the case back for further findings, or in any of the refusals to find, or in any other respect. The judgment' should be affirmed. All concur except Folger, C.J., and Eapallo, J., not voting, and Finch, J., absent at argument. Judgment affirmed. Sec. 1-B.] Bkusie v. Peck Bros. & Co. 693 Bbtjsie v. Peck Beos. & Co. 14 UNITED STATES APPEALS, 21 — 1893. Action at law to recover the amount of royalties alleged to be due for the manufacture of sprinklers. Judgment for defendant. Plaiatiff brings error. Plaintiff granted defendant the exclusive right to manufacture and sell a lawn sprinkler patented by plain- tiff, the defendant agreeing to pay plaintiff a royalty of two dollars for each sprinkler, and not to sell them for less than fifteen dollars, except by joint agreement, and to manufacture sprinklers for plaintiff at a profit of twenty-five per cent on the cost, which plaintiff might sell in competition with defendant. Differences arising be- tween the parties, plaintiff forbade defendant to manu- facture the sprinklers and himself began to manufacture and sell them. The court charged that if the plaintiff, without any justification arising from the previous conduct of the de- fendant, entered upon the market as a competitor with it in making and selling the sprinklers, he was not en- titled to recover, and submitted to the jury whether plain- tiff violated the contract without justification arising from defendant's nonperformance. Shipman, C.J.^ This part of the case depends upon the question whether the respective undertakings of the two parties to the contract shall be construed to be inde- pendent, so that a breach by one party is not an excuse for a breach by the other, and either party may recover damages for the injury he has sustained, or are depend- ent so that a breach by one relieves the other from the duty of performance, Kingston v. Preston, Doug. 689. " Where the agreements go to the whole of the consideration on both sides, the promises are dependent, and one of them is a condition pre- 1 A portion of the opinion omitted. 694 Conditions in Contbact. [Chap. II. cedent to the other. If the agreements go to a part only of the con- sideration on both sides, and a breach may be paid for in damages, the promises are so far independent." 2 Parsons on Contracts (8th e.d), 792. By the contract whicli is the foundation of this suit Brusie. granted to the defendant the sole and exclusive right to manufacture the patented sprinkler, and the sole right to sell, except that Brusie could sell sprinklers manufactured by the defendant, paying it twenty-five per cent profit upon the cost of such manufacture. The defendant promised to manufacture sprinklers of good material, to use its best endeavors to introduce the same, to pay a royalty of two dollars upon each machine sold, and not to sell below fifteen dollars, unless the price was changed by joint agreement. Brusie having manu- factured and sold at reduced prices, calls upon the de- fendant to pay a royalty of two dollars upon every machine which it sold, and to recover damages for his own violation of the contract in a separate action. The contention of the plaintiff would have weight, if Brusie 's fulfilment of his part of the contract had not been vital to the ability of the defendant to fulfill any part of its contract. The plaintiff bound the defendant not to sell at a price less than fifteen dollars, unless the price should be changed by joint agreement. He thereby impliedly promised that the price imposed upon the de- fendant should be maintained, unless altered by joint consent. The defendant's ability to pay the royalty de- pended upon Brusie 's abstinence from competition at reduced prices. He could not become, as he did, the de- fendant's active competitor, lower prices without con- sent, and still compel the defendant to sell at not less than fifteen dollars, and pay a royalty of two dollars per machine. This breach by Brusie of his undertakings, when found to be unjustifiable by reason of any previous Sec. 1-B.] Laied v. Pim. 695 conduct of the defendant, relieved it from the obligation which it had assumed. There was no error in the charge, and the judgment of the circuit is Affirmed. Laikd v. Pim. 7 mbbson & welsby, 474 — 1841. Assumpsit. The first count of the declaration stated, that on the 6th day of April, 1836, in consideration that the plaintiff, at the request of the defendants, would sell them a lot or parcel of land, situated between Bidston road and Cleveland street, in the county of Chester, at the price or rate of 7s. 6d. by the square yard, to be paid as soon as the conveyance thereof should be completed, with interest thenceforth on such purchase-money at the rate of £5 per cent by the year until paid, the defendants to have the liberty of making bricks and erecting steam engines on such lot or parcel of land, the defendants promised the plaintiff to purchase the said lot or parcel of land of the plaintiff, and to pay him for the same at the rate or price and on the terms aforesaid. And the plaintiff says that although the plaintiff, relying on the said promise of the defendants, did, within a short and reasonable time from the making of the said promise, to wit, on the day and year aforesaid, allow and permit the defendants to enter into and take possession of the said lot or parcel of land, and the defendants did, to wit, then, take such possession thereof, and have continued in such possession for a long time, to wit, hitherto ; and although the plaintiff, from the time of making the said promise to the commencement of this suit, has performed and fulfilled every thing on his part to be performed and ful- filled, and has always been ready and willing to make appear to the defendants a good and sufficient title in, 696 Conditions in Contbact. [Chap, IL and right and power to convey, the said lot or parcel of land in fee simple, together with the liberty aforesaid, and to execute and complete a convey?.nce thereof in fee- simple to the defendants, together with the liberty afore- said; and after the expiration of a reasonable, time and before the commencement of this suit, to wit, dn the 28th of October, 1837, offered the defendants to execute and complete a conveyance thereof, together with the liberty aforesaid, to the defendants, and would then have ten- dered to the "defendants a draft of a proper conveyance, and also a proper conveyance for the purpose aforesaid, but that the defendants then discharged the plaintiff from so doing ; of all which the defendants, from the time of making the said promise, have had notice : yet the de- fendants did not regard their said promise, and did not nor would pay the plaintiff the said purchase-money for the said lot or parcel of land, together with the said liberty, or any part thereof, at or after the expiration of the said reasonable time as aforesaid, or at any other time, but have wholly neglected and refused so to do; and the plaintiff has been and is wholly deprived of the said purchase-money, amounting to a large sum, to wit, £4,125, together with interest thereon, to which he ought and otherwise would have been entitled as aforesaid. There were also counts for use and occupation, goods sold and delivered, and upon an account stated. The defendants pleaded nonassumpserunt, and several special pleas, of which the sixth plea (to the first count) was, that no conveyance of the said lot or parcel of land or any part thereof has ever been made or executed or completed to them the defendants or either of them, or to any person on their behalf, or in any manner whatso- ever. Verification. The plaintiff took issue on all the pleas except the above, to which he demurred generally, and the defend- ants joined in demurrer. The point stated for argument by the plaintiff was as follows: The plaintiff contends Sec. 1-B.] Lmrd v. Pim. 697 that the execution of a conveyance was not a condition precedent to his maintaining this action, and that if it were, it has been waived, and that consequently the plea demurred to is bad. The defendants' points were as follows : The defendants wUl contend that the plea is a sufficient answer to the first count of the declaration, and they will also contend that the first count is insufficient, inasmuch as it shows no sufficient breach of the contract stated in that count; and also that the statement in the declaration, that the plaintiff offered to execute a con- veyance, and would have tendered one, but that the de- fendants dispensed with it, is no sufficient ground for alleging as a breach that the defendants did not pay the purchase-money ; and that upon the promise stated in the first count, the nonpayment of the purchase-money is no breach of contract as alleged in that count ; and that the breach alleged in the first count and the claim to damages as therein stated are not warranted by the premises or allegations in that count. The cause came on for trial upon the issues in fact be- fore Rolfe, B., at the last Liverpool Assizes, when it appeared that the defendants (who were directors of a conipany called the Saw-Mills and Timber Company, for which the purchase was made) had been put into pos- session of the land under the agreement, and had taken therefrom and sold a quantity of brick clay. They subse- quently refused altogether to complete the purchase, upon which the plaintiff brought this action for the re- covery of the purchase-money, and for the value of the clay so taken and sold. It was contended for the plain- tiff at the trial that the amount of the purchase-money agreed on, with interest, was the proper measure of dam- ages on the first count. For the defendants it was in- sisted, that the plaintiff could not be entitled to recover the purchase-money, as the land had never been con- veyed, and the plaintiff still remained the owner of it as 698 Conditions in Contract. [Chap. II. before the agreement for sale to the defendants. The learned judge was of opinion that the plaintiff could not recover the whole purchase-money, but was entitled on the first count to such damages only as had resulted from defendants' breach of their contract; and a verdict was accordingly taken for the plaintiff for £750, made up as follows : £680 for interest on the purchase-money up to the commencement of the action, and £70 for the value of the brick clay. In last Michaelmas Term (Nov. 3d). Cresswell moved, pursuant to leave reserved by the learned judge, for a rule to show cause why the damages should not be increased by the sum of £4,125, the amount of the purchase-money. The plaintiff is entitled to re- cover the full amount of the purchase-money. This is a contract for a specific plot of land, to which the plaintiff has shown a good title, and which he has offered to con- vey to the defendants in pursuance of the contract. He has a right to consider them as the owners, and to insist on payment of the price. Sir E. Sugden appears to consider that a vendor may recover the purchase-money without having executed a conveyance, where the pur- chaser has discharged him from so doing. [Alderson, B. It is like the case of goods bargained and sold, and an action brought for not accepting them, in which case the damages sustained by the breach of contract can alone be recovered.] There the plaintiff treats the goods as stUl his own. [Parke, B. So here, the land is still yours at law; you might bring ejectment for it immediately after this verdict.] In Hawkins v. Kemp, which was an action by the vendors of an estate against the vendee, who had refused to prepare any conveyance as required by the conditions of sale, or to pay the remainder of the purchase-money beyond the deposit, a verdict was given for the whole residue of the purchase-money. The de- fendants may afterward go into equity to compel a con- veyance. Sec. 1-B.] Laikd v. Pim. 699 Parke, B. The measure of damages, in an action of this nature, is the injury sustained by the plaintiff by reason of the defendants not having performed their con- tract. The question is. How much worse off is the plain- tiff by the diminution in the value of the land, or the loss of the purchase-money, in consequence of the nonper- formance of the contract? It is clear he cannot have the land and its value too. A party cannot recover the full value of a chattel, unless under circumstances which im- port that the property has passed to the defendant, as in the case of goods sold and delivered, where they have been absolutely parted with and cannot be sold again. The direction of my brother Eolfe, therefore, was quite correct. Aldeeson, B., Gubney, B., and Eolfe, B., concurred. Rule refused. The demurrer was now argued by Cowling, for the plaintiff. The execution of a convey- ance is not a condition precedent to the plaintiff's recov- ering in this action ; and if it were, it has been waived by the defendants. The plea is clearly bad. It states no more than is admitted on the face of the declaration; it amounts in effect only to a demurrer to the first count. But it will be argued that that count is bad. It is sub- mitted, however, that although it may be somewhat more diffuse than was necessary, it is good. It states the con- tract, the possession taken by the defendants, the plain- tiff's readiness to execute a conveyance, the expiration of a reasonable time, and that the plaintiff offered to execute a conveyance, and would have tendered a proper conveyance, but that the defendants discharged him from so doing. There is nothing to take this case out of the ordinary rule, that the purchaser is bound to prepare the conveyance; but nevertheless the plaintiff has offered a conveyance here, but the defendants have dispehsed with it. That condition precedent, if it be one, has therefore 700 Conditions in Conteact. [Chap. II. been waived. Then it is said the plaintiff is not entitled to recover the whole purchase-money; but the declara- tion does not seek to do so; the breach is only for the damages sustained by the nonperformance of the con- tract. But even if the declaration were wrong in seeking to recover the whole purchase-money, that would be no bar to the action; but the defendants undertake by this plea to say something in bar of the whole action. [He was then stopped by the court.] Wightman, for the defendants. The first count of the declaration is bad. The breach alleged does not properly follow from the premises stated. The count alleges that, in consideration that the plaintiff, at the request of the defendants, would sell them a lot or parcel of land, etc., at the price of 7s. 6d. the square yard, to be paid as soon as the conveyance thereof should be completed, etc., the defendants promised the plaintiff to purchase the land of him, and to pay him for the same at the rate or price and on the terms aforesaid; and the breach assigned is that the defendants did not regard their promise, and did not nor would pay the plaintiff the said purchase-money, etc. There is no good breach, therefore, unless the de- fendants were bound under the circumstances to pay the purchase-money ; if they were not, it is a bad breach, and the plaintiff cannot recover in respect of it. The rule as to dependent covenants is thus laid down in the notes to the case of Pordage v. Cole : " It is justly observed that covenants, &c., are to be construed to be dependent or independent of each other, according to the intention and meaning of the' parties, and the good sense of the case ; and technical words should give way to such intention." The following rules are then enunciated: 1. " If a day be appointed for payment of money or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money or other act is to be performed, an action may be brought for the money, or for not doing such other act, before performance; for it appears that the Sec. 1-B.] Laibd v. Pim. 701 party relied upon his remedy, and did not intend to make the per- formance a condition precedent; and so it is where no time is fixed for performance of th^t which is the consideration of the money or other act." A vendor, therefore, may declare for nonpayment of the purchase-money on a certain day, although no convey- ance has been executed. 2. "But, when a day is appointed for the payment of money, &c., and the day is to happen after the thing which is the consideration of the money, &c., is to be performed, no action can be maintained for the money, &e., before performance." The present case falls within the latter rule. It does not appear here that if the plaintiff were to recover the pur- chase-money, the defendants would have any remedy against him for the land; they only stipulate to pay as soon as the conveyance shall be completed. [Parke, B. The conveyance and the payment are to be contempora- neous acts.] A tender of the conveyance is not sufficient; it must be executed before payment can be enforced. So, " if two men should agree, one that the other should have his horse, the other that he will pay 101. for him, no action lies for the money till the horse be delivered." Thorpe v. Thorpe. [Parke, B., referred to Knight v. Keech.] It does not appear here that there were any mutual remedies, or, if there were, that the defendants intended to rely upon them ; they stipulated to pay their money only when the purchase was completed; and al- though they may have subjected themselves to an action for damages, they are not liable to this action until after the execution of the conveyance. The plaintiff has there- fore mistaken his remedy ; he should have declared merely for damages for the noncompletion of the contract, whereas here his only breach is the nonpayment of the purchase-money, which, on this statement, he is not entitled to: Warn v. Bickford, Phillips v. Fielding. The court then called on 702 Conditions in Contkact. [Chap. IL Cowling to proceed with his argument. In the first place, the count does not claim to recover the whole pur- chase-money. The breach, it is true, states that the de- fendants did not nor would pay the plaintiff the said purchase-money or any part thereof, and that the plain- tiff has been and is wholly deprived of it. But it would have been sufficient if it had alleged merely that the de- fendants did not regard their said promise, and then con- cluded to the damage of the plaintiff, etc. The special damage alleged cannot be traversed or demurred to, and the plaintiff may always recover for the damage prop- erly alleged. Under that form of breach the plaintiff might have recovered all that he has actually recovered in this action; and upon this demurrer (the plea being to the whole count), the only question is whether the plain- tiff is entitled to recover any thing. Jones v. Barkley is an express authority for the plaintiff. * * * Glaze- brook V. Woodrow, Goodisson v. Nunn, and Martin v. Smith, are authorities to the same effect. [Parke, B. Your argument is, that nothing remains to be done which is beneficial to the plaintiff, but the payment of the money.] Yes: the plaintiff has perhaps even done more than was necessary. In Glazebrook v. Woodrow, Le Blanc, J., says : " The payment is the consideration for the conveyance, and cannot be enforced till that be made, or at least offered to be made, by the plaintiff." Here more than that is shown to have been done. WigMman. Unless the defendants are bound to pay the purchase-money, no damages can be recovered for the nonpayment of it : the plaintiff therefore must show, not only that the defendants did not pay, but also that they were bound to pay. The cases cited oh the other side are distinguishable, and fall within the first rule cited from the note to Pordage v. Cole. In all of them the conveyance was to be executed, and payment to be made. Sec. 1-B.] Laird v. Pim. 703 on a certain day ; and when the plaintiff had done all that it was incumbent upon him to do on that day, the nonpay- ment was a breach of contract on the part of the defend- ant. But here the time for payment has not yet arrived. [Parke, B. In Jones v. Barkley the payment depended on the previous act of assignment, as here of convey- ance.] There was in that case a fixed day appointed; the defendant was not bound to pay until that day, al- though all the conditions precedent had been performed by the plaintiffs; but, on the other hand, he was bound to pay on that day, unless he could show good cause to the contrary. [Loed Abingek, C.B. The day was mate- rial until the four months had elapsed, but not after- ward. Paeke, B. After .the expiration of the four months, Jones v. Barcley became identical with the pres- ent case; the money was then to be paid simply on the execution of the assignment. Lord Mansfield says: " The question is, whether there was a sufficient performance. The party must show he was ready ; but if the other stops him on the ground of an intention not to perform his part, it is not necessary for the first to go farther, and do a nugatory act."] But here the money is not to be paid until after the completion of the conveyance. True, it is by the de- fendants' default that it is not completed, and they may be liable in damages for that default, but not for non- payment of the money, until the time for payment of it has actually arrived. The case falls entirely within the rule laid down by Lord Holt in Thorpe v. Thorpe. Then, as to the breach, it is clear that it must be taken to be contained in the express allegation that the defendants did not pay the purchase-money after a reasonable time. Suppose the court held that on this declaration the plain- tiff might recover the whole purchase-money, what counter remedy have the defendants? Mutual promises are not even alleged. [Loed Abinger, C.B. It is cer- tainly informal; but does it not amount in substance to 704 Conditions in Contkagt. [Chap. II. a complaint against the defendants for not completing the purchase?] Assuming it to be so, still that does not entitle the plaintiff to recover the purchase-money; but the non-completion of the purchase is not assigned as a breach, but is stated before the allegation of the breach. Lord Abingee, C.B. I think that the breach is in- formally alleged, and that the words, " that the defend- ants did not regard their said promise " are not suffi- cient to constitute a good breach, so as to cure the defect ; but the objection, as it arises on general demurrer, cannot prevail. "With regard to the averment of the plaintiff's being ready and willing, and having offered to execute the conveyance, the case of Jones v. Barkley appears to be an express authority, and must govern the present case. The averment is, that the plaintiff offered to execute a conveyance, and would have tendered a proper conveyance, but that the defendants discharged him from so doing. That, coupled with the other allega- tions in the declaration, is substantially the same as if it had been averred that the defendants had refused to execute a conveyance actually tendered to them. Our judgment must, therefore, be for the plaintiff. Paeke, B. I have had considerable doubt on this case in the course of the argumqnt, but I have at length arrivedat the same conclusion as that stated by my lord. This declaration is certainly informally drawn, but I think it is sufficient on general demurrer, upon the prin- ciple laid down in Jones v. Barkley. Upon the facts alleged in this declaration the plaintiff is substantially in the same situation, for the purpose of recovering the money, as if all had been done on his part which he engaged to do. It does not follow that he shall recover the whole purchase-money, but he is in the same situa- tion for the purpose of recovering damages for the non- payment of the price, as if all had been done by him. The Sec. 1-B.] Bettini v. Gye. 705 distinction wMcli it lias been attempted to draw between this case and Jones v. Barkley is no distinction at all; it proceeds altogether on the ground that there two contemporaneous acts were to be done on a particular day; but the case is just the same whether two con- temporaneous acts are to be done at an indefinite time or on a special day. The only distinction is, that in that case one pimple act was to be done by the plaintiffs, which the defendant discharged them from doing; here, what the plaintiff has to do is somewhat more compli- cated; first, he is to make a good title, then the defend- ants are to prepare the conveyance, and the plaintiff to execute it; and the defendants having discharged him from doing that, it is the same as if it had been done. According to Jones v. Barkley, therefore, the plaintiff is in the same situation as if he had performed all his part of the agreement; that is, as if he had perfected a conveyance. That is the conclusion to which I have at length arrived, and to which, perhaps, I should not have come but for the case of Jones v. Barkley. This is all on general demurrer. Had the question arisen on special demurrer, I doubt whether I should have come to the same conclusion. Gueney, B., and Eolfe, B., concurred. Judgment for the plaintiff. Bettini v. Gye. law. reports, 1 queen's bench division, 183 — 1876. Third count, that the defendant was and is the director of the Eoyal Italian Opera in London, and the plaintiff was and is a dramatic artist and professional singer, and thereupon it was agreed by and between the plain- tiff and the defendant in parts beyond the seas, to wit, 46 706 Conditions in Contbact. [Chap. IL at Milan, in Italy, by an agreement in writing in the French language, of which the translation is as follows : " Royal Itauan Opera, " Covenant Garden, London. « Year 1875. " The undersigned, Mr. Frederick Gye, gentleman, and director of the Royal Italian Opera in London, of the one part, and Mr. Bettini, dramatic artist, on the other part, have agreed as follows: " 1. Mr. Bettini undertakes to fill the part of primo tenor assoluto in the theatres, halls, and drawing-rooms, both public and private, in Great Britain and in Ireland during the period of his engagement with Mr. Gye. " 2. This engagement shall begin on the 30th of March, 1875 and shall terminate on the 13th of July, 1875. " 3. The salary of Mr. Bettini shall be £150 per month, to be paid monthly. '' 4. Mr. Bettini shall sing in concerts as well as in operas, but he shall not sing anywhere out of the theatre in the United Kingdom of Great Britain and Ireland from the 1st of January to the 31st of De- cember, 1875, without the written permission of Mr. Gye, except at a distance of more than fifty miles from London, and out of the season of the theatre. " 5. Mr. Gye shall furnish the costumes to Mr. Bettini for his char- acters according to the ordinary usage of theatres. " 6. Mr. Bettini will conform to the ordinary rules of the theatre in case of sickness, fire, rehearsals, etc. " 7. Mr. Bettini agrees to be in London without fail at least six days before the commencement of his engagement, for the purpose of re- hearsals. " 8. In case Mr. Gye shall require the services of Mr. Bettini at a distance of more than ten miles' from London, he shall pay his travel- ling expenses. " 9. Mr. Bettini shall not be obliged to sing more than four times a week in opera. Mr. Bettini, in order to assist the direction of Mr. Gye, will sing, upon the request of Mr. Gye, in the same characters in which he has already sung, and in other characters of equal position. In case of the sickness of other artists, Mr. Bettini agrees to replace them in their characters of first tenor assoluto. " 10. Mr. Gye shall have the right to prolong the period liniited above upon the same conditions, provided that the period does not go beyond the end of the month of August. """r. Gye, "Milan, 14 Dec, 1874." Sec. 1-B.] Bettini v. Gye. 707 That the plaintiff did not sing anywhere out of the said theatre in the United Kingdom of Great Britain and Ireland, from January 1, 1875, to the date of the conxmencement of this action, without the written per- mission of the defendant, except at a distance of more than fifty miles from London, and out of the season of the said theatre. That the plaintiff was prevented by temporary illness from being in London before March 28, 1875, but he did arrive in London on that day; and save as aforesaid, the plaintiff has always performed his said agreement, and was and is ready and willing to perform his part of the said agreement, of all which, the defendant had notice, and all things were done and happened, and all conditions were fulfilled and all timesr elapsed necessary to entitle the plaintiff to a perform- ance by the defendant of the said agreement, and to maintain this action. Yet the defendant did not nor would receive the plaintiff into his said service, but wholly refused so to do, and wrongfully exonerated and discharged the plaintiff from his said agreement, and from the performance of the said agreement on the plaintiff's part, and wrongfully put an end to and de- termined the said agreement, whereby the plaintiff was damnified. The defendant pleaded, ninthly, to the third county that the plaintiff was not in London six days before the commencement of the said engagement for the purpose of rehearsals, nor had the defendant notice before the said six days of the plaintiff's inability to be in London^ or that he would not be in London six days before the commencement of his said engagement for the purpose of rehearsals, nor was the plaintiff ready and willing ta attend such rehearsals, although it was necessary for him to do so, wherefore the defendant did not nor would receive the plaintiff into his service in the capacity and 708 Conditions in Contract. [Chap. IL on the terms aforesaid, which is the breach com- plained of. Demurrer to the ninth plea, and joinder. The judgment of the court (Blackburn, Quain, and Archibald, JJ.) was delivered by Blackburn, J. In this case the parties have entered into an agreement in writing, which is set out on the record. The court must ascertain the intention of the parties, as is said by Parke, B., in delivering the judgment of the court in Graves v. Legg, "to be collected from the instrument and the circmnstauces legally admissable in evidence with reference to which it is to be construed." He adds: " One particular rule well acknowledged is, that where a covenant or agreement goes to part of the consideration on both sides, and may be compensated in damages, it is an independent covenant or contract." There was no averment of any special circumstances existing in this case, with reference to which the agree- ment was made, but the court must look at the general nature of such an engagement. By the seventh para- graph of the agreement, " Mr. Bettini agrees to be in London without fail at least six days before the commencement of his engagement for the purpose of re- hearsals." The engagement was to begin on March 30, 1875. It is admitted on the record that the plaintiff did not arrive in London tUl March 28, which is less than six days before the 30th, and, therefore, it is clear that he has not fulfilled this part of the contract. The question raised by the demurrer is, not whether the plaintiff has any excuse for failing to fulfill this part of his contract, which may prevent his being liable in damages for not doing so but whether his failure to do so justified the defendant in refusing to proceed with Sec. 1-B.] Bettiki v. Gye. 709 the engagement, and fulfill his, the defendant's part. And the answer to that question depends on whether this part of the contract is a condition precedent to the de- fendant's liability, or only an independent agreement, a breach of which will not justify a repudiation of the contract, but will only be a cause of action for a compensation in damages. This is a question which has very often been raised, and the numerous cases on the subject are collected in the first volume of Sir E. V. Williams's Notes to Saun- ders, p. 554, in the notes to Pordage v. Cole, and in the second volume, p. 742, notes to Peeters v. Opie. We think the answer to this question depends on the true construction of the contract taken as a whole. Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfillment of such a thing a condition precedent, it will be one ; or they may . think that the performance of some matter apparently of essential importance and prima facie a condition precedent, is not really vital, and may be compensated for in damages, and if they sufficiently expressed such an intention, it will not be a condition precedent. In this case, if to the seventh paragraph of the agree- ment there had been added words to this effect, "And if Mr. Bettini is not there at the stipulated time Mr. Gye may refuse to proceed further with the engreement;" or if, on the other hand it has been said, "Arid if not there, Mr. Gye may postpone the commencement of Mr. Bettini's engagement for as many days as Mr. Bettini makes default, and he shaU. forfeit twice his salary for that time," there could have been no question raised in the case. But there is no such declaration of the intention of the parties either way. And in the absence of such an express declaration, we think that we are to look to the whole contract, and applying the rule stated by 710 Conditions in Contract. [Chap. II. Parke, B., to be acknowledged, see whether the particu- lar stipulation goes to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different in substance from what the defendant has stipulated for ; or whether it merely partially affects it and may be compensated for in damages. Accordingly, as it is one or the other, we think it must be taken to be or not to be intended to be a condition precedent. If the plaintiff's engagement had been only to sing in operas at the theatre, it might very well be that previous attendance at rehearsals with the actors in company with whom he was to perfom was essential. And if the en- gagement had been only for a few performances, or for a short time, it would afford a strong argument that attendance for the purpose of rehearsals during the six days immediately before the commencement of the en- gagement was a vital part of the agreement. But we find, on looking to the agreement, that the plaintiff was to sing in theatres, halls, and drawing-rooms, both public and private, from the 30th of March, to the 13th of July, 1875, and that he was to sing in concerts as well as in operas, and was not to sing anywhere out of the theatre in Great Britain or Ireland from the 1st of January to the 31st of December, 1875, without the written per- mission of the defendant, except at a distance of more than fifty miles from London. The plaintiff, therefore, has, in consequence of this agreement, been deprived of the power of earning any- thing in London from the 1st of January to the 30th of March; and though the defendant has, perhaps, not re- ceived any benefit from this, so as to preclude him from any longer treating as a condition precedent what had originally been one, we think this at least affords a strong argument for saying that subsequent stipulations Sec. 1--B.] Poussaed v. Spiers. 711 are not intended to be conditions precedent, unless the nature of the thing strongly shows they must be so. And as far as we can see, the failure to attend at rehearsals during the six days immediately before the 30th of March could only affect the theatrical perform- ances and, perhaps, the singing in duets or concerted pieces during the first week or fortnight of this engage- ment, which is to sing in theatres, halls, and drawing- rooms, and concerts for fifteen weeks. We think, therefore, that it does not go io the root of the matters so as to require us to consider it a condition precedent. The defendant must, therefore, we think, seek redress by a cross-claim for damages. Judgment must be given for the plaintiff. Judgment for the plaintiff. POUSSAKD V. SpIEBS. LAW REPORTS, 1 QUEEN'S BENCH DIVISION, 410—1876. Declaeation on an agreement by the defendants to employ the plaintiff's wife to sing and play in an opera at the defendants' theatre. Breach, that the defendants refused to allow the plaintiff's wife to perform accord- ing to the agreement. Pleas: 1. That defendants did not agree as alleged. 2. That plaintiff's wife was not ready and willing to perform. 3. That plaintiff rescinded the contract before breach. Issue joined. At the trial before Field, J., at the Middlesex Michael- mas sittings, 1875, judgment was entered for the defend- ants, with leave to move to enter judgment for the plaintiff for £83. A notice of motion was given accordingly, and a cross order was obtained by the defendants for a new trial. 712 Conditions in Conteact. [Chap. II. on the ground that the verdict was against the weight of evidence, and that the damages were excessive. The facts proved and the course of the trial are fully given in the judgment of the court. The judgment of the court (Blackburn, Quain, and Field, JJ.) was delivered by Blackburn, J. This was an action for the dismissal of the plaintiff's wife from a theatrical engagement. On the trial before my Brother Field it appeared that the defendants, Messrs. Spiers & Pond, had taken the Criterion Theatre, and were about to bring out a French opera, which was to be produced simultaneously in London and Paris. Their manager, Mr. Hingston, by their authority, made a contract with the plaintiff's wife, which was reduced to writing in the following letter : " Criterion Theatre^ October 16, 1874. " To Madame Poussard: " On behalf of Messrs. Spiers & Pond I engage you to sing and play at the Criterion Theatre on the following terms: " You to play the part of Friquette in Leeocq's opera of ' Les Pres Saint Gervais,' commencing on or about the fourteenth of November next, at a weekly salary of eleven pounds (11^), and to continue on at that sum for a period of three months, providing the opera shall run for that period. Then at the expiration of the said three months, I shall be at liberty to re-engage you at my option, on terms then to be arranged, and not to exceed fourteen pounds per week for another period of three months. Dresses and tights requisite for the part to be provided by the management, and the engagement to be subject to the ordinary rules and reg:ulations of the theatre. "Ratified: E. P. Kingston, Manager. " Spiers & Pond. "Madame Poussard, 46 Gunter Grove, Chelsea." The first performance of the piece was announced for Saturday, 28th of November. No objection was raised on either side as to this delay, and Madame Poussard at- tended rehearsals, and such attendance, though not expressed in the written engagement, was an implied part of it. Owing to delays on the part of the composer, the Sec. 1-B.] Poussaed v. Spiees. 713 music of the latter part of the piece was not in the hands of the defendants till a few days before that announced for the production of the piece, and the latter and final rehearsals did not take place till the week on the Satur- day of which the performance was announced. Madame Poussard was unfortunately taken ill, and though she struggled to attend the rehearsals, she was obliged on Monday, November 23d, to leave the rehearsal, go home* and go to bed, and call in medical attendance. In the course of the next day or two an interview took place ^between the plaintiff and Mr. Leonard (Madame Pous- sard 's medical attendant) and Mrs. Listen, who was the defendant's stage manager, in reference fb Madame Poussard 's ability to attend and to undertake her part, and there was a conflict of testimony as to what took place. According to the defendants ' version, Mrs. Liston requested to know as soon as possible what was the pros- pect of Madame Poussard 's recovery, as it would be very difficult on such short notice to obtain a substitute ; and that in the result the plaintiff wrote stating that his wife's health was such that she could not play on the Saturday night, and that Mrs. Liston had better, there- fore, engage a young lady to play the part; and this, if believed to be accurate, amounted to a rescission of the contract. According to the evidence of the plaintiff and the doctor, Mrs. Liston told them that Madame Poussard was to take care of herself and not to come out till quite well, as she, Mrs. Liston, had procured, or would procure, a temporary substitute; and Madame Poussard could resume her place as soon as she was well. This, it was contended by the plaintiff, amounted to a waiver by the defendants of a breach of the condition precedent if there was one. The jury found that the plaintiff did not rescind the contract, and that Mrs. Liston, if she did waive the con- dition precedent (as to which they were not agreed), had no authority from the defendants so to do. 714 Conditions in Contract. [Chap. II. These findings, if they stand, dispose of those two questions. There was no substantial conflict as to what was in fact done by Mrs. Listen. Upon learning, on the Wednesday (the 25th of November), the possibility that Madame Poussard might be prevented by illness from fulfilling her engagement, she sent to a theatrical agent to inquire what artists of position were disengaged, and 'learning that Miss Lewis had no engagement till the 25th of December, she made a provisional arrangement with her, by which Miss Lewis undertook to study the part and be ready on Saturday to take the part, in case Madame Poussard was not then recovered so far as to be ready t© perform. If it should turn out that this labor was thrown away. Miss Lewis was to have a douceur for her trouble. If Miss Lewis was called on to perform, she was to be engaged at £15 a week up to the 25th of December, if the piece ran so long. Madame Poussard eontiued in bed and ill, and unable to attend either the subsequent rehearsals or the first night of the perform- ance on the Saturday, and Miss Lewis's engagement became absolute, and she performed the part on Satur- day, Monday, Tuesday, Wednesday, and up to the close of her engagement, the 25th of December. The piece proved a success, and in fact ran for more than three months. On Thursday, the 4th of December, Madame Poussard, having recovered, offered to take her place, but was refused, and for this refusal the action was brought. On the 2d of January Madame Poussard left England. My Brother Field, at the trial, expressed his opinion that the failure of Madame Poussard to be ready to perform, under the circumstances, went so much to the root of the consideration as to discharge the defendants, and that he should, therefore, enter judgment for the defendants ; but he asked the jury five questions. The first three related to the supposed rescission and waiver. The other questions were in writing and were: Sec. 1-5. J PoussAED v. Spiees. 715 4. Whether the nonattendance on the night of the open- ing was of such material consequence to the defendants as to entitle them to rescind the contract? To which the jury said " No." And 5, was it of such consequence as to render it reasonable for the defendants to employ another artiste, and whether the engagement of Miss Lewis, as made, was reasonable ; to which the jury said, " Yes. ' ' Lastly, he left the question of damages, which the jury assessed at £83. On these answers he reserved leave to the plaintiff to move to enter judgment for £83. A cross rule was obtained on the ground that the verdict was against the evidence and that the damages were excessive. We think that, from the nature of the engagement to take a leading, and, indeed, the principal female part (for the prinia donna sang her part in male costume as the Prince de Conti) in a new opera which (as appears from the terms of the engagement) it was known might run for a longer or shorter time, and so be a profitable or losing concern to the defendants, we can, without the aid of the jury, see that it must have been of great importance to the defendants that the piece should start well, and consequently that the failure of the plaintiff's wife to be able to perform on the opening and early performances was a very serious detriment to them. This inability having been occasioned by sickness was not any breach of contract by the plaintiff, and no action can lie against him for the failure thus occasioned. But the damage to the defendants and the consequent failure of consideration is just as great as if it had been occa- sioned by the plaintiff's fault, instead of by his wife's misfortune. The analogy is complete between this case and that of a charter-party in the ordinary terms, where the ship is to proceed in ballast (the act of God, etc. excepted) to a port and there load a cargo. If the delay 716 Conditions in Contract. [Chap. II. is occasioned by excepted perils, the shipowner is ex- cused. But if it is so great as to go to the root of the matter, it frees the charterer from his obligation to fur- nish a cargo. See per Bramwell, B., delivering the judg- ment of the majority of the Court of Exchequer Chamber in Jackson v. Union Marine Insurance Co. And we think that the question, whether the failure of a skilled and capable artiste to perform in a new piece through serious illness is. so important as to go to the root of the consideration, must to some extent depend on the evidence; and is a mixed question of law and fact. Theoretically, the facts should be left to and found separately by the jury, it being for the judge or the court to say whether they, being so found, show a breach of a condition precedent or not. But this course is often (if not generally) impracticable; and if we can see that the .proper facts have been found, we should act on these without regard to the form of the questions. Now, in the present case, we must consider what were the courses open to the defendants under the circum- stances. They might, it was said on the argument before us (though. not on the trial), have postponed the bring- ing out of the piece till the recovery of Madame Pous- sard, and if her illness had been a temporary hoarse- ness incapacitating her from singing on the Saturday, but sure to be removed by the Monday, that might have been a proper course to pursue. But the illness here was a serious one, of uncertain duration, and if the plaintiff had at the trial suggested that this was the proper course, it would, no doubt, have been shown that it would have been a ruinous course ; and that it would have been much better to have abandoned the piece altogether than to have postponed it from day to day for an uncertain time, during which the theatre would have been a heavy loss. Sec. 2.] Elliott v. Blake. 717 The remaining alternatives were to employ a tem- porary substitute until sucli time as the plaintiff's wife should recover; and if a temporary substitute capable of performing the part adequately could have been obtained upon such a precarious engagement on any reasonable terms, that would have been a right course to pursue; but if no substitute capable of performing the part adequately could be obtained, except on the terms that she should be permanently engaged at higher pay than the plaintiff's wife, in our opinion it follows, as a matter of law, that the failure on the plaintiff's part went to the root of the matter and discharged the defendants. We think, therefore, that the fifth question put to the jury, and answered by them in favor of the defendants, does find all the facts necessary to enable us to decide as a matter of law that the defendants are discharged. The fourth question is, no doubt, found by the jury for the plaintiff; but we think in finding it they must have made a mistake in law as to what was a sufficient failure of consideration to set the defendants at liberty, which was not a question for them. This view taken by us renders it unnecessary to decide anything on the cross rule for a new trial. The motion must be refused with costs. Motion refused with costs. Section 2. — Conditions Subsequent. Elliott v. Blake. 1 LEVmZ, 88 — 1662. Covenant and declares. That the defendant covenanted to deliver to him 1,500 measures of saltpetre before such a day, and that he had not done it; the defendant 718 Conditions in Contkact. [Chap. II, demands oyer of the deed, wherein the covenant was as aforesaid. Provided, That if any mischance happen by fire or water to disable him, that he should be excused; and pleads that he was disabled by accident of fire. Issue thereupon and verdict for the plaintiff. And it was moved in arrest of judgment, that there was a variance between the deed on which he declared and that produced in court; for the one is absolute and the other conditional. But judgment was given for the plaintiff, for he need not declare on more of the deed than the covenant, and it is on the defendant's part to show the proviso, which goes by way of ' defeasance of the covenants. GeAY v. GrABDNEB. 17 MASSACHUSETTS, 1,88 — 1821. Assumpsit on a written promise to pay the plaintiff $5,198.87, with the following condition annexed — viz. : " On the condition that if a greater quantity of sperm oil should ar- rive in -whaling vessels at Nantucket and New Bedford, on or between the first day of April and the first day of October of the present year, both inclusive, than arrived at said places, in whaling vessels, on or within the same term of time the last year, then this obligation to be void." Dated, April 14, 1819. The consideration of the promise was a quantity of oil sold by the plaintiff to the defendants. On the same day another note unconditional had been given by the defend- ants, for the value of the oil estimated at 60 cents per gallon ; and the note in suit was given to secure the resi- due of the price estimated at 85 cents, to depend on the contingency mentioned in the said condition. At the trial before the Chief Justice the case depended upon the question whether a certain vessel, called the Lady Adams, with a cargo of oil, arrived at Nantucket Sec. 2.] Geay v. Gardner. 719 on October 1, 1819, about which fact the evidence was contradictory. The judge ruled that the burden of prov- ing the arrival within the time was on the defendants, and further that, although the vessel might have, within the time, gotten within the space which might be called Nantucket Roads, yet it was necessary that she should have come to anchor, or have been moored, somewhere within that space before the hour of twelve following the first day of October in order to have arrived within the meaning of the contract. The opinion of the Chief Justice on both these points was objected to by the defendants, and the questions were saved. If it was wrong on either point, a new trial was to be had, otherwise judgment was to be rendered on the verdict, which was found for the plaintiff. Paeker, C.J. The very words of the contract show that there was a promise to pay, which was to be de- feated by the happening of an event — viz., the arrival of a certain quantity of oil at the specified places in a given time. It is like a bond with a condition; if the obligor would avoid the bond, he must show performance of the condition. The defendants in this case promise to pay a certain sum of money on condition that the promise shall be void on the happening of an event. It is plain that the burden of proof is upon them, and if they fail to show that the event has happened, the promise remains good. The other point is equally clear for the plaintiff. Oil is to arrive at a given place before 12 o'clock at night. A vessel with oil heaves in sight, but she does not come to anchor before the hour is gone. In no sense can the oil be said to have arrived. The vessel is coming until she drops anchor or is moored. She may sink or take fire, and never arrive, however near she may be to her port. It is so in contracts of insurance, and the same reason applies to a case of this sort. Both parties put them- 720 Conditions in Contract. [Chap. II. selves upon a nice point in this contract; it was a kind of wager as to the quantity of oil which should arrive at the ports mentioned before a certain period. They must be held strictly to their contract, there being no equity to interfere with the terms of it. Judgment on the verdict. Semmes v. Haktpoed Insurance Company. 13 WALLACE, 158 — 1871. In error to the Circuit Court for the District of Con- necticut. Semmes sued the City Fire Insurance Company, of Hartford, in the court below, on October 31, 1866, upon a policy of insurance, fdr a loss which occurred on Jan- uary 5, 1860. The policy as declared on showed as a con- dition of the contract, that payment of losses should be made in sixty days after the loss should have been ascer- tained and proved. The company pleaded that by the policy itself it was expressly provided that no suit for the recovery of any claim upon the same should be sustainable in any court unless such suit should be commenced within the term of twelve months next after any loss or damage should occur; and that in case any such suit should be com- menced after the expiration of twelve months next after such loss or damage should have occurred, the lapse of time should be taken and deemed as conclusive evidence against the validity of the claim thereby so attempted to be enforced. And that the plaintiff did not commence this action against the defendants within the said period of twelve months next after the loss occurred. To this plea there were replications setting up, among other things, that the late civil war prevented the bring- ing of the suit within the twelve months provided in the Sec. 2.] Semmes v. Haktfoed Insurance Co. 721 condition, the plaintiff being a resident and citizen of the State of Mississippi and the defendant of Connecti- cut during all that time. The plea was held by the court below to present a good bar to the action, notwithstanding the effect of the war on the rights of the parties. That court, in arriving at this conclusion, held, first, that the condition of the contract, limiting the time within which suit could be brought, was, like the Statute of Limitations, susceptible of such enlargement, in point of time, as was necessary to accommodate itself to the precise number of days during which the plaintiff was prevented from bringing suit by the existence of the war. And ascertaining this by a reference to certain public acts of the political departments of the govern- ment, to which it referred, found that there was, between the time at which it fixed the commencement of the war and the date of the plaintiff's loss, a certain number of days, which, added to the time between the close of the war and the commencement of the action, amounted to riiore than the twelve months allowed by the condition of the contract. Judgment being given accordingly in favor of the com- pany the plaintiff brought the case here. The point chiefly discussed here was when the war be- gan and when it ceased. Miller, J., delivered the opinion of the court. It is not necessary, in the view which we take of the matter, to inquire whether the Circuit Court was cor- rect in the principle by which it fixed the date, either of the commencement or cessation of the disability to sue growing out of the events of the war. For we are of opinion that the period of twelve months which the con- tract allowed the plaintiff for bringing his suit, does not open and expand itself so as to receive within it three 45 722 Conditions in Conteact. [Chap. 11. or four years of legal disability created by the war, and then close together at each end of that period so as to complete itself, as though the war had never occurred. It is true that, in regard to the limitation imposed by statute, this court has held that the time- may be so com- puted, but there the law imposes the limitation and the law imposes the disability. It is nothing, therefore, but a necessary legal logic that the one period should be taken from the other. If the law did not, by a necessary implication, take this time out of that prescribed by the statute, one of two things would happen : either the plain- tiff would lose his right of suit by a judicial construc- tion of law which deprived him of the right to sue yet per- mitted the statute to run untU it became a complete bar, or else, holding the statute under the circumstances to be no bar, the defendant would be left, after the war was over, without the protection of any limitation whatever. It was, therefore, necessary to adopt the time provided by the statute as limiting the right to sue, and deduct from that time the period of disability. Such is not the case as regards this contract. The de- fendant has made lis own special and hard provision on that subject. It is not said, as in a statute, that a plain- tiff shall have twelve months from the time his cause of action accrued to commence suit, but twelve months from the time of loss ; yet by another condition the loss is not payable until sixty days after it shall have been ascer- tained and proved. The condition is that no suit or action shall be sustainable unless commenced within the time of twelve months next after the loss shall occur, and in case such action shall be commenced after the expira- tion of twelve months next after such loss, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim. Now, this contract re- lates to the twelve months next succeeding the occur- rence of the loss and the court has no right, as in the Sec. 2.] Semmes v. Haktfoed Insurance Co. 723 ease of a statute, to construe it into a number of days equal to twelve months, to be made up of the days in a period of five years in which the plaintiff could lawfully have commenced his suit. So also if the plaintiff shows any reason which in law rebuts the presumption, which, on the failure to sue within twelve months, is, by the contract, made conclusive against the validity of the claim, that presumption is not revived again by the con* tract. It would seem that when once rebutted fully noth- ing but a presumption of law or presumption of fact could again revive it. There is nothing in the contract which does it, and we know of no such presumptions of law. Nor does the same evil consequence follow from re- moving absolutely the bar of the contract that would from removing absolutely the bar of the statute, for when the bar of the contract is removed there still remains the bar of the statute, and though the plaintiff may show by his disability to sue a sufficient answer to the twelve months provided by the contract, he must still bring his suit within the reasonable time fixed by the legislative authority — that is, by the Statute of Limita- tions. We have no doubt that the disability to sue imposed on the plaintiff by the war relieves him from the conse- quences of failing to bring suit within twelve months after the loss, because it rendered a compliance with that condition impossible, and removes the presumption which that contract says shall be conclusive against the validity of the plaintiff's claim. That part of the con- tract, therefore, presents no bar to the plaintiff's right to recover. As the Circuit Court founded its judgment on the proposition that it did, that judgment must be reversed and the case remanded for a new trial. 724 Conditions in Contract. [Chap. II. New York Life Insurance Company v. Statham. Same v. Seyms. Manhattan Life Insurance Company v. Buck. 93 united states reports, 24—1876. The first of these cases is here on appeal from, and the second and third on writs of error to, the Circuit Court of the United States for the Southern District of Mississippi, The first case is a bill in equity, filed to recover the amount of a policy of life assurance, granted by the de- fendant (now appellant) in 1851, on the life of Dr. A. D. Statham, of Mississippi, from the proceeds of certain funds belonging to the defendant attached in the hands of its agent at Jackson, in that State. It appears from the statements of the bill that the annual premiums ac- cruing on the policy were all regularly paid, until the breaking out of the late civil war, but that in consequence of that event the premium due on December 8, 1861, was not paid; the parties assured being residents of Missis- sippi, and the defendant a corporation of New York. Dr. Statham died in July, 1862. The second case is an action at law against the same defendant to recover the amount of a policy issued in 1859 on the life of Henry S. Seyms, the husband of the plaintiff. In this case also the premiums had been paid until the breaking out of the war, when, by reason thereof, they ceased to be paid, the plaintiff and her hus- band being residents of Mississippi. He died in May, 1862. The third case is a similar action against the Manhat- tan Life Insurance Company of New York, to recover the amount of a policy issued by it in 1858, on the life of C. L. Buck, of Vicksburg, Miss. ; the circumstances being substantially the same as in the other cases. Sec. 2. J New Yoek Life Ins.- Co. v. Statham. 725 Each, policy is in the usual form of such an instrument, declaring that the company, in consideration of a certain specified sum to it in hand paid by the assured, and of an annual premium of the same amount to be paid on the same day and month in every year during the contin- uance of the policy, did assure the life of the party named, in a specified amount, for the term of his natural life. Each contained various conditions, upon the breach of which it was to be null and void ; and among others the following : " That in ease the said [assured] shall not pay the said premium on or before the several days hereinbefore mentioned for the payment thereof, then and in every such ease the said eompany shall not be liable to the payment of the sum insured, or in any part thereof, and this poUey shall cease and determine." The Manhattan policy contained the additional pro- vision that, in every case where the policy should cease or become null and void, all previous payments made thereon should be forfeited to the company. The nonpayment of the premiums in arrear was set up in bar of the actions; and the plaintiffs respectively re- lied on the existence of the war as an excuse, offering to deduct the premiums in arrear from the amounts of the policies. The decree and judgments below w'ere against the defendants. Beadley, J., after stating the case delivered the opin- ion of the, court. We agree with the court below, that the contract is not an assurance for a single year, with a privilege of re- newal from year to year by paying the annual premium, but that it is an'entire contract of assurance for life, sub- ject to discontinuance and forfeiture for nonpayment of any of the stipulated premiums. Such is the form of the contract, and such, is its character. It has been con- tended that the payment of each premium is the con- sideration for insurance during the next following year, 726 Conditions in Contract. [Chap. II. as in fire policies. But tlie position is untenable. It often happens that the assured pays the entire premium in advance, or in five, ten, or twenty annual instalments. Such instalments are clearly not intended as the consid- eration for the respective years in which they are paid; for, after they are all paid, the policy stands good for the balance of the life insured, without any further payment. Each instalment is, in fact, part consideration of the entire insurance for life. It is the same thing, where the annual premiums are spread over the whole life. The value of assurance for one year of a man's life when he is young, strong, and healthy, is manifestly not the same as when he is old and decrepit. There is no proper rela- tion between the annual premium and the risk of assur- ance for the year in which it is paid. This idea of assur- ance from year to year is the suggestion of ingenious counsel. The annual premiums are an annuity, the present value of which is calculated to correspond with the present value of the amount assured, a reasonable percentage being added to the premiums to cover ex- penses and contingencies. The whole premiums are bal- anced against the whole insurance. But while this is true, it must be conceded that prompt- ness of payment is essential in the business of life insur- ance. All the calculations of the insurance company are based on the hypothesis of prompt payments. They not only calculate on the receipt of the premiums when due, but on compounding interest upon them. It is on this basis that they are enabled to offer assurance at the favorable rates they do. Forfeiture for nonpayment is a n-ecessary means of protecting themselves from embar- rassment. Unless it were enforceable, the business would be thrown into utter confusion. It is like the for- feiture of shares in mining enterprises, and all other hazardous undertakings. There must be power to cut off unprofitable members, or the success of the whole scheme is endangered. The insured parties are asso- Sec. 2.] New Yokk Life Ins. Co. v. Statham. 727 ciates in a great scheme. This associated relation exists whether the company be a mutual one or not. Each is interested in the engagements of all; for out of the co- existence of many risks arises the law of average, which underlies the whole business. An essential feature of this scheme is the mathematical calculations referred to, on which the premiums and amounts assured are based. And these calculations, again, are based on the assump- tion of average mortality, and of prompt payments and compound interest thereon. Delinquency cannot be tolerated nor redeemed, except at the option of the com- pany. This has always been the understanding and the practice in this department of business. Some com- panies, it is true, accord a grace of thirty days, or other fixed period, within which the premium in arrear may be paid, on certain conditions of continued good health, etc. But this is a matter of stipulation or of discretion on the part of the particular company. When no stipulation exists, it is the general understanding that time is ma- terial, and that the forfeiture is absolute if the premium be not paid. The extraordinary and even desperate efforts sometimes made, when an insured person is in extremis, to meet a premium coming due, demonstrates the common view of this matter. The case, therefore, is one in which time is material and of the essence of the contract. Nonpayment at the day involves absolute forfeiture, if such be the terms of the contract, as is the case here. Courts cannot with safety vary the stipulation of the parties by introducing equities for the relief of the insured against' their own negligence. But the court below bases its decision on the assump- tion that, when performance of the condition becomes illegal in consequence of the prevalence of public war, it is excused, and forfeiture does not ensue. It supposes the contract to have been suspended during the war, and to have revived with all its force when the war ended. 728 Conditions in Conteact. [Chap. IL Such a suspension and revival do take place in the case of ordinary debts. But have they ever been known to take place in the case of executory contracts in which time is material ? If a Texas merchant had contracted to furnish some Northern explorer a thousand cans of pre- served meat by a certain day, so as to be ready for his departure for the North Pole, and was prevented from furnishing it by the civil war, would the contract still be good at the close of the war five years afterward, and after the return of the expedition? If the proprietor of a Tennessee quarry had agreed in 1860, to furnish, diir- ing the two following years, 10,000 cubic feet of marble, for the construction of a building in Cincinnati, eould he have claimed to perform the contract in 1865, on the ground that the war prevented an earlier performance ? The truth is, that the doctrine of the revival of eon- tracts suspended during the war is one based on consid- erations of equity and justice, and cannot be invoked to revive a contract which it would be unjust or inequitable to revive. In the case of life insurance, besides the materiality of time in the performance of the contract, another strong reason exists why the policy should not be revived. The parties do not stand on equal ground in reference to such a revival. It would operate most unjustly against the company. The business of insurance is founded on the law of averages; that of life insurance eminently so. The average rate of mortality is the basis on which it rests. By spreading their risks over a large number of cases, the companies calculate on this average with reasonable certainty and safety. Anything that interferes with it deranges the security of the business. If every policy lapsed by reason of the war should be revived, and all the back premiums should be paid, the companies would have the benefit of this average amount of risk. But the good risks are never heard from, only the bad are sought to be revived, where the person insured is either Sec. 2.] New Yobk Life Ins. Co. v. Statham. 729 dead or dying. Those in health can get new policies cheaper than to pay arrearages on the old. To enforce a revival of the bad cases, while the company necessarily lose the cases which are desirable, would be manifestly unjust. An in&ufed person, as before stated, does not stand isolated and alone. His case is connected with and co-related to the cases of all others insured by the same company. The nature of the business, as a whole, must be looked at to understand the general equities of the parties. "We are of opinion, therefore, that an action cannot be maintained for the amount assured on a policy of life in- surance forfeited, like those in question, by nonpayment of the premium, even though the payment was prevented by the existence of the war. The decree in the equity suit and the judgments in the actions at law are reversed, and the causes respectively remanded to be proceeded with according to law and the directions of this opinion. Steokg, J^ While I concur in a reversal of these judgments and the decree, I dissent entirely from th6 opinion filed by a majority of the court. I cannot con- strue the policies as the majority have construed them. A policy of life insurance is a peculiar contract. Its obligations are unilateral. It contains no undertaking of the assured to pay premiiuns ; it merely gives him an option to pay or not, and thus to continue the obligation of the insurers, or terminate it at his pleasure. It fol- lows that the consideration for the assumption of the in- surers can in no sense be considered an annuity consist- ing of the annual premiums. In my opinion, the true meaning of the contract is, that the applicant for insur- ance, by paying the first premium, obtains an insurance ^A portion of this opinion upon another point omitted as are also the concurring opinion of Waite, C. J., and the dissenting opinions of Clifford & Hunt, JJ. 730 Conditions in Contkact. [Chap. II. for one year, together with a right to have the insurance continued from year to year during his life, upon pay- ment of the same annual premium, if paid in advance. Whether he will avail himself of the refusal of the in- surers or not is optional with him, • The payment ad diem of the second or any subsequent premium is, there- fore, a condition precedent to continued liability of the insurers. The assured may perform it or not, at his option. In such a case, the doctrine that accident, in- evitable necessity, or the act of God, may excuse per- formance, has no existence. It is for this reason that I think the policies upon which these suits were brought were not in force after the assured ceased to pay pre- miums. And so, though for other reasons, the majority of the court holds. Section 3. — Waivek of Conditions. ToMPSON V. Noel. 1 LEVIN2, 16 — 1660. Covenant brought, and declares, that the plaintiff covenanted to go with a ship to D in Ireland, and there to take in 280 men from the defendant, and to carry them to Jamaica; and the defendant covenanted to have the 280 men there ready; and to pay for the carriage of them £5 a man, and says, that the defendant had not the 280 men ready, but that he had 180, and those he took and carried, and the defendant had not paid for them. The defendant pleads that he had the 280 men ready, and tendered them to the plaintiff, and that he would not receive them, but says nothing to the carrying of the 180 men, nor to the nonpayment for them, and for that it was not a plea to the whole, but to the carrying only. Judg- ment was given for the plaintiff upon a demurrer. Sec. 3.J Jones v. Baekley. 731 Jones v. Barkley. douglass, 684 — 1781. This was a special action on the case, for nonperform- ance of an agreement. The first count of the declaration — after reciting that the plaintiffs, as assignees of Gardiner, were entitled to the equity of redemption of £1,490 bank stock, which was in mortgage to one Lane for securing a sum of money lent by him to the bankrupt, and that the de- fendant was desirous that this equity of redemption should be assigned to Lane by the plaintiffs, and that they should execute, to Lane, a general release of all claims and demands which they, as assignees, had upon him — stated the agreement to have been : ' ' That on Gardiner's having his certificate confirmed by the Lord Chancellor, and the plaintiffs assigning to Lane, or any person he should appoint, so far as in them lay, the equity of redemption of the said capital stock mortgaged to the said Lane, and also executing to him a general re- lease of all claims and demands, which they, as assignees, had on him, the defendant should pay, and promised to pay (four months after the certificate should be con- firmed by the Chancellor, and on the plaintiffs assigning the equity of redemption as aforesaid, of the same stock, to Lane, or any person he should appoint, and executing and delivering such general release) the sum of £611 to the plaintiffs, for the benefit of the creditors of the bank- rupt." Then, after stating that, in consideration of the promise and undertaking of the plaintiffs to perform all their part of the agreement, the defendant promised and undertook to fulfill all his part of it, the plaintiffs averred, "Tkat, afterwards, viz., on the 19th of July, 1774, the bankrupt's certificate was allowed and confirmed by the .Chancellor; that the plain- tiffs, at all times since the making of the agreement, had been ready and willing, and at the expiration of four months from the time of the 732 Conditions in Contkact. [Chap. II. certificate being confirmed by the Chancellor, viz., on the 20th of No- vember, 1774, offered to the defendant to assign, as far as in them lay, the said equity of redemption, etc., and to execute and deliver to the said Lane a general release, etc., and did then and there tender to the defendant a draft of such assignment and release to the said Lane, for his, the defendant's, approbation thereof, and did then and there offer to execute and deliver, and would then and there have executed and delivered, to the said defendant, such assignment and release, but that the said defendant then and there absolutely dis- charged the plaintiffs from executing the same, or any assignment or release whatsoever. Yet the defendant, not regarding, etc., did not, four months after the said certificate had been confirmed by the Chancellor, nor, at any time before, nor since, although often requested, pay the said sum of £611, or any part thereof, to the plaintiffs." There was anotlier count nearly to the same purpose. The defendant pleaded: 1. The general issue. 2. To the first count, " That the said plaintiffs did never execute an assignment of the said equity of redemption, to the said Lane, or any person he appointed, and a general release to the said Lane, of all claims and demands which they, as assignees, had on him, at the time of making the agreement, and deliver or tender such assignment and general release so executed, to the said Lane, or the said defendant." 3. A like plea to the second count. To these special pleas the plaintiff demurred, and showed for cause, in the demurrer to the plea to the first count, that the defendant had not, by his plea, traversed or denied, or attempted to put in issue, any matter of fact alleged by the plaintiffs but had introduced and at- tempted to put in issue matters of fact not alleged, nor necessary to be alleged, and that the plea was no answer to the said first count, but evasive and argumentative; and the same to the plea to the second count. LoED Mansfield. If ever there was a clear case, I think the present is. One needs only state what the agreement, tender, and discharge were, as set forth in the declaration. It charges that the plaintiffs offered to assign, and to execute and deliver a general release, and Sec. 3. J Hypotheticai. Case. 733' tendered a draft of an assignment and release, and offered to execute and deliver such assignment, but the defendant absolutely discharged them from executing the same, or any assignment and release whatsoever. The defendant pleads that the plaintiffs did not actually execute an assignment and release ; and the question is, whether there was a sufficient performance. Take it on the reason of the thing. The party must show he was ready ; but if the other stops him on the ground of an in- tention not to perform his part, it is not necessary for the first to go farther, and do a nugatory act. Here, the draft was shewn to the defendant for his approba- tion of the form, but he would not read it, and, upon a different ground, namely, that he means not to pay the money, discharges the plaintiffs from executing it. WiLLES and Ashhuest, JJ., of the same opinion.^ Judgment for the plaintiff. Jones sued Adams, alleging the following facts in his complaint, viz.-: Adams had an office at 55 Broadway, where he had a safe. He took an office in the Mills Build- ing, and desiring to have the safe moved to his new office called in Jones and said, ' ' I promise to pay you $10 for your promise to move that safe and put it in my office in the Mills Building." Jones replied, " I accept," went out for some men, and returning began to move the safe. Soon after this, Jones arrived at the Mills Build- ing with the safe and carried it upstairs to the door of Adams ' office. Adams refused to admit him, threatening him with a revolver. Jones thereupon left the safe at the door and departed. Adams refused to pay the $10. Adams' attorney demurred to the complaint on the ground that it did not state facts constituting a cause of action. ^ The eoncurring opinion of Buller, J., omitted. CHAPTER m. rights of third persons not parties to the contract. Section 1. — Assigkment of Conteact. Legh v. Legh. 1 bosanquet & puller, 447 — 1799. On a former day Shepherd showed cause against a rule nisi obtained by Le Blanc, for setting aside a plea of release in an action on a bond, and ordering the re- lease to be canceled. The case as disclosed by the affidavits in support of the rule appeared to be this : Frances Legh having given a bond to Sarah Legh to secure £75, Sarah assigned it to John Legh as a security for the payment of a lesser sum, of which Frances had notice. John having brought an action on the bond against Frances in the name of Sarah, Sarah gave a release to Frances, by whom she had been satisfied her debt, and this release was pleaded. Eyee, C.J. The conduct of this defendant has been against good faith, and the only question is, whether the plaintiff must not seek relief in a court of equity. The defendant ought either to have paid the person to whom the bond was assigned, or have waited till an action was commenced against him, and then have applied to the court. Most clearly it was in breach of good faith to pay the money to the assignor of the bond and take a release, and I rather think the court ought not to allow the de- fendant to avail himself of this plea, since a court of equity would order the defendant to pay the plaintiff the amount of his lien on the bond, and probably all the costs of the application. Btjllee, J. There are many cases in which the court has set aside a release given to prejudice the real plain- [734] Sec. l.J LiTTLEPiELD V. Stobby. 735 tiff. All these cases depend on circumstances. If the release be fraudulent, the court will attend to the appli- cation. The court recommended the parties to go before the prothonotary in order to ascertain what sum was really due to the plaintiff on the bond. Shepherd on this day stated that the defendant ob- jected to going before the prothonotary, upon which the court said that the rule must be made absolute. He then applied for leave to plead payment of the bond, and con- tended that as this was not an application under the statute to plead several pleas, the court had no discretion. Eyre, C.J. The court has in many cases refused to allow a party to take his legal advantage, where it has appeared to be against good faith. Thus we prevent a man from signing judgment who has a right by law to do so, if it would be in breach of his own agreement. In order to defeat the real plaintiff, this defendant has col- luded with the- nominal plaintiff to obtain a release, and I think therefore the plea of release may be set aside con- sistently with the general rules of the court. And if so, the defendant cannot be permitted to plead payment of the bond, as that would amount to the same thing. BuLLEE, J. The court proceeds on the ground that the defendant has in effect agreed not to plead payment against the nominal obligee. Upon this the defendant consented to go before the prothonotary. LiTTLEFIELD V. StOKEY. 3 JOHNSON'S REPORTS, 425 — 1808. This was an action of debt. The declaration contained two counts on two obligations for $100 each. The de- fendant pleaded non est factum, and that on August 1, 736 Rights of Thikd Peksons. [Chap. III. 1806, lie paid to the plaintiff the money due on the obli- gations. The plaintiff replied that before the commence- ment of the present suit, and before the said August 1, 1806, he sold and assigned over the said obligations to one Z. E. Shepherd, to have and receive the money due thereon to his own use, and did authorize him, in the name of him, the plaintiff, to demand and receive the same to the use and benefit of him, the said Shepherd, of which the defendant had notice; and the plaintiff aver- red that this action was commenced for the sole use and benefit of the said Shepherd, for the purpose of enabling him to collect and receive the money due on the obligations. To this replication there was a general demurrer and joinder. Pee Curiam. This is a clear case. It has been decided that this court will recognize and protect the right of an assignee of a chose in action. In the case of Andrews v. Beecker it was held that a release by the obligee of a bond, after an assignment and notice, was a nullity. See also Legh v. Legh, 1 Boss. & Pull. 447. Judgment for the plaintiff. Stubbs, Administeatoe, v. The Holywell Railway Co. law reports, 2 exchequer, 311 — 1867. Kelly, C.B.^ I am of opinion that this rule should be discharged, and that the plaintiff is entitled to a verdict for £210. He sues as the administrator of a person named Stubbs, who had in his lifetime entered into a contract to perform certain work for the defendants in fifteen months for £500, payable under the contract in ^ Only the opinions are given. Sec. 1.] Stubbs v. Holywell Railway Co. 737 five quarterly instalments of £I00 each. The deceased, it appears, performed one quarter's work, and at the close of that quarter received £100 in payment. He then performed his work during the second and third quar- ters, and at the expiration of the third quarter became entitled to two further instalments of £100 each. These were due to him under the contract, and a right of action for them vested in him on the morning of the 6th of Sep- tember, 1865. Soon afterward he died, whilst these in- stalments remained unpaid. His death, no doubt, dissolved the contract. But it did not divest his repre- sentative of the right of action, which had already accrued to the deceased, and which survived to that representative. Whether circumstances existed or may be conceived to have existed, which would have enabled the defendants to maintain a cross action against Stubbs, or even against his administrator, is immaterial to the present question. Here is a perfect right of action vested in the deceased at the time of his death, which survives to the plaintiff. He is, therefore, entitled to recover, there being no plea alleging that the de- ceased did not perform his work, nor any proof of nonperformance. Martin, B. I am of the same opinion. The law on the subject is clear and free from doubt. Suppose a man enters into a contract to do a certain piece of work for a certain sum, then if he die before he completes it, he can recover nothing, not even if before his death he had done nine-tenths of it. For the contract was for the whole work, and not for nine-tenths of it. But suppose that the contract is for the performance of a certain piece of work for a certain sum, to be paid at the rate, say, of £50 a month, then the person employed earns £50 at the end of each successive month. It is true that if, after doing a portion of the work, he refused to do the rest, he might not be able to recover, because he could 47 738 Eights of Third' Peesons. [Chap. III. not prove that he was ready and willing to perforin his part of the contract. But such a case as the present has no analogy with that of a refusal by the person employed to continue performance. The contract, no doubt, is ended by the death of Stubbs, but only in this sense that the act of God has made further performance impossible. The man's life was an implied condition of the contract, but the fact of his death can have nothing whatever to do with the payment due for what has been done with what has been actually earned by the deceased. The contract had, it is true, an implied condition that he should live for fifteen months. But his death does not throw back his representative upon the right of recover- ing on a quantum meruit only. He can recover the stipulated price, due to the deceased when he died, of the work the deceased had actually executed. No vested right of action is taken away by death. The contract is at an end, but it is not " rescinded," for rescission is the act of two parties, not of one. With regard to the remarks quoted from Smith's Leading Cases, I may say with the greatest of respect for the learned author, that some of the positions laid down by him in the note to Cutter V. Powell, in his leading oases (6th ed. vol. II, p. 1), are not, in my opinion, fully supported by the authorities. Channell, B. I am of the same opinion. It is not denied that this contract was one of personal confidence. That being so, on the death of Stubbs it was at an end, so far as the future was concerned. But although that be so, we are not to prevent what was done during his life. Tinder the contract, from having its proper effect. This is not' the case of a contract rescinded, but of a con- tract in its circumstances conditional on the life of one of the parties to it continuing for a certain period. On his death it became void. It became null for the future, but no more. The administrator might have it incum- Sec. l.J Sttjbbs v. Holywell Railway Co. 739 bent on him in some circumstances to show that the de- ceased was ready and willing during his lifetime to continue performance of the contract, or else it might be said that no right of action had vested. But in this case there is no pretence for saying that the work was not actually done by the deceased. A right of action for the price agreed upon, therefore, vested in him, and I can see nothing to prevent the bringing of this action by his representatiye to enforce that right. Rule discharged. In New York and several other States provision has been made by statute allowing the assignee to sue in his own name. (N. Y. Code of Civil Procedure §§ 1909, 1910.) It will be observed however, that these and similar statutes in so far as they provide that an assignee may bring an action in his own name simply affect procedure and hence apply only to the jurisdictions for which they provide. They do not affect the legal title. Therefore if a contract be assigned in New York and an action brought thereon in a common law state such action must be brought by the assignee in the name of the assignor. In other words the above sections of the New York statute in this particular affect the adjective and not the sub- stantive law. On this point Cox, J. says in Glenn v. Bussey, 5 Mack. 233 : " It is a general rule that an action on a contract must be brought in the name of the party in whom the legal interest in such contract is vested. The legislature alone has power to make an exception to this rule. An exception is made by the Code, Ch. 144, § 14, ^ 583, which authorizes the assignee of any bond, note or writing, not nego- tiable, to mantain thereupon any action in his own name which the original obligee or payee might have brought. The assignee acquires only an equitable right with a capacity, expressly given him by statute, to assert it at law in his own name. But the legal title still remaining in the obligee or payee, a right of action is incident thereto; and the assignee may, at his election, sue at law in his own name or in that of the obligee or payee for his benefit. Garland v. Richardson, 4 Rand. 266 "Apart from the Code of Virginia, it is admitted that the equitable title to a chose in action can be assigped so that the assignee may 740 Eights of Third Peesons. [Chap. III. institute a suit at commcn law in the assignor's name for his use. Ac- cording to the decisions just referred to, the Code makes no change in the title, but super-adds to the remedy just mentioned a right of action by the assignee in his own name. " This, then, clearly relates to the remedy only, and the rule applies which Dr. Wharton lays down in his ' Conflict of Laws,' § 735, as follows, viz.: " ' Whether an assignee can sue in his own name is sometimes a technical question, and sometimes one that is essential. When it is technical (i. e., when the point is merely whether the suit is to be brought by A to the use of B, or by B immediately, there being no dis- pute that the title as between the two is virtually in B), then the lex fori is to decide. It is a mere matter of process. If allowed by the lex fori, the assignee may sue in his own name, although forbidden by the foreign law to which the obligation is subject. If forbidden by the lex fori, the assignee cannot sue in his own name, though per- mitted to do so by the foreign law to which the obligation is subject.' See, also, to the same effect. Story's Conflict of Laws, §§ 293, 332, and 473." The language which attributes equitable rights to the assignee is erroneous, but that these statutes merely affect procedure and do not effect a transfer of legal title is very clear. Aekansas Valley Smelting Company v. Belden Mining Company. 127 united states reports, 379 — 1888. This -was an action brought by a smelting company, incorporated by the laws of Missouri, against a mining company, incorporated by the laws of Maine, and both doing business in Colorado by virtue of a compliance with its laws, to recover damages for the breach of a contract to deliver ore, made by the defendant with Billing & Eilers, and assigned to the plaintiff. The material allegations of the complaint were as follows: On July 12, 1881, a contract in writing was made Sec. 1.] Aek. Val. Smelt. Co. v. Belden Min, Co. 741 between the defendant of the first part and Billing & Eilers of the second part, by which it was agreed that the defendants should sell and deliver to Billing & Eilers at their smelting works in Leadville 10,000 tons of car- bonate lead ore from its mines at Eed Cliff, at the rate of at least 50 tons a day, beginning upon the com- pletion of a railroad from Leadville to Red Cliff, and continuing until the whole should have been delivered, and that " all ore so delivered shall at once upon the delivery thereof become the property of the second party;'' and it was further agreed as follows: " Said second party shall pay said first party at said Leadville for each such lot of ore at once, upon the determination of its assay value, at the following prices," specifying, by reference tp the New York quotations, the price to be paid per pound for the lead contained in the ore, and the price to be paid for the silver con- tained in each ton of ore, varying according to the proportions of silica of iron in the ore. The complaint further alleged that the railroad was completed on November 30, 1881, and thereupon the defendant, under and in compliance with the contract, began to deliver ore to Billing & Eilers at their smelting works, and delivered 167 tons between that date and January 1, 1882, when " the said firm of Billing & -Eilers was dissolved, and the said contract and the business of said firm, and the smelting works at which said ores were to be delivered, were sold, assig:ned, and transferred to G. Billing, whereof the defendant had due notice;" that after such transfer and assignment the defendant continued to deliver ore under the contract, and between January 1 and April 21, 1882, delivered to Billing at said smelting works 894 tons; that on May 1, 1882, the eon- tract, together with the smelting works, was sold and conveyed by Billing to the plaintiff, whereof the defend- ant had due notice; that the defendant then ceased to 742 Eights of Thied Persons. [Chap. III. deliver ore under the contract, and afterward refused to perform the contract, and gave notice to the plaintiff that it considered the contract canceled and annulled; that all the ore so delivered under the contract was paid for according to its terms; that " the plaintiff and its said assignors were at all times during their respective ownerships ready, able, and willing to pay on the like terms for each lot as delivered, when and as the defendant should deliver the same, according to the terms of said contract, and the time of pay- ment was fixed on the day of delivery of the ' sample bottle,' by which expression was, by the custom of the trade, intended the completion of the assay or test by which the value of the ore was definitely fixed;'' and that " the said Billing & Eilers, and the said G. Billing, their successor and assignee, at all times since the delivery of said contract, and during the respective periods when it was held by them respectively, were able, ready, and willing to and did comply with and perform all the terms of the same, so far as they were by said contract required; and the said plaintiff has been at all times able, ready, and willing to perform and comply with the terms thereof, and has from time to time, since the said contract was assigned to it, so notified the de- fendant." The defendant demurred to the complaint for various reasons, one of which was that the contract therein set forth could not be assigned, but was personal in its nature, and could not, by the pretended assignment thereof to the plaintiff, vest the plaintiff' with any power to sue the defendant for the alleged breach of contract. The Circuit Court sustained the demurrer, and gave judgment for the defendant; and the plaintiff sued out this writ of error. Geay, J.,^ after stating the case as above reported, delivered the opinion of the court. If the assignment to the plaintiff of the contract sued on was valid, the plaintiff is the real party in interest, and as such entitled, under the practice in Colorado, to maintain this action in its own name. The vital ques- Citation of authorities omitted. Sec. 1.] Aek. Val. Smelt. Co. v. Belden Min. Co. 743 tion in the case, therefore, is whether the contract between the defendant and Billing & Eilers was assign- able by the latter, under the circumstances stated in the complaint. At the present day, no doubt, an agreement to pay money, or to deliver goods, may be assigned by the person to whom the money is to be pa-id Or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be after- ward done by him, or by some other stipulation, which manifests the intention of the parties that it shall not be assignable. But every one has a right to select and determine with whom he shall contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Denman, " You have the right to the benefit you anticipate from the char- acter, credit, and substance of the party with whom you contract." The rule upon this subject, as applicable to the case at bar, is well expressed in a recent Englisli treatise : " Rights arising out of contract cannot be transferred if they are coupled with liabilities, or if they involve a relation of personal con- fidence such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he act- ually ,conflded." Pollock on Contracts (4th ed.) 425. The contract here sued on was one by which the defendant agreed to deliver 10,000 tons of lead ore from its mines to Billing & Eilers at their smelting works. The ore was to be delivered at the rate of 50 tons a day, and it was expressly agreed that it should become the property of Billing & Eilers as soon as delivered. The price was not fixed by the contract, or payable upon the delivery of the ore. But, as often as 100 tons of ore had been delivered, the ore was to be assayed by the parties or one of them, and, if they could not agree, by an umpire ; and it was only after all this had been done, 744 Eights of Thied Persons. [Chap. III. and according to the result of the assay, and the pro- portions of lead, silver, silica, and iron, thereby proved to be in the ore, that the price was to be ascertained and paid. During the time that must elapse between the delivery of the ore and the ascertainment and payment of the price, the defendant had no security for its pay- ment, except in th« character and solvency of Billing & Eilers. The defendant, therefore, could not be com- pelled to accept the liability of any other person or cor- poration as a suFstitute for the liability of those with whom it had contracted. The fact that upon the dissolution of the firm of Billing & Eilers, and the transfer by Eilers to Billing of this contract, together with the smelting works and business of the partnership, the defendant continued to deliver ore to Billing according to the contract, did not oblige the defendant to deliver ore to a stranger, to whom Billing had undertaken, without the defendant's consent, to assign the contract. The change in a partnership by the coming in or the withdrawal of a partner might per- haps be held to be within the contemplation of the parties originally contracting; but, however that may be, an assent to such a change in the one party cannot estop the other to deny the validity of a subsequent assignment of the whole contract to a stranger. The technical rule of law by which a lessee's express cove- nant not to assign has been held to be wholly determined by one assignment with the lessor's consent, has no application to this case. The cause of action set forth in the complaint is not for any failure to deliver ore to Billing before his assign- ment to the plaintiff (which might perhaps be an assign- able chose in action), but it is for a refusal to deliver ore to the plaintiff since this assignment. Performance and readiness to perform by the plaintiff and its assignors, during the periods for which they respectively Sec. 1.] Aek. Val. Smelt. Co. v. Beluen Min. Co. 745 held the contract, is all that is alleged ; there is no allega- tion that Billing is ready to pay for any ore delivered to the plaintiff. In short, the plaintiff undertakes to step into the shoes of Billing, and to substitute its liabil- ity for his. The defendant had a perfect right to decline to assent to this, and to refuse to recognize a party, with whom it had never contracted, as entitled to demand further deliveries of the ore. In the cases cited in the careful brief of the plaintiff's counsel, as tending to support this action, are dis- tinguishable from the case at bar, and the principal ones may be classified as follows: First. Cases of agreements to sell and deliver goods for a fixed price, payable in cash on delivery, in which the owner would receive the price at the time of parting with his property, nothing further would remain to be done by the purchaser, and the rights of the seller could not be affected by the question whether the price was paid by the person with whom he originally contracted or by an assignee. Second. Cases upon the question how far executors succeed to rights and liabilities under a contract of their testator. Assignment by operation of law, as in the case of an executor, is quite different from assignment by act of the party ; and the one might be held to have been in the contemplation of the parties to this contract although the other was not. A lease, for instance, even if containing an express covenant against assignment by the lessee, passes to his executor. And it is by no means clear that an executor would be bound to perform, or would be entitled to the benefit of, such a contract as that now in question. Third. Cases of assignments by contractors for public works, in which the contracts, and the statutes under which they were made, were held to permit all persons to bid for the contracts, and to execute them through third persons. 746 Eights of Thikd Persons. [Chap. III. Fourth. Other cases of contracts assigned by the party who was to do certain work, not by the party who was to pay for it, and in which the question was whether the work was of such a nature that it was intended to be performed by the original contractor only. Without considerirjg whether all the cases cited were well decided, it is sufficient to say that none of them can control the decision of the present case. Judgment afjirmed. Faekow v. Wilson, law reports 4 commo^t pleas, 744 — 1869. Declaeation that in consideration that the plaintiff would enter into the service of one Price Pugh and serve him in the capacity of farm bailiff at the wages of 15s. per week, together with the benefit of certain bonuses and of a certain residence in a farmhouse until the service should be determined as thereinafter mentioned, Price Pugh promised the plaintiff to retain him in his sei'vice until the expiration of six months after notice given by Price Pugh or the plaintiff to the other of them to put an end to such service, or that, in case Price Pugh should put an end to such service without such notice, he should pay to the plaintiff such wages at the rate aforesaid for the six months from the time of the end of such service; that the plaintiff accordingly entered into the service of Price Pugh, and continued therein until the death of Price Pugh, and had always been ready and willing to continue in the service of his administra- trix in the capacity and on the terms aforesaid, of which the defendants always had notice; yet that the defend- ants wrongfully dismissed the plaintiff from the said service without such notice as aforesaid, and without paying the plaintiff such six months' wages as aforesaid, whereby, etc. Demurrer and joinder. Sec. 1.] Lacy v. Gbtman. 747 The judgment of the court (Willes and Montague Smith, JJ.) was delivered by Willes, J. In this case our judgment is for the defendants. Generally speaking, contracts bind the executor or administrator, though not named. Where, however, personaL considerations are of the foundation, of the contract, as in cases of principal and agent and master and servant, the death of either party puts an end to the relation; and, in respect of service after the death, the contract is dissolved, unless there be a stipu- lation express or implied to the contrary. It is obvious that, in this case, if the servant had died, his master could not have compelled his representatives to perform the service in his stead or pay damages, and equally by the death of the master the servant is discharged of his service, not in breach of the contract, but by implied condition. Judgment for the defendants. Lacy v. Getman. 119 new york reports, 109 — 1890. Appeal from judgment of the General Term of the Supreme Court in the Fourth Judicial Department, entered upon an order made July 2, 1888, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. The nature of the action and the facts are sufficiently stated in the opinion. Finch, 3} The relation of master and servant is no longer bounded by its original limits. It has broadened with the advance of civilization until the law recognizes its existence in new areas of social and business life. Citation of authorities and a portion of the opinion omitted. 748 Eights of Third Persons. [Chap. III. and . yields in many directions to the influence and necessities of its later surroundings. When, therefore, it is said generally, as the commentators mostly agree in saying, that the contract relations of principal and agent, and of master and servant, are dissolved by the death of either party, it is very certain that the state- ment must be limited to cases in which the relation may be deemed purely personal, and involves neither prop- erty rights nor independent action. Beyond that a fur- ther limitation of the doctrine is asserted, which ap- proaches very near to its utter destruction, and is claimed to be the result of modern adjudication. That limitation is that the rule applies only to the contract of the servant, and not to that of the master, and not at all, unless the service employed is that of skilled labor peculiar to the capacity and experience of the servant employed, and not the common possession of men in general; and it is proposed to adopt as a standard or test of the limitation an inquiry in each case whether the contract on the side of the master can be performed after his death by his representatives substantially, and in all its terms or requirements, or cannot be so per- formed without violence to some of its inherent elements. The agitation of that question has kept the present case passing like a shuttle between the trial and the appellate courts, until it has been tried four times at the circuit and reviewed four times at General Term, and at last has been sent here in the hope of securing a final repose. The facts are few and undisputed on this appeal. The plaintiff. Lacy, contracted orally with defendant's testa- tor, McMahan, to work for the latter upon his farm, doing its appropriate and ordinary work for a period of one year at a compensation of $200. Lacy entered upon the service in March, doing from day to day the work of the farm under the direction of its owner, until Sec. l.J Lacy v. Getman. 749 about the middle of July, when McMahan died. By his will he made the defendant executrix, but devised and bequeathed to his widow a life estate in the farm, and the use and control of all his personal property what- soever in the house and on the farm, during the term of her natural life. Lacy knew in a general way the terms of the will. He testifies that he knew that it gave to the widow the use of the farm, and that she talked with him about the personal property. It is admitted that the executrix did not hire or employ him, but he continued on to the close of the year, doing the farm work under the direction of the widow until the end of his full year. He sued the executrix upon his contract with the testa- tor, and has recovered the full amount of his year's wages. From that decision the executrix appeals, claim- ing' that the judgment should have been limited to the proportionate amount earned at the death of McMahan, and that the death of the master dissolved the contract. It is obvious at once that an element has come into the case as now presented, which was not there when the General Term first held that the contract survived. It now appears that the executrix could not have performed her side of the contract at all after the death of McMahan, by force of her official authority, because she had neither the possession of the farm nor personal property upon it, and no right to such possession during the life of the widow. She had no power to put her servant upon the land, or employ him about it, and in her representative character she had not the slightest interest in his service, and could derive no possible benefit from it. The plaintiff's labor, after the death of McMahan, was necessarily on the farm of the widow, by her consent, for her benefit, and under her direction and control, and equitably and justly should be a charge against her alone. Thej^est of power to perform on the part of the personal representative of the deceased fails 750 Eights op Thied Peksons. [Chap. III. in the emergency presented by the facts, except possibly upon proof of the consent of the widow. We have then the peculiar case of a contract made to work for McMahan and under his direction and control, which could not be performed because of his death, transmuted into a contract to work for Mrs. Getman upon a farm which she did not possess and had no right to enter, and performed by working for the widow and under her direction and control alone, and this because of the supposed rule that the contract survived the death of the master and remained binding upon his personal representatives. It is true that some interest in the personal property on the farm is claimed to have vested in the executrix, notwithstanding the terms of the will, and the inventory filed by her is appealed to, and the necessity of a resort to the personal property with which to pay debts. There is no proof that the testator owed any debts, and the in- ventory covers nothing as to which Lacy's labor was requisite or necessary, except possibly some corn on the ground valued at $18. All the grain inventoried was in the barn, needing only to be threshed, and must be assumed to have been there when testator died ; and the other property consisted of farm tools and a cow and horse, to the use of which the widow was entitled and which, if sold to pay possible debts, would have left the servant without means of doing his work and with noth- ing to do unless for the widow. So that the bald ques- tion is presented whether the contract survived the testa- tor's death and bound his executrix, who was without power or authority of her own to perform, and had no interest in performance. It seems to be conceded that the death of the servant dissolves the contract. Almost all of these cases were marked by the circumstance tlmt the services belonged to the class of skilled labor. In such instances the im- Sec. 1.] Lacy v. Getman. T51 possibility of a substituted service by the representative of the servant is -very apparent. The master has selected the servant by reason of his personal qualifications, and ought not, when he dies, to abide the choice of another or accept a service which he does not want. While these cases possess, with a single exception, that character- istic, I do not think they depend upon it. Fahy v. North was a contract for farm labor, ended by the sickness of the servant, and quite uniformly the general rule stated is that the servant's agreement to render personal services is dissolved by his death. There happens a total inability to perform; it is without the servant's fault, and so further performance is excused and the contract is apportioned. If in this case Lacy had died on that day in July, his representative could not have performed his contract. McMahan, surviving, would have been free to say that he bargained for Lacy's services, and not for those of another selected and chosen by strangers, and either the contract would be broken or else dissolved. I have no doubt that it must be deemed dissolved, and that the death of the servant, bound to render personal services under a personal control, ends the contract, and irrespective of the inquiry whether those services involve skilled or common labor. For even as it respects the latter, the servant's character, habits, capacity, industry and temper, all enter into and affect the contract which the master makes, and are material and essential where the service rendered is to be personal and subject to the daily direction and choice and control of the master. He was willing to hire Lacy for a year, but Lacy's personal representative, or a laborer tendered by him, he might not want at all and at least not for a fixed' period, preventing a discharge. And so it must be conceded that the death of the servant, employed to render personal services under the master's daily direction, dissolves the contract. 752 Eights of Third Persons. [Chap. III. But if tliat be so, on what principle shall the master be differently and more closely bound? . And why shall not his death also dissolve the contract? There is no logic and no justice in a contrary rule. The same reason- ing which relieves the servant's estate relieves also the master's, for the relation constituted is personal on both sides and contemplates no substitution. If the master selects the servant, the servant chooses the master. It is not every one to whom he will bind himself for a year, knowing that he must be obedient and render the services required. Submission to the master's will is the law of the contract which he meditates making. H« knows that a promise by the servant to obey the lawful and reasonable orders of his master within the scope of his contract is implied by law, and a breach of this promise in a material matter justifies the master in dis- charging him. One does not put himself in such relation for a fixed period without some choice as to whom he will serve. The master's habits, character, and temper enter into the consideration of the servant before he binds himself to the service, just as his own personal characteristics materially affect the choice of the master. The service, the choice, the contract are personal upon both sides, and more or less dependent upon the individuality of the contracting parties, and the rule applicable to one should be the rule which governs the other. If now to such a case — that is, to the simple and normal relation of master and servant, involving daily obedience on one side and constant direction on the other — we apply the suggested test of possibility of performance in substantial accord with the contract, the result is not different. It is said that if the master dies his representatives have only to pay, and any one may do that. But under the contract that is by no means all that remains to be done. They must take the place of Sec. 1.] Goshen National Bank v. Bingham. 753 the master in ordering and directing the work of the farm, and requiring the stipulated obedience. That may prove to effect a radical change in the situation of the servant, as it seems to have done in the present case, leading the plaintiff to the verge of refusing to work further for either widow or executrix, whose views apparently jangled. The new master cannot perform the employer's side of the contract as the deceased would have performed it, and may vary so far from incapacity or fitful temper or selfish greed, as to make the situation of the servant materially and seriously different from that which he contemplated and for which he contracted. We are, therefore, of opinion that in the case at bar the contract of service was dissolved by the death of McMahan, and his estate was only liable for the services rendered to the date of his death. The judgment should be reversed and a new trial granted with costs to abide the event. All concur. Judgment reversed. The Goshen National Bank v. Bingham. Bingham v. The Goshen National Bank. 118 new york reports. 349 — 1890. Appeals from judgments rendered by the General Term of the Supreme Court in the First Judicial Department, enfered upon orders made March 31, 1887, which affirmed a judgment in the action first above entitled in favor of defendants and a judgment in action second above entitled in favor of plaintiffs, both of which were entered upon the reports of a referee. On November 27, 1884, Benjamin D. Brown applied 48 754 Eights of Thied Persons. [Chap. III. to the cashier of the Goshen National Bank, appellant, at Goshen, N. Y., to cash a sight draft for $17,000, drawn by him upon the firm of William Bingham & Co., of New York, the individual members of which firm are the respondents, accompanied by a quantity of the bonds of the West Point Manufacturing Company, of the face value of $17,000. Brown represented that he had nego- tiated a sale of these bonds at their face value with William Bingham & Co.; that they had directed him to draw upon them at sight for $17,000, the draft to be accompanied by the bonds, and that the draft would be paid upon presentation. Such representations were absolutely false. The bonds had no market value. Brown was a bankrupt and had no funds in the bank except such as resulted from the credit given him upon the faith of the draft on Bingham & Co., accompanied by the bonds. The cashier of the Goshen National Bank, relying upon such representations, cashed the draft of $17,000, and placed the proceeds to the credit of Brown upon the books of the bank. He gave Brown sight drafts on New York for $12,000, and certified a check drawn by Brown to his own order, dated November 26, 1884, for $5,000. On the morning of November 28th, Brown called at the office of William Bingham & Co., and stated that he wanted to get some currency. Mr. Bingham passed the check to the firm's cashier directing him to give Brown currency for the amount. The cashier gave him a check drawn on the Corn Exchange Bank for $5,000. Brown had the check cashed at the Corn Exchange Bank. He also had the New York drafts cashejd, amounting to $12,000, which he had obtained from the Goshen National Bank. After procuring the checks and drafts to be cashed, he fled to Canada, where he remained at the time of the trial of these action. When Bingham & Co. took from Brown the check certified by the Goshen National Bank it was not indorsed. Sec. 1,J Goshen National Bank v. Bingham. 755 The referee found in the action second entitled that " at the time of the transfer of the said certified check hy Brown to thu plaintiffs, it was intended both by Brown and the plaintiffs that said certified check should be endorsed by Brown, and it was supposed by both parties that he had so endorsed it, and if the plaintiff had known that it was not endorsed they would not have paid the consideration therefor." He found, in the action second entitled, " that Brown made no statement to the defendants, or either of them, at the time of the transfer of the check that such check was endorsed." And " prior to the commencement of the action of replevin the defendants never requested Brown to endorse said check." WhUe Bingham & Co. held the check in question unindorsed, a demand for its return to the bank, accom- panied by a full explanation of the circumstances under which the certification was obtained, was made upon Bingham & Co., in behalf of the bank, and upon their refusal to return it, an action to recover its possession was commenced by the bank against Bingham & Co. That action is, firstly, above entitled. Subsequently, and on December 16th, Bingham & Co. obtained from Brown a power of attorney to indorse the check. Pursuant thereto the check was indorsed and payment thereafter demanded of the bank. This was refused, and thereupon the action, secondly, above entitled, was commenced by Bingham & Co.,> to recover the amount of the check. Paekeb, J.^ As against Brown, to whose order the check was payable, the bank had a good defense. But it could not defeat a recovery by a bona fide holder to whom the check had been indorsed for value. By an oversight on the part of both Brown and Bingham & Co. the check was accepted and cashed without the indorse- ment of the payee. Before the authority to indorse the Citation of authorities omitted. 756 Eights of Thikd Peesons. [Chap. III. name of the payee upon the check was procured and its subsequent indorsement thereon, Bingham & Co. had notice of the fraud which constituted a defense for the bank as against Brown. Can the recovery had be sustained? It is too well settled by authority, both in England and in this country, to permit of questioning, that the pur- chaser of a draft, or check, who obtains title without an indorsement by the payee, holds it subject to all equities and defenses existing between the original parties, even though he has paid full consideration, without notice of the existence of such equities and defenses. The reasoning on which this doctrine is founded may be briefly stated as follows : The general rule is that no one can transfer a better title than he possesses. An exception arises out of the rule of the law merchant, as to negotiable instruments. It is founded on the com- mercial policy of sustaining the credit of commercial paper. Being treated as currency in commercial trans- actions, such instruments are subject to the same rule as money. If transferred by indorsement, for value, in good faith and before maturity, they become available in the hands of the holder, notwithstanding the existence of equities and defenses, which would have rendered them unavailable in the hands of a prior holder. This rule is only applicable to negotiable instruments which are negotiated according to the law merchant. When, as in this case, such an instrument is trans- ferred but without an indorsement, it is treated as a chose in action assigned to the purchaser. The assignee acquires all the title of the assignor, and may maintain an action thereon in his own name. And, like other choses in action, it is subject to all the equities and defenses existing in favor of the maker or acceptor against the previous holder. All concur, except Haight, J., not sitting. Judgments accordingly. Sec. 1.] PaijMee v. Meerill. 757 Howell v. MacIvees. 4 term reports, 690 — 1792. Assumpsit on a contract by three. Plea, the bank- ruptcy of one of them before the action brought. Eeplication that before his bankruptcy he assigned his interest in the contract of the other two. To which there was a general demurrer, in support of which Russell contended that the replication should have stated how the assignment was made, by what deed, so that the defendant might have craved oyer of it. In "Winch V. Keeley the assignment was by deed which was set out, and, therefore, this objection did not occur, though the court there held that the interest which the bankrupt had assigned before his bankruptcy did not pass to his assignees under the commission. Wood, contra. It is not necessary that an assignment of a chose in action should be by deed, and, therefore, it is no ground of demurrer that it is not stated. The court were of the same opinion, but they gave leave to the defendant to withdraw the demurrer and take issue on the assignment. Palmee v. Mereill. Dana v. Same, 6 GUSHING, 282 — 1850. These were actions of assumpsit against the defend- ant as the administrator of Asa Spaulding, late of Charlestown, deceased, and were tried before Metcalf, J., in this court.^ The writ in the first-named case, which was dated March 26, 1849, contained the common counts, accom- ^ Citation of authorities omitted. 758 Eights of Thied Persons. [Chap. III. panied by a specification of a claim, set fortli at length, in a special declaration, which was afterward filed in the cause. In the special declaration the plaintiff alleged that, on May 26, 1847, the Massachusetts Hospital Life Insurance Company caused the life of the defendant's intestate to be insured, for the term of seven years from that day, in the sum of $1,000, payable to the assured, his executors, administrators, or assigns; that the assured, on May 26, 1848, by a memorandum in writing indorsed on the policy for a valuable consideration, assigned and requested the insurers to pay the plaintiff the sum of $400, part of the sum insured by the policy, in case of loss on the same, of which assignment and request the insurers on the same day had due notice; that on August 5, 1848, the assured died at Charles- town, and on the 9th due notice and proof thereof were given to the insurers; that the defendant was duly ap- pointed administrator of the estate of the assured, and was notified of the assignment and request; that on November 8, 1848, the insurers paid the defendant the sum of $1,000, the amount insured on Spaulding's life; and that on the same day the plaintiff demanded of the defendant the sum of $400 above mentioned, by means of which the defendant became liable, and in considera- tion thereof promised the plaintiff to pay him the last- mentioned sum on demand, but thought often requested refused so to do. At the trial the plaintiff gave evidence of the facts alleged in his declaration, and also that at the time of the indorsement on the policy of the assignment or request above mentioned the defendant's intestate was indebted to the plaintiff and one Harding, as partners, for the amount due on three promissory notes, being about the sum of $300; that on said May 26, 1848, when the annual premium was paid, the assured ex- hibited the policy to the insurers with the assign- Sec. l.J Palmeb v. Mekeill. 759 ment or request above mentioned indorsed thereon; that the plaintiff, soon after the death of the as- sured, demanded of the insurers to pay him the said sum of $400, which they declined doing, on the ground that the assignment thereof was not in the form usually required by them, and that they did not consider themselves bound to pay the amount insured by the policy by instalments; and that the policy with the as- signment thereof indorsed, together with other effects of the assured, came into the hands of the defendant as administrator immediately after his appointment as such. The defendant pleaded in abatement that the estate of his intestate had been represented insolvent before the date of the plaintiff 's writ, to which plea the plaintiff de- murred and the defendant was ordered to answer over. The defendant then pleaded farther in abatement, that the action was commenced before the expiration of one year from the time of his taking out administration, which plea the defendant afterward waived by agree- ment with the plaintiff. At the trial the defendant pleaded the general issue, and specified in his defence: First, that whatever money was paid to him by the insurers was paid to him as administrator, and that the same was lawfully re- tained by him as such, and belonged to the general as- sets of the estate of his intestate, which had been duly rendered insolvent; and, second, that the defendant was not liable for interest. It was admitted by the plaintiff that the estate of the assured had been duly rendered insolvent. The jury, under the instructions of the presidmg judge, returned a verdict for the plaintiff for the amount due on the notes in evidence with interest. In the second entitled cause the writ bore date the same day, contained a similar declaration, the same facts were 760 Rights of Thibd Peesons. [Chap. III. admitted and proved under it, and the same proceedings took place as in the preceding case. The verdicts in both cases were taken subject to the opinion of the whole court on the question, whether the several plaintiffs were entitled to judgment in the usual form, and to execution thereon, and to full satisfaction thereof if the assets of the defendant's intestate were sufficient to satisfy the same ; or whether the judgments, when rendered, were to be presented to the commission- ers in insolvency appointed to examine the claims against the estate, and to be allowed and paid like the claims of other creditors; and also upon the further question, whether the demand was in its nature assignable, and whether the plaintiff's remedy was by the present form of action or by a bill in equity. Shaw, C.J. This is a suit against the defendant as ad- ministrator of the estate of Asa Spaulding, in which the plaintiff seeks to recover the whole amount due to him on certain notes due from said Asa Spaulding. It is conceded that the estate of Spaulding has been repre- sented insolvent, and it is therefore quite clear that the plaintiff cannot recover his full debt, to the injury of other creditors, unless there are circumstances which distinguish this case from the ordinary case of a claim on an insolvent estate. The plaintiff undertakes thus to distinguish it, by showing that he had a lien on a spe- cific partion of the assets, which came into the hands of the defendant charged with such lien; and that the de- fendant, having received the amount of it, is liable to the plaintiff as for money received to his use. The ground is that Asa Spaulding obtained a policy of insurance on his own life for $1,000; that during his life, and while the policy was in force, he indorsed an order thereon, addressed to the insurers requesting them, in case of loss, to pay $400 of the amount thereby in- sured to Palmer, the plaintiff, which order was duly Sec. l.J Palmer v. Meekill. 761 signed by Spaulding and notified to the insurers, but the policy with this indorsement thereon remained in the custody of Spaulding until his decease, and came into the hands of the administrator with the other effects of the deceased. A like order in all respects, and for the like sum, was also endorsed on the policy in favor of James Dana. The claim of the plaintiff is, that this was an assignment pro tanto of the policy, as collateral security for several notes, described in the report. After the decease of Spaulding, and notice to the insurers, the plaintiff demanded of them the $400, part of the loss which the insurers declined paying, on the ground that the assignment was not in the form usually required by them, and, besides, that they did not think themselves obligated to pay the amount of the policy in instalments. Subsequently on the demand of the defendant, as ad- ministrator, the insurers paid the full amount to him. The question is whether the case shows an assignment which vested any interest in this policy, legal or equi- table, in the plaintiff. The policy was an executory con- tract, a chose in action, available as a legal contract only to Asa Spaulding and his personal representatives. According to the modern decisions, courts of law recognize the assignment of a chose in action, so far as to vest an equitable interest in the assignee, -and author- ize him to bring an action in the name of the assignor and recover a judgment for his own benefit. But in order to constitute such an assignment, two things must concur: First, the party holding the chose in action must, by some significant act, express his intention that the assignee shall have the debt or right in question, and, according to the nature and circumstances of the ease, deliver to the assignee, or to some person for his use, the security if there be one, bond, deed, note, or written agreement, upon which the debt or chose in action arises ; and, secondly, the transfer shall be of the whole and 762 Eights oi' Thied Peesohts. [Chap. Ill, entire debt or obligation, in which the chose in action con- sists, and, as far as practicable, place the assignee in the condition of the assignor, so as to enable the assignee to recover the full debt due, and to give a good and valid discharge to the party liable. The transfer of a chose in action 'bears an analogy in i^ome respect to the transfer of personal property ; there can be no actual manual tradition of a chose in action, as there must be of personal property to constitute a lien, but there must be that which is similar, a delivery of the note, certificate, or other document, if there is any, which constitutes the chose in action, to the assignee, with full power to exercise every species of dominion over it, and a renunciation of any power over it on the part of the assignor. The intention is, as far as the nature of the case will admit, to substitute the assignee in place of the assignor as owner. It appears to us that the order indorsed on this policy, and retained by the assured, fails of amounting to an assignment in both of these particulars. We do not question that an assignment may be made of an entire fund in the form of an order drawn by the owner on the holder of the fund or party indebted, with authority to receive the property or discharge the debt. But if it be for a part only of the fund or debt, it is a draft or bill of exchange which does not bind the drawee or transfer any proprietary or equitable interest in the fund until accepted by the drawee. It therefore creates no lien upon the fund. Upon this point the authorities seem decisive. It seems to us quite clear that the plaintiff acquired no such interest in this policy as would enable him to main- tain an action against the insurers. He seems himself to have thought so too, for although he demanded the amount of them, which they refused to pay, for reasons which seem to be conclusive, he yet declined bringing any Sec. 1.] Palmer v. Merrill. 763 suit against them, but permitted them to pay the money- over to the administrator. If the plaintiff had no such legal or equitable interest in the debt due on the policy as would enable him to maintain an action or suit in equity, either in his own name or in the name of the administrator of the assignor, for his own benefit, it seems difficult to perceive on what ground he had any equitable lien on the debt due by the policy, and if he had not, then the administrator took it as general assets charged with no trust for the plaintiff. It appears to us that a contrary doctrine would tend to a great confusion of rights. A man cannot by his own act charge a personal chattel, a carriage and horses, for instance, with a lien in favor of a particular creditor, and yet retain the dominion and possession of them till his death; a fortiori where he retains the memorandum or instrument of transfer of such chattel in his own pos- session and under his own control. It seems to us equally impracticable to charge a debt due to him, by an order or memorandum retained in his own possession, purport- ing to give a particular creditor an equitable lien by the assignment of such chose in action, without a transfer or delivery of the security by which it is manifested. Such an assignment would not constitute the debtor him- self a trustee to the creditors. What trust then devolves on the administrator? Were the law otherwise, an ad- ministrator, instead of succeeding to the property and rights of his intestate, to be administered and distributed equally among all the creditors, might be obliged to dis- pose of it in very unequal proportions according to such supposed declaration of trust. These considerations apply with peculiar force to a policy of insurance on- the life of the assured himself on which no money can become due until the death of the assured, at which time all his rights devolve on his personal representative. If, therefore, it is intended to supersede the right of the 764 Eights of Thikd Persons. [Chap. III. personal representative, it must be done in the mode required for a complete assignment of the whole contract. The defendant having waived his objection that this action was brought too soon for the purpose of trying the plaintiff's right, we see no objection to entering a judgment for the amount of the debt actually due from the intestate, to be certified to the judge of probate, to be added to the commissioners' report of debts allowed, so as to enable the plaintiff to take a dividend pro rata with other creditors, but not to have execution de bonis testatoris. Cabteb v. Nichols. 58 VEEMONT 553—1886. Assumpsit. Plea, general issue, and notice of payment and settlement. Trial by court on an agreed statement, September Term, 1885, Powers, J., presiding. Judg- ment for the defendant. The facts are sufficiently stated in the opinion. The opinion of the court was delivered by Ross, J. The plaintiff was in the employnaent of the defendant in 1884 at $20 per month. April 12, 1884, he wrote a line to the defendant, requesting him to pay to John Hardigan, or order, the sum of $10 per month for the next two months, and the sum of $5 per month there- after while he should work for the defendant, until a cer- tain judgment against him should be paid. Attached to the writing was an acceptance and an agreement to pay Hardigan these sums as they became due. The order was presented to the defendant with a request that he would sign the acceptance. This he refused to do. The plaintiff continued to work for the defendant over three months, and the defendant paid him in full therefor. This suit is brought in the name of the plaintiff for the benefit of Hardigan to recover for the sums named in the order, Sec. 2.] Boueene v. Mason. 765 that would have been due if the defendant had accepted the order. Hardigan contends that the order operated as an assignment of that portion of the wages of the plaintiff thereafter earned, named in the order. It is well settled that an employe in actual service, or under a contract for service, may make a valid assignment of the whole of his future earnings in such service, and that the employer on notice thereof will be bound to pay the assignee. Thayer v. Kelley, 28 Vt. 19. In such case the employer is put to no disadvantage. But the employe would have no legal right, without the consent of the employer, to split up his claim for services and recover in separate actions. Neither can he confer such right upon an assignee, by making an assignment or assign- ments of portions of his earnings under the contract to one or more persons. The employer cannot, without his consent, lawfully be subjected to the inconveniences and complications which might be incurred by such partial assignments. He is under no legal obligation to recog- nize them, nor to be bound by them, and he may for that reason disregard them. Mandeville v. Welch, 5 Wheat. 277; Fairgrieves v. Lehigh Navigation Co., 2 Phil. 182; Gibson v. Cook, 20 Pick. 15. Without considering whether the writing would be a good equitable assignment in other respects, for the reasons already stated, the judgment is affirmed. Section 2. — Third Persons As Bbneficiaeies. BouENE V. Mason. 1 VENTRIS, 6 — 1669. In an assumpsit, the plaintiff declares, that, whereas one Parrie was indebted to the plaintiff and defendants in two several sums of money, and that a stranger was 766 Rights of Thied Persons. [Chap. III. indebted in another sum to Parrie, that there being a communication between them, the defendants, in con- sideration that Parrie would permit them to sue, in his name, the stranger, for the sum due to him, promised that they would pay the sum which Parrie owed to the plaintiff ; and alleged that Parrie permitted them to sue, and that they recovered. After nonassumpsit pleaded, and a verdict for the plaintiff, it was moved in arrest of judgment that the plaintiff could not bring his action, for he was a stranger to the consideration. But in maintenance thereof, a judgment was cited in 1658, between Sprat and Agar, in the King's Bench, where one promised to the father, in consideration that he would give his daughter in marriage with his son, he would settle so much land. After the marriage the son brought the action; and it was adjudged maintainable. And another case was cited of a promise to a physician, that if he did such a cure he would give such a sum of money to himself and another to his daughter; and it was resolved the daughter might bring an assumpsit. Which cases the court agreed: for in the one case the parties that brought the assumpsit did the meritorious act, though the promise was made to another, and in the other case, the nearness of the relation gives the daugh- ter the benefit of the consideration performed by her father; but here the plaintiff did nothing of trouble to himself or benefit to the defendant, but is a mere stran- ger to the consideration ; wherefore it was adjudged quod nil capiat per hillam. DUTTON AND WiFE V. PoOLE. 2 LEVmz, 211 — 1677. Assumpsit, and declares that the father of the plain- tiff's wife being seized of a wood which he intended to sell to raise portions for younger children, the defendant Sec. 2.] Dtjtton et al. v. Poole. 767 being his heir, in consideration the father would forbear to sell it at his request, promised the father to pay his daughter, now the plaintiff's wife, £1,000, and avers that the father at his request forbore, but the defendant had not paid the £1,000. After verdict for the plaintiff upon nonassumpsit, it was moved in arrest of judgment, that the action ought not to be brought by the daughter, but by the father ; or if the father be dead, by his executors ; for the promise was made to the father, and the daughter is neither privy nor interested in the consideration, noth- ing being due to her. Also the father, notwithstanding this agreement with the son, might have cut down the wood, and then there was no remedy for the son, nor could the daughter have released the promise, and therefore she cannot have an action against him for not perform- ing the promise, and divers cases were cited for the de- fendant, as Yelv. Rippon v. Norton, Hawes v. Leader, Starky v. Milner, 1 Eoll. 31, 32, Sty. 296, and a case lately resolved in Com. Banc, inter Norris & Pine, intrat. Hill. 22 and 23 Car. 2, 1538, where the case was, " If you will marry me, I will pay your children so much," and the action being brought by the children, adjudged it lay not. On the other side it was said, if a man deliver goods or money to H, to deliver or pay to B, B may have an action, because he is to have the benefit of the bailment, so here the daughter is to have the benefit of the promise. So if a man should say, ' ' Give me a horse, I will give your son £10," the son may bring the action, because the gift was upon consideration of a profit to the son; and the father is obliged by natural affection to provide for his children, for which cause affection to children is sufficient to raise a use to them out of the father's estate; and therefore the daughter had an interest in the considera- tion and in the promise, and the son had a benefit by this agreement, for by this means he hath the wood and the daughter is without a portion, which otherwise in all 768 Rights of Third Peksons. [Chap. III. probability the son would have been left to pay, if the wood had not been cut down, nor this agreement between him and his father, and for authorities of this side were cited 1 Roll. Ab. 31, Oldman v. Bateman, and ibid. 32; Starky v. Meade. Upon the first argument Wylde and Jones, JJ., seemed to think that the action ought to be brought by the father and his executors, though for the benefit of the daughter, and not by the daughter, being not privy to the promise or consideration. Twysden and Rainsford seemed contra, and afterward two new judges being made, scil Scroggs, C.J., in lieu of Rains- ford, and Dolbin in lieu of Twysden, the case was argued again upon the reasons aforesaid ; and now Scroggs, C.J., said that there was such apparent consideration of affec- tion from the father to his children, for whom nature obliges him to provide, that the consideration and promise to the father may well extend to the children, and he and Jones remembered the case of Norris & Pine, and that it was adjudged as aforesaid. But Scroggs said he was then and still is of opinion contrary to that judgment. Dolben, J., concurred with him that the daughter might bring the action, Jones & Wylde hcesitabant. But next day they also agreed to the opin- ion of the Chief Justice and Dolben, and so judgment was given for the plaintiff, for the son hath the benefit by having of the wood, and the daughter hath lost her portion by this means. And now Jones said he must confess he was never well satisfied with the judgment in Norris & Pine's Case, but, being it was resolved, he was loth to give his opinion so suddenly against it. And note upon this judgment error was immediately brought, and Trin. 31 Car. 2 it was affirmed in the Exchequer Chamber. Sec. 2.] Tweddle v. Atkinson. 769 TwEDDLE V. Atkinson. 1 BEST & SMITH, 393 — 1861. The declaration stated that the plaintiff was the son of John Tweddle, deceased, and before the making of the agreement hereafter mentioned, married the daughter of WUliam Guy, deceased ; and before the said marriage of the plaintiff the said William Guy, in consideration of the then intended marriage, promised the plaintiff to give to his said daughter a marriage portion, but the said promise was verbal, and at the time of the making of the said agreement had not been performed; and before the said marriage the said John Tweddle, in consideration of the said intended marriage, also verbally promised to give the plaintiff a marrige portion, which promise at the time of the making of the said agreement had not been performed. It then alleged that after the marriage and in the lifetime of the said William Guy, and of the said John Tweddle, they, the said William Guy and John Tweddle, entering into the agreement hereafter mentioned as a mode of giving effect to their said verbal promises; and the said William Guy also entering into the said agreement in order to provide for his said daugh- ter a marriage portion, and to procure a further pro- vision to be made by the said John Tweddle, by means of the said agreement, for his said daughter, and acting for the benefit of his said daughter; and the said John Tweddle also entering into the said agreement in order to provide for the plaintiff a marriage portion, and to procure a further provision to be made by the said Wil- liam Guy, by means of the said agreement, for the plain- tiff, and acting for the benefit of the plaintiff; they the said William. Guy and John Tweddle made and entered into an agreement in writing in the words following — that is to say: 49 770 Eights of Third Peesons. [Chap. III. " High Conisclippe, July 11, 1855. " Memorandum of an agreement made this day between William Guy, of, etc., of the one part, and John Tweddle, of, etc., of the other part. Whereas it is mutually agreed that the said William Guy shall and will pay the sum of £200 to William Tweddle, his son-in-law; and the said John Tweddle, father to the aforesaid William Tweddle, shall and will pay the sum of £100 to the said William Tweddle, each and severally the said sums on or before August 21st, 1855. And it is hereby further agreed by the aforesaid William Guy and the said John Tweddle that the said William Tweddle has full power to sue the said parties in any court of law or equity for the aforesaid sums hereby promised and specified. "And the plaintiff says that afterward and before this suit, he and his said wife, who is still living, ratified and assented to the said agree- ment, and that he is the William Tweddle therein mentioned. And the plaintiff says that the said August 21st, 1855, a. d., elapsed, and all things have been done and happened necessary to entitle the plain- tiff to have the said sum of £200 paid by the said William Guy or his executor, yet neither the said William Guy nor his executor has paid the same, and the same is in arrear and unpaid, contrary to the said agreement." Demurrer and joinder therein. WiGHTMAN, J. Some of the old decisions appear to support the proposition that a stranger to the considera- tion of a contract may maintain an action upon it, if he stands in such a near relationship to the party from whom the consideration proceeds, that he may be con- sidered a party to the consideration. The strongest of those cases is that cited in Bourne v. Mason, 1 Ventr. 6, in which it was held that the daughter of a physician might maintain assumpsit upon a promise to her father to give her a sum of money if he performed a certain cure. But there is no modern case in which the propo- sition has been supported. On the contrary, it is now established that no stranger to the consideration can take advantage of a contract, although made for his benefit. Ckompton, J. It is admitted that the plaintiff cannot succeed unless this case is an exception to the modern Sec. 2. J Tweddle v. Atkinson. . 771 and well-establislied doctrine of the action of assumpsit. At the time when the cases which have been cited were decided the action of assumpsit was treated as an action of trespass upon the case, and therefore in the nature of a tort; and the law was not settled, as it now is, that natural love and affection is not a sufficient consideration for a promise upon which an action may be maintained y nor was it settled that the promisee cannot bring an action unless the consideration for the promise moved from him. The modern cases have, in effect, overruled the old decisions ; they show that the consideration must move from the party entitled to sue upon the contract. It would be a monstrous proposition to say that a person was a party to the contract for the purpose of suing upon it for his own advantage, and not a party to it for the purpose of being sued. It is said that the father in the present case was agent for the son in making the con- tract, but that argument ought also to make the son liable upon it. I am prepared to overrule the old de- cisions, and hold that, by reason of the principles which now govern the action of assumpsit, the present action is not maintainable. Blackbukn, J. The earlier part of the declaration shows a contract which might be sued on, except for the enactment in section 4 of the Statute of Frauds, 29 Car. 2, ch. 3. The declaration then sets out a new contract, and the only point is whether, that contract being for the benefit of the children, they can sue upon it. Mellish admits that in general no action can be maintained upon a promise, unless the consideration moves from the party to whom it is made. But he says that there is an excep- tion — namely, that when the consideration moves from a father, and the contract is for the benefit of his son, the natural love and affection between the father and son gives' the son the right to sue as if the consideration had proceeded from himself. And Button and Wife v. 772 . Eights of Third Pbesons. [Chap. III. Poole, 2 Lev. 210 ; 1 Ventr. 318 was cited for this. We cannot overrule a decision of the Exchequer Chamber, but there is a distinct ground on which that case cannot be supported. The cases upon Stat. 27 El. ch. 4, which have decided that, by section 2, voluntary gifts by settle- ment after marriage are void against subsequent pur- chasers for value, and are not saved by section 4, show that natural love and affection are not a sufficient con- sideration whereon an action of assumpsit may be founded. Judgment for the defendant. Borden v. Boaedman. 157 massachusetts reports, 410 — 1892. Contract. Trial in the Superior Court, before Braley, J., who reported the case for the determination of this court in substance as follows : On July 24, 1890, Daniel J. Collins, a contractor, made a contract in writing with the defendant to build him a house in New Bedford, for the sum of $2,650, payable one-half when the house was ready for plastering, the balance when finished. The defendant advanced to Col- lins $200 before the first payment was due, taking his receipt therefor. During the progress of the work, and before the first payment became due according to the terms of the contract, the building was blown off the foundation. Collins employed the plaintiffs, who were building movers, to put the building back, under an agree- ment that it should not cost more than $150 ; the plain- tiffs put the building back, finishing the moving a month or six weeks prior to the first payment. Collins then proceeded with the work, and got the building ready to plaster. When the time for the first payment arrived the defendant told Collins he would like to have all per- Sec. 2.j Boeden v. Boakdman. 773 sons who had lienable bills against the house present to see that they were paid. The plaintiffs were not present, so the defendant asked Collins how much was due them, and was told $150. The defendant thereupon, at the request and with the consent of Collins, reserved $200 for the plaintiffs, saying he would hold this money to pay them with, and would pay them him'self. Collins thereupon gave the defendant a receipt for $1,125, as first payment on the house. Neither Collins nor the de- fendant informed the plaintiffs of the holding of this money, but in consequence of what a third person told Manchester, one of the plaintiffs, Manchester called upon the defendant, and said to him, " I understand that you are holding my money for me for moving that building back. Is that so? " Boardman replied that it was. Manchester then said, " I am glad that you have got it and will pay it." Boardman said, " I don't know as I will now, I have been advised not to." No other inter- view was had between the plaintiffs and the defendant. The defendant claimed that, upon this evidence, the action could not be maintained, and offered to show, in bar of the action, that, a day or so after the time of the first payment, Collins abandoned and broke his said con- tract, and the defendant was obliged to finish the build- ing at a loss, and that at the time of refusing to pay Manchester, he, Manchester, was told by the defendant that Collins had broken his contract ; and that on Decem- ber 9, 1890, after refusal to pay them by the defendant, the plaintiffs commenced an action against said Collins for the recovery of the claim now in suit. The evidence was excluded. The judge directed a verdict for the plain- tiffs for $150, and interest from the date of the writ. If the ruling was right, then judgment was to be entered on the verdict ; otherwise, judgment for the defendant. MoKTON, J.i The evidence offered in bar was rightly ^ Citation of authorities omitted. 774 Eights of Thied Pbesons. [Chap. III. excluded. The subsequent failure of Collins to perform his contract would not release the defendant from the obligation, if any, which he had assumed to the plaintiffs, in the absence of any agreement, express or implied, that the money was to be paid to the plaintiffs only in case Collins fulfilled his contract. There was no evidence of such an agreement. The other question is more difficult. The case does not present a question of novation, for there was no agree- ment among the plaintiffs, Collins, and the defendant that the defendant should pay to the plaintiffs, out of the money in his hands and due to Collins, a specific sum, and that thenceforward the defendant should be re- leased from all liability for it to Collins, and should be liable for it to the plaintiffs. Neither was there any agreement between the plaintiffs and the defendant that the latter would pay the money to them. The conversa- tion between one of the plaintiffs and the defendant can- not be construed as affording evidence of such an agree- ment. Coupled with the defendant's admission that he was holding money for the plaintiffs was his repudiation