ference of law necessarily arising from the judgment and the opinion of the court as to why it reached that judgment. It is very common to find courts in various states reaching the same result in cases involving the same issues, but upon different lines of arguSometimes the arguments differ widely from each other. It occasionally happens, that the courts will reach a particular result on a certain course of argument, and later repudiate the reasons and support the decision on other grounds. ment. The object of the study of a judicial decision is, therefore, to ascertain what the case actually decides. This decision springs from the judgment in the light of the issues involved in the case. The opinion and dicta constitute evidence-in fact, the strongest kind of evidence of what that decision is; but still there is a difference between the decision, the necessary inference of law arising therefrom, and the reasons assigned for that decision. SECTION 8.-HISTORY AND DEVELOPMENT OF The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British Parliament made in aid of and to supply the defects in the common law, down to and including a part of the colonial period, have been made the rule of decision by the various states of the United States. The history of American law, in large measure, is the history of English law. English law is not a direct descendant of the Roman law, as is true in most European states. The long period of Roman occupation of the British Isles, from 55 B. C. to the middle of the fifth century, might well have led to a different result; but the development of a strong government in England by the Normans be-fore the reception of the Roman law by European states caused an independent development of legal institutions. The early legal systems of the English, Saxons, and Danes, such as they were, which prevailed on down until the middle of the eleventh century, influenced later English law but little. The Codes of Alfred and Knut, mere fragments in comparison with a complete legal system, did not survive the invasion of William the Conqueror. The Norman conquest of England in 1066 caused a break in the continuity of the governmental and legal order, and an independent development began. The centralization of political power and the reign of feudalism under the Norman and Angevin kings established the guiding principles of the law during the two centuries following the conquest. The Curia Regis, the great court of the Norman kings, forced the local courts of the Anglo-Saxons into the background, and maintained its sway for nearly 200 years. Early law did not have for its objects the carrying out of the dictates of ethics and of economic expediency. The early forms of trial bear ample testimony to these facts. Trials by ordeal, by battle, and by procuring a certain number of witnesses to take oath to the truth of a litigant's claim were not calculated to terminate controversy justly. The feudal system of land tenure, representing a fusion of economic and political organizations, produced a body of law quite dissimilar to that of to-day. The bulk of the law related to tenures. The law of torts was narrow. Only the more violent injuries to person and property were the subject of redress. Contracts were of a formal character. The beginning of the jury system in the latter half of the twelfth century was the forerunner of many legal reforms. Magna Charta, in 1215, made great contributions to English liberty. The breaking up of the Curia Regis into the Courts of Common Pleas, King's Bench, and Exchequer produced a better judicial organization. Nevertheless the law tended to formalism. One's legal rights were measured by his legal remedies, and his legal remedies were no wider or more numerous than those which had theretofore been allowed. Growth to meet new conditions was checked. Beginning with the reign of Edward I (1272-1307), a number of influences became operative, which greatly expanded the scope of legal rights, emphasized individual liberty and property rights, and tended to convert the administration of law into the administration of justice; that is, these tendencies are traceable to that time, although their development cannot be said to have reached reasonable completeness until the seventeenth century. Some of the incidents of feudalism were abolished during this reign. Statutes were passed which had a tendency to expand the field of tort liability. The most notable development concerns the origin and establishment of the principles of equity by the king's Chancellor, and later by the Court of Chancery. Beginning in the fourteenth century, a practice grew up of petitioning the king for relief from the rigors of the hard and fast rules of the common law. Some of these petitions were referred to the Chancellor for action. The right of the petitioner was frequently recognized, and relief accorded to him in circumstances where the rules of the common law denied him a remedy. The Chancellor usually was a dignitary of the church, learned in the canon and Roman law, and no doubt in many instances possessed a keen appreciation of what constituted justice. This process of the amelioration of the common law, at first by the extrajudicial action of the Chancellor, soon developed an established court, presided over by the Chancellor, and called the Court of Chancery, or Court of Equity. This result was not accomplished without opposition from the judges of the courts of common law, an opposition which continued and reached its climax in the early years of the seventeenth century, when it became established that the Court of Chancery was supreme. The changes in the law accomplished by the Court of Chancery were of two kinds-changes in the rules of the substantive law, and changes in legal remedies. It is beyond the scope of this book to develop independently the nature of these changes in the body of legal doctrine, although in many of the decisions herein collected the nature of equitable doctrines and equitable remedies is distinctly seen. Some of the leading notions of equity may, however, be indicated. Some of the so-called maxims of equity, in accordance with which the detailed rules have been developed, are as follows: (1) Equity regards that as done which ought to be done. (2) Equity looks to the intent, rather than to the form. (3) He who seeks equity must come with clean hands. (4) He who seeks equity must do equity. (5) Equality is equity. (6) Where there are equal equities, the first in order of time shall prevail. (7) Where there is equal equity, the law must prevail. (8) Equity aids the vigilant, and not those who slumber on their rights. (9) Equity follows the law. (10) Equity will not suffer a wrong without a remedy. The application of these general principles worked great changes in the law with reference to the consequences of accident, fraud, and mistake. One of the important ends of equitable jurisdiction is to afford relief from effects of accident, fraud, and mistake. Rights with respect to property, particularly real property, very early engaged the attention of the Court of Chancery. New interests in property were recognized and protected. The mortgagor's equity of redemption, the vendee's interests in land before the execution and delivery of the deed, were the creation of courts of equity. Equitable doctrines made it possible for one person, called a trustee, to hold all the incidents of ownership for the benefit of others, called cestuis que trustent. The equitable remedies of specific performance and of injunction, enforceable by fine or imprisonment, added to the common-law remedies of money damages, and the specific restitution of property. The history of the English Court of Chancery is the history of great fundamentals of English and American law. But the courts of common law were by no means oblivious to the necessity of extending the scope of legal rights. The simple contract, which for the most part is the subject of this book, owes its origin and development to the common-law courts. The field of tort liability has been greatly extended by the evolutionary process of judicial decisions by the rivals of the Court of Chancery. The histories of these two great courts, and of the respective systems of laws recognized and applied by them, down to the time of their consolidation near the middle of the nineteenth century, contain within their pages a substantially complete declaration and exposition of the principles of English and American law as it is known at the present time. The sources for the study of early English law, which appeared during the period, are the reports of judicial decisions, court records, the great abridgements of the decisions, and text-books. Glanvil's work appeared about 1187; Bracton's great treatise, about 1259; the less valuable statement by Fleta, about 1290; the dec laration of the law by Britton, about 1290; the contributions of Littleton on the law of real property, in 1481; the Institutes of Lord Coke, in 1628; and the Commentaries of Blackstone, in 1765. The Year Books, beginning during the reign of Edward I, 1272, and extending into the reign of Henry VIII, 1535, containing the reports of the decisions of the courts, present a substantially complete record of the judicial business of the country during this long period. Beginning with Statham, 1495, followed by Fitzherbert, in 1514, Brooke, 1568, Rolle, 1668, Bacon, 1736, Viner, 1741, Comyns, 1762, there appeared the famous abridgements of the Year Books; the later ones carrying the statement of the law beyond the period of these early reports. With the ending of the series of the Year Books, the system of private reporting of judicial decisions began, which continued until 1865, the date of the commencement of the official reports. Researches by eminent scholars of the nineteenth century and of the present time have added a wealth of knowledge of the origin and development of Anglo-American legal institutions. American law, therefore, has its origin in English law. The common law is the law in the United States. There is divergence here and there, of course. Even as between the several states, there is not entire harmony in the application of the principles of the common law to varied states of facts. But in their broader aspects the systems of law in the two countries are the same. Even to-day, the current decisions of the English courts are sometimes relied upon by the courts in the United States, and, conversely, decisions of American courts are occasionally cited by English judges. The development which is going on to-day is by the slow process of judicial decision and by legislative enactment; statutes being a much more prominent factor than they were in earlier days. VI. Effect of Mistake, Fraud, Duress, and Undue Influence. VII. Illegality. 5. Duration of Offers. Acceptance-Time of Taking Effect. Nature of Acts or Language Essential to Constitute an Acceptance. 6. Offer and Acceptance Implied in Fact or in Law. SECTION 1.-INTRODUCTION Anson has defined a contract as "an agreement enforceable at law, made between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others." 1 It is to be noticed that this definition deals with two ideas. In the first place, a contract is said to be a particular kind of an agreement. Attention is here focused upon certain physical facts. The definition then proceeds to direct attention to the legal effect of these facts. The facts constitute one idea; their legal effects, another. The former may be seen or heard. The latter are wholly intangible. An agreement made in New York might bring about a certain legal result, while the same agreement entered into in France might produce quite different legal effects. The same conversation had on some portions of the earth's surface not claimed by any organized state would have no legal effect there. A definition of a contract therefore, must deal with the facts and with their result. Professor Corbin's very carefully constructed definition of a contract throws the emphasis in the first instance upon the legal effect of the facts. Accordingly Professor |