Cп. II. s. 1. of Contract If an offer has been made for the sale of property, and, before that offer is accepted, the person who made it agrees to sell the property to somebody else; and the person to whom the first offer was made receives notice, in some way, that the property has been Offer cannot sold to another; he cannot, after that, make a binding contract, by be accepted accepting the offer which was made to him (ƒ). (b) Contract by letter through Post. after knowledge of contract with another person. as to con contract. If an offer be made by letter to a party at a distance, it is presumed Presumption to be constantly repeated until the period for acceptance arrives, up tinuance of to which period it is to be inferred that there is a continuation of intention to the intention to contract; and that the acceptance of the exact terms proposed, within the period limited, shall form a complete contract as from the date of such acceptance, provided the party making the offer has not in the interim withdrawn it. Thus in Adams v. Lindsell (g), the defendant, by letter, offered to sell Adams v. wool to the plaintiff, receiving his answer in course of post. Lindsell. The letter to the plaintiff having been misdirected, was not received by him until two days later than it ought to have been; but he answered it in course of post, agreeing to accept the wool. The defendant, however, had on the previous day sold the wool to another person, whereupon the plaintiff sued him for non-delivery: and it was held that the action lay, because the contract had been completed by the plaintiff's acceptance of the defendants offer, and, as the delay in certifying the acceptance arose entirely from the defendant's mistake, the plaintiff's letter must be taken, as against him, to have been received in course of post. And the same rule Contract that a contract is completed by the posting of a letter accepting the completed by posting of proposal for it, was recognized and acted upon in the House of letter accepting the proLords, in Dunlop v. Higgins. There A. B., of Glasgow, offered, by posal for it. letter, to sell to C. D., of Liverpool, a quantity of iron on certain Dunlop v. terms. By the usage of the trade, C. D. was bound to accept or Higgins. refuse the offer by return of post; and he did, in fact, write and post a letter accepting it in due time. By an accident connected with the transmission of the letter by the post-office, however, this letter did not reach A. B. until one post later than it ought; and he therefore treated C. D.'s letter as no acceptance; but their Lordships held, that C. D.'s acceptance of the offer was complete, and that A. B. was bound to fulfil the contract (h). It will be observed that in the above case, the accepting letter in Contract fact arrived, though its arrival was delayed. It has been since completed by letter posted held by the Court of Appeal to follow, in Household Fire In- but never (f) Per Mellish, L.J., Dickinson v. Idds (1876), 2 Ch. D. 463, 474, C. A. y) Adams v. Lindsell (1818), 1 B. & Ald. 681; 19 R. R. 415. received. Requisites of Contract (Assent). Completion by letter posted, CH. II. s. 1. surance Co. v. Grant, that where the party making the proposal expressly or impliedly authorises the employment of the post as a means of communicating the acceptance, as where a proposal made by letter is accepted by letter, the contract is complete at the time. the letter accepting the offer is posted, even although it was never received by the person to whom it was sent (i); or though the person making the offer posted a letter of withdrawal before receiving the letter of acceptance (j). Both these cases arose upon allotments of shares in companies, but the rule upon which they were decided seems to be of general application. but not received. Household Fire Insurance Co. v. Grant. Revocation. of offer by post does not Henthorn v. This rule, however, does not apply to the revocation of an offer. Such revocation is not complete until it has been brought to the mind of the person to whom the offer was made, and therefore a revocation sent by post does not operate from the time of posting it, so as to prevent a binding contract being made by the posting an acceptance after the revocation of the offer had been posted, but before it had been received. This was decided by the Court of Appeal in Henthorn v. Fraser (k), in which also the rule that an acceptance is complete when posted was extended to a case in which the offer of which it was an acceptance was not made by Acceptance by post, the circumstances under which the offer was made being such post of offer that it must have been within the contemplation of the parties (who lived, the party accepting at Liverpool and the party offering at Birkenhead, where he had handed the offer to the party accepting), that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of the offer. not made by post. Effect of revocation of accepting letter. But what is the effect of the revocation of an accepting letter communicated to the other party before the accepting letter is received? For instance, if a telegram be despatched after the posting of the letter of acceptance, and received before the letter of acceptance could be received, would the telegram, if rejecting the offer, and by anticipation cancelling the acceptance, and in fact received before the acceptance, take effect instead of the offer, so as to make the acceptance void? This point was forcibly put by Bramwell, L.J., in Grant's case (1). "There is no case to show," said he, "that such anticipation would not prevent the letter from binding. It would be a most alarming thing to say that V. (i) Per Baggallay and Thesiger, L.JJ., Bramwell, L.J., diss., Household Fire Insurance Co. v. Grant (1879), 4 Ex. D. 216, C. A.; overruling The British American Telegraph Co. Colson (1871), L. R., 6 Ex. 108, where the Court of Exchequer (Kelly, C.B., Bramwell, B., and Pigot, B.) unanimously held (distinguishing Dunlop v. Higgins), that there was no binding contract, until the letter of acceptance was received by the party who made the pro posal. (j) Harris's case (1872), L. R., 7 Ch. 587. (k) Henthorn v. Fraser, [1892] 2 Ch. 27, C. A.; and see Raeburn v. Burness, (1895) Comm. Cas., Pt. I., 22, where the communications were by telegram. (1) Grant's case, 4 Ex. D. at p. 235, by way of a reductio ad absurdum of the judgment of the majority of the Court. In Dunmore v. Alexander (1830), 9 Shaw & Dun. 109 (an unsatisfactory case) CH. II. s. 1. Requisites of Contract (Assent). it would to say that a letter honestly but mistakenly written and posted must bind the writer, if hours before its arrival, he informed the person addressed that it was coming, but wrong and recalled." The point seems still to be an open one upon the authorities (m), and not concluded by the actual judgment of the majority of the Court in Grant's case. And it is submitted that the rule of that Effect of case that a contract is concluded by the posting of a letter, though revocation of anticipatory not delivered, is merely an artificial rule induced by necessity; that accepting an actual communication of a refusal would prevail over a constructive communication of acceptance; and that such actual communication, reaching the offeror before the constructive communication could possibly reach him, would prevent the contract from being concluded by the constructive communication whether it should become actual or not. letter. suggestions. But in the present state of the authorities, it may be prudent Practical for both offeror and acceptor to communicate the offer and acceptance by registered letter when communicating by post (n); and for an offeror to make his offer conditional on the actual receipt of an acceptance within some definite time (o). Contracts by telegram satisfy the Statute of Frauds, which, as Contracts by we shall see presently (Ch. IV., sect. 2), requires certain contracts telegram. to be made by signed writing (p), and an offer by telegram is presumptive evidence that a prompt reply is expected (q). Where an offer is made through an agent by telegram, and accepted by telegram, the contract is complete, and the party accepting cannot repudiate the contract on the ground that his telegram has a an acceptance was held cancelled by a letter delivered at the same time. 8th (m) See Anson on Contracts, ed., at p. 27; Benjamin on Sales, 4th ed., at p. 57; and Pollock on Contracts, 6th ed., at p. 35; but these writers appear to think it probable that the int will not be decided as submitted here. "English Courts may now be bound to hold that an unqualified acceptance, once posted, cannot be revoked even by telegram or special messenger outstripping its arrival, it is said in Pollock on Contracts, at p. 35; but it appears from p. 33 that the writer considers that so to hold would be wrong in principle. (a) See Conveyancing Act, 1881, s. 67; Settled Land Act, 1882. s. 45; Agricultural Holdings Act, 1883, s. 28, as to sufficiency of service of notices by registered letter. (0) As suggested in Pollock on Contracts, 6th ed. at p. 37, where it is put that "the practical couclusion seems to that every prudent man who makes an offer of any importance by letter should expressly make it conditional on his actual receipt of an acceptance within some definite time." seems (p) Godwin v. Francis, (1870) L. R., 5 C. P. 295. In the United States "the inclination of the authorities to be that contracts made by telegram obey the same rule as contracts through the mail, and are complete as soon as the acceptance is left at the office of the telegraph company for transmission, although the sender withdraws the message immediately afterwards, and before it is forwarded to the party from whom the offer came or the contents have been communicated in any other way." Hare on Contracts (Am. 1887), citing Trevor v. Wood, 36 N. Y. 307. No contract is effected by letters crossing in the course of the post, but the words "reply by return of post' have been said not to mean exclusively reply by letter by return of post," but to include authority to reply by telegram or by verbal message, or any means not later than a letter by post would reach its destination. Tinn v. Hoffman, (1873) 29 L. T. 271, Ex. Ch. (1) Quenerduaine v. Cole (1883), 32 W. R. 185. CH. II. s. 1. meaning which would not be apparent to the agent or the other Requisites of Simple Contract (Assent). contracting party (r). Where a treaty is commenced by letter, and an offer made by letter is verbally rejected, the party who made the offer is relieved Oral rejection from his liability, unless he consent to renew the treaty (8). of offer by letter. Rule as to mutuality. Conditional contracts, (c) Rule as to mutuality. From what is stated above, it appears that the assent or consent of the parties to the terms of the agreement must be mutual, even although the promise of one of them be in itself positive and unambiguous. But, although this be the case, still it does not follow that an agreement will, in every case, be bad for want of mutuality, merely because each party cannot, from the time of the making thereof, have an action upon it, in regard to matters to be performed by the other contracting party. There are, certainly, cases in which, if it appear that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement will be void for want of mutuality; but there are others in which this rule does not hold. Thus, if A. agree that, in consideration that B., the obligee of a bond on which C. is liable, will forbear to sue C. for a certain time, he, A., will pay to B. the sum due on the bond; it is clear that B. is not bound by his promise to forbear, although it is equally clear that, unless he do forbear, he cannot sue A. on his agreement (t). So, an agreement by A. to supply goods to B. at certain prices and in such quantities as B. may order from time to time, is not bad for want of mutuality; although, until B. has given an order for goods, he cannot sue A. upon his agreement (u). So, where a person says, "In case you choose to employ this man as your agent for a week, I will be responsible for all such sums as he shall receive during that time, and neglect to pay over to you;" the party indemnified is not, therefore, bound to employ the person designated by the guarantee; but if he do employ him, then the guarantee attaches and becomes binding on the party who gave it (r). In such cases as these, it is clear that there is no want of mutuality in the agreement come to by the parties; and yet they are cases of contracts which, at the time they were made, were not binding on both sides; but in which, on the contrary, the whole duty to be performed rests with one of the contracting parties. (r) Roth v. Taysen, (1896) Comm. Cas. Pt. II., Vol. 1. (s) Sheffield Canal Company v. Sheffield and Rotheram Railway Company (1841), 3 Rail. Cas. 121. (t) See Morton v. Burn (1837), 7 A. & E. 19, 26. (u) Great Northern Railway Co. v. Witham (1873), L. R. 9 C. P. 16. (v) Per Parke, B., Kennaway v. Treleavan (1839), 5 M. & W. 498, 501; and see per Patteson, J., Mills v. Blackall (1847), 11 Q. B. 358; and see per Bayley and Holroyd, JJ., Payne v. Ives (1823), 3 D. & R. 664. Requisites But wherever it appears that, if the contract were not binding CH. II. s. 1. on both parties at the time it was made, this want of mutuality would leave one party without a valid and available consideration for his promise, then the contract will be void (v). Thus, in a case in which it was attempted to charge a defendant upon an award; Lord Kenyon held that it was necessary to prove that the plaintiff also had agreed to be bound by the award, as otherwise there was no mutuality; and that therefore the defendant's agreement was a mere nudum pactum, and not binding on him (x). So, a written agreement "to remain with A. B. two years for the purpose of learning a trade," is not binding, for want of reciprocity; namely, an engagement by A. to teach (y). So, where B. contracted in writing to work for the plaintiff in his trade, and for no other person, during twelve months, and so on from twelve months to twelve months, until B. should give notice of quitting; it was held, that the agreement was bad for want of mutuality, the plaintiff not having been bound to employ B. (z). of Simple Contract (Assent). And so, in an action for breach of promise of marriage, the jury Contract to must be satisfied that there were mutual promises to marry; and marry. therefore the plaintiff must give some evidence that she or he had, by word or action, accepted the defendant's proposal (a). infants, &c. There are likewise some few exceptions to the rule, that both Exceptions to this rule, parties must be bound, or that neither is liable, which do not arise, in case of like those we have been considering, from anything in the form of contracts by the contract itself. Thus, an infant may sue, though he cannot be sued, upon his contract (b); for infancy is a personal privilege. So a party may have a defence against a claim upon a contract, on the ground of fraud upon him, although this would be no answer to his action upon the contract; for a man cannot avail himself of his own wrong. Upon the same ground, a contract may be voidable as against a tradesman who sells on a Sunday, although the buyer, not knowing that the vendor was acting in the course of his trade, may sue thereon (c). So a contract may not be binding on one party, because he has not signed it according to the Statute of Frauds; and yet he may sue the other party who has signed it (d) ; (r) Per Cur., Arnold v. Mayor of Poole 1842), 4 M. & G. 860, 896. (2) Kingston v. Phelps (1794), Peake, 299; and see Biddle v. Dowse (1827), 6 B. & C. 255; Ferrer v. Oven (1827), 7 B. & C. 427 ; Marsh v. Wood (1829), 9 B. & C. 659. y) Lees v. Whitcomb (1828), 5 Bing. 34; per Cur., Ellen v. Topp (1851), 6 Exch. 424, 442; and see Bates v. Cort 1824), 2 B. & C. 474. zy Sykes v. Dixon (1839), 9 A. & E. ; and see Aspdin v. Austin (1844), Q B. 671; Pilkington v. Scott (1846), C.C. 15 M. & W. 657; Reg. v. Welch (1853), (a) Daniel v. Bowles (1826), 2 C. & P. (b) Holt v. Ward (1732), 2 Str. 937. (d) Laythoarp v. Bryant (1836), 3 C |