agreed to sell her for the twenty guineas: that the defendant subsequently wrote again to him as follows: "My son will be at the World's End public-house on Monday, when he will take the mare and pay you; send any body with a receipt, and the money shall be paid; only say in the receipt sound and quiet in harness." The plaintiff wrote in reply, "She is warranted sound and quiet in double harness, I never put her in single harness." The mare was brought to the World's End on the Monday, and the defendant's son took her away without paying the price and without any receipt or warranty. The defendant kept her two days, and then returned her as being unsound. The learned judge stated to the jury, that the question was whether the defendant had accepted the mare, and directed them to find for the defendant, if they thought he had returned her within a reasonable time; and desired them also to say whether the son had authority to take her without the warranty. The jury found that the defendant did not accept the mare, and that the son had not authority to take her away. Held, on motion to enter a verdict for the plaintiff, that there was no complete contract in writing between the parties; that, therefore, the direction of the learned judge was right, that the defendant was not bound by the act of the son in bringing home the mare, inasmuch as he had thereby exceeded his authority as agent, and consequently that the plaintiff was not entitled to recover (y).

"A contract," says Pothier (2), "includes a concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such promise. A pollicitation is a promise not yet accepted by the person to whom it is made. Pollicitatio est solius offerentis promissum. L. 3 ff de Pollicet. A pollicitation, according to the rules of mere natural law, does not produce what can be properly called an obligation; and the person who has made the promise may retract it at any time before it is accepted, for there cannot be any obligation without a right being acquired by the person in whose favour it is contracted against the party bound. Now, as I cannot, by the mere act of my own mind, transfer to another a right in my goods, without a concurrent intention on his part to accept them, neither can I by my promise confer a right against my person, until the person

(y) Jordan v. Norton, 4 M. & W.

155.

(*) On Obligations, part 1, c. 1, s. 1 article 2.

to whom the promise is made has, by his acceptance of it, concurred in the intention of acquiring such right (a)."

In Cooke v. Oxley (b), the declaration stated that the defendant had proposed to sell and deliver to the plaintiff goods upon certain terms, if the plaintiff would agree to purchase them upon those terms, and would give the defendant notice thereof before four o'clock on that day. Averment that plaintiff did agree, and gave the required notice, but defendant, on request, did not deliver. After verdict, the judgment was arrested, on the ground that the engagement, when made, was all on one side; that the plaintiff was not bound at the time; that there was no mutuality; and that therefore the defendant's promise was nudum pactum. The objection seems, in effect, to have been, that there was only a proposal of sale by the one party, and no allegation upon the record, showing a complete and mutual bargain between the parties.

In Adams v. Lindsell (c), the defendant, by letter, offered to sell certain goods to the plaintiff, receiving an answer by return of post. The letter to the plaintiff being misdirected, the answer, signifying the acceptance of the offer, arrived two days later than it ought to have done. This was caused by the defendant's mistake. The defendant had, on the preceding day, sold the goods to a third person. The court held that there was a binding contract with the plaintiff, and that an action lay for non-delivery of the goods. They considered, that a party who made a proposal, by letter, must be considered as renewing his offer every moment, until the time at which the answer is to be sent, and then the contract is completed by the acceptance of the offer. They said, that if the law were otherwise, no contract could ever be completed by the post. For if the defendant were not bound by his offer, when accepted by the plaintiff, until the answer was received, then the plaintiff ought not to be bound until after he had received the notification that the defendant had received his answer and assented to it; and so it might go on ad infinitum. In the case of Routledge v. Grant (d), the defendant offered,

(a) Grotius, lib. ii. c. 2.

(b) 3 T. R. 653, affirmed in the Exchequer Chamber. Id. note to 2nd ed. See observations on this case, per Bayley, J., in Humphreys v. Cur

(c) 1 B. & Ald. 681.

(d) Reported in 3 C. & P. 267, and

valho, 16 East, 48; and per Best, C. in 4 Bing. 653, and 1 M. & P. 717.

in writing, to purchase of the plaintiff the lease of a house, requiring possession to be given on the 25th July, and a definitive answer within six weeks. The plaintiff accepted the proposal, offering possession on the 1st August. The defendant afterwards, and before the six weeks had expired, retracted his offer. It was held, that as the acceptance of the defendant's offer by the plaintiff was not in the terms proposed, and as there was no proper acceptance before the defendant retracted, the agreement was vacated. Two of the three judges gave their judgments only upon the ground of a variance in the statement of the plaintiff's interest in the lease; but the Chief Justice put the case upon the ground, that until both parties had agreed to the terms proposed, either had a right to rescind or put an end to the contract. And he considered that the court decided Adams v. Lindsell on the ground that there was in that case a due acceptance within the prescribed period of the offer made.

The principle seems to be, that a party is not bound simply by a mere offer not accepted; that he may, at all events, retract it, before it is accepted, by a communication to the person to whom the offer is made;-but that if an offer be made to a party at a distance, by letter, it is presumed to be constantly repeated until the period for acceptance, and it is to be inferred, that there is a continuation of the intention to contract, and then the acceptance of the exact terms proposed, within the precise period limited, shall, when forwarded, complete the contract; the party making the offer not having, in the interim, withdrawn it.

Pothier (e) places this subject in a very intelligible light. "In the contract of sale, as in other contracts, there may be consent of parties, not only between those who are present, but those who are absent, by letters, or by an agent (entremetteur) per epistolam aut per nuntium. In order to constitute consent in this case, it is necessary that the intention of the party who writes to another

Mr. Justice Gaselee declined to give an opinion on the principal point, as he considered that the authorities referred to appeared to be contradictory. 1 M. & P. 735.

(e) Traité du Contrat de Verité, No. 32; and in Kennedy v. Lee, 3 Merivale, 441, Lord Eldon said, "I have always understood the law of the Court to be, with reference to this kind of contract, that if a person com

municate his acceptance of an offer within a reasonable time after the offer is made, and if within a reasonable time of the acceptance being communicated no variation has been made by either party in the terms of the offer so made and accepted, the acceptance must be taken as simultaneous with the offer, and both together, as constituting such an agreement as the Court will execute."

to propose the bargain, should continue until the time at which the letter reaches the other party, and at which the latter declares that he accepts the bargain. This intention is presumed to continue as long as nothing appears to the contrary; but if I write to a merchant at Leghorn, a letter in which I propose to purchase of him a certain quantity of merchandise, at a certain price; and before my letter can have reached him, I write a second letter, by which I intimate that I no longer desire to make this purchase; or if before that time I die, or lose the use of my reason, although this merchant of Leghorn, at the receipt of my letter, in ignorance of the change of my intention, or my death, or my insanity, answers that he accepts the proposed bargain, yet no contract of sale arises between us, for my intention not having continued until the time at which my letter was received, and my proposal accepted, the consent or concurrence of our wills necessary to form a contract of sale, has not occurred. This is the opinion of Barthole, and of the other doctors cited by Bruneman ad legem 1 ff. de contractu emptionis, who have with reason rejected the contrary opinion of the Gloss. ad dictam Segem.”

At all events, if there be an actual sale by the defendant to the plaintiff, subject only to the plaintiff's approval of the quality on a named day, and not a mere offer to sell; and the plaintiff do not exercise his option of renouncing on the specified day, the defendant is bound, and cannot afterwards retract; for neither party had an option after the day named, and the plaintiff must be presumed to have approved of the goods, and assented to the bargain taking effect, by not having renounced it (ƒ).

The assent or consent must be mutual, although the defendant's promise be in itself positive and unambiguous. Every agreement ought to be so certain and complete, that each party may have an action upon it, in regard to matters to be performed for his benefit by the other contracting party; and the agreement is incomplete if either party withhold his assent to any of its terms, that is, do not finally agree to them. The agreement, as before observed, must in general be obligatory upon both parties, or it will bind neither (g). There are several cases satisfactorily establishing, that if the one party never were bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.

(f) Humphreys v. Carvalho, 16 (g) Plowd. Com. 5 Co. Lit. 35 b. East, 45.

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 d; observing that there was otherwise no mutuality, and therefore the defendant's agreement was a mere nudum pactum, and not binding on him (g). A mutual submission, binding all the parties to the reference, must be shown. 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 in the same instrument by A. B. to teach (h). And where the defendants gave a written memorandum, beginning " We undertake to indorse any bill that J. C. may give to P. & Co. in part payment of an order for lace, now being executed for him, P. & Co. to allow 5l. per cent. on the amount of the bill for the said guarantee;" Holroyd, J., observed:-" It is quite clear that this instrument was not originally binding upon both parties; because, although it begins with the words We undertake,' it is signed by the defendants only. It has, I think, been held, that an instrument beginning' It is agreed,' and signed by one of the parties only, was not binding upon the other party, until accepted by him (¿)."

In an action for a breach of promise of marriage, the jury must be satisfied, that there were mutual promises to marry; and therefore the plaintiff must give some evidence that she had, by word or action, accepted the defendant's proposal (k). And special assumpsit cannot in general be maintained by a corporation on an executory simple contract; for as the corporation are not bound, the contract not being under seal, neither for that reason is the defendant (7).

(g) Kingston v. Phelps, Peake R. 227; and see, to the same effect, Biddle v. Douse, in error, 6 B. & C. 255; Terrer v. Oven, 7 B. & C. 427; Marsh v. Wood, 9 B. & C. 659; when contra, Wrightson v. Bywater, 3 M. & W. 199. A promise by the vendee, on the sale and warranty of a horse, that if the horse were lucky to him, he would give 51. more, or the buying of another horse, appears to be void, on the ground that there is no mutuality of obligation; Gothing v. Lynn, 2 B. & Ad. 232; and a promise on the sale of a horse, that, "if it suited," the vendee would give 101. more, appears

not to be binding; Cuve v. Coleman, S M. & R. 2.

(h) Lees v. Whitcomb, 5 Bing. 34; 2 M. & P. 86, S. C., and at N. P., 3 C. & P. 289; and see another instance, Bates v. Cost, 3 D. & R. 676; 2 B. & C. 474, S. C.

(i) Payne v. Ives, 3 D. & R. 664. See 1 Saund. 291, n. 1; id. 320, n. 4. (k) Daniel v. Bowles, 2 C. & P. 553. See post, as to promises to marry.

(1) East London Waterworks Com pany v. Bailey, 4 Bing. 283; 12 Moore, 532, 538, S. C. Sed vide Church v. Imperial Gas Light and Coke Company, 3 Nev. & P. 35, where it was