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is entered into, the meaning and effect of the contract depends on the construction given the written language by the court, and the court will give that language its natural and appropriate meaning; and, if it is unambiguous, will not even admit evidence of what the parties may have thought the meaning to be.25

§ 95a. A writing signed without negligence in ignorance of its nature is void.

Though expression of assent and not actual assent creates a contract, a writing purporting to be a contract and not ambiguous in its language may be wholly void. If without negligence on his part, a signer attached his signature to a paper assuming it to be a paper of a different character, the paper is void. Such a mistake without negligence will not often occur in the absence of some such fraud, as substituting by sleight-of-hand, for a paper which has been agreed upon, a different one. Nevertheless the situation is possible without actual fraud, and if it occurs whether induced by fraud, 26 or without it, no contract is formed.27

25 See Preston v. Luck, 27 Ch. D. 497; Silva v. Silva, 32 Cal. App. 115, 162 Pac. 142, and infra, §§ 606, 607, 610. In Joliet Bottling Co. v. Joliet Brewing Co., 254 Ill. 215, 98 N. E. 263, the court said:

"Where a contract is ambiguous and has been interpreted by the parties to it, courts will regard the interpretation placed upon the contract by the parties themselves. This rule can have no application to a construction of the contract before us in this case, because it is not ambiguous; and the intention of the parties to it is not to be determined by evidence, but by the language employed in the contract itself." See infra, §§ 606, 607.

26 See infra, § 1488.

27 See Thoroughgood's Case, 2 Coke, 9a (considered in L. R. 4 C. P. 711); Davis v. Snider, 70 Ala. 315; Bank v. Webb, 108 Ala. 132, 19 So. 14; Yoch v. Insurance Co., 111 Cal. 503, 44 Pac.

189, 34 L. R. A. 857; Meyer v. Haas,
126 Cal. 560, 58 Pac. 1042; Green v.
Maloney, 7 Houst. 22; Brooks v. Mat-
thews, 78 Ga. 739, 3 S. E. 627; Rock-
ford, etc., R. R. Co. v. Shunick, 65
Ill. 223; Eldorado Jewelry Co. v. Dar-
nell, 135 Ia. 555, 113 N. W. 344, 124
Am. St. Rep. 309; O'Donnell v. Clin-
ton, 145 Mass. 461, 14 N. E. 747;
Adolph v. Minneapolis & Pac. Ry.
Co., 58 Minn. 178, 59 N. W. 959;
Wright v. McPike, 70 Mo. 175; Alex-
ander v. Brogley, 62 N. J. L. 584,
41 Atl. 691, 63 N. J. L. 307, 43 Atl.
888; Jackson v. Hayner, 12 Johns. 469;
Green v. North Buffalo Township, 56
Pa. St. 110; Schuylkill County v. Cop-
ley, 67 Pa. St. 386, 5 Am. Rep. 441;
Wanner v. Landis, 137 Pa. St. 61, 20
Atl. 950; Coates v. Early, 46 S. C. 220,
24 S. E. 305; Cameron v. Estabrooks,
73 Vt. 73, 50 Atl. 638; Gross v. Drager,
66 Wis. 150, 28 N. W 141. Warder Co.
v. Whitish, 77 Wis.
T. W. 540;

It is as if the offeror in his sleep said words expressive of an offer, which were accepted. Though neither will to create a legal obligation, nor accurate understanding of the meaning of an offer and acceptance is essential to the creation of a contract, intent to do the act which amounts to an offer or acceptance or at least negligently allowing the appearance of such an intent is essential.

96. Time of formation of contract.

The suggestion has been made that the acceptance of an offer relates back to the time when the offer was made. The original basis for this suggestion seems to be found in cases decided prior to the recognition of continuing offers. 28 But in a few later decisions also it has been said or assumed that there was a relation of the acceptance to the offer.29 There is no need, however, to invoke a fictitious relation. Undoubtedly the offer and the acceptance must exist at the same moment in order to form a contract. But this result is reached by the continuance of the offer ance, not by a relation back of when the offer was first made. if the doctrine of relation were applied. even as between the parties themselves, the consequence would be that an offer might be accepted in spite of the death or insanity of the

Bank of Ireland v. McManamy, [1916] 2 Ir. K. B. 161. A few decisions seem inconsistent with the foregoing. Hawkins v. Hawkins, 50 Cal. 558 (compare Meyer v. Haas, 126 Cal. 560, 58 Pac. 1042); Chicago, etc., Ry. Co. v. Belliwith, 83 Fed. Rep. 437 (compare Great Northern Ry. Co. v. Kasischke, 104 Fed. Rep. 440, 449); Binford v. Bruso, 22 Ind. App. 512, 54 N. E. 146. See further a full note in 32 Am. L. Reg. (N. S.) 946.

28 In Kennedy v. Lee, 3 Mer. 441, 454, Lord Eldon said of a contract by correspondence-"The acceptance must be taken as simultaneous with the offer," and see further, supra, § 50.

to the time of the acceptthe acceptance to the time As has been pointed out 30

29 This seems to be assumed in Potter v. Sanders, 6 Hare, 1, and in Dickinson v. Dodds, 2 Ch. D. 463. In the latter case Bacon, V. C., declared that this was the law and therefore gave the plaintiff priority over one who had acquired title to the land in question after the offer was made, but prior to its acceptance by the plaintiff; and though the decision was reversed, it was on another ground. In Garrett v. Trabue, 82 Ala. 227, 3 So. 149; Smith v. Bangham, 156 Cal. 359, 104 Pac. 689, 28 L. R. A. (N. S.) 522; Willetts v. Sun Mutual Ins. Co., 45 N. Y. 45, 47, 6 Am. Rep. 31; Grossman v. Schenker, 206 N. Y. 466, 100 N. E. 39.

30 Langdell, Summary of Cont., § 7.

offeror occurring after the making of the offer but before the acceptance,31 and it would even be true that no offer could be effectually revoked, as an acceptance whenever made would by relation precede the revocation. Where the interests of third persons are involved, it is well settled that the fiction of relation will never be adopted.32 Therefore if A makes an offer to sell property to B, and subsequently makes an offer to sell the same to C, and both B and C accept the offer, the one who accepts first, thereby completing a contract, is entitled to the land; not the one to whom the offer was first made, which would be the case if the doctrine of relation were applied.33 And as between the parties themselves there is no need here to invoke a fiction, and many reasons against it. The decisions cited in the following section as to place of contract, in effect also decide the time of the contract; because if the acceptance related to the time when the offer was made, the place of contract would necessarily be that where the offer was made, since only there was an offer in existence at the time to which the relation is had.

$97. Place of contract.

If the acceptance is made immediately after the offer when the parties are together, no question can arise as to the place of the contract. The place where the parties are is the only possible place of contract. But if the acceptance is not made simultaneously with the offer, and is made in a different place, the universal principle disposing of this and any similar question is that the place of the contract is the place where the last act necessary to the completion of the contract was done,-34 that is where the contract first becomes a legal obligation. If an offer contemplates a unilateral contract and calls for the performance of an act, the place where that act is done is the place of the contract.35 Thus if goods are shipped in conformity with an offer, the place of the contract is the place

31 See supra, § 62.

32 Felthouse v. Bindley, 11 C. B.

(N. S.) 869.

33 Potter v. Sanders, 6 Hare, 1.

34 Emerson Co. v. Proctor, 97 Me.

360, 54 Atl. 849; Ohl v. Standard Steel Section, Inc., 179 N. Y. App. D. 637, 167 N. Y. S. 184.

35 Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241.

of shipment, since the act requested is the transfer of title to the goods by shipment.36 If, however, the seller shipped goods but not in conformity with the contract, or if title to the goods was not to pass until they reached their destination, the place of the contract would be the destination of the goods, where they were received and accepted, since in the former case the shipment was a counter-offer and no contract would be formed till it was accepted by the buyer's assent to take the goods, and in the latter case the terms of the original offer would not be fully complied with until the goods reached their destination.37 Similarly if an offer calls for the sending of a note, 38 or an insurance policy," or a check, 40 or money,"

* Mobile, etc., R. R. Co. v. Copeland, 63 Ala. 219, 35 Am. Rep. 13; Atlantic Phosphate Co. v. Ely, 82 Ga. 438, 9 S. E. 170; State v. Colby, 92 Ia. 463, 61 N. W. 187; Claflin v. Mayer, 41 La. Ann. 1048, 7 So. 139; Boothby v. Plaisted, 51 N. H. 436, 12 Am. Rep. 140; Mack v. Lee, 13 R. I. 293.

"In State v. O'Neil, 58 Vt. 140, 2 Atl. 586, 56 Am. Rep. 557, intoxicating liquors were ordered by a Vermont buyer from New York. They were shipped to Vermont by express C. O. D. and delivered and paid for in Vermont. It was held that the shipment C. O. D. retained title in the seller and that, therefore, as no sale was made until delivery in Vermont, the liquor law of that State had been violated. See also Crabb v. State, 88 Ga. 584, 15 S. E. 455; State v. American Express Co., 118 Iowa, 447, 92 N. W. 66; State v. Goss, 59 Vt. 266, 9 Atl. 829, 59 Am. Rep. 706.

On the other hand, on similar facts the Maine court held that shipment C. O. D. did not prevent a transfer of title and that therefore the sale was made in the State from which the goods were shipped. State v. Intoxicating Liquors, 98 Me. 464, 57 Atl. 798. See also to the same effect Pilgreen v. State, 71 Ala. 368; Hunter v. State, 55 Ark. 357, 359; State v. Cairns, 64 Kans.

41

782, 68 Pac. 621, 58 L. R. A. 55; State v. Mullin, 78 Ohio St. 358, 85 N. E. 556, 18 L. R. A. (N. S.) 609, 125 Am. St. Rep. 710; Commonwealth v. Fleming, 130 Pa. 138, 18 Atl. 622, 5 L. R. A. 470, 17 Am. St. Rep. 763; Golightly v. State, 49 Tex. Cr. App. 44, 90 S. W. 26, 2 L. R. A. (N. S.) 383; State v. Flanagan, 38 W. Va. 53, 17 S. E. 792, 22 L. R. A. 430, 45 Am. St. Rep. 836.

38 Wm. Glenny Glass Co. v. Taylor, 99 Ky. 24, 34 S. W. 711; Shoe, etc., Bank v. Wood, 142 Mass. 563, 8 N. E. 753; Wayne County Savings Bank v. Low, 81 N. Y. 566, 37 Am. Rep. 533; Barrett v. Dodge, 16 R. I. 740, 19 Atl. 530, 27 Am. St. Rep. 777.

39 State Mutual Fire Ins. Assoc. v. Brinkley Stave & Heading Co., 61 Ark. 1, 31 S. W. 157, 29 L. R. A. 712, 54 Am. St. Rep. 191; Commonwealth Mutual Fire Ins. Co. v. Wm. Knabe Mfg. Co., 171 Mass. 265, 50 N. E. 516; Northampton Mut. Ins. Co. v. Tuttle, 40 N. J. L. 476; Davis v. Manufacturers' Mut. Fire Ins. Co., 67 N. H. 218, 34 Atl. 464; Hyde v. Goodnow, 3 N. Y. 266; Fidelity Mutual Life Assoc. v. Harris, 94 Tex. 25, 57 S. W. 635, 86 Am. St. Rep. 813; Galloway v. Standard Fire Ins. Co., 45 W. Va. 237, 31 S. E. 969.

40 See supra, § 81 ad fin. 41 Ibid.

the place of the contract is where the offer was complied with by sending the thing requested. On the other hand, if goods, 42 or notes, 43 or anything else is sent without authority, and not in response to an offer, it is itself an offer and cannot be accepted except at the place of destination, and if any contract is formed it is formed there.44 If the offer contemplates a bilateral contract, the place of the contract is where the acceptance and counter-promise of the offeree is made. Therefore in contracts by mail, or by telegraph, when these means of communication are authorized by the offer, the place of the contract is the place where the reply is mailed, 45 or delivered to the telegraph company." 46 Similarly in contracts by telephone it has been held that the place of the contract is the place at which the acceptor speaks.47 If the use of the means of communication adopted by the offeree was not authorized by the offer, no contract can be complete until the acceptance is received. The place of a contract thus formed, therefore, is the place where the acceptance is received.

What has been said thus far relates to the place where a simple contract is formed. A formal contract becomes binding when the last requisite formality is complied with. In a contract under seal, this is when the instrument is delivered, and the place of contract is therefore the place of delivery. 48

42 See generally Williston on Sales, §§ 278 et seq.

43 Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251; Emerson Co. v. Proctor, 97 Me. 360, 364, 54 Atl. 849. See also Hewitt v. Bank, 64 Neb. 463, 90 N. W. 250.

44 See cases cited in the preceding notes.

45 Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 315, 74 Pac. 855, 65 L. R. A. 90; Worcester Bank v. Wells, 8 Met. 107; W. G. Ward Lumber Co. v. American &c. Mfg. Co., 247 Pa. 451, 93 Atl. 470, Ann. Cas. 1918, A. 451.

46 Garrettson บ. North Atchison Bank, 47 Fed. 867; Tyng v. Converse, 180 Mich. 195, 146 N. W. 629; Perry

v. Mount Hope Iron Co., 15 R. I. 380, 5 Atl. 632, 2 Am. St. Rep. 902; Tillinghast v. Boston, etc., Lumber Co., 39 S. C. 484, 18 S. E. 120, 22 L. R. A. 49.

47 Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 74 Pac. 855, 65 L. R. A. 90; Tyng v. Converse, 180 Mich. 195, 146 N. W. 629; Planters' Oil Co. v. Whitesboro Cotton Oil Co. (Tex. Civ. App.), 146 S. W. 225; Cuero Cotton Oil & Mfg. Co. v. Feeders' Supply Co. (Tex. Civ. App.), 203 S. W. 79. See criticism of these cases, supra, § 82.

48 Baring v. Inland Revenue Commissioners, [1898] 1 Q. B. 78. In regard to what constitutes delivery, see infra, § 210.

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