terms of the circular.75 The company had placed the amount of the reward in a bank, and the court regarded that act as indicating that the circular was an offer.

35. Cross offers. If offers cross, there is no contract. A writes to B on November 1st, offering to sell him his law books for $100, and at the same hour B writes to A offering to buy A's law books for $100. Since neither A nor B knew of the other's offer, there is no contract. Although the terms of each offer are the same, yet since both A and B only meant them for offers, the court may not make one of them an acceptance. To do that would take away the right of either party to revoke his offer. Such situations are called "cross offers," and it is said that two like offers are not the same as an offer and acceptance. Blackburn, J., in Pearson v. Commercial,76 says: "The promise or offer being made on each side in ignorance of the promise or the offer made on the other side, neither of them can be construed as an acceptance of the other."

36. Rule as to written draft.-Generally, where the intention of the parties after a series of negotiations is to reduce the terms of the proposed agreement to writing, there is no contract until the writing is made." Similarly, where the parties come to a complete understanding, but contemplate the privilege of withdrawal until the contract is reduced to a final writing, there is no contract until the instru

75 Carlill v. Carbolic Smoke Ball Co., L. R. (1893), 1 Q. B. 256 (Eng.), LEADING ILLUSTRATIVE CASES.

76 35 L. T. 445 (Eng.).

77 Edge Moor Bridge Works v. Bristol, 170 Mass. 528.

ment is signed.78 But if the parties do come to a complete understanding by their correspondence, a contract is created.79 This is called a contract by incorporation by reference.80

78 Donnelly v. Currie Co., 66 N. J. L. 388. 79 Sherry v. Proal, 100 N. E. 421 (N. Y.). 80 Sanders v. Pottlitzer Co., 144 N. Y. 209.

CHAPTER III.

REALITY OF CONSENT.

37. Reality of consent.-The next question to be considered in the formation of a contract is genuineness or reality of consent. Where such reality of consent is lacking, there is no contract.

There may be various causes for unreality of consent: (1) The parties may not have meant the same thing; or one or both, while meaning the same thing, may have formed untrue conclusions as to the subject matter of the agreement. This is called Mistake. (2) One of the parties may have formed incorrect conclusions respecting the subject matter of the contract, because the other party made certain statements or withheld certain facts. If this situation arises innocently, it is called Misrepresentation. (3) But if the incorrect and untrue conclusions of the one party to the contract are the result of intentional misrepresentations or active concealment of facts by the other party, there exists what is called Fraud. (4) Where the consent of one of the parties is extorted from him by actual or threatened violence, there is Duress. (5) Finally, the unusual influence, mental or moral, of one party on the other, causing no real expression of intention on the party affected, is termed Undue Influence.

38. Mistake. The present discussion is con-. cerned with the mistake of intention, and not mistake

of expression. For instance, the parties may be genuinely agreed on the terms of the contract, but the terms may, by mistake, be so expressed as not to convey their meaning. In these cases they may be permitted to explain the contract, or the mistake may be corrected. This is mistake of expression, and pertains to the interpretation of contracts.81 But where the parties have not meant the same thing, or one or both may, though meaning the same thing, have formed untrue conclusions as to the subject matter of the agreement, it is a mistake of intention.82

There are several instances of mistake which will be considered in this connection.

83

Mistake as to the nature of the transaction. Cases involving this sort of mistake arise in the execution of written instruments, and almost of necessity arise from some misrepresentation or deceit on the part of a third party. Thus where a man who is illiterate, or blind, or ignorant of the language, executes a deed conveying his property to another, which deed is misread or misdescribed to him, it is void when, in fact, the deed is a different instrument from that which he was led to believe it to be.84

But if a man can read and does not read the document which he signs, or if, being unable to read, he signs without having it read to him, he will not be permitted to say the contract was void.85 "If, whatever a man's real intention may be, he so conducts 81 See Chap. XII.

82 Anson, Contracts (Huffcut's 2d ed.), § 176.

88 Thoroughgood's Case, 2 Coke 9 (Eng.).

84 Foster v. MacKinnon, 4 C. P. 704 (Eng.).

85 Muller v. Kelly, 116 Fed. 545; Walker v. Ebert, 29 Wis. 194, LEADING ILLUSTRATIVE CASES.

M.A.L.-8

himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party, upon that belief, enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms." 86

Mistake as to the subject matter of a contract. This mistake occurs in three cases: (1) Mistake as to the existence of the subject matter; (2) Mistake as to the identity of the subject matter; and (3) Mistake as to the nature and essential qualities of the subject matter.

(1) If the agreement is in respect to a thing which, unknown to both parties, does not exist when the contract is made, this goes to the very root of the matter and avoids the contract. This rule is further based on the ground that the existence of the subject matter is an essential element of a contract. In Couturier v. Hasties there was a sale of a cargo of corn which was supposed by the parties at the date of the sale to be in voyage from Salonica to England. The corn had been, as a matter of fact, unloaded and sold prior to the date of the agreement because it had heated and was about to spoil. The contract of sale was held to be void, because the intention of the parties was that there was something to be sold, and something to be purchased at the time, when in fact the object contemplated had ceased to exist. 88

86 Blackburn, J., in Smith v. Hughes, L. R. 6 Q. B. 597 (Eng.). See Anson, Contracts (Huffcut's 2d ed.), §§ 186-190.

87 5 H. L. C. 673 (Eng.).

88 See Gibson v. Pelkie, 37 Mich. 380; Brick Co. v. Pond, 38 Ohio St. 65.