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Second Edition 





Entered according to Act of Congress, in the year 1879, 

By C. C. Langdell, 
In the ofl&ce of the librarian of Congress, at Washington, 

Copyright, 1894, 1904, 1982, 
By Samuel WiiiLisTON. 



THE general plan and the subdivisions of this collection of 
cases remain unchanged from the first edition, with the ex- 
ception of the Chapter on the Statute of Frauds. Various pro- 
visions of that statute are customarily studied in courses on property, 
sales, suretyship and trusts, and there seems little use in inserting 
a treatment — inadequate at best — of such provisions in a se- 
lection of cases on contracts. Accordingly in this edition the only, 
clause of the Statute dealt with is that relating to contracts not 
to be performed within a year. The space thus gained has made 
it possible to compress the work into a simple volume and never- 
theless insert a number of important late decisions. 

When the first edition was published there was no recent com- 
prehensive treatise on the laws of contracts, and for that reason 
the collection of decisions in the notes to the cases was somewhat 
elaborate. To bring these annotations down to the present time 
with similar fullness would have undesirably expanded the size 
of the book and in view of the existence of several newly published 
exhaustive treatises on the subject has seemed unnecessary. 

Cambridge, 1922 

^871 OR 


THE plan of this book needs little explanation. I have en- 
deavored, in the light of all that has been done before, 
to prepare a selection of cases on the law of contracts adapted to 
the use of students. In order to cover the subject fairly in two 
volumes of reasonable size, I have been obliged frequently to shorten 
the reports of cases. Arguments of Counsel have been generally 
omitted, and where the opinion of the court contains an adequate state- 
ment of facts, the opinion only has been printed. I have thought 
this general statement would be sufficient warning to the reader 
of such omissions. When other changes from the original reports 
have been made, they are specifically indicated. Head-notes are 
of course omitted, and for the same reason the headings of chapters 
and sections are general, and the subdivision of topics is not always 
as minute as might be convenient to one seeking authority on a 
particular matter. Headings of sections may easily be made a key 
to the results of the cases, and it is desirable for the student to work 
out this result for himself with the aid only of such suggestion as 
proves necessary in the class-room. The annotations, for the same 
reason, are mostly confined to lists of cases in accord or opposed 
to the case which is printed. An index at the end of the second 
volume, I hope, will make the contents of the book reasonably 
accessible without being open to the objection of giving the student 
the answer before he has done the problem. 

Every teacher of law who prepares a volume of cases for the in- 
struction of students is consciously or unconsciously indebted to the 
work of Professor Langdell; but an indebtedness greater than that 
which every worker owes to the pioneer in his chosen field, must 
here be acknowledged. The law of contracts was the subject selected 
by Professor Langdell for his first collection of cases. That 
collection, first published in 1871 and a second edition in 1876, 


has been used continuously since its publication in the Harvard Law 
School, and in recent years in other law schools. The development 
of the law during the past thirty years has now made it desirable 
to substitute a new book for one which must be regarded as marking 
an epoch in legal education. In preparing the new book, I should 
have found it impossible, had I made the attempt, to avoid deriving 
benefit from the selection and arrangement in the earlier book. 
Fortunately, no such effort has been necessary^ since Professor 
Langdell has kindly permitted me to make such use as I wished of his 
work. Of this permission I have freely availed myself. 

Cambridge, 1903 





Section I 

Mutual Assent 1 

(a) Offer 1 

(b) Duration and Termination of Offers 31 

(c) Acceptance 66 

Section II 

Consideration 152 

(a) Early Development 152 

(b) General Principles 165 

(c) Executed Consideration and Moral Consideration . . 260 



Section I 
Formalities of Execution 313 

Section II 
Delivery 325 

Section III 
Consideration 328 





Section I 


Section II 
Assignment of Contracts 365 

Section III 
Joint Obligations 408 



Section I 

Expbess Conditions 452 

(a) Conditions Precedent 452 

(b) Conditions Subsequent 500 

Section II 

Implied Conditions and Effect of the Plaintiff's Failure 

to Perform his Promise 507 

Section III 
Impossibility '^13 


Section I 



Section II 

"Wagees and Gaming Contracts -■ 804 

Section III 

Contracts Obstructing the Administration of Justice . . 827 

(a) Champerty and Maintenance 827 

(fo) Agreements to Stifle Prosecution 846 

(c) Agreements to Submit to a Specified Tribunal . . . 854 

Section IV 
Contracts tending to Corruption 876 

Section V 
Miscellaneous Cases of Illegal Contracts 889 

Section VI 
Effect of Illegality 923 


Section I 
Parol Agreement to Discharge 955 

Section II 
Novation 965 

Section III 
Eelease 970 

Section IV 
Accord and Satisfaction 975 

Section V 
Arbitration and Award 1017 

Section VI 
Surrender and Cancellation 1033 


Section VII 

Alteration 1038 

Section VIII 
Meeqee 1041 

lil^DEX 1053 



Ackert v. Barker 830 

Adams v. Lindsell 4 

Ahem, BlaisdeU v. 832 

Albany, Sturljra v. 157 

Albert's Ex. v. Ziegler's Ex. 1033 

Alexandre, Wells v. 181 

Allen's Case 365 

Allen, Blackburn v. 773 

Allen V. Harris 978 

" V. Milner 1018 

Alexander, Slayback v. 1015 
American Lithograph Co. v. 

Ziegler 385 
American Publishing Co. v. 

Walker i.58 

Anderson v. May 721 

Andrews, Blandford v. 644 

Anglum, Whitman v. 738 
Anonymous 152, 319, 328, 507 

Armstrong v. Levan 296 

, Nash V. 255 

" , Seymour v. 18 

Arnold v. Nichols 363 

Ashanti Explorers, Smith v. 447 

Atkins V. Hill 268 

Atkinson, Tweddle v. 336 

Atwell V. Jenkins 174 

Austin V. Whitlock 320 
Austin Real Estate Co. v. Bahn 206 

Averill v. Hedge 37 

Avery, Scott v. 854 
Ayer v. Western Union Telegraph 

Co. 73 


Babcock v. Hawkins 


Backwell v. Litcott 


Bacon v. Reich 


Baerselman, Kemp v. 


Bahn, Austin Real Estate Co. u. 


Baily v. De Crespigny 


Baker v. Higgins 


Balbirnie, Thumell v. 


Bale, Stone v. 


Balfour v. Balfour 


Bank of Seattle v. Gidden 


Barber, Case v. 


Barber Asphalt Co., Kelley 

Asphalt Co. V. 


Barker, Ackert v. 


" , Price V. 


Barnard v. Simons 



Barnes v. Hedley 275 
Bartlett, Boston and Maine Rail- 
road V. 31 
Bate, Hunt v. 154 
Bateman, Harvey v. 366 
Batterbury v. Vyse 475 
Beach, Work v. 488 
Beech, Ford v. 978 
Beecher v. Conradt 620 
Benson v. Phipps 204 
Bernard, Freeman v. 1017 
Bettini v. Gye 557 
Bidwell V. Catton 238 
Big Diamond Mfg. Co. v. Chi- 
cago etc. Ry. Co. 303 
Biggers v. Owen 63 
Binnington v. Wallis 278 
Bimie, Morgan v. 470 
Bisbee v. Mc Allen 925 
Bischoffshiem, Callisher v. 244 
Bishop V. Eaton 94 
Blackburn Co. v. Allen 773 
Black V. Security Life Assoc. 923 
BlaisdeU v. Ahem 832 
Blake, Cadwell v. 594 
Blake's Case 975 
Blakeway, West v. 959 
Blandford v. Andrews 644 
Boardman, Borden v. 340 
Bohanan v. Pope 361 
Booker, Ollive v. 533 
Boone v. Eyre 512 
Borden v. Boardman 340 
Borelly, Christie v. 640 
Borrowman v. Free 704 
Bosden v. Thinne 261 
Boston, Loring v. 33 
" , Pool V. 227 
Boston, &c. R. R. Co. v. Bartlett 31 
V. Nashua, 
&c. R. R. Co. 1023 
Bourne v. Mason 333 
Bowditch V. New England Ins. 

Co. 943 

Boynton, Pixley v. 819 

Brackenbury v. Hodgkin 64 

Bradley, Hayden v. 616 

Briggs, Callonel v. 510 

" , Riches v. 158 

British Waggon Co. v. Lea 393 

Brocas' Case 507 

Bronson, Herbert v. 375 

Brooks V. Haigh 165 

Brooks V. Masters Assoc. 930 




Brooks, Pearce v. 


Brown, Gillingham v. 


" , Hunt u. 


" , Noice V. 


" , Scott V. 


Browning, Lewis v. 


Bruce, Lynn v. 


Brunswick -Baike-Collender 


Poel V. 


Bugbee, Pelosi v. 


Bullingham, Riggs v. 


Burchell, James v. 


Burr, Freeth v. 


Bush V. Stowell 


Butler and Baker's Case 


" , C. F. Jewett Publishing 

Co. V. 


Butterfield v. Byron 


Byrne v. Van Tienhoven 


Byron, Butterfield v. 



Connecticut Mut. L. Ins. Co., 

Herman v. 387 

Conradt, Beecher v. i 620 

Constable v. Cloberie 452 

Cook, Guernsey v. 885 

V. Lum 373 

Cooke V. Oxley 2 

Cooper, Davidson v. 1040 
" , Presbyterian Church v. 188 

Cordray, Runnamaker v. 1044 

Corlies, White v. 135 

Corrigan, Gifford v, 340 

Corwine, Meguire v. 882 

Couch, Weber v. 964 

Coupland, Howell v. 718 

Cripps V. Golding 157 

Cross V. Powel 1033 

" , Wheat v. 131 

Crouch V. Matin 367 

Crump, Martin v. 422 
Currie Hardware Co., Donnelly v. 14 

C. F. Jewett Publishing Co. v. 

Butler 911 

C. R. I. & P. R. Co., Small v. 844 

Cadwell v. Blake 594 

Cage, Harrison v. 171 

Cahen v. Piatt 593 

Callan, Fowler v. 838 

Callisher i'. Bischoffsheim 244 

Callonel v. Briggs 510 

Calnan, Wells 7<. 561 
Canney v. Southern Pacific Coast 

R. R. Co. 22 

Carwardine, Williams v. 80 

Case V. Barber 977 

Catton, Bidwell v. 238 
Cavanaugh v. D. W. Ranlett 

Company 144 

Cave, Payne v. 1 

Chalmers, Ex parte 636 

Cheesman, Good v. 988 

Cherry v. Heming 443 
Chesebrough v. Western Union 

Tol. Co. 28 
Chicago etc. Ry. Co., Big Dia- 
mond Mfg. Co. V. 303 
Chicago Ry. Co. v. Dane 139 
Chicago Washed Coal Co. v. 

Whitsett 693 

Child, Trist v. 876 

Chri.stio r. liorolly 640 

Church r. I'roclor 900 

Ciarf-nciciix, Holt v. 172 

Clark /•. Marsiglia 680 

Clarkf V. Watson 472 

Clobfrie, ConKtable v. 452 

Codiniin, Kroll v. 330 

Cole, I'ordii'/o i>. 508 

Colf-nian, FrrguHon v. 825 

CommingH .'. Fleurd 1020 

Comstock, Raybnrn v. 680 

Coniers and Holland's Ca.'jC 955 


Dane, Chicago Ry. Co. v. 139 
Darland v. Taylor 1036 
Davidson v. Cooper 1040 

" , England v. 226 

Davies, Offord v.. 89 

Davis, Eddy v. 625 

" V. Van Buren 422 
Davis, Scottish American Mtge. 

Co. V. 109 

Dawson, Row i\ 367 

De Cicco V. Schweizer 221 

De Crespigny, Baily v. 713 

Deering v. Farrington 370 

De la Tour, Hochster v. 655 

Denison, Gardner v. 357 

Denton, Fairlie v. 967 

Devecmon v. Shaw 185 
Dewey ^'. Union School District 748 

Dexter, Meigs v. 328 

Dickenson v. Dodds 56 

Dickinson Co., McMuUan v. 179 

Dietrich v. Hoefelmeir 445 

Dingley v. Oler 669 

Di.xon, Doyle v. 441 

Dodds, Dickinson i>. 56 

Doll V. Noble 486 

Donlan v. Boston 564 
Donnelly v. Currie Hardware Co. 14 

Donovan v. Middlcbrook 400 

Dorell, Herring v. 242 

Dorville, Longridge v. 239 

Dovle /'. Dixon 441 

Duff Gordon, Wood v. 141 

Duke of St. Albans v. Shore 24 

Douglas, Joll V. 414 

Dnnlop V. Higgins 97 
Dunlop Tvre Co. v. Selfridgc 

Sc C'o. ■ 334 

Dus(!nbury v. Hoyt 287 

Dutton V. Poole 335 






Globe Insurance Co., New York 

-fj - 

Eames v. Peston 




Eaton, Bishop v. 


Globe Mut. Life Ins. Assoc, v. 

Eddy V. Davis 




Edgar, Green v. 


Golding, Cripps v. 


Edmond's Case 


Goldsmith, Turner v. 


Edney, Mowse v. 


Goochman, Jeremy v. 


Edwards v. Weeks 


Good V. Cheesman 


Eley, Vitty v. 


Goodisson v. Nurm 


Eliason v. Henshaw 


Graham, Hawkins v. 


Ellen V. Topp 


Grand Lodge, National Bank v. 


Elmer, Moore v. 


Grange, Fox v. 


Emley v. Perrine 


Grant v. Porter 


England v. Davidson 


Graves v. Johnson 


Evans, Tichnor v. 


" V. Legg 


Eyre, Boone v. 


Gray v. Gardner 


" V. Smith 



Great Northern Ry. Co. v. Wit- 



Fairlie v. Denton 


Green v. Edgar 


Falck V. Williams 


Green Bay etc. Co., Pulp Wood 

Farrington, Deering v. 


Co. V. 


Fenton, Trueman v. 


Greenebaum, Kullum v. 


Ferguson v. Coleman 


Griffith, Stewart v. 


Finch, Hale v. 


Gross, Grobb v. 


Fink V. Smith 


Guernsey v. Cook 


Finkelstein, Security Bank 


Gye, Bettini v. 


N. Y. V. 


Fireproof Film Co., Sturtevant 

Co. V. 



Fitzgerald, Gleason v. 


Fletcher, Leavitt v. 


Haigh V. Brooks 


Flower v. Sadler 


Hale V. Finch 


Flower's Case 


Hale V. Spaulding 


Ford V. Beech 


Hamer v. Sidway 


Fowler v. Callan 


Hampden v. Walsh 


Fox V. Grange 


Harbor v. Morgan 


Fox, Lawrence v. 


Harding v. Harding 


" V. Rogers 


Harding, Spencer v. 


Eraser, Henthom v. 


Harris, Allen v. 


Free, Borrowman v. 


" , Garst V. 


Freeman v. Bernard 


Harrison v. Cage 


Freeth v. Burr 


Harsen, Lattimore v. 


Frith, Mactier v. 


Hart, Pellman v. 


Frost V. Knight 


Hartford Ins. Co., Semmes v. 


Hartman v. Pistorius 



Harvey v. Bateman 


Gail V. Gail 


" V. Merrill 


Gammons v. Johnson 


Hatton, In re 


Ga Nun V. Palmer 


Haugh, Roe v. 


Gardner v. Denison 


Hawkins, Babcock v. 


" , Gray v. 


'' V. Graham 


Garst V. Harris 


" , Robinson v. 


Geloso, Rochester District 

Hawley, Mitchell v. 


Co. V. 


Hayden v. Bradley 


Getman, Lacy v. 


Heard, Commings v. 


Gibbons v. Proctor 


Heather, Richards v. 


" V. Vouillon 


Hedge, Averill v. 


Gibbs V. Smith 


Hedley, Barnes v. 


Gidden, Bank of Seattle v. 


Heim, Kromer v. 


Gifford V. Corrigan 


Heming, Cherry v. 


Gillespy, Thompson v. 


Henry, Krell v. 


Gillingham i>. Brown 


Hensey. Mercantile Trust Co. v 

. 490 

Gleason v. Fitzgerald 


Henshaw, Eliason v. 




Henthorn v. Fraser 103 

Herbert v. Bronson 375 

Herman v. Connecticut Mut. L. 

Ins. Co. 387 

Hermitage Co., Marks Realty 

Co. u. 
Herring v. Dorell 
Higgen's Case 
Higgin, Shadforth v. 
Higgins, Baker v. 

" , Dimlop V. 
HilarJ^ Taylor v. 
Hill, Atkins v. 
Hoare, King v. 

V. Rennie 
Hochster v. De la Tour 
Hodgdon, Mansfield v. 
Hodge. Warren ur 
Hodgkin, Brackenbury v. 
Hoefelmeir, Dietrich v. 
Hoffman, Tinn u. 
Holcomb V. Weaver 
Holland, Case of Corners and 
Holman v. Johnson 
Holt V. Clarencieux 
Homer v. Shaw 
Hood, Kane v. 
Hopkins v. O'Kane 
Howard Mineral Park Land Co. 






Howe & Rogers Co., O'Grady v. 324 

Howell V. Coupland 718 

Hoyt, Dusenbury v. 287 

Hugall V. McLean 615 

Hughes, Rann v. 163 

Hunt V. Bate 154 

■' V. Brown 996 

" V. Livermore 617 

Hunt, Joynson v. 143 

Hutley V. Hutley 827 

Hyde v. Wrench 44 

Ilsley V. Jewett 289 

Insurance Co., Moody v. 501 

International Paper Co. v. Rock- 
efeller 767 

Jackson v. Pennsylvania R. R. 

Co. 1010 
Jacobaen, Tri-BuUion Smelting 

Co. V. 690 

James v. Burchell 630 

" V. Newton 399 

Jefferson County, Oak Grove Co. V. 390 

Jell V. Douglas 414 

Jenkins, Atwell v. 174 

Jeremy ?». Goochman 158 

Jewett, Ilsley v. 289 

Jewett Publishing Co. v. Butler 911 

Johnson, Gammons v. 841 


Johnson, Graves v. 895 

" , Holman v. 889 

Johnston v. Rogers 15 

Johnstone v. Milling 666 

Jones, Prescott v. 147 

" , Slater v. 985 

Joynson v. Hunt 143 


Kadish v. Young 695 
Kane v. Hood 523 
Kearney, Liverpool, &c., Insur- 
ance Co. V. 462 
Keeley. Winch v. 369 
Keith V. Miles 229 
Kelley Asphalt Co. v. Barber 

Asphalt Co. 77 

Kemp V. Baerselman 397 

Kester, Maylard v. 159 

Kimball, Rindge v. 286 

King V. Hoare 415 

" V. King 949 

Kingston v. Preston 511 

Kirksey v. Kirksey 187 

Klaholt, Wheeler v. 146 

Knight, Frost v. 661 

Koehler, Shanley v. 197 
Kokomo Steel Co., Vulcan 

Trading Co. v. 588 

Krell V. Codman 330 

Krell V. Henry 761 

Kromer v. Heim 993 

Kronprinzessin Cecilia 758 

Kullman v. Greenebaum 907 

Lacy V. Getman 742 

Lakeman v. Pollard 746 

Lamb, Morton v. 519 

Lang. Schweider v. 259 

Langden v. Stokes 956 

Lattimore v. Harsen 207 

Lawrence v. Fox 342 

Laycock v. Pickles 1013 

Lea, British Waggon Co. v. 393 

Leavitt v. Fletcher 642 

Lee, Loyd v. 238 

" , Muggeridge v. 276 

Legg, Graves v. 529 
Leiston Gas Company v. Urban 

District Council 566 

Leonard, Stees v. 723 

Leuthold v. Stickney 927 

Levan, Armstrong r'. 296 

Lewis t>. Browning 117 

Lindsell, Adams v. 4 
Lingenfelder i'. Wainwright 

Brewing Co. 212 

Litcott, Back well t). 366 

Littlefield V. Shee 279 

Littlcwood, Millward v. 934 

Livermore, Hunt v. 617 



Liverpool, &c. Insurance Co. v. 

Kearney 462 

Livingston v. Ralli 861 

London and Northern Bank, In 

re 107 

London Commercial Exchange 

Co., Williams v. 1029 

Longridge v. Dorville 239 

Lorah v. Nissley 317 

Loring v. Boston 33 

Loyd V. Lee 238 

Lucas V. Western Union Tel. Co. 112 
Lum, Cook v. 373 

Lumber Underwriters of N. Y. 

V. Rife 494 

Lynch, Warren v. 314 

Lynn v. Bruce 253 


McAllen, Bisbee v. 
M'Clure, Ripley v. 
McClure, Zuck v. 
McCormick, Turner v. 
McLean, Hugall v. 


, Stevenson v. 51 

McMullan v. Dickinson Co. 179 
MacMurphey, Oil Well Supply 

Co. V. 24 

Mactier v. Frith 124 

Makin v. Watkinson 610 

Mandeville. Welch v. 377 

Mansfield v. Hodgdon 70 

March v. Ward 408 

Marreco v. Richardson 305 
Marks Realty Co. v. Hermitage 

Co. 771 

Marsiglia, Clark v. 680 
Marston v. Marston 1035 
Martha's Vineyard R. R. Co., 

Osborn v. 424 

Martin, Crouch v. 367 

" V. Crump 422 

" V. Meles 192 

Mason, Bourne v. 333 

Masters Assoc, Brooks v. 930 

May, Anderson v. 721 

Maylard v. Kester 159 

Mayne's Case 647 

Meguire v. Corwine 882 

Meigs V. Dexter 328 

Meles, Martin v. 192 
Mercantile Trust Co. v. Hensey 490 

Merrill, Harvey v. 811 

" t'. Peaslee 920 

" , Tanner v. 200 
Mersey Steel & Iron Co. v. Nay- 

lor 585 

Middlebrook, Donovan v. 406 
Middlesex Railroad Co., White 

V. 863 

Miles, Keith v. 229 

" V. New Zealand Co. 246 

" V. Schmidt 867 

Miller v. Miller 235 
Milling, Johnstone v. 666 
Mills V. Wyman 281 
Mill ward v. Little wood 934 
Milner, Allen v. 1018 
Mineral Park Land Co. v. How- 
ard 735 
Mitchell V. Hawley 1001 
" V. Reynolds 784 
" , Seward v. 236 
Money weight Scale Co., Stem v 76 
Moody V. Insurance Co. 501 
Moor, Phillips v. 150 
Moore v. Elmer 265 
Morgan v. Birnie 470 
" , Harbor v. 988 
Morris, Waugh v. 936 
Morton v. Lamb 519 
Mowse V. Edney 365 
Muggeridge, Lee v. 276 
Munroe v. Perkins 208 


Nash V. Armstrong 255 

Nashua, &c. R. R. Co., Boston, 

&c. R. R. Co. V. 1023 

National Bank v. Grand Lodge 338 
National Bank and Loan Co. v. 

Petrie 947 

National Machine Co. v. Stand- 
ard Machinery Co. 571 
Naylor, Mersey Steel & Iron Co. 

V. 585 

Nell, Schnell v. 168 

Newbury, Stewart v. 545 

New England Ins. Co., Bowditch 

V. 943 

New Zealand Co.. Miles v. 246 

" " " , James v. 399 

New York v. Globe Ins. Co. 752 

Nichols, Arnold v. 363 

" V. Raynbred 508 

Nickelson v. Wilson 848 

Nissley, Lorah v. 317 

Noble, Doll V. 486 

Noice V. Brown 918 

Nolan V. Whitney 477 

Nunn, Goodisson v. 517 

Nutter, Winchester v. 821 

Nyulasy v. Rowan 5 


Oak Grove Const. Co. v. 

Jefferson County 390 
Odell V. Webendorfer 449 
Offord V. Davies 89 
O'Grady v. Howe & Rogers Co. 324 
Oil Well Supply Co. v. MacMur- 
phey 24 
O'Kane. Hopkins v. 809 
Oler, Dinglej' v. 669 
Ollive V. Booker 533 



Osbom V. Martha's Vineyard R. 

R. Co. 424 

Owen, Biggers v. 63 

Oxley, Cooke v. 2 

Panoutsos v. Raymond Hadley 

Corp. 496 

Parker v. Russell 673 

Payne v. Cave 1 

Pead V. Trull 570 

Pearce v. Brooks 891 

Peaslee, Merrill v. 920 

Peck V. United States 645 

Pellman v. Hart 383 

Pelosi V. Bugbee 931 

Pennsj-lvania R. R. Co., Jackson 

V. 1010 

Pepler, Taunton v. 313 

Perkins, Munroe v. 208 

Perrine, Emley v. 381 
Petrie. National Bank and Loan 

Co. V. 947 

Philadelphia v. Reeves 409 

Philhps V. Moor 150 

Phipps, Benson v. 204 

Pickles, Lavcock v. 1013 

Pigot's Case 1038 

Pistorius. Hartman v. 358 

Pixlev I'. BojTiton 819 

Piatt, Cahen v. 593 
Peel f. Brunswick-Balke-Col- 

lender Co. 46 

Pollard, Lakeman v. 746 

Pool V. Boston 227 

Poole, Dutton v. 335 

Pope. Bohanan v. 361 

Pordage v. Cole 508 

Porter. Grant v. 273 

Postal Telegraph- Cable Co. v. 

Willis 115 
Pottlitzer Bros. Fruit Co., San- 
ders V. 10 
Poussard v. Spiers 552 
Poutre, Trudeau v. 966 
Powel, Cro,-^ v. 1033 
Presbyterian Church v. Cooper 188 
Prcscott V. Jones 147 
Preston, Eames v. 321 
" , Kingston v. 511 
Price V. Barker 419 
Proctor, Church v. 900 
, Gibbons v. 81 
Pulp Wood Co. V. Green Bay 
etc. Co. 794 

Raffles V. Wichelhaus 66 

Ralii, Livingston v. 861 

Ranlctt Co., Cavanaugh v. 144 

Ransom, Seavnr r. 3-52 

Rann t-. Hughes 163 

Raybum v. Comstock 686 


Ra\-mond v. Sheldon's Estate 21 

Raynbred, XichoL? v. 508 

Reagan v. L'nion Life Ins. Co. 491 

Reeves, Philadelphia v. 409 

Reich, Bacon v. 1046 

Rennie. Hoare v. 577 

Reynolds, Mitchell v. 784 

'' , Thompson v. 834 

" , Withers v. 521 

Richards v. Heather 411 

Richardson, Marreco v. 305 

Riches v. Briggs 158 

Rife, Lumber Underwriters of 

X. Y. 1. 494 
Riggs V. Bulhngham 260 
Rindge t'. Kimball 286 
Ripley v. M'Clure 650 
Roberts v. Security Co. 325 
V. Hawkins 1031 
Rochester Dist. Co. r. Geloso 543 
Rockefeller, Int. Paper Co., v. 767 
Roe V. Haugh 965 
Rogers. Fox v. 953 
. Johnston v. 15 
Rosa, Spalding v. 739 
Roscorla v. Thomas 262 
Rosenbaum, L'nited States Cred- 
it Co. V. 938 
Row V. Dawson 367 
Rowan. X>nilas\' v. i.5 
Runnamaker v. Cordray 1044 4 
Russell, Parker v. 673 

Sadler, Flower v. 846 

St. Albans r. Shore 513 
Sanders v. Pottlitzer Bros. Fruit 

Co. 10 

Satanita, The 20 

Saunders v. Saunders 322 

Schmidt. Miles v. 867 

Schnell v. Xell 168 

Schweider v. Lang 259 

Schweizer, De Cicco v. 221 

Scott V. Averv 854 

" V. Brow-n 904 

Scottish American Mtge. Co. v. 

Davis 109 

Seaver v. Ransom 352 

Security Bank of X. Y. v. 

Finkelstein 307 

Security Co., Roberts v. 325 

Seignoret, Shales r. 649 

Security Life Assoc, Black v. 923 
Selfridge & Co., Dunlop T^Te 

Co. V. 334 
Semmes v. Hartford Insurance 

Co. 504 

Seward v. Mitchell 236 

Sevmour v. Armstrong 18 

Shadforth v. Higein 468 

Shadwell V. Sha.hvell 216 

Shales v. Seignoret 649 

Shanley v. Koehler 197 




Sharington v. Strotton 329 

Shaw, Devecmon v. 185 

Shaw, Homer v. 379 

Shee, Littlefield v. 279 

Sheffield, Strong v. 251 

Sheldon, State Trust Co. v. 269 
Sheldon's Estate, Raymond v. 21 

Shore, St. Albans v. 513 

Shuey v. United States 60 

Sidenham v. Worlington 155 

Sidway, Hamer v. 233 

Simons, Barnard v. 238 

Blade's Case 159 

Slater v. Jones 985 

Slayback v. Alexander 1015 
Small V. The C. R. I. & P. R. Co. 844 

Smith V. Ashanti Explorers 447 

Smith, Fink v. 231 

" , Gibbs V. 909 

" , Gray v. 707 

" u. Monteith i.279 

" , Ziehen v. 634 

Smith and Smith's Case 154 
Southern Pacific Coast R. R. 

Co.. Canney v. 22 
Spalding v. Rosa 739 
Spaulding, Hale v. 418 
Spencer v. Harding 8 
Spiers, Poussard v. 552 
Sperry, Way v. 293 
Standard Auto etc. Co., Whit- 
taker Chain etc. Co. v. 1007 
Standard Machinery Co., Na- 
tional Machine Co. v. 571 
State Trust Co. v. Sheldon 296 
Steeds v. Steeds 1003 
Stees V. Leonard 723 
Stern v. Money weight Scale Co. 76 
Stern, Williams v. 961 
Stewart v. Griffith 456 
Stewart v. Newbury 545 
Stewart v. Thayer 916 
Stevenson v. McLean 51 
Stickney, Leuthold v. 927 
Stokes, Langden v. 956 
Stone V. Bale 313 
Stowell. Bush V. 310 
Strangborough v. Warner 158 
Strong V. Sheffield 251 
Strotton, Sharington v. 329 
Sturlyn v. Albany 157 
Sturtevant Co. v. Fireproof 
Film Co. 26 

Tanner v. Merrill 200 

Taunton v. Pepler 313 

Tavlor, Darland v. 1036 

. Hilary v. 958 
Texas & Pacific Ry. Co., Warner 

V. 427 

Thacker v. Hardy ii. 379 

Thayer, Stewart v. 916 

Thinne. Bosden v. 261 


Thomas, Roscorla v. 262 

" V. Thomas 175 

Thompson ;'. Gillespy 536 

" V. Reynolds 834 

Thumell v. Balbimie 480 

Tichnor v. Evans 565 

Tillock V. Webb 914 

Tinn v. Hoffman 120 

Topp, Ellen v. 525 
Tri-Bullion Smelting Co. v. 

Jacobsen 690 
Trinidad etc. Co., United States 

Asphalt Co. V. 869 

Trist V. Child 876 

Trudeau v. Poutre 966 

Trueman v. Fenton 270 

Trull, Pead v. 570 

Turner v. Goldsmith 749 

Turner v. McCormick 48 

" , Watson V. 267 

Tweddle t'. Atkinson 336 


Union Life Ins. Co., Reagan v. 491 
Union School District, Dewey v. 645 
United States v. Peck 645 

" . Shuey v. 60 

United States Asphalt Co. v. 

Trinidad etc. Co. 869 

United States Credit Co., Rosen- 

baum V. 938 

Urban District Council, Leiston 

Gas Co. V. 566 


Van Buren, Davis v. 422 

Van Tienhoven, Byrne v. 42 

Vitty V. Eley 82 

Vouillon, Gibbons v. 970 
Vulcan Trading Co. v. Kokomo 

Steel Co. 588 

Vyse, Batterbury v. 475 

■" V. Wakefield 601 



Wagner, Globe Mutual 

Insurance Assoc, v. 
Wainwright Brewing Co., Lin- 

genf elder v. 
Wakefield, Vyse v. 
WaUis, Binnington v. 
Walsh, Hampden v. 
Ward, March v. 
Warner, Strangborough v. 

" V. Texas & Pacific Ry 
Warren v. Hodge 

" V. Lynch 
Watkinson, Makin v. 
Watson, Clarke v. 

" V. Tvirner 
Waugh V. Morris 
Way V. Sperry 


Co. 427 



Weaver, Holcomb v. 887 

Webb, Tillock v. 914 

Webendorfer, Odell v. 449 

Weber v. Couch 964 

Weeks, Edwards v. 956 

Welch V. Mandeville 377 

Wells V. Alexandre 181 

" V. Calnan 561 

West V. Blakeway 959 

West Chicago Street Ry. Co., 

Williams v. 84 

Western Union Telegraph Co., 

Ayer v. 73 

Western Union Tel. Co., Chese- 

brough V. 28 

Western Union Tel. Co., Lucas v. 112 
Wheat V. Cross 131 

Wheeler v. Klaholt 146 

White V. Corlies 135 

" V. Middlesex Railroad Co. 863 
Whitlock, Austin v. 320 

Whitman v. Anglum 738 

Whitney, Nolan v. 477 

Whitsett, Chicago Washed Coal 

Co. V. 693 

Whittaker Chain Tread Co. v. 

Standard Auto etc. Co. 1007 

W^ichelhaus, Raffles v. 66 

WilUamg v. Carwardine 80 

Falck V. 67 

Williams v. London Commercial 

Exchange Co. 1029 
" V. Stem 961 

" V. West Chicago Street 

Ry. Co. 84 

Willis, Postal Telegraph-Cable 

Co. V. 115 

Wilson, Nickelson v. 848 

Winch V. Keeley 369 

Winchester v. Nutter 821 

Witham, Great Northern Ry. 

Co. V. 137 

Withers v. Reynolds 521 

Wood, Worsley v. 459 

Work V. Beach 488 

Worlington, Sidenham v. 155 

Worsley v. Wood 459 

Wrench, Hyde v. 44 

Wyman, Mills v. 281 

Young, Kadish v. 





Co. V. 

Ziegler's Ex., Albert's Ex. v 
Ziehen v. Smith 
Zuck V. McClure 









A. — Offer 


In the King's Bench, May 2, 1789 

[^Reported in 3 Term Reports, 148] 

This was an action tried at the Sittings after last term at Guild- 
hall, before Lord Kenyon, wherein the declaration stated that the 
plaintiff, on 22d September, 1788, was possessed of a certain worm- 
tub, and a pewter worm in the same, which were then and there about 
to be sold by public auction by one S. M., the agent of the plaintiff in 
that behalf, the conditions of which sale were to be the usual condi- 
tions of sale of goods sold by auction, &c., of all which premises the 
defendant afterwards, to wit, &c., had notice; and thereupon the de- 
fendant, in consideration that the plaintiff, at the special instance 
and request of the defendant, did then and there undertake and 
promise to perform the conditions of the said sale to be performed by 
the plaintiff as seller, &c., undertook, and then and there promised 
the plaintiff to perform the conditions of the sale to be performed on 
the part of the buyer, &c. And the plaintiff avers that the conditions 
of sale hereinafter mentioned are usual conditions of sale of goods 
sold by auction, to wit, that the highest bidder should be the pur- 
chaser, and should deposit five shillings in the pound, and that if the 
lot purchased were not paid for and taken away in two days' time, it 
should be put up again and resold, &c. [stating all the conditions] . It 
then stated that the defendant became the purchaser of the lot in 
question for 40/. and was requested to pay the usual deposit, which 
he refused, &c. At the trial, the plaintiff's counsel opened the case 
thus : The goods were put up in one lot at an auction ; there were sev- 


eral bidders, of whom the defendant was the last, who bid 401. ; the 
auctioneer dwelt on the bidding, on which the defendant said, "Why 
do you dwell? you will not get more." The auctioneer said that he 
was informed the worm weighed at least 1300 cwt., and was worth 
more than 401. ; the defendant then asked him whether he would war- 
rant it to weigh so much, and receiving an answer in the negative, he 
then declared that he would not take it, and refused to pay for it. It 
was resold on a subsequent day's sale for 30/. to the defendant, against 
whom the action was brought for the difference. Lord Kenyon, being 
of opinion, on this statement of the case, that the defendant was at 
liberty to withdraw his bidding any time before the hammer was 
knocked down, nonsuited the plaintiff. 

Walton now moved to set aside the nonsuit, on the ground that the 
bidder was bound by the conditions of the sale to abide by his bidding, 
and could not retract. By the act of bidding he acceded to those con- 
ditions, one of which was, that the highest bidder should be the buyer. 
The hammer is suspended, not for the benefit of the bidder, or to give 
him an opportunity of repenting, but for the benefit of the seller; in 
the meantime, the person who did bid last is a conditional purchaser, 
if nobody bids more. Otherwise, it is in the power of any person to 
injure the vendor, because all the former biddings are discharged by 
the last; and, as it happened in this very instance, the goods may 
thereby ultimately be sold for less than the person who was last outbid 
would have given for them. The case of Simon v. Motivos,^ which 
was mentioned at the trial, does not apply. That turned on the 
Statute of Frauds. 

The Court thought the nonsuit very proper. The auctioneer is 
the agent of the vendor, and the assent of both parties is necessary 
to make the contract binding; that is signified on the part of the seller 
by knocking down the hammer, which was not done here till the de- 
fendant had retracted. An auction is not unaptly called locus poeni- 
tenfioe. Every bidding is nothing more than an offer on one side, 
which is not binding on either side till it is assented to. But accord- 
ing to what is now contended for, one party would be bound by the 
offer, and the other not, which can never be allowed. 

Rule refused.' 


In the King's Bench, May 14, 1790 

\Reported in 3 Term Reports, 653] 

TiiiH was an action upon the case; and the third count in the dec- 
laration, upon which the verdict was taken, stated that on, &c., a cer- 

' .3 Burr. 1921. 

» Uniform SaloH Aft. 5 21(2); Hibernia Rav. Soc. v. Bchnkc, 121 C:il. 339; 
Mallarfl v. riirran. 123 Cn. 872. 87.5; Crotenkompor v. Arhtormyor, 11 Bush. 222; 
HrTi<l V. Clark, 88 Ky. 362. 304; Fisher v. Seltzor. 23 Pa. 308; German Civ. Code, 
( 150, ace. 


tain discourse was had, &c., concerning the buying of two hundred 
and sixty-six hogsheads of tobacco; and on that discourse the de- 
fendant proposed to the plaintiff that the former should sell and 
deliver to the latter the said two hundred and sixty-six hogsheads 
[at a certain price] ; whereupon the plaintiff desired the defendant 
to give him (the plaintiff) time to agree to or dissent from the pro- 
posal till the hour of four in the afternoon of that day, to which the 
<ief endant agreed ; and thereupon the defendant proposed to the plain- 
tiff to sell and deliver the same upon the terms aforesaid, if the plain- 
tiff would agree to purchase them upon the terms aforesaid, and would 
give notice thereof to the defendant before the hour of four in the' 
afternoon of that day; the plaintiff averred that he did agree to pur- 
chase the same upon the terms aforesaid, and did give notice thereof 
to the defendant before the hour of four in the afternoon of that day; 
he also averred that he requested the defendant to deliver to him the 
said hogsheads, and offered to pay to the defendant the said price 
for the same, yet that the defendant did not, &c. 

A rule having been obtained to show cause why the judgment should 
not be arrested, on the ground that there was no consideration for 
the defendant's promise, 

Erskine and Wood now showed cause. This was a bargain and sale 
on condition ; and though the plaintiff might have rescinded the con- 
tract before four o'clock, yet, not having done so, the condition was 
complied with, and both parties were bound by the agreement. The 
declaration considered this as a complete bargain and sale; for the 
breach of the agreement is for not delivering the tobacco, and not for 
not selling it. 

LoED Kenyon, Ch. J. (stopping Bearcroft, who was to have argued 
in support of the rule) : Nothing can be clearer than that, at the time 
of entering into this contract the engagement was all on one side ; the 
other party was not bound ; it was therefore nudum pactum. 

BuLLER, J. It is impossible to support this declaration in any point 
of view. In order to sustain a promise, there must be either a damage 
to the plaintiff, or an advantage to the defendant : but here was 
neither when the contract was first made. Then, as to the subsequent 
time, the promise can only be supported on the ground of a new con- 
tract made at four o'clock; but there is no pretence for that. It has 
been argued that this must be taken to be a complete sale from the 
time when the condition was complied with ; but it was not complied 
with, for it is not stated that the defendant did agree at four o'clock to 
the terms of the sale; or even that the goods were kept till that time. 

Grose, J. The agreement was not binding on the plaintiff before 
four o'clock; and it is not stated that the parties came to any subse- 
quent agreement ; there is, therefore, no consideration for the promise. 

Rule absolute? 

' This judgment was affirmed in the Exchequer Chamber; M. 32 Geo. 3. Head v. 
Diggon, 3 Man. & Ry. 97, ace. See also Routledge v. Grant, 4 Bing. 653. 


ADAMS AND Others v. LINDSELL and Another 

In the King's Bench, June 5, 1818 

[^Beported in 1 Barnewall & Alderson, 681] 

Action for non-delivery of wool according to agreement. At the 
trial at tlie last Lent Assizes for the county of Worcester, before 
BuEROUGH, J., it appeared that the defendants, who were dealers in 
wool at St. Ives, in the county of Huntingdon, had on Tuesday, the 
2d of September, 1817, written the following letter to the plaintiffs, 
who were woollen manufacturers residing in Bromsgrove, Worcester- 
shire: "We now offer you eight hundred tods of wether fleeces, of 
a good fair quality of our country wool, at 35s. 6d. per tod, to be 
delivered at Leicester, and to be paid for by two months' bill in two 
months, and to be weighed up by your agent within fourteen days, 
receiving your answer in course of post." 

This letter was misdirected by the defendants to Bromsgrove, 
Leicestershire, in consequence of which it was not received by the 
plaintiffs in Worcestershire till 7 p.m. on Friday, September 5th. 
On that evening the plaintiffs wrote an answer, agreeing to accept 
the wool on the terms proposed. The course of the post between St. 
Ives and Bromsgrove is through London, and consequently this an- 
swer was not received by the defendants till Tuesday, September 9th, 
On the Monday, September 8th, the defendants, not having, as they 
expected, received an answer on Sunday, September 7th (which, in 
case their letter had not been misdirected, would have been in the 
usual course of the post), sold the wool in question to another person. 
Under these circumstances, the learned Judge held that, the delay 
having been occasioned by the neglect of the defendants, the jury 
must take it that the answer did come back in due course of post; 
and that then the defendants were liable for the loss that had been 
sustained : and the plaintiffs accordingly recovered a verdict. 

Jervis having in Easter Term obtained a rule nisi for a new trial, 
on the ground that there was no binding contract between the 

Dauncey, Puller, and Richardson showed cause. They contended 
that, at the moment of the acceptance of the offer of the defendants 
by the plaintiffs, the former became bound. And that was on Friday 
evening, when there had been no change of circumstances. They 
were then stopped by the Court, who called upon 

Jnrvis and (himphrJl in snpport of the rule. They relied on Payne 
V. Cave, and more; particularly on Cooke v. Oxley. In that .case, 
Oxley, who had proposed to sell goods to Cooke, and given him a 
certain time, at his rcqnest, to determine wliether he Avould buy them 
or not, was held not Hal)lo to the yxn-fonnaiiee of the contract, even 
though Cooke, within the specified time, had determined to buy them, 
and giv(!n Oxley notice to that effect. So here the defendants who 


have proposed by letter to sell this wool, are not to be held liable, 
even though it be now admitted that the answer did come back in 
due course of post. Till the plaintiffs' answer was actually re- 
ceived, there could be no binding contract between the parties; and 
before then the defendants had retracted their offer by selling the 
wool to other persons. But 

The Coubt said, that if that were so, no contract could ever be 
completed by the post. For if the defendants were not bound by their 
offer when accepted by the plaintiffs till the answer was received, 
then the plaintiffs ought not to be bound till after they had received 
the notification that the defendants had received their answer and 
assented to it. And so it might go on ad infinitum. The defendants 
must be considered in law as making, during every instant of the 
time their letter was travelling, the same identical offer to the plain- 
tiffs; and then the contract is completed by the acceptance of it by 
the latter. Then as to the delay in notifying the acceptance, that 
arises entirely from the mistake of the defendants, and it therefore 
must be taken as against them that the plaintiffs' answer was re- 
ceived in course of post. Bule discharged. 


Supreme Court of Victoria^, May 7-June 23, 1891 

[Beported in 17 Victorian Law Reports, 663] 

HiGiNBOTHAM, C. J. TMs is an appeal from a judgment of 
MoLEswoRTH, J. The statement of claim contains three alternative 
causes of action. The first of these, for shares bargained and sold, 
was abandoned at the hearing. The second was founded on a verbal 
agreement alleged to have been made by and between the plaintiff 
and the defendant on 21st July, 1890, by which it was agreed, in 
consideration, that the plaintiff would not proceed at that time to sell 
400 shares, which he held in the Melbourne Tramway and Omnibus 
Company, at the then market price, and would not place the shares at 
that time on the market for sale at that price, that the defendant 
should, on being requested by the plaintiff so to do, at any time within 
three months from 21st July, 1890, purchase from the plaintiff his 
said 400 shares at the price of 8Z. each. The plaintiff alleged per- 
formance of this agreement on his part — a request made by him to 
the defendant to purchase the shares on or about 21st August, 1890, 
and a refusal by the defendant to purchase. The learned primary 
judge held that this agreement was made between the parties on 21st 
July, and that it was broken by the defendant, and he gave judgment 
for the plaintiff on this claim. The third alternative cause of action 
was founded upon a verbal offer alleged to have been made by the de- 
fendant to the plaintiff on or about 21st July to purchase the plain- 
tiff's 400 shares at the price of 8L per share, such offer to remain open 


three months from that date; acceptance of the offer by the plaintiff 
on or about 21st August, within the three months, and while the de- 
fendant's offer was still open and unretracted, and refusal by the 
defendant to accept the shares. The learned judge found that the 
plaintiff had established by proof this claim as well as the second, 
and he gave judgment on it for the plaintiff. 

The defendant now appeals against this judgment on both 
grounds. With regard to the second ground of claim' it has been con- 
tended that there was no agreement between the parties on 21st July, 
as there was no consideration for the promise which it was admitted 
the defendant gave on that day. The plaintiff's answer to this argu- 
ment is that there is evidence of a request then made by the defend- 
ant that the plaintiff should not immediately sell his shares or place 
them on the market, and that such request, if complied with by the 
plaintiff, was a good consideration for the defendant's promise. 
Crears v. Hunter.^ The question, then, that is raised upon this 
part of the case is whether there was any evidence upon which the 
judge might reasonably act, that the defendant did at that time 
really, and not by way of banter only,^ request the plaintiff not to 
sell his shares or place them on the market. We are of opinion that 
there was such evidence. The defendant's answer to the whole claim 
of the plaintiff was that, having been asked by a friend of the plain- 
tiff, who was anxious and distressed by the falling state of the 
market, to comfort the plaintiff, he spoke to the plaintiff jocularly 
only, intending to comfort him, and that he gave him an unreal and 
false promise without intending to perform it. The defendant, how- 
ever, admits that the plaintiff did not seem to take his words of 
comfort as a joke. Now, the judge has found upon evidence amply 
sufficient that this defence is untrue, that the defendant spoke to the 
plaintiff, not in joke, but in earnest, and influenced by a desire to 
protect the stock of which he was a large holder himself. Then, 
as regards a request, the plaintiff swore that the defendant said to 
him on 2l8t July: 'T)on't be foolish to sell now and lose money." 
The defendant, in answer to an interrogatory, stated that he did not, 
to the best of his knowledge, information, or belief, say to the plain- 
tiff: "Your trams are all right; don't be so foolish as to sell them 
at a loss ;" but he admits that he may have used words to that effect. 
Now, assuming, as we are bound to do, that the defendant spoke at 
this conversation seriously, and that he was using the opportunity 
then represented to him to make in his own interest and for his own 
advantage a hnna fide offer to the plaintiff, who accepted his words 

> 10 Q. B. D. 341. 

' Kcllir 71. TToldcrrrmn, 11 Mich. 248, was an action on a check given for a silver 
wfitfh. 'I'hf- trial jtkIk'' foiiiif] "tho whole transaction was a frolic and banter — the 
I)lainti(T iif)t, fxix'ctiim to sell, nor th(? defendant intending to buy the watch at the 
mirri frjr wliieh the elieek was drawn," but held the defendant liable. The Supreme 
Court reverwd thin judKnu-nt on tho pcround that "no coTitraet was ever made by the 
parties." MefMurn v. Terry, 21 N. .1. Eq. 225; Bruce v. Bishop, 4.3 Vt. 161, ace. Cf. 
Deitriek r. Hinnott (la.) 179 N. W.424; Armstrongs. McGhoe, Add. (Pa.) 261. 


seriously, what is the meaning that should be given to these words, 
or Avords to the like effect then uttered by the defendant? The judge 
has found that forbearance by the plaintiff to sell his shares was on 
account of an implied, though perhaps not an express, request by the 
defendant. I should be inclined to say that these words might be 
taken to convey an express request by the plaintiff not to sell. 
"We are of opinion that they are evidence, either express or by im- 
plication, of such a request; that the judge was justified in con- 
cluding that a request was made by the defendant, and that it was 
in consequence of such request that the plaintiff forbore to sell 
his shares. The judgement, therefore, cannot be disturbed on this 

With respect to the third alternative ground of action, it has been 
contended, for the defendant, that there must be consideration for 
a continuing offer of this kind, that the plaintiff did not accept the 
offer at the time it was made, and that when he did accept it the de- 
fendant had changed his mind; so that, treating the transaction of 
21st July as an offer only and not as a contract, the parties never 
were ad idem, and no contract was entered into between them subse- 
quently to 21st July. In support of this view, Cooke v. Oxley^ 
was relied on. The effect and the authority of that case have been 
the subject of some controversy which is still unsettled. See Ben- 
jamin on Sales (4th. ed.), p. 69; Pollock on Principles of Contract 
(5th ed.), p. 25, note. Cooke v. Oxley,^ which was decided on a 
motion in arrest of judgment, may be supported on the ground 
that the declaration did not aver that the defendant actually left 
the offer open until the hour named, but only that he promised to 
do so.- But if Cooke ik 0x1 ey is to be supported upon this ground 
of pleading, it would not govern the present case, where it is alleged 
in the statement of claim and proved in evidence, that the 'plaintiff 
by letter accepted the offer while it was still open and unretracted. 
Unless, therefore, there is some distinction to be drawn between an 
offer by letter or telegram and an offer by word of mouth, and we 
are not aware of any reason or authority for such a distinction; see 
per Lush, J., in Stevenson v. McLean;^ the present case comes 
within the artificial but convenient explanatory rule laid down in 
Adams v. Lindsell,* and the offer of the defendant on 21st July, 
unsupported by any consideration, must be considered in law as 
having been made by the defendant during every instant of the in- 
tervening time until 19th August, when a contract was made be- 
tween the parties by the plaintiff's letter, accepting the offer and 
tendering his shares to the defendant. The defendant has failed, in 

1 Ante, p. 2. 

* "The offer was not limited in time, and the presumption is, that it was open on 
the fifth day after it was made, nothing to the contrary appearing. The revocation 
of it, if it had been revoked, was matter of defence." Wilson v. Stump, 103 Cal. 255, 
258. See also. Quick v. Wheeler, 78 N. Y. 300. 

» 5 Q. B. D. 351. * Ante, p. 4. 


our opinion, on this ground also to show that the judgment was 
wrong. The appeal will he dismissed with costs. 

SPEl^CEK A^-D Another v. HARDIN'G and Others 

In the Common Pleas, June 29, 1870 
^Reported in Law Reports, 5 Common Pleas, 561] 

The second count of the declaration stated that the defendants by 
their agents issued to the plaintiffs and other persons engaged in the 
wholesale trade a circular in the words and figures following; that 
is to say, "28 King Street, Cheapside, May 17th, 1869. We are 
instructed to oifer to the wholesale trade for sale by tender the stock 
in trade of Messrs. G. Eilbeck & Co., of JSTo. 1 Milk Street, amount- 
ing as per stock-book to 2,503L 13s. Id., and which will be sold at 
a discount in one lot. Payment to be made in cash. The stock 
may be viewed on the premises, Wo. 1 Milk Street, up to Thursday, 
the 20th instant, on which day, at 12 o'clock at noon precisely, the 
tenders will be received and opened at our offices. Should you 
tender and not attend the sale, please address to us, sealed and in- 
closed, 'Tender for Eilbeck's stock.' Stock-books may be had at 
our office on Tuesday morning. Honey, Humphreys & Co." Arid 
the defendants offered and undertook to sell the said stock to the 
highest bidder for cash , and to receive and open the tenders de- 
livered to them or their agents in that behalf, according to the true 
intent and meaning of the said circular. And the plaintiffs there- 
upon sent to the said agents of the defendants a tender for the said 
goods, in accordance with the said circular, and also attended the 
said sale at the time and place named in the said circular. And 
the said tender of the plaintiffs was the highest tender received by 
the defendants or their agents in that behalf. And the plaintiffs 
were ready and willing to pay for the said goods according to the 
true intent and meaning of the said circular. And all conditions 
were performed, etc., to entitle the plaintiffs to have their said 
tender accepted by the defendants, and to be declared the pur- 
chasers of the said goods accordi ng to the true intent and meaning; 
of the said cir cular; yet the (Icfc^ndants refused to accept the said 
tcri'Icr ()\ the ])la]iititfs, and refused to sell the said goods to the plain- 
tiffs, and rcfus(;(l to open the said tender or proceed with the sale 
of the said goods, in accordance with their said offer and undertak- 
ing in that bfhiilf, whereby the plaintiffs had been deprived of 
profit, etc. 

Demurrer, on the ground that the count showed no promise to ac- 
cept the plaintiffs' tender or sell them the goods. Joinder. 

JJnll, in supj)ort of the demurrer. 

Morgan Lloyd, contra. 

f \ 


WiLLES, J. I aBi of opinion that the defendants are entitled to 
judgment. The action is brought against persons who issued a cir- 
cular offering a stock for sale by tender, to be sold at a discount 
in one lot. The plaintiffs sent in a tender which turned out to be 
the highest, but which was not accepted. They now insist that the 
circular amounts to a contract or promise to sell the goods to the 
highest bidder, — that is, in this case, to the person who should 
tender for them at the smallest rate of discount; and reliance is 
placed on the eases as to rewards offered for the discovery of an 
offender. In those cases, however, there never was any doubt that 
the advertisement amounted to a promise to pay the money to the 
person who first gave information. The difficulty suggested was 
that it was a contract with all the world. But that, of course, was 
soon overruled. It was an offer to become liable to any person who, 
before the offer should be retracted, should happen to be the per- 
son to fulfil the contract of which the advertisement was an offer or 
tender. That is not the sort of difficulty which presents itself here. 
If the circular had gone on "and we undertake to sell to the highest 
bidder," the reward cases would have applied, and there would have 
been a good contract in respect of the persons.^ But the question 
is, whether there is here any offer to enter into a contract at all, 
or whether the circular amounts to anything more than a mere proc- 
lamation that the defendants are ready to chaffer for the sale of the 
goods, and to receive offers for the purchase of them. In advertise- 
ments for tenders for buildings it is not usual to say that the con- 
tract will be given to the lowest bidder, and it is not always that the 
contract is made with the lowest bidder. Here there is a total ab- 
sence of any words to intimate that the highest bidder is to be the 
purchaser. It is a mere attempt to ascertain whether an offer can 
be obtained within such a margin as the sellers are willing to adopt. 

Keating and Montague Smith, JJ., concurred. 

Judgment for the defendants.' 

1 See Warlow v. Harrison, 1 E. & E. 295; Mainprice v. Westley, 6 B. & S. 420; 
Harris v. Nickerson, L. R. 8 Q. B. 286; South Hetton Coal Co. v. Haswell, [1898] 1 Ch. 
465; Johnston v. Boyes, [1899] 2 Ch. 73; Tillman v. Dunman, 114 Ga. 406; McNeil 
V. Boston Chamber of Commerce, 154 Mass. 277; 57 L. R. A. note. 

^ In Rooke v. Dawson [1895] 1 Ch. 480, the announcement of an examination lor a 
scholarship was held not to amount to an offer to award the scholarship to such appli- 
cant as should fulfil the requirements of the trust deed under which the scholarship. 
fund was held. Compare Neidermeyer v. Univ. of Missouri, 61 Mo. App. 654. 


ARCHIE D. SAI^DERS et al., Appellants, v. POTTLITZER 

New Yoek Coukt of Appeals, December 7-18, 1894 

[Reported in 144 New York, 209] 

O'Beien J. The plaintiffs in this action sought to recover 
damages for the breach of a contract for the sale and delivery of a 
quantity of apples. The complaint was dismissed by the referee 
and his judgment was affirmed upon appeal. The only question to 
be considered is whether the contract stated in the complaint, as the 
basis for damages, was ever in fact made so as to become bind- 
ing upon the parties. On the 28th of October, 1891, the plaintiffs 
submitted to the defendant the following proposition in writing: 

"Buffalo, N. Y., Oct. 28, 1891. 
"Messrs. Pottlitzer Bros. Fruit Co., Lafayette, Ind.: 

" Gentlemen, — We offer you ten carloads of apples to be from 175 to 200 barrels 
per car, put up in good order, from stock inspected by your Mr. Leo Pottlitzer at 
Nunda and Silver Springs. The apples not to exceed one-half green fruit, balance 
red fruit, to be shipped as follows: — 

"First car between 1st and 15th December, 1891. 

"Second car between 15th ,and 30th December, 1891, and one car each ten days 
after January 1, 1892, until all are shipped. Dates above specified to be considered 
as approximate a few days either way, at the price of $2.00jper barrel, free on board 
cars at Silver Springs and Nunda, in refrigerator cars, this proposition to be accepted 
not later than the 31st inst., and you to pay us $500 upon acceptance of the proposi- 
tion, to be deducted from the purchase price of apples at the rate of $100 per car on 
the last five cars. 

"Yours respectfully, ''J. Sanders & Son." 

To this proposition the defendant replied by telegraph on October 
31st as follows: — 

"Lafayette, Ind., 31st October. 
"J. Sanders & Son: 

"We accept your proposition on apples, provided you will change it to read 'car 
every eight days from January first, none in December;' wire acceptance. 

"Pottlitzer Bros. Fruit Co." 

On the same day the plaintiffs replied to this despatch to the effect 
that they could not accept the modification proposed, but must in- 
sist upon the original offer. On the same day the defendant an- 
swered the plaintiffs' telegram as follows : — 

"Can only accept condition as stated in last message. Only way wc can accept. 
AnBwer if accepted. Mail contract and wc will then forward draf t. 

"Pottlitzer liRos. Fruit Co." 

The mattcT thus rested till November 4, when the plaintiffs re- 
ceived the following lf;tter from the defendant: — 

"Lafayette, Ind., November 2, 1891. 
"J. Sanders (fe Son, Stafford, N. Y.: 

"Gents, — W(- arc in receipt of your telcgr.ams, also your favor of the 31st ult. 
Whiir; we no doubt think wc liavc^ offrTcd you a fair contract on apples, still the dic- 
tator of this huh if;arncd on hin return homo that thtsro arc so many near-by apples 
coming into market that it will affect the sale of apples in December, and, therefore, 


we do not think it advisable to take the contract unless you made it read for shipment 
from the 1st of January. We are very sorry you cannot do this, but perhaps we will 
be able to take some fruit from you, as we will need it in the spring. If you can change 
the contract so as to read as we wired you we will accept it and forward you draft in 
payment on same. "Poti'litzer Fruit Co." ,.. 

On receipt of this letter the plaintiffs sent the following message 
to the defendant by telegraph : — 

"November 4th. 
"PoTTLiTZER BROTHERS Fruit Company, Lafayette, Ind.: 

"Letter received. Will accept conditions. If satisfactory, answer and will for- 
•ward c ontract . "J- Sanders & Son." 

The defendant replied to this message by telegraph saying: "All 
right, send contract as stated in our message." The plaintiffs did 
prepare and send on the contract precisely in the terms embraced in 
the foregoing correspondence, which was the original proposition 
made by the plaintiffs, as modified by defendant's telegram above 
set forth, and which was acceded to by the plaintiffs. This was not 
satisfactory to the defendant, and it returned it to the plaintiffs 
with certain modifications, which were not referred to in the cor- 
respondence. These modifications were: (1) That the fruit should 
be well protected from frost and well hayed; (2) that if, in the judg- 
ment of the plaintiffs, it was necessary or prudent that the cars 
should be fired through, the plaintiffs should furnish the stoves for 
the purpose, and the defendant pay the expense of the man to be 
employed in looking after the fires to be kept in the cars; (3) that 
the plaintiffs should line the cars in which the fruit was shipped. 
These conditions Avere more burdensome and rendered the contract 
less profitable to the plaintiffs. They were not expressed in the cor- 
respondence and I think cannot be implied. They were not assented 
to by the plaintiffs, and on their declining to incorporate them in 
the paper the defendant treated the negotiations as at an end and 
notified the plaintiffs that it had placed its order with other parties. 
There was some further correspondence, but it is not material to the 
question presented by the appeal. The writings and telegrams that 
pa ssed between the parties contain all the elements o f a comp lete'^ 
contract . jSTothing was wanting in the plaintiff's' original proposi- 
tion but the defendant's assent to it in order to constitute a contract 
binding upon both parties according to its terms. This assent was 
given upon condition that a certain specified modification was ac- 
cepted. The plaintiffs finally assented to the modification and called 
upon the defendant to signify its assent again to the whole arrange- 
ment as thus modified, and it replied that it was "all right," which 
must be taken as conclusive evidence that the minds of the parties had 
met and agreed upon certain specified and distinct obligations which 
were to be observed by both. It is true, as found by the learned 
referee, that the parties intended that the agreement should be for- 
mally expressed in a single paper which, when signed, should be the 
evidence of what had already been agreed upon. But neither party 


was entitled to insert in the paper any material condition not referred 
to in the correspondence, and if it was inserted without the consent 
of the other party, it was unauthorized. Hence the defendant, by 
insisting upon further material conditions not expressed or implied 
in the correspondence, defeated the intention to reduce the agree- 
ment to the form of a single paper signed by both parties. The 
plaintiffs then had the right to fall back upon their written proposi- 
tion as originally made and the subsequent letters and telegrams, 
and if they constituted a contract of themselves the absence of the 
formal agreement contemplated was not under the circumstances 
. I material. When the parties intend that a mere verbal agreement 
y***'^ shall be finally reduced to writing as the evidence of the terms of 
the contract, it may be true that nothing is binding upon either 
^^'-'^flparty until the writing is executed. 

r-p^-*"*^ But here the contract was already in writing, and it was none the 
less obligatory upon both parties because they intended that it should 
^ be put into' another form, especially when their intention is made 
'""^ impossible by the act of one or the other of the parties by insisting 
I . upon the insertion of conditions and provisions not contemplated 
or embraced in the correspondence. Vassar v. Camp, 11 N. Y. 441; 
Brown v. Norton, 50 Hun, 248 ; Pratt v. H. E. E. E. Co., 21 :N". Y. 
308. The principle that governs in such cases was clearly stated 
by Judge Selden in the case last cited in these words: "A contract 
to make and execute a certain written agreement, the terms of which 
are mutually understood and agreed upon, is, in all respects, as 
valid and obligatory, where no statutory objection interposes, as 
the written contract itself would be, if executed. If, therefore, it 
should appear that the minds of the parties had met ; that a proposi- 
tion for a contract had been made by one party and accepted by the 
other; that the terms of this contract were in all respects definitely 
understood and agreed upon, and that a part of the mutual under- 
'standing was, that a written contract, embodying these terms, should 
be drawn and executed by the respective parties, this is an obliga- 
tory contract, which neither party is at liberty to refuse to perform." 
In this case it is apparent that the minds of the parties met 
through the correspondence upon all the terms as well as the subject- 
matter of the contract, and that the subsequent failure to reduce this 
contract to the precise form intended, for the reason stated, did not 
affect the obligations of either party, which had already attached, 
and they may now resort to the primary evidence of tbeir mutual 
stipulations. Any other rule would always permit a party Avho has 
entered into a contract like this through letters and telegraphic mes- 
8ag(!S to violate; it wluniever the understanding was that it should be 
reduced to iuiotluir written form, by simply suggesting other and 
additional t(!rni9 and conditions. If this Avere the rule the contract 
would never be completed in cases where by changes in the market 
or other events occurring subsequent to the written negotiations it 


became the interest of either party to adopt that course in order to 
escape or evade obligations incurred in the ordinary course of com- 
mercial business. A stipulation to reduce a valid written contract to 
some other form cannot be used for the purpose of imposing upon 
either party additional burdens or obligations or of evading the 
performance of those things which the parties have mutually agreed 
upon by such means as made the promise or assent binding in law. 
There was no proof of any custom existing between the shippers 
and consignees of such property in regard to the payment of the 
expense of firing, lining, and haying of cars. If it be said that 
such precautions are necessary in order to protect the property while 
in transit, that does not help the defendant. The question still 
remains, who was to bear the expense ? The plaintiffs had not agreed 
to pay it any more than they had agreed to pay the freight or incur 
the other expenses of ' transportation. The plaintiffs sent a plain 
proposition which the defendant accepted without any such condi- 
tions as it subsequently sought to attach to it. That the parties 
intended to make and sign a final paper does not warrant the infer- 
ence that they also intended to make another and different agree- 
ment. The defendant is in no better position than it would be in 
case it had refused to sign the final writing without alleging any 
reasons whatever. The principle, therefore, which is involved in the 
case is this, Can parties who have exchanged letters and telegrams 
with a view to an agreement, and have arrived at a point where a 
clear and definite proposition is made on the one side and accepted 
on the other, with an understanding that the agreement shall be 
expressed in a formal writing, ever be bound until that writing is 
signed ? If they are at liberty to repudiate the proposition or accept- 
ance, as the case may be, at any time before the paper is signed, and as 
the market may go up or down, then this case is well decided. But if 
at the close of the correspondence the plaintiffs became bound by their 
offer and the defendant by its acceptance of that offer, whether the 
final writing was signed or not, as I think they did, under such cir- 
cumstances as the record discloses, then the conclusion of the learned 
referee was erroneous. To allow either party to repudiate the obliga- 
tions clearly expressed in the correspondence, unless the other will 
assent to material conditions, not before referred to, or to be implied 
from the transaction, would be introducing an element of great con- 
fusion and uncertainty into the law of contracts. If the parties did 
not become bound in this case, they cannot be bound in any case 
until the writing is executed. 

The judgment should be reversed and a new trial granted, costs 
to abide the event. 

All concur, except Earl, Gray, and Bartlett, JJ., dissenting. 

Judgment reversed} 

^ In the following cases it was held that there was a contract, though it was agreed 
that a written contract should be subsequently prepared. Bonnewell v. Jenkins, 8 Ch. 


DANIEL R. DONNELLY, Defendant in Ekeor, v. THE 

New Jersey Supreme Court, February 27-June 10, 1901. 

[Reported in 66 New Jersey Law, 388.] 

Dixon, J. The plaintiff, being about to bid for a contract to- 
build a music pavilion in Atlantic City, submitted the plans and 
specifications to the defendant for an estimate as to the price at 
which the latter would do the metal work required, and on March 
31st, 1899, received a letter from the defendant saying that it would 
do the work for $2,650. Accordingly the plaintiff put in his bid 
for the construction of the building, and, after the making of some 
changes, not affecting the metal work, the job was awarded to him 
and the contract was signed on April 5th, 1899. During the next 
morning the plaintiff telephoned to the defendant's manager that he 
had signed a contract for the building, and would be prepared to 
sign a written contract with the defendant at four o'clock that after- 
noon, to which the manager answered "all right." Shortly before- 
that hour the plaintiff telephoned to the manager that he had not had 
time to prepare the contract, and would sign it in the morning, to 
which the manager again replied "all right." The next morning the 
plaintiff called on the manager, and the latter informed the plaintiff 
that the defendant would be unable to perform the work in the time 
agreed upon by the plaintiff, and had not room to do the work so 
quickly, and refused to sign the proposed contract. Afterwards 
the plaintiff was compelled to pay a higher price for the metal work, 
«ind brought this suit for breach of contract. On this state of facts, 
shown by the plaintiff's evidence, the defendant moved for a nonsuit 
and for direction of a verdict in favor of defendant. These motions 
being overruled, exceptions were sealed. 

The case is governed by the rule established in Water Commis- 
sioners V. Brown, 3 Vroom, 504, 510, where Mr. Justice Elmer, 
speaking for the Court of Errors, said : "If it appears that the parties, 
.ilthongh they have agreed on all the terms of their contract, mean 
to have them reduced to writing and signed before the bargain shall 
be considered as complete, neither party will be bound until that is 
done, 80 long as the contract remains without any acts done under 
it on f'itlKT side." Tlie conversations over the telephone between 
the plaintiff and the defendant's manager, as well as the testimony 
of the plaintiff himself, make it clear that a written contract was 
expected by botli pnrtios. Indeed, it cannot reasonably be determined 

D. 70, 73: BoltoFi V. Liunhrrt, 41 Ch. D. 29.5; Boll v. Offutt, 10 Bush, 6.S2; Montague 
V. W<il, :W Lji. Ann. r,U; Allen v. C^honicau, 102 Mo. 309; Green v. Cole (Mo.), 24 
B. W. B.T). lO-^iK; Wharton v. StouU^nhurKh, 35 N. .1. Eq. 200; Blaney v. Hoke, 14 
Ohio Ht. 292; Mfir-key r. Mackcy'H Adm. 29 Gratt. 158; Paige v. Fullerton Woolen 
Co., 27 Vt. 485; Lawrence v. Milwaukee &c. Ry. Co., 84 Wia. 427; Cohn v. Plumer., 
«8 WiH. 022. 


that the parties had agreed upon all the matters which they would *^ ^ 
expect to have included in their bargain, for the time allowed for ^— ^«4. 
the beginning and completion of the work and the mode of payment ^ ^^ 
are generally provided for expressly in such arrangements, and on ^ j 
these points their negotiations had been silent, awaiting probably the^, 
outcome of the plaintiff's proposal for the erection of the building. **** 

We therefore think that no contract was made by the defendant, /^ A* 
and that the motions mentioned should have prevailed. /* * y Vi«~»<L^ 

The judgment is reversed.^ ^nji <^ 


Ontario High Court of Justice, February 2, 1899 

[Reported in 30 Ontario, 150] 

An appeal by the defendants from the judgment of William 
Elliott, senior Judge of the County Court of Middlesex, in favour 
of the plaintiffs in an action in that Court, the facts of which are 
fully set out in the following [portion of the] opinion delivered by 
that Judge : — 

The plaintiffs are bakers, and seek to recover damages from the 
defendants for breach of a contract for the sale and delivery of a 
quantity of flour. 

The following letter is the basis of the plaintiffs' claim : — 

"Toronto, April 26, 1898. 

"Dear Sir, — We wish to secure your patronage, and, as we have found the 
only proper way to get a customer is to save him money, we therefore are going to 
endeavor to save you money. 

"It ia hardly prudent for us to push the sale of flour just now, as prices are sure 

^ In the following cases it was held that no contract existed until the execution of 
a written contract, the signing of which was one of the terms of a previous agreement. 
Ridgwayj). Wharton, 6 H. L. C. 238, 264, 268, 305; Chinnock v. Marchioness of Ely 
4 De G. J. & S. 638, 646; Winn v. Bull, 7 Ch. D. 29; Spinney v. Downing, 108 Cal. 
666; Fredericks v. Fasnacht, 30 La. Ann. 117; Ferre Canal Co. v. Burgin, 106 La. 309; 
Mississippi, &c. S. S. Co. v. Swift, 86 Me. 248; Willes v. Carpenter, 75 Md. 80; Lyman 
V. Robinson, 14 Allen, 242; Sibley v. Felton, 156 Mass. 273; Morrill v. Tehama Co., 
10 Nev. 125; Water Commissioners v. Brown, 32 N. J. L. 504; Brown v. N. Y. Cen- 
tral R. R. Co., 44 N. Y. 79; Commercial Tel. Co. v. Smith, 47 Hun, 494; NichoUs v. 
Granger, 7 N. Y. App. Div. 113; Arnold v. Rothschild's Sons Co., 37 N. Y. App. Div. 
564, aff'd 164 N. Y. 562; Franke v. Hewitt, 56 N. Y. App. Div. 497; Congdon v. 
Darcy, 46 Vt. 478. See also Jones v. Daniel, [1894] 2 Ch. 332. 

In Mississippi, &c. S. S. Co. v. Swift, 86 Me. 248, 258, the Court said: "From these 
expressions of courts and jurists, it is quite clear that, after all, the question is mainly 
one of intention. If the party sought to be charged intended to close a contract prior 
to the formal signing of a written draft, or if he signified such an intention to the 
other party, he will be bound by the contract actually made, though the signing of the 
written draft be omitted. If, on the other hand, such party neither had nor signi- 
fied such an intention to close the contract until it was fully expressed in a WTitten 
instrument and attested by signatures, then he will not be bound until the signatures 
are affixed. The expression of the idea may be attempted in other words :1 if the 
written draft is viewed by the parties merely as a convenient memorial, or record of 
their previous contract, its absence does not affect the binding force of the contract; 
if, however, it is viewed as the consummation of the negotiation, there is no contract 
until the written draft is finally signed." 


to advance at least 50 cents per barrel within a very few days, and give you the ad- 
vantage of a cut of from 20 to 25 cents per barrel seems a very foolish thing, but 
nevertheless we are going to do it, just to save you money and secure your patronage. 
"We quote you (R. O. B. or F. O. B.) your station, Hungarian $5.40, and strong 
Bakers $5.00, car lots only, and subject to sight draft with bill of lading. 

"We would suggest your using the wire to order, as prices are so rapidly advancing 
that they may be beyond reach before a letter would reach us. 

' ' Yours respectfully, 

"Rogers Bros." 

This communication was received by the plaintiffs on the 27th 

April. The plaintiffs telegraphed the defendants the same morning 

as follows : — 

"Lo>rDON, April 27, 1898. 
"To Rogers Bros., Confederation Life Building, Toronto. 

"We will take two cars Hungarian at your offer of yesterday. 

"Johnston Bros." 

On the same day, namely, the 27th April, the plaintiffs received the 
following communication by telegraph : — 

"Toronto, Ont., April 27, 1898. 
"Flour advanced sixty. Will accept advance of thirty on yesterday's quotations. 
Further advance certain. 

"Rogers Bros." 

Then followed a letter, dated the 28th April, from Messrs. Hell- 
muth & Ivey, solicitors for the plaintiffs, calling upon the defendants 
to fulfil the order "according to the offer contained in your letter of 
the 26th and duly accepted by them by wire on April 27th; and upon 
your refusal damages will be demanded." 

The appeal was heard by a Divisional Court composed of Armoue, 
C.J., Falconbridge and Street, JJ., on the 26th January, 1899. 

W. CarleiU-Hall and J. W. Payne, for the defendants. 

Hellmuth, for the plaintiffs. 

Falconbridge, J. — The facts and the correspondence are fully 
set out in the very careful judgment of the learned Judge. 

I shall not refer to the second and third grounds of appeal further 
than to say that they have been fully considered, and, to my mind, 
satisfactorily disposed of, by the trial Judge. 

The real crux of the case is whether there is a contract. 

Leaving out the matters of inducement (in both the legal and the 
ordinary sense) in the letter of the 26th, the contract, if there is one, 
is contained in the following words : — 

Letter, Defendants to Plaintiffs 

"27th April, 1898. 
"We quote you, F. O. B. your station, Hungarian $5.40 and strong Bakers $5.00, 
car lots only, and .subject to sight drafts with bills of lading." 

Telegram, Plaintiffs to Defendants 

"27th April, 1896. 
"We will taker 2 cars Hungarian at your offer of yesterday." 

I slioiil'l expect to find American authority as to the phrase "we 
quotf! you," which })f! in very common use amongst brokers, 
manufacturcr.s, and dealers in the United States; but we were 


referred to no decided case, and I have found none where that 
phrase was used. 

In the "American and English Encyclopedia of Law," 2d ed., 
vol. 7, p. 138, the law is stated to be: "A quotation of prices is 
not an offer to sell, in the sense that a complete contract will arise 
out of the mere acceptance of the rate offered or the giving of an 
order for merchandise in accordance with the proposed terms. It 
requires the acceptance by the one naming the price, of the order 
so made, to complete the transaction. Until thus completed there 
is no mutuality of obligation." 

Of the cases cited in support of this proposition, Moulton v. Ker- 
shaw (1884), 59 Wis. 316, 48 Am. Rep. 516, is the nearest to the 
present one, but in none is the word "quote" used. 

The meaning of "quote" is given in modern dictionaries as 
follows : — 

"Standard" (Com.) — To give the current or market price of, as 
bonds, stocks, commodities, etc. 

"Imperial," ed. 1884 — In com., to name as the price of an article; 
to name the current price of; as, what can you quote sugar at? 

"Century" (Com.) — To name as the price of stocks, produce, etc.; 
name the current price of. 

"Webster" (Com.) — To name the current price of. 

"Worcester" — To state the price as the price of merchandise. 

See also "Black's Law Dictionary," subtit. "Quotation." 

There is little or no difference between any of these definitions. 
Now if we write the equivalent phrase into the letter -^ "We give 
you the current or market price, F. O. B. your station, of Hungarian 
Patent $5.40 — " can it be for a moment contended that it is an 
offer which needs only an acceptance in terms to constitute a 
contract ? 

The case of Harty v. Gooderham (1871), 31 U. C. R. 18, is princi- 
pally relied on by the plaintiffs. But that case presents more than 
one point of distinction. There the first inquiry was from the plain- 
tiff, which, I think, is an element in the case. He writes the defend- 
ants to let him "know your lowest prices for 50 O. P. spirits," etc. 
To which defendants answered, mentioning prices and particulars: 
"Shall be happy to have an order from you, to which we will give 
prompt attention," which the court held to be equivalent to saying 
"We will sell it at those prices. Will you purchase from us and let 
us know how much ?" And so the contract was held to be complete 
on the plaintiff's acceptance. 

But there is no such offer to sell in the present defendant's letter. 
Harvey v. Facey (1893), A. C. 552, is strong authority against the 

I have not overlooked the concluding paragraph of the letter, viz., 
"We would suggest your using the wire to order, as prices are so 
rapidly advancing that they may be beyond reach before a letter 


would reach us." The learned Judge considers this to be one of the 
matters foreign to a mere quotation of prices. I venture, on the 
contrary, to think that this suggestion is more consistent with a 
mere quotation of prices, which might vary from day to day or from 
hour to hour. There could be no question of the prices becoming 
"beyond reach" in a simple offer to sell at a certain price. 

In my opinion, the plaintiffs have failed to establish a contract, 
and this appeal must be allowed with costs, and the action dismissed 
with costs. 

See also Thorne v. Butterworth (1866), 16 C. P. 369; Am. & Eng. 
Encyc. of Law, 2d ed., vol. 7, pp. 125, 128, 133, 138; Ashcroft v. 
Butterworth (1884), 136 Mass. 511; Fulton v. Upper Canada Furni- 
ture Co. (1883), 9 A. K. 211.^ 


jElansas Supreme Coitkt, January Term, 1901 

[Reported in 62 Kansas, 720] 

Johnson, J.^ This was an action to recover damages for the 
breach of an alleged contract. On February 15, 1896, Armstrong 
& Kassebaum, commission merchants of Topeka, inserted an adver- 
tisement in a weekly newspaper, which, among other things, con- 
tained the following proposition : — 

"We will pay lOj cents net, Topeka, for all fresh eggs shipped us to arrive here 
by Febnaary 22. Acceptance of our bid with number of cases stated to be sent by 
February 20." 

^ In Moulton v. Kershaw, 59 Wis. 316, the defendants, salt dealers, wrote to the 
plaintiff, a dealer in salt, accustomed to buy salt in large quantities as the defendants 
knew, as follows: — 

"Dear Sir, — In consequence of a rupture in the salt trade we are authorized to 
offer Michigan fine salt, in full carload lots of 80 to 95 barrels, delivered at your city 
at 85 cents per barrel to be shipped per C. & N. W. R. H. Co. only. At this price it 
is a bargain, as the price in general remains unchanged. Shall be pleased to receive 
your ordfT." 

The plaintiff, on the day this letter reached him, telegraphed: — 

"Your letter of yesterday received and noted. You may ship me two thousand 
(2,000) barrels Michigan fine salt as offered in 3'our letter. Answer." 

The defendants replied on the following day, refusing to fill the order. 

The f'fmri held that no contract had been created, chiefly because the defendants' 
letter did not specify any limit of quantity. 

In Beaupr6 v. Pacific & Atlantic Telegraph Co., 21 Minn. 155, the plaintiffs wrote: 
"Have you any more northwestern mess pork? also extra mess? Telegraph price on 
reccifit of this." The reply was tcslegraphed: "Letter received. No light mess here. 
Extra mess 828.75." The plairitiff.s replied by telegraph: "Despatch received. Will 
tak(,' two huiidrc:d extra, i>riee named." The Coiirt held there was no contract. 

Hiirvey v. Facey, [189:i] A. C. 552; Talbot v. Pettigrew, 3 Dak. 141; Knight v. 
Cooley, .'i4 la. 218; Smith v. Cowdy, 8 Allen, 56G; Schenectady Stove Co. v. Hol- 
brook, 101 N. Y. 45, (u:c. See also Kinghorne v. Montreal Tel. Co. U. C. 18 Q. B. 60; 
Seller.^ V. Warren, 116 M(r. .'i50; Stein-Gray Drug Co. v. Michelsen Drug Co. 116 N. Y. 
Supp. 78!). 

* A portion of the opinion is omitted. 


On February 20, 1896, T. F, Seymour, a rival commission mer- 
chant of Topeka, sent the following note to Armstrong & Kassebaum 
in response to their proposition : — 

"I accept your offer in 'Merchants' Journal,' lOj cents, Topeka, for fresh eggs, 
and will ship you on C. R. I. & P. R. R. 450 cases fresh eggs, to arrive on or before 
February 22. The eggs are all packed in new No. 2 whitewood cases, and I will accept 
fifteen cents each for them, or you can return them or new ones in place of them." 

On receipt of this note, Armstrong & Kassebaum at once notified 
Seymour that they would not accept the eggs on the terms proposed 
by him. Notwithstanding the refusal, Seymour procured a car and 
loaded it with eggs. Not having a sufficient number of cases to fill 
the car, he found two other commission merchants who were willing, 
to co-operate with him, and who furnished 190 of the 450 cases, 
which were loaded in Topeka, only a few hundred feet away from 
the place of business of Armstrong & Kassebaum, sealed up, and 
then pushed a short distance over to their business house. They 
refused to receive the eggs, and Seymour shipped them to Phila- 
delphia, where they were sold for $391.83 less than they would have 
brought at the price named in Seymour's note of acceptance. For 
this amount the present action was brought, and the plaintiff is 
entitled to recover, if the defendants' offer on eggs was uncondition- 
ally accepted. At the trial a verdict was returned in favor of the 
defendants, and the result of the general finding is that the pretended 
acceptance of Seymour was not unconditional, and that no contract 
was, in fact, made between him and the defendants. 

Did the negotiations between the parties result in a contract? A 
contract may originate in an advertisement addressed to the public 
generally, and if the proposal be accepted by any one in good faith, 
without qualifications or conditions, the contract is complete. The 
fact that there was no limit as to number or quantity of eggs in the 
offer did not prevent an acceptance. The number or quantity was 
left to the determination of the acceptor, and an unconditional ac- 
ceptance naming any reasonable number or quantity is sufficient to 
convert the offer into a binding obligation. It is essential, however, 
that the minds of the contracting parties come to the point of agree- 
ment — that the offer and acceptance coincide ; and if they do not 
correspond in every material respect there is no acceptance or com- 
pleted contract. In our view, the so-called acceptance of the plain- 
tiff is not absolute and unconditional. It affixed conditions not 
comprehended in the proposal, and there could be no agreement 
without the assent of the proposer to such conditions. It is true the 
plaintiff agreed to furnish eggs at 10| cents per dozen, but his 
acceptance required the defendant to pay fifteen cents each for the 
cases in which the eggs were packed or to return the cases or new 
ones in place of them. It appears from the record that, according 
to the usages of the business, the cases go with the eggs. 



Court of Appeal^ March 28, 1895 

[Reported in Law Reports, [1895] Probate, 248] 

Action of damage by collision. The "Valkyrie" and the "Sata- 
nita" were manceuyring to get into position for starting for a fifty- 
mile race at the Mudhook Yacht Club regatta, when the "Satanita" 
ran into and sank the "Valkyrie." 

The entry of the "Satanita" for the regatta contained this clause : 
"I undertake that, while sailing under this entry, I will obey and 
be bound by the sailing rules of the Yacht Racing Association and 
the by-laws of the club." 

Among the rules was the following : Rule 24 : " . . . If a yacht, in 
consequence of her neglect of any of these rules, shall foul another 
yacht . . . she shall forfeit all claim to the prize, and shall pay 
all damages." 

Lord Eshee, M.R. This is an action by the owner of a yacht 
against the owner of another yacht, and, although brought in the 
Admiralty Division, the contention really is that the yacht which is 
sued has broken the rules which by her consent governed her sailing 
in a regatta in which she was contesting for a prize. 

The first question raised is whether, supposing her to have broken 
a rule, she can be sued for that breach of the rules by the owner of 
the competing yacht which has been damaged; in other words. 
Was there any contract between the owners of those two yachts? 
Or it may be put thus : Did the owner of the yacht which is sued 
enter into any obligation to the owner of the other yacht, that if his 
yacht broke the rules, and thereby injured the other yacht, he would 
pay damages? It seems to me clear that he did; and the way that 
he has undertaken that obligation is this. A certain number of 
gentlemen formed themselves into a committee and proposed to give 
prizes for matches sailed between yachts at a certain place on a cer- 
tain day, and they promulgated certain rules, and said : "If you 
want to sail in any of our matches for our prize, you cannot do so 
unless you submit yourselves to the conditions which we have thus 
laid down. And one of the conditions is, that if you do sail for 
one of such prizes you must enter into an obligation with the owners 
of the yachts who are competing, which they at the same time enter 
into similarly with you, that if by a breach of any of our rules you 
do damage or injury to the owner of a competing yacht, you shall 
be liable to make good the damage Avhich you have so done." If 
that is HO, then wluui they do sail, and not till then, that relation is 
immediately formed between the yacht owners. There are other 
conditions Avitli regards to these matches which constitute a relation 
between each of tbc^ yaclit owners who enters his yacht and sails it 
and the committee; but that does not in the least do away with what 


the yacht owner has undertaken, namely, to enter into a relation with 
the other yacht owners, that relation containing an obligation. 

Here the defendant, the owner of the "Satanita," entered into a 
relation with the plaintiff Lord Dimraven, when he sailed his yacht 
against Lord Dunraven's yacht, and that relation contained an obli- 
gation that if, by any breach of any of these rules, he did damage 
to the yacht of Lord Dunraven, he would have to pay the damages.^ 


Vermont Supreme Court, June 21, 1918 
\JR,e'poried in 92 Vermont, 396] 

Miles, J. The ground of exception to the refusal to direct a ver- 
dict in the defendant's favor is that there was no evidence in the case 
tending to prove a promise implied in fact on the part of Mrs. Shel- 
don. It is true as argued by the defendant, that the implied contract, 
such as here under consideration, must contain all the elements of an 
express contract, and that it only differs from an express contract in 
its proof. 6 E. C. L. 587, par. 6. Each depends upon questions 
of fact, and if there is any substantial evidence fairly and reasonably 
tending to establish such contract, that question must be submitted 
to the jury. Fitzsimons v. Richardson, 86 Vt. 229, 84 Atl. 811; 
McGaffey v. Mathie, 68 Vt. 403, 35 Atl. 334; Kelton v. Leonard, 54 
Vt. 230. 

In reviewing the denial of defendant's motion for a directed 
verdict, the evidence must be viewed in the light most favorable 
to the plaintiff. Hazen v. Eutland E. E., 89 Vt. 94, 94 Atl. 296. 
Applying these well-established rules to what appears in this case, 
we examine the evidence to see if it reasonably and fairly tends to 
show an implied promise on the part of Mrs. Sheldon to pay the 
plaintiff what her services were reasonably worth, and from that 
examination we think it does so show. 

The evidence of one witness was to the effect that during the 
time covered by the plaintiff's bill against Mrs. Sheldon's estate, 
the witness had on frequent occasions received requests over the tele- 
phone from the Sheldon house, to ask the plaintiff to call there; 
that when the witness was at work for Mrs. Sheldon, the plaintiff 
would call there and Mrs. Sheldon would ask her on those occa- 
sions, why she, the plaintiff, had not called, stating to the plaintiff 
that she wanted her to do something for her; that she knew of the 
plaintiff's bringing to Mrs. Sheldon articles purchased at the store for 

^ The statement of the case is abbreviated, and only so much of Lord Esher's 
opinion is printed as relates to the question whether a contract had been made. Lopes, 
L. J., and Rigby, L. J., delivered concurring opinions. The judgment for the plaintiff 
was affirmed in Clarke v. Dunraven, [1897] A. C. 59. See also Vigo Agricultural 
Society v. Brumfiel, 102 Ind. 146. 


lier; that at one time Mrs. Sheldon said to the witness that she could 
not pay the plaintiff for what she had done for her. There was 
other similar evidence in the case which had a tendency to prove 
that the plaintiff's services were performed at the request of Mrs. 
Sheldon. This was enough to entitle the plaintiff to go to the jury 
if the services were valuable. It is said in 40 Cyc. 2810 : "Where 
valuable services are rendered, or material furnished, by one person 
for another at the latter's request, in the absence of circumstances 
showing that the services or material were intended to be rendered or 
furnished gratuitously, the former is entitled to recover for such 
services or material, although there was no express contract for 

To the same effect is 6 R. C. L. 587, par. 6. Indeed such con- 
tracts are of daily occurrence, and no question is made as to their 
legal and binding force. 

An examination of the transcript discloses that the evidence tended 
to show that the services were valuable; that the plaintff did wash- 
ings weekly and special washings twice a year for Mrs. Sheldon; 
that the washings were not the general washings, but the washings of 
such things as Mrs. Sheldon's wearing apparel, her bureau covers, 
towels, napkins and blankets. There was no error in overruling 
the motion for a directed verdict.^ 


California Supreme Court, June 15, 1883 

[Reported in 63 California, 501] 

McKee, J. The action in this case was brought to recover the 
balance of an alleged indebtedness for services rendered by the plain- 
tiff as a physician and surgeon, at the alleged special instance and 
request of the defendant. Part of the services, included in the state- 
ment of the cause of action, were rendered at the Instance and re- 
quest of the defendant and were paid. The contention is as to the 
services which were rendered to a number of persons who had been 
injured, on the 23d of May, 1880, by a railroad accident on the lino 
of the defendant's road In the county of Santa Cruz. It is for these 
that the plaintiff seeks to make the defendant liable. 

Rut at the trial, the plaintiff was sworn as a witness In his own 
behalf, and he testified as follows : "On 'the morning of the 24th of 
May, 1880, T was cilled by the wife of one of the persons injured 
to treat her husband, and on that day T was called by eleven of said 
injured parties to treat them. I attended upon them. In pursuance 

' A portion of the opinion is omitted. 


of my original calling, from that time until they were all recovered. 
My services were reasonably worth eleven thousand dollars." Ac- 
cording to that testimony the services were rendered by the plaintiff 
upon an employment between him and the persons injured. That 
contract fixed the rights and liabilities of the parties to it. The 
persons, for whose benefit and at whose instance and request the 
services were rendered, were bound to pay for them. No other or 
different contract could be implied. Of course, the parties to the 

contract might have wholly freed themselves from their rights and ^ 
liabilities under it by a discharge of the contract. A contract may ^**^^ 
be discharged or put an end to at any time, by mutual consent, or ^^^e, 
by an alteration in its terms which, in effect, substitutes for it a <^v*. 
new arrangement between the parties themselves or between one of x ^^^ 
them and a third party. (§ 1531, Civ. Code.) And it is claimed ^^^Z. 
that, while the plaintiff was engaged in performing the services under ^'^^ 
his original employment, the defendant informed the plaintiff that % *%^ v -* 
the injured were allowed to select any physician they saw proper, 
and defendant would be responsible for the indebtedness. 

Yet, as a witness, the plaintiff admitted that no new promise about 
the services had been made to him. The only thing upon which he 
relies is, that the president of the railroad company "said to the 
injured parties," after they had employed the plaintiff , "that they 
should employ whatever physician they saw proper and the defend- 
ant would pay the bills." But that was not said to the plaintiff, 
nor was he present when it was said. It appears that the parties to 
whom it was said communicated it to the plaintiff; but neither the 
promise to them, nor the communication of that promise to the 
plaintiff constituted a contract between the defendant and the plain- 
tiff either as accessory, or by way of novation, to his original employ- 
ment which he was engaged in performing. The plaintiff had no 
communication from or with the defendant upon the subject; there 
was therefore no mutuality or consent between them, and in law, 
however it might be in morals, no liability attached to the defendant 
for the services of the plaintiff to the persons who employed him. 

It is not necessary to decide whether the promise made by the 
president of the company to the wounded constituted a contract be- 
tween them, collectively or individually, and the company, which 
might be enforced for the benefit of the plaintiff. ITo such claim 
seems to have been made or transferred by any of them to the plain- 
tiff, nor is the plaintiff's cause of action founded upon such a claim. 
Trenor v. C. P. E. E. Company, 50 Cal. 222, is not applicable to 
the case in hand. That, it is true, was also a case for the services 
of a physician and surgeon rendered to persons wounded by a rail- 
road accident; but there was, in the case, some evidence tending to 
show that the services were rendered at the instance and request of 
the defendant, and the case was decided upon a conflict of evidence. 
But in the case in hand there was no conflict of evidence. The 


plaintiff in Ms testimony and on the trial, admitted, and his wit- 
nesses proved, that the services were rendered in pursuance of his 
original employment by those who were wounded and not otherwise. 
There was, therefore, no contract, express or implied, between the 
plaintiff and the defendant in relation to the services which are the 
subject of the suit, and as there is no prejudicial error in the record, 
the judgment and order are affirmed. 
McKiNSTRY, J., and Eoss, J., concurred. 


Minnesota Supreme Court, December 6, 1912 
[Reported in 119 Minn. 500] 

Holt, J. The action is for a breach of an alleged agreement to 
honor a draft. The court directed a verdict for plaintiff, and de- 
fendant appeals from an order denying him a new trial. 

These are the uncontroverted facts: One Hukill, residing and 
doing business at Pittsburgh, Pennsylvania, applied to i)laintiff to 
cash or buy a sight draft for $300 drawn by Hukill, payable to 
his own order, upon defendant, a relative of Hukill residing at 
Ortonville, Minnesota. Plaintiff promised to do so if defendant, 
by telegram, would agree to accept the draft. Thereupon, on the 
same day, to wit, December 30, 1907, Hukill sent a telegram to de- 
fendant at Ortonville, reading: "Will you wire me that you will 
honor draft for $300 ?" The same day, in response to said message, 
defendant sent a telegram from Ortonville to E. M. Hukill at Pitts- 
burgh, which reads : "I will." Hukill thereupon presented the draft 
and the two telegrams to plaintiff, which bought the draft, and in 
due course of business caused it to be presented to defendant for 
acceptance and payment. Defendant refused. When plaintiff learned 
this, it wrote defendant as follows : 

"Oil Well Supply Co., 
"Pittsburgh, Pa. 

"January 7, 1908, 
"Subject E. M. Hukill draft. 
"Mr. Geo. MacMurphey, 
"Ortonville, Minn. 

"Dear Sir: 

"On Dfif-omhcr, we cashed for Mr. E. M. Hukill a sight draft drawn on you 
for S'.'M), which has boon returned to us under protest, marked 'payment refused,' 
the fees aniountiiiK to ^'-i.QH. We advanced saifl nion(\v on the strenpth of the telegram 
from you to Mr. Hukill, dated December .SOth, reading 'I will,' which he told us was 
in reply to a tejegrani sent to you by him on December IJOth, reading, 'Will you wire 
nie that you will honor flraft for $.'UK).' We would like to know at once your reason 
for not honoring (he draft; also wh(?ther or not your telegram reading 'I will' was 
in answer to a telegram sent by Mr. Hukill to you as (luoted al>ove. Trusting to hear 
from you by return mail, and thanking you in advance, 

"We remain 

"Yours truly, 

"Louis Brown, Treas." 


To this letter defendant appended this reply: 

"Louis Brown, 
"Dear Sir: 

"I will say in reply to the above that my telegram 'I will,' was in answer to above 
telegram from Mr. Hukill on December 30th. I was out of funds myself and tendered 
a check from Mr. H. and it was not accepted, hence the protest. I presume this is 
all cleared up ere this. 

"Yours truly, 

"Geo. MacMurphey." 

It seems to us that the two telegrams constitute a clear and definite 
contract on the part of defendant to honor a draft for $300. The 
manifest purpose of Hukill's telegram was to get defendant to agree 
to honor or accept a draft. It was not to ask for a telegram, except 
as a means of conveying an agreement or refusal to honor the pro- 
posed draft. There can be no doubt that plaintiif took the telegrams 
to be an agreement by defendant to honor the draft. Defendant ap- 
pears to be an intelligent professional man, and it is safe to assume 
that he was not unacquainted with business methods. Hence he 
must have inferred from the telegram that Hukill wished to nego- 
tiate the draft on the strength of defendant's agreement to honor it. 
That defendant so understood the purport of the telegram admits of 
no doubt, when the subsequent correspondence between him and 
plaintiff is considered. In construing written contracts, the meaning 
of the language employed, taken in its ordinary and popular sense 
with reference to the matter in hand, controls unless, when so viewed, 
an ambiguity still remains. If there be uncertainty after thus ex- 
amining the agreement, the situation of the parties and the circum- 
stances surrounding the transaction may be considered, in order to 
arrive at the true and intended meaning of the ambiguous expres- 
sions used. However, we cannot find any ambiguity in the tele- 
grams constituting the agreement here, when applied to the subject 
matter. In contracts made by telegrams, the fewest possible Avords 
are used, and often omitted words in a message are to be supplied 
from the sense or context of a message to which it is an answer. This 
is so usual an occurrence in the business world that courts must 
take notice of the fact. Upon the undisputed facts, plaintiff was 
entitled to recover, and the court rightly directed the verdict, unless 
there was error in excluding certain evidence offered by defendant. 

The defendant offered to prove that long prior to December 30, 
1907, he had been in the habit of honoring drafts made upon him by 
Hukill; that during such time defendant was in possession of val- 
uable stock pledged by Hukill to secure defendant against loss from 
such acceptances; that prior to said date, after he had surrendered 
this stock, Hukill requested defendant to honor further drafts, 
whereupon defendant stated that he would not do so unless his, 
defendant's, financial condition at the bank at Ortonville was such 
that he could conveniently do so, and that Hukill should also again 
pledge with defendant the securities he before had; that he told 


Hukill not to draw any drafts on the defendant, until he had first 
wired to determine whether defendant would honor them ; and that no 
such telegram or request should be sent to defendant, unless Hukill 
should, at the same time, place the said securities with defendant. 
And further that, when defendant received the telegram and he 
answered the same, it was with the expectation that the security 
would be sent him; that such security was not sent, and defendant 
was in such financial condition in his accounts at the bank that he 
could not conveniently honor the draft. We fail to see how the 
proffered proof could affect the plaintiff which bought the draft on 
the strength of the telegrams. Defendant did not offer to show that 
plaintiff had any knowledge of either the first arrangement under 
which defendant honored Hukill's drafts or this last one. 
The order must be affirmed. 




New York Court of Appeals, October 11-November 16, 1915 

[Reported in 216 New York, 199] 

Seabury, J.^ This action is brought to recover damages for the 
breach of an alleged contract. On December 29, 1911, the plaintiff 
submitted to the defendant in the form of a type-written letter "pro- 
posal and specifications" for a heating and ventilating plant; and 
in the same letter also quoted prices of certain apparatus. The 
letter was signed on behalf of the plaintiff by J. L. Williamson, and 
endorsed upon it is — "Accepted : The Fireproof Film Company. H. 
Kuhn, Vice-President & Treasurer. Date, December 30th, 1911." 
The plaintiff began the work on January 1st. 1912. 

After some correspondence the defendant notified the plaintiff 
that it proposed to cancel the contract. Upon the trial the defendant 
set up lack of authority on the part of Mr. Kuhn, the officer who 
attempted to enter into the contract on its behalf. Satisfactory 
proof of his authority was, however, presented and the trial court 
submitted the question to the jury. 

The defendant still adheres to the same contention, but the prin- 
cipal ground urged for the reversal of the judgment is that there 
was no foiitrnct between the parties because at the bottom of the 
first page of thf; plaintiff's office stationery, upon which the proposal 
was written, appear the words: "all agreements are contingent upon 
strikes, fire, accirlonts or flelays beyond our control. All prices are 

' Tho statement of facts in the opinion is abbreviated, and a portion of the opinion 


subject to change without notice, and all contracts and orders taken 
are subject to the approval of the executive office at Hyde Park, 
Mass." These sentences are prin ted in very small type and the first 
typewri tten numeral that indicates t he page number is typewritten 
over this printedmatter . The appellant clalfflS ih'Al the proposal was 
given "subject to the approval of the executive office at Hyde Park, 
Mass.," and that as there was no proof that this approval was given 
and communicated to it, there was no contract. It appears clearly 
•that Williamson had authority to make the contract and that his 
action in so doing was ratified by the executive office of the plaintiff at 
Hyde Park, Mass. The plaintiff actually commenced to perform 
•the work and continued working under the contract until it re- 
ceived the notice of the defendant that it had canceled the contract. 
The point now earnestly insisted upon was not litigated upon the 
trial and seems to be an afterthought that occurred to the defendant 
when it failed to defeat the plaintiff's claim on the ground that its 
vice-president and treasurer, Kuhn, was not authorized to make the 
contract in its behalf. The claim that is now urged rests entirely 
upon the contention that the clause "all contracts or orders taken 
■are subject to the approval of the executive office at Hyde Park, 
Mass.," is to be deemed a part of the proposal. If this provision was 
a part of the proposal, there could be no proof of a contract in the 
absence of evidence that the order was approved and that the defend- 
ant had been notified of that fact. In view of the manner in which 
this provision is printed upon the stationery of the plaintiff it can- 
not be held, as a matter of law, that it was incorporated in and a 
part of the proposal. The language of the proposal is clear and ex- 
plicit, and this provision, which is printed in small type, cannot be 
allowed to change, alter or modify it, unless it was a part of the pro- 
posal. It was not incorporated in the body of the proposal or re- 
ferred to in it. ISTo suggestion was made, either in the pleadings or 
the proof, that it was a part of the proposal. If an issue had been 
raised upon the trial, whether it was a part of the proposal that 
issue would have presented a question of fact to be determined by 
the jury. As no such question was raised upon the trial, and as it 
does not appear from an inspection of the proposal that this pro- 
vision was a part of it, the defendant is not now in a position to 
secure the reversal of this judgment upon this ground. When an 
offer, proposal or contract is expressed in clear and explicit terms, 
matter printed in small type at the top or bottom of the office sta- 
tionery of the writer, where it is not easily seen, which is not in the 
body of the instrument or referred to therein, is not necessarily to 
be considered as a part of such offer, proposal or contract. In 
Sturm V. Boker (150 TJ. S. 312, 327) it was said that "The con- 
tract being clearly expressed in writing, the printed billhead of the 
invoice can, upon no well settled rule, control, modify, or alter it." 
In Summers v. Hubbard & Co. (153 111. 102, 109) the court said: 


"The printed words were not in the body of the letter or referred 
to therein. The fact that they were printed at the head of their 
letter-heads would not have the effect of preventing appellants from 
entering into an unconditional contract of sale." In Menz Lumber 
Company v. McNeeley & Company (58 Wash. 223, 229), it was said 
that "The printed matter on the letter-heads was not referred to 
in either the order or the acceptance, and is not a part of the con- 
tract. . . . The construction contended for by the respondent would 
make that which is an absolute, unqualified acceptance upon its 
face, a conditional one by reference to a letter-head which was not 
referred to by either parties. 

The other grounds upon which the appellant asks a reversal of the 
judgment are not such as to warrant discussion. 

I advise that the judgment be affirmed, with costs. 

CuDDERBACK, Caedozo and Pound, J J., concur; Collin, J., con- 
curs in result; Willard Baetlett, Ch. J., and Chase, J., dissent. 

Judgment ajflrmed. 


New York Supreme Court, Appellate Term, May, 1912 

[Reported in 76 Neiv Yorh Miscellaneous 516] 

Seaburt, J. This is an action to recover damages alleged to have 
been sustained by the plaintiff in consequence of the delayed de- 
livery of a telegraph message. The facts are conceded. On Sep- 
tember 12, 1910, the plaintiff, who was residing in AUenhurst, IST. J., 
by letter instructed one Bayne, a broker, to purchase 2,000 bags of 
coffee for August delivery at eight and fifty-three one hundredths 
cents per pound. The letter was received by Bayne during the fore- 
noon of September 13, 1910. Bayne attempted to purchase the coffee 
at eight and fifty-three one hundredths cents per pound during the 
forenoon of September 13th, but was unable to purchase nt this price, 
as the market had advanced. At about noon of that day Bayne did 
purchase the required amount of coffee at eight and fifty-four one 
hundredths cents per pound. Upon completing this purchase Bayne 
delivered the following message to the defendant for transmission 
to the plaintiff: 

"To TloDT. A. r'liKsronnouGH, 
" 21H KllKTr.ii Av.' ., 

XllcnIiur.Hi. N. J.: 
"Lc.tU'T just roccivf!(l bought two thousand August eight fifty four subject your 
approval eight fifty five now bid must have immediate reply by wire. 

"■Rutli- " C. E. Ratne." 

Tliis nie.s.sago was rec(iived at Allcnlmrst a little before one 
P.M. on September tliirte(;nth. Tt was not sent to the plnintiff'^ 


residence , and was not delivered until two fifty p.m. on that day at 
the defendant's office at Allenhurst. Immediately upon its re- 
ceipt the plaintiff wired the following reply to Bayne: 

"Telegram just received. Purchase approved at eight fifty four." 

This message was received by Bayne at his office at three forty 
P.M. It was stipulated upon the trial that the time consumed, about 
fifty minutes, in transmitting and delivering plaintiff's reply "w^as 
the requisite length of time for the transmission and delivery of 
said message." At the time of the receipt of the last message, the 
coffee exchange had closed, and it was impossible to purchase coffee 
at less than eight and eighty one hundredths cents per pound. The 
market price of August coffee was not less than eight and eighty one 
hundredths cents per pound at any time on September fourteenth, 
fifteenth and sixteenth, and up to the time that the plaintiff actually 
purchased another lot of 2,000 bags of August coffee at eight and 
eighty one hundredths cents per pound on September fourteenth. 

It is claimed that, by reason of the defendant's delay in trans- 
mitting the message on September thirteenth from Bayne to the 
plaintiff, the plaintiff lost the benefit of the purchase which Bayne 
had made subject to the approval of the plaintiff, and that his loss 
is the difference between eight and fifty-four one hundredths cents 
per pound and eight and eighty one hundredths cents per pound, 
or $676, which, with interest, is the amount for which the plaintiff 
recovered judgment. Upon this appeal, the defendant makes no 
claim that the contract, in pursuance of which the message was 
received by it for transmission, relieved it of liability. The claim 
upon which the appellant now relies is, that the plaintiff suffered no 
loss, because, at the instant the plaintiff filed his message of accept- 
ance, he became, as against Bayne, the owner of 2,000 bags of August 
coffee which had been purchased for his account by Bayne. 

It is necessary, therefore, to determine as to whether, as between 
the plaintiff and Bayne, the plaintiff lost his right to have the 
purchase treated as having been made for his benefit. If he did 
not, he sustained no loss, and has no cause of action against this 
defendant. If Bayne, the broker, was within his rights in treating 
the purchase as made for his own account, in view of the delay, 
then the plaintiff has a cause of action against this defendant. Bayne 
selected the telegraph as a means of communicating his offer to the 
plaintiff. Under the offer, the broker was obliged to hold the coffee 
purchased for the account of the customer, if the latter, immedi- 
ately on receipt of the offer, wired his acceptance. This the cus- 
tomer did. As soon as he sent the message accepting the broker's 
offer, the contract between the customer and the broker was com- 
plete, and the coffee purchased was the property of the plaintiff. 
The fact that, owing to the delay in the delivering of the broker's 
message, the customer's reply was not received until several hours 


later than the broker anticipated that he would receive a reply, does 
not affect the legal relations existing between the customer and the 
broker. The offer contained in the broker's message manifested a 
willingness on his part to contract, and, in the absence of any limita- 
tion being prescribed, this willingness is~presumed to continue untiT 
revoked. The customer accepted the offer before it was revoked when 
he sent the telegram accepting the offer. The instant that this was 
done, the contract was complete, and, under the contract then made, 
the coffee which the broker had purchased became the property of the 
customer. The general principle here applied is so well settled, and 
has been so frequently commented upon, that it is needless to 
do more than cite some of the cases which show its origin, develop- 
ment and application. Adams v. Lindsell, 1 Barn. & Aid. 681 ; Dun- 
lop V. Higgins, 12 Jur. 292 ; Household Fire Ins, Co. v. Grant, L. R. 
4 Exch. 216; Mactier v. Frith, 6 Wend. 103; Vassar v. Camp, 11 
N. Y. 441; Trevor v. Wood, 36 id. 307; Watson v. Eussell, 149 id. 
391; United Merchants Realty & Imp. Co. v. Roth, 193 id. 581. 
!N"or is the theory at all tenable that the offer of the broker 
was to be considered by the customer as continuing, only in the event 
of its prompt delivery. In Trevor v. Wood, supra, the court said : 
"I cannot conceive upon what principle an agreement to communi- 
cate by telegraph can be held to be in effect a warranty by each party 
that his communication to the other shall be received. On the con- 
trary, by agreeing beforehand to adopt that means of communication , 
the parties mutually assume its hazards, which are principally as 
to the prompt receipt of the dispatches ." 

As between the plaintiff and Bayne, the coffee purchased by the 
latter became, by virtue of the plaintiff's prompt acceptance of the 
offer of the broker, the property of the plaintiff. Such being the 
case, it is plain that the plaintiff has no cause of action against this 
defendant. If the broker deprived the plaintiff of the coffee pur- 
chased, then the plaintiff has a cause of action against him, and 
if the broker sustained a loss he has a cause of action against this 
defendant. I can see no basis or legal theory upon which the plain- 
tiff can assert a claim against this defendant. 

It follows that the judgment should be reversed, with costs to 
the appellant, and the complaint dismissed with costs. ^ 

* The decision was affirmed in 157 N. Y. App. D. 914. 


B. — Duration and Termination of Offers 

BARTLETT and Another 

Supreme Judicial Court of Massachusetts, March Term, 1849 

[Reported in 3 Cushing, 224] 

This was a bill in equity for tlie specific performance of a contract 
in writing. 

The plaintiffs alleged that the defendants, on the 1st of April, 1844, 
being the owners of certain land situated in Boston, and particularly 
described in the bill, "in consideration that said corporation would 
take into consideration the expediency of buying said land for their 
use as a corporation, signed a certain writing, dated April 1st, 1844," 
whereby they agree to convey to the plaintiffs "the said lot of land 
for the sum of twenty thousand dollars, if the said corporation would 
take the same within thirty days from that date;" that afterwards, 
and within the thirty days, the defendants, at the request of the 
plaintiffs, "and in consideration that the said corporation agreed to 
keep in consideration the expediency of taking said land," &c., ex- 
tended the said term of thirty days, by a writing underneath the writ- 
ten contract above mentioned, for thirty days from the expiration 
thereof; that, on the 29th of May, 1844, while the extended contract 
was in full force and unrescinded , the plaintiffs elected to take the ' 
land on the terms specified in the contract , and notified the defend- 
ants of their election and offered to pay them the agreed price (pro- 
ducing the same in money) for a conveyance of the land, and re- 
quested the defendants to execute a conveyance thereof, which the 
plaintiffs tendered to them for that purpose ; and that the defendants 
refused to execute such conveyance, or to perform the contract, and 
had ever since neglected and refused to perform the same. 

The defendants demurred generally. 

J. P. Healy, for the defendants. 

G. Minot (with whom was R. Choate), for the plaintiffs. 

Healy, in reply, said that in all the cases cited for the plaintiffs 
except the last, there was a consideration, 

Fletcher, J. In support of the demurrer in this case, the only 
ground assumed and insisted on by the defendants is, that the agree- 
ment on their part was without consideration, and therefore not 
obligatory. In the view taken of the case by the Court, no impor- 
tance is attached to the consideration set out in the bill; namely, 
"that the plaintiffs would take into consideration the expediency of 
buying the land." The argument for the defendants, that their 


agreement was not binding because without consideration, errone- 
ously assumes that the writing executed by the defendants is to be 
considered as constituting a contract at the time it was made. The 
decision o£ the court in Maine in the case of Bean v. Burbank, 4 
Shepl. 458, which was referred to for the defendants, seems to rest 
on the ground assumed by them in this case. 

In the present case, though the writing signed by the defendants 
was but an offer, and an offer which might be revoked, yet, while it 
remained in force and unrevoked, it was a continuing offer during 
the time limited for acceptance ; and, during the whole of that time, 
it was an offer every instant ; but as soon as it was accepted it ceased 
to be an offer merely, and then ripened into a contract. The counsel 
for the defendants is most surely in the right, in saying that the 
writing when made was without consideration; and did not there- 
fore form a contract. It was then but an offer to contract; and the 
parties making the offer most undoubtedly might have withdrawn 
it at any time before acceptance. 

But when the offer was accepted, the minds of the parties met, and 
the contract was complete. There was then the meeting of the minds 
of the parties, which constitutes and is the definition of a contract. 
The acceptance by the plaintiffs constituted a sufficient legal consid- 
eration for the engagement on the part of the defendants. There was 
then nothing wanting, in order to perfect a valid contract on the part 
of the defendants. It was precisely as if the parties had met at the 
time of the' acceptance, and the offer had then been made and ac- 
cepted, and the bargain completed at once, 

A different doctrine, however, prevails in France and Scotland and 
Holland. It is there held, that whenever an offer is made, granting 
to a party a certain time within which he is to be entitled to decide 
Avhether he will accept it or not, the party making such offer is not 
at liberty to withdraw it before the lapse of the appointed time. There 
are certainly very strong reasons in support of this doctrine. Highly 
respectable authors regard it as inconsistent with the plain principles 
of equity that person Avho has been induced to rely on such an engage- 
ment, should have no remedy in case of disappointment. But, 
whether wisely and equitably or not, the^ common law unyieldingly 
insists upon a consideration, or a paper with a seal attached. 

The authorities, both English and x\mcrican, in support of this 
view of the subject, are very numerous and decisive; but it is not 
deemed to be needful or expedient to refer particularly to them, as 
they are collected and commentod oti in several reports as well as in 
the text books. The case of Cooke v. Oxlcv . 3 Term Rep. 6.53, in 
which a different doctrine was held, has occasioned considerable dis- 
cussion, and, in one or two instances, has probably influenced the 
docisioii. Tliat case has been supposed to be inaccurately reported, 
fiiul tliat in fiirt tbr-re was in tliat case no npceptnnfe. But, however 
that, may bf, if tlir; case; has not been directly overruled, it has cer- 


tainly in later cases been entirely disregarded, and cannot now be 
considered as of any authority. 

As therefore, in the present case, the bill sets out a proposal in 
writing, and an acceptance and an offer to perform, on the part of 
the plaintiffs, within the time limited, and while the offer was in full 
force, all which is admitted by the demurrer, so that a valid contract 
in writing is shown to exist, the demurrer must be overruled. 


SuPKEME Judicial Court of Massachusetts, March Term, 1844 

[Reported in 7 Metcalf, 409] 

Assumpsit to recover a reward of $1000, offered by the defendants 
for the apprehension and conviction of incendiaries. Writ dated 
September 30th, 1841. 

At the trial before Wilde, J., the following facts were proved : On 
the 26th of May, 1837, this advertisement was published in the daily 
papers in Boston : "$500 reward. The above reward is offered for the 
apprehension and conviction of any person who shall set fire to any 
building within the limits of the city. May 26, 1837. Samuel A. 
Eliot, Mayor." On the 27th of May, 1837, the following advertise- 
ment was published in the same papers: "$1000 reward. The fre- 
quent and successful repetition of incendiary attempts renders it 
necessary that the most vigorous efforts should be made to prevent 
their recurrence. In addition to the other precautions, the reward 
heretofore offered is doubled. One thousand dollars will be paid by 
the city for the conviction of any person engaged in these nefarious 
practices. May 27, 1837. Samuel A. Eliot, Mayor." These adver- 
tisements were continued in the papers but about a week; but there 
was no vote of the city government, or notice by the mayor, revoking 
the advertisements, or limiting the time during which they should be 
in force. Similar rewards for the detection of incendiaries had been 
before offered, and paid on the conviction of the offenders ; and at the 
time of the trial of this case, a similar reward was daily published in 
the newspapers. 

In January, 1841, there was an extensive fire on Washington 
Street, when the Amory House (so called) and several others were 
burnt. The plaintiffs suspected that Samuel Marriott, who then 
boarded in Boston, Avas concerned in burning said buildings. Soon 
after the fire said Marriot departed for 'New York. The plaintiffs 
declared to several persons their intention to pursue him and prose- 
cute him, with the intention of gaining the reward of $1000 which 
had been offered as aforesaid. They pursued said Marriott to ISTew 
York, carried with them a person to identify him, arrested him, and 
brought him back to Boston. They then complained of him to the 


county attorney, obtained other witnesses, procured him to be indicted 
and prosecuted for setting fire to the said Amory House. And at 
the March Term, 1841, of the Municipal Court, on the apprehension 
and prosecution of said Marriott, and on the evidence given and pro- 
cured by the plaintiffs, he was convicted of setting fire to said house, 
and sentenced to ten years' confinement in the State Prison. 

William Barnicoat, called as a witness by the defendants, testified 
that he was chief engineer of the fire department in Boston, in 1837, 
and for several years after; that alarms of fire were frequent before 
the said advertisement in May, 1837; but that from that time till 
the close of the year 1841, there were but few fires in the city. 

As the only question in the case was, whether said offer of reward 
continued to be in force when the Amory House was burnt, the case 
was taken from the jury by consent of the parties, under an agree- 
ment that the defendants should be defaulted, or the plaintiffs be- 
come nonsuit, as the full Court should decide. 

Peabody & J. P. Rogers, for the plaintiffs. 

./. Pickering (City Solicitor), for the defendants. 

Shaw, C. J. There is now no question of the correctness of the 
legal principle on which this action is founded. The offer of a reward 
for the detection of an offender, the recovery of property, and the 
like, is an offer or proposal, on the part of the person making it, to 
all persons, which any one capable of performing the service may 
accept at any time before it is revoked, and perform the service; and 
such offer on one side, and acceptance and performance of the service 
on the other, is a valid contract made on good consideration, which 
the law will enforce.^ That this principle applies to the offer of a 
reward to the public at large was settled in this Commonwealth in 
Symmes v. Frazier, 6 Mass. 344; and it has been frequently acted 
upon, and was recognized in the late case of Wentworth v. Day, 3 
Met. 352. 

The ground of defence is, that the advertisement, offering the re- 
ward of $1000 for the detection and conviction of persons setting fire 
to buildings in the city, was issued almost four years before the time 
at which the plaintiffs arrested Marriott and prosecuted him to con- 
viction ; that this reward was so offered in reference to a special 
emergency in consequence of several alarming fir(>s; that the adver- 
tisement was withdrawn and discontinued; that the recollection of it 
had passed away ; that it was obsolete, and by most persons forgotten ; 
and that it could not be regarded as a perpetually continuing offer 
on tlif part of tlie city. 

' "Th" f)ff'T of fi reward or oomp('n.s.T,tJoii, citlicr to n, particular person or class 
of p'Tsons, or to any and ail porsons, is a conditional promise; and if any ono to 
whom Kiich offer in made sliall jjcrform the service hefon? the offer is revoked, such 
jK-rformance \h a good consideration, and the offer becomes a legal and binding con- 
tract. Of course, until the perff)rmance, the ofTcr of a reward is a proposal merely, 
anrl not a contract, and therefore may be rr-voked .at the pleasure of him who made 
it." Shaw, C. J., Freeman v. City of Boston, 6 Met. 50, 57. 


We are then first to look at the terms o£ the advertisement, to see 
what the offer was. It is competent to the party offering such reward 
to propose his own terms; and no person can entitle himself to the 
promised reward without a compliance with all its terms. The first 
advertisement offering the reward demanded in this action was pub- 
lished May 26th, 1837, offering a reward of $500; and another on 
the day following, increasing it to $1000. No time is inserted in the 
notice, within which the service is to be done for which the rcAvard is 
claimed. It is therefore relied on as an unlimited and continuing 

In the first place, it is to be considered that this is not an ordinance 
of the city government, of standing force and effect ; it is an act tem- 
porary in its nature, emanating from the executive branch of the city 
government, done under the exigency of a special occasion indicated 
l)y its terms, and continued to be published but a short time. Although 
not limited in its terms, it is manifest, we think, that it could not have 
been intended to be perpetual, or to last ten or twenty years or more ; 
and therefore must have been understood to have some limit. It was 
insisted, in the argument, that it had no limit but the Statute of Limi- 
tations. But it is obvious that the Statute of Limitations would not 
operate so as to make six years from the date of the offer a bar. The 
offer of a reward is a proposal made by one party, and does not become 
a contract until acted upon by the performance of the service by 
the other, which is the acceptance of such offer, and constitutes the 
agreement of minds essential to a contract. The six years, therefore, 
would begin to run only from the time of the service performed and 
the cause of action accrued, which might be ten, or twenty, or fifty 
years from the time of the offer, and would in fact leave the offer 
unlimited by time. 

Supposing, then, that by fair implication there must be some limit 
to this offer, and there being no limit in terms, then by a general rule 
of law it must be limited to a reasonable time; that is, the service 
must be done within a reasonable time after the offer is made. 

What is a reasonable time, when all the facts and circumstances are ^ h 
proved on which it depends, is a question of law . To determine it, we //y 
are tirst to consider the objects and purposes for which such reward is yj 
offered. The principal object obviously must be to awaken the atten- V^ 
tion of the public, to excite the vigilance and stimulate the exertions of 
police officers, watchmen, and citizens generally, to the detection and 
punishment of offenders. Possibly, too, it may operate to prevent 
offences, by alarming the fears of those who are under temptation to 
commit them, by inspiring the belief that the public are awake, that 
any suspicious movement is watched, and that the crime cannot be 
committed with impunity. To accomplish either of these objects, such 
offer of a reward must be notorious, known and kept in mind by 
the public at large ; and for that purpose the publication of the offer, 
if not actually continued in newspapers, and placarded at conspicuous 


places, must have been recent. After the lapse of years, and after the 
publication of the offer has been long discontinued, it must be pre- 
sumed to be forgotten by the public generally, and, if known at all, 
known only to a few individuals who may happen to meet with it in 
an old newspaper. The expectation of benefit then from such a 
promise of reward must in a great measure have ceased. Indeed, 
every consideration arising from the nature of the case confirms the 
belief that such offer of reward, for a special service of this nature, 
is not unlimited and perpetual in its duration, but must be limited 
to some reasonable time. The difficulty is in fixing it. One circum- 
stance (perhaps a slight one) is that the act is done by a board of 
officers, who themselves are annual officers. But as they act for the 
city, which is a permanent body, and exercise its authority for the 
time being, and as such a reward might be offered near the end of 
the year, we cannot necessarily limit it to the time for which the 
same board of mayor and aldermen have to serve; though it tends to 
mark the distinction between a temporary act of one branch and a 
permanent act of the whole city government. 

"We have already alluded to the fact of the discontinuance of the 
advertisement, as one of some weight. It is some notice to the public 
that the exigency has passed for which such offer of a reward was 
particularly intended. And though such discontinuance is not a 
revocation of the offer, it proves that those who made it no longer hold 
it forth conspicuously as a continuing offer; and it is not reasonable 
to regard it as a continuing offer for any considerable term of time 

But it is not necessary, perhaps not proper, to undertake to fix a 
precise time as reasonable time; it must depend on many circum- 
stances. It is somewhat analogous to the case of notes payable on 
demand, where the question formerly was, within what time such 
note must be presented, and, in case of dishonor, notice be given, in 
order to charge the indorser. In the earliest reported case on the 
subject (Field ?;. Nickerson, 13 Mass. 131), the Court went no 
farther than to decide that eight months was not a reasonable time 
for that purpose. 

Under the circumstances of the present case, the Court are of the 
opinion that three years and eight months is not a reasonable time 
within which, or rather to the extent of which, the offer in question 
can be considered as a continuing offer on the part of the city. In 
that length of time, the exigency under which it was made having 
passed, it must be presumed to have been forgotten by most of the 
officers and citizens of the community, and cannot be presumed to 
have ])f;cn before the public as an actuating motive to vigilance and 
exertion on this subject; nor could it justly and reasonably have been 
so uridfrstoofl by the pl.-iintiffs. "We are therefore of opinion that the 
offer of the city had ceased before the plaintiffs accepted and acted 
upon it as such, and that consequently no contract existed upon 


wliicli this action, founded on an alleged express promise, can be 
maintained. Plaintiffs nonsuit.^ 


Supreme Court of Errors of Connecticut, June, 1838 

[Reported in 12 Connecticut Reports, 424] 

This was an action of assumpsit, alleging that the defendant, who 
conducted business at Wareham, Mass., under the name of the 
"Washington Iron Company," promised to deliver to the plaintiffs 
a quantity of rods, shapes, and band-irqn, in March, 1836. 

The cause was tried at Hartford, February Term, 1838, before 
Williams, C. J. 

The plaintiffs claimed to have proved their case by a corre- 
spondence between the parties in the year 1836; particularly by a 
letter from the plaintiffs to the defendant, dated the 29th of Febru- 
ary; the defendant's answer of the 2d of March; a letter from the 
plaintiffs, dated the 14th of March ; and the answer of the defendant, 
also dated the 14th of March by mistake, in fact written the 16th 
of March; and the plaintiffs' reply thereto dated the 19th of March. 
The whole correspondence between the parties was read in evidence; 
the substance of which was as follows : — 

Hartford, 29th February, 1836. Dear Sir, — Regarding the future disposal of 
your nails as settled, it would be improper to importune you further on that point. 
Perhaps, however, you will not object to sending us a supply of rods and shapes for 
our spring sales. Please to say on what terms you will send us ten or fifteen tons, 
assorted, by first packet in the spring. We shall also be glad to purchase our hollow 
ware of you on the same terms as heretofore. Shall be pleased to hear from you soon. 
[Signed, "J. & H. Averill," the plaintiffs; and addressed to John Thomas, Esq.] 

Wareham, 2d March, 1836. On the writer's return from the South last evening, 
he found your favor of the 29th ult., to which we now reply. We will deliver to you 
in Hartford ten or fifteen tons of rods, shapes, and band-iron, as follows: say — 
shapes and band-iron, at $110 per gross ton, six months; and old sable rods, at $116, 
six months. Old sable iron is now quick at $110 per ton in Boston; and there is but 
very little iron there at any price. We will deliver you at Hartford a common assort- 
ment of hollow ware, at $28 per ton, six months. [Signed "Washington Iron Com- 
pany, per John Thomas, Agent;" and addressed to the plaintiffs.] 

Hartford, 14 March, 1836. Dear Sir, — We have bought of Ripley & Averill 
their stock of hollow ware, with the understanding that we were to receive the benefit 
of their orders given you last July. The balance of this order wo believe was in readi- 
ness last fall; but, owing to the early closing of our navigation, was not shipped. Will 
you ship us this lot of ware by first packet, on terms then agreed on with R. & A.? 
Please advise us by return mail if we may expect it. [Signed by plaintiffs, and ad- 
dressed to John Thomas, Esq. 

1 In Drummond v. United States, 35 Ct. CI. 356, it was held that a right to a reward 
offered for the arrest of a criminal was gained by making the arrest ten years after 
the offer was made, the criminal being still a fugitive from justice. 

In Mitchell v. Abbott 86 Me. 338, it was held that a lapse of twelve years between 
the time when the reward has offered and the time of performance was more than a 
reasonable time. 

In the matter of Keily, 39 Conn. 159, it was held that an offer of reward for a par- 
ticular crime would not lapse until the Statute of Limitations barred conviction for 
the crime. See also Shaub v. Lancaster, 156 Pa. 362. 


Wareham, March 14, 1836. Dear Sirs, — Your favor of the 14th inst. is at hand, 
and contents noted. We shall most cheerfully comply with your request to ship to 
you the balance of Ripley & Averill's order of hardware, not filled in consequence of 
the early frost last autumn; such being the understanding between yourselves and 
Mr. Ripley. We learn from our neighbors, engaged in the manufacture of this article, 
that they now hold it at $30 per ton, and shall not sell it at a less price through the 
season; and consequently we shall not consider ourselves holden to the offer made to 
you on the 2d inst., unless you signify your acceptance thereof by return mail, but 
shall furnish the balance of Ripley & Averill's order in conformity with the contracts 
made wath them. 

Do 3'ou accept of our proposal for supplying you with rods, shapes, and band-iron; 
and if so, what quantity of each shall we send you? [Signed, "Washington Iron 
•Company, per John Thomas, Agent;" and addressed to the plaintiffs.] 

Hartford, March 19th, 1836. Dear Sir, — Your favor of the 17th came to hand 
last evening, too late to be answered before this morning. We note and duly appre- 
ciate your prompt assent to send us the balance of R. & A.'s order for hollow ware, 
at old prices. In our future purchases of that article, we will buy of you at $28 per 
ton, six months, as offered in your favor of the 2d. We will also take the following 
shapes, &c., on your terms there given: 160 bundles of new sable or Swedes, different 
shapes, specified; also 40 bundles smaller shapes, to be of old sable, assorted; 120 
bundles band-iron, assorted; 60 bundles half-inch spike rods; 200 bundles P S I horse- 
nail rods, or a ton, if convenient, in 28 lb. bundles, sending 5 tons in all. [Signed by 
the plaintiffs, and addressed to John Thomas, Esq. 

In a letter dated March 21st, 1836, addressed to John Thomas, Esq., 
the plaintiffs alter their order for band-iron, varying the sorts. 

The letter written by the defendant on the 16th of March, dated 
14th, arrived at Hartford on the 18th of March, about 2 o'clock 
-pji^ The plaintiff's answer to the letter, dated the 19th of March, 
was post-marked the 20th, and the letter written by the plaintiffs on 
the 21st of March was post-marked on the day of its date; and both 
letters arrived at "Wareham together on the 23d of March. 

The defendant introduced a witness to prove that letters mailed at 
Hartford for Wareham were, by the usual course of mail, sent by 
Providence, and would reach that place on the evening of the day 
after leaving Hartford, — but might be sent by Boston ; although, 
when sent by Boston, on the days that both mails went, a letter would 
be one day longer in reaching Wareham; that a mail was sent every 
day from Hartford to Boston, and every day but Sunday from Hart- 
ford to Providence; that the Providence mail usually left the post- 
office in Hartford about t^ o'clock every morning, except Sunday, when 
no mail was sent, and Monday, when it left about 10 o'clock a.m. 
The mails were, in the course of business, closed one hour before they 
left the office. TTpon the 19th of March, 1836, the Providence mail 
left tbo office at 25 minutes past 5 o'clock in the morning, and on the 
21st at 6 minutes past ten in the morning. The 20th was Sunday; 
and letters put into the office on Saturday evening and on Sunday 
evening would be forwarded by the same mail. The usual course of 
bii.sincHs at tbo post-office in Hartford was to stamp or post-mark all 
letters, not on tlic; day they were forwarded, but tlie day they were 
received into tbe office, — unless received aft(;r 9 o'clock in the even- 
ing, wlien tbf'V wfTf post-marked as of the succeeding day. 

The court instructfH] tbe jury tliat if the letter dnted M arch 19t ll 


was inai]pr} nn t"hp, 20th of March it was not a seasonable acceptance. 
On verdict for the defendant, the plaintilts moved lor a new trial. 

Eungerford, in support of the motion. 

T. C. Perkins, contra. 

BissELL, J.^ The great question in the case is, whether there has 
been such an acceptance of the defendant's offer as that he is bound 

The jury were instructed that if the letter written by the plaintiffs, 
accepting the proposal of the defendant, was not delivered into the 
post-office at Hartford until the 20th of March, it was not sent in; 
such reasonable time as to make their acceptance obligatory on the 

Several questions, not immediately growing out of the charge, but 
Avhich, if decided in favor of the defendant, make an end of the case, 
have been much discussed at the bar. 

1. It has been contended that the proposal of the defendant, in his 
letter of the 2d, was not renewed by his letter of the 16th of March.. 
Upon this point no opinion was given by the judge on the circuit,, 
unless an opinion may be inferred from the ground on which he 
rested the case in his instructions to the jury. Nor is it essential that 
a decided opinion on the question should be expressed by this Court; 
because there are other grounds on which we are unanimously of 
opinion that the ruling of the judge below must be sustained. 

Were this, however, a turning point in the case, we should probably 
be prepared to say that the defendant's letter of the 16th of March 
does contain a distinct renewal of his former proposal. His language 
is certainly very strong to show that such was his intention. He 
says : "Do you accept of our proposal for supplying you with rods, 
shapes, and band-iron; and if so, what quantity of each shall we 
send you ?" ISTow we cannot but think that the fair and obvious con- 
struction of this language is that the defendant then stood ready 
to supply the articles upon the terms already specified. And such 
appears to have been his own view of the case, as is manifest from 
his subsequent letter of the 8th of April. 

2. It has been urged, that admitting this letter to contain a renewal 
of the former proposal, yet, hy the terms of it, the plaintiffs were 
bound to signify their acceptance by return of mail. The question, in 
this aspect of it, is manifestly independent of any mercantile usage. 
That the defendant had a right to attach this condition to his offer 
is undeniable. The question is, whether he has done so; and whether 
such is the true construction of his letter. 

In his letter of the 2d of March, the defendant had offered to sup- 
ply the plaintiffs an assortment of hollow ware at certain prices ; and 
in regard to this offer, in his letter of the 16th, he says: "We shall 
not consider ourselves holden to the offer made you on the 2d inst., 
unless you signify your acceptance thereof by return of mail ;" and he 
^ A portion of the opinion is omitted. 


then puts the inquiry with regard to rods, shapes, and band-iron, 
that has been already mentioned. JSTow, it should be borne in mind, 
that the defendant's proposal, in regard to these articles, had already 
been before the plaintiffs for at least ten or twelve days; and one 
claim put forth by them on the trial was, that during the month of 
March the price of these articles was constantly advancing in the 
market. The question then arises, whether under these circumstances 
it was the intention of the defendant to give them further time; and 
whether such intention can be fairly inferred from the language of 
his communication. In regard to the hollow ware, there can be no 
question. The plaintiffs were positively required to signify their 
acceptance by return mail. And when, in the same letter and under 
similar circumstances, they are also required to decide upon the 
proposal in regard to the rods, &c., it is certainly not easy to see 
why the defendant should have made, or should have intended to 
make, a distinction between these classes of articles. Had the judge 
directed the jury that the defendant was not bound, unless the 
plaintiffs signified their acceptance by return of mail, we are by no 
means satisfied that the direction would have been wrong. As, 
however, he placed the case on grounds more favorable to the plain- 
tiff's claim, a decision upon this point is unnecessary. Any further 
discussion of it is therefore waived. 

3. We come then to the inquiry, whether the instruction actually 
given to the jury is correct in point of law. And here it may be 
remarked, that it is very immaterial when the letter of the plaintiffs 
was written: until sent, it was entirely in their power and under their 
control, and was no more an acceptance of the defendant's offer than 
a bare determination, locked up in their own bosoms and uncom- 
municated, would have been. And it surely will not be claimed that 
mere volitions, a mere determination to accept a proposal, constitute 
a contract. The plaintiffs then did not accept the defendant's prop- 
osition until the 20th, and for aught that appears [not] until the 
evening of that day. That they were bound to accept within a reason- 
able time was distinctly admitted in the argument; and if not ad- 
mitted, the position is undeniable. The case of the plaintiffs then 
comes to this, and this is the precise ground of their claim : That 
thoy had a right to hold the defendant's offer under advisement for 
more than forty-eight hours, and to await the arrival of three mails 
from Xew York, advising them of the state of the commodity in 
tlie market; and having then determined to accept, the defendant was 
hound by his off(!r; and tliat this constitutes a valid mercantile con- 
tract. Now, in regard to such a claim, we can only say, that it ap- 
pears to us to bo in the highest degree unreasonable; and that we 
know of no principle, of no authority, from which it derives the 
slightest support. 

Indeed, it seemH to us to bo subversive of the whole law of con- 
tracts. For it is most obvious that, if during the interval the defendant 


was bound by his oifer, there was an entire want of mutuality: 
the one party was bound, while the other was not. Had the propo- 
sition been made at a personal intervieAv between the parties, there 
can be no pretence that it would have bound the defendant beyond the 
termination of the interview. 

In Mactier v. Frith, 6 Wend. 103, which goes as far as any case 
on the subject, the rule is laid down, that the offer continues until 
the letter containing it is received, and the party has had a fair 
opportunity to answer it. And it is further said, that a letter written 
would not be an acceptance, so long as it remained in the possession <■ j r\ 
or under the control of the writer. An offer then, m ade through a 
le tter, is not continued beyond the time that the party has a "lair 7"^,-^ ^^^ 
o pportunity" to answer it . This is substantially the doctrine of the 2. 

charge. And it is not only highly reasonable, but is supported by 
all the analogies of the law. Once establish the principle that a 
party to whom an offer is made may hold it under consideration 
more than forty-eight hours, watching in the mean time the fluctua- 
tions of the market, and then bind the other party by his acceptance, 
and it is believed that you create a shock throughout the commercial 
community, utterly destructive of all mercantile confidence. !No 
offers would be made by letter. It would be unsafe to make them. 

It is only necessary to apply these principles to the case before us 
and their application is exceedingly obvious. The proposal of the 
defendant, which had already been several days before the plaintiffs, 
was renewed early on the afternoon of the 18th. They show no act 
done by them signifying their acceptance, until the evening of the 
20th. Was this within a reasonable time? Was this the first fair 
opportunity of manifesting their acceptance? We think this can 
hardly be claimed. Had the defendant had an agent in Hartford, 
through whom the offer was made, might the plaintiffs thus have 
delayed the communication of their acceptance to him? This would 
not be pretended. And can it vary the principle, that the offer, in- 
stead of being thus made, was made through the agency of the post- 
office? Had the offer of the defendant been promptly accepted, in- 
formation of the acceptance would have reached the defendant on 
the evening of the 20th, in due course of mail. He waited until the 
22d; and hearing nothing from the plaintiffs, he then virtually re - ? 
tracted bis offer , by making such arrangement s as made it impossible ' 
for him to fill their order. We think he was fully justified in so 
doing; and that upon every sound principle the rule in this case 
must be discharged. 

In this opinion the other Judges concurred. 

Netv trial not to he granted.'^ 

^ In Kempner v. Cohn, 47 Ark. 519, it was held that in the case of an offer to sell 
real estate, a delay of five days in accepting was not as matter of law unreasonable. 
In Ortman v. Weaver, 11 Fed. Rep. 358, a delay of two weeks in accepting such an 
offer was held unreasonable. In Hargadine, McKittrick Co. v. Reynolds, 64 Fed. Rep. 
560, a delay of six days in accepting an offer to sell cotton manufactured goods was 



In the Common Pleas Division, Marcli 6, 1880 

[Reported in 5 Common Pleas Division, 344] 

LiNDLEY, J.^ This was an action for the recovery of damages for 
the non-delivery by the defendants to the plaintiffs of 1000 boxes of 
tinplates pursuant to an alleged contract. 

The defendants carried on business at Cardiff and the plaintiffs at 
I^^ew York, and it takes ten or eleven days for a letter posted at either 
place to reach the other. The defendants by letter of October 1 
offered the plaintiffs 1000 boxes of tinplates at 15s. 6d. a box " sub- 
-ject to vour cable on or before the 15th inst. her e." The plaintiffs 
sent a telegram on October 11th accepting this offe r, and confirmed it 
b y letter dated October 15th . On October 8th the defendants wrote 
a letter withdrawing their offer. This letter reached the plaintiffs 
on October 20th, but they claimed the revocation was ineffectual and 
■brought this action. 

There is no doubt that an offer can be withdrawn before it is 
accepted, and it is immaterial whether the offer is expressed to be 
open for acceptance for a given time or not. Eoutledge v. Grant, 
4 Bing. 653. Eor the decision of the present case, however, it is 
necessary to consider two other questions, viz. : 1. Whether a with- 
drawal of an offer has any effect until it is communicated to the 
person to whom the offer has been sent? 2. Whether posting a let- 
ter of withdrawal is a communication to the person to whom the 
letter is sent ? 

It is curious that neither of these questions appears to have been 
actually decided in this country. As regards the first question, I 
am aware that Pothier and some other writers of celebrity are of 
opinion that there can be no contract if an offer is withdrawn before 
it is accepted, although the withdrawal is not communicated to the 
person to whom the offer has been made. The reason for this 
opinion is that there is not in fact any such consent by both parties 
as is essential to constitute a contract between them. Against this 
view, however, it has been urged that a state of mind not notified 
caimot be regarded in dealings between man and man; and that an 
uncommunicated revocation is for all practical purposes and in 

h(M iinroasonabln. In Minnesota Oil Co. v. Collior Lead Co., 4 Dill. 431, it was held 
that in tho case of an offer hy telej^ram to sr<ll oil, then the snhjeet of rapid fluctuation 
in price, a telegraphic ref>ly after twcsnty-four honrs' delay was too late. 

See also HainsKate irr>tei Co. v. Montefiore, L. 11. 1 Ex. 109; Rr Bowron, L. R. ,'5 Eq. 
428 L. K. H C:h. r>'.)2; Dc. Witt v. Chicago, &(-.. Ry. Co., 41 Fed. Rep. 4S4; Furrier v. 
Stfjrer, (V.i la. 4H4; Tronristine v. Sellers, ^.'j Kan. 447; Park v. Whitney, MS Mass. 
'27H; StoTK! V. Harmon, .HI Minn. 512; Tl.-ilioek v. Insurance Co., 2 Dutch, 208; Mizell 
V. Hurnett, 4 .lonr's, L. 240; liaker v. Holt, r,(\ Wis. 100; Rherley v. Peehl, 84 Wis. 46. 

' A brief statement f)f facts has hfien substituted for the statement of the court. 
•Only HO m\lc^l of the opinion is given aa relates to the question of revocation. 


point of law no revocation at all. This is the view taken in the 
United States : see Tayloe v. Merchants Fire Insurance Co., 9 How. 
Sup. Ct. Kep. 390, cited in Benjamin on Sales, pp. 56-58, and it is 
adopted by Mr. Benjamin. The same view is taken by Mr. Pollock 
in his excellent work on Principles of Contract, ed. ii., p. 10, and 
by Mr. Leake in his Digest of the Law of Contracts, p. 43. This 
view, moreover, appears to me much more in accordance with the 
general principles of English law than the view maintained by 
Pothier. I pass, therefore, to the next question, viz., whether posting 
the letter of revocation was a sufficient communication of it to the 
plaintiff. The offer was posted on the 1st of October, the withdrawal 
was posted on the 8th, and did not reach the plaintiff until after he 
had posted_^is__letter of the 11th, accepting the offer. It may be 
"taken" asnow settled that where an offer is made and accepted by 
letters sent through the post, the contract is completed the moment 
the letter accepting the offer is posted: Harris' Case, Law Rep. 7 
Ch. 587; Dunlop i\ Higgins, 1 H. L. 381, even although it never 
reaches its destination. "When, however, these authorities are looked 
at, it will be seen that they are based upon the principle that the 
v^riter of the offer has expressly or impliedly assented to treat an 
answer to him by a letter duly posted as a sufficient acceptance and 
notification to himself, or, in other words, he has made the post- 
office his agent to receive the acceptance and notification of it. But 
this principle appears to me to be inapplicable to the case of the 
withdrawal of an offer. In this particular case I find no evidence 
of any authority in fact given by the plaintiffs to the defendants to 
notify a withdrawal of their offer by merely posting a letter; and 
there is no legal principle or decision which compels me to hold, con- 
trary to the fact, that the letter of the 8th of October is to be treated 
as communicated to the plaintiffs on that day or on any day before the 
20th, when the letter reached them. But before that letter had 
reached the plaintiffs they had accepted the offer, both by telegram 
and by post ; and they had themselves resold the tinplates at a profit. 
In my opinion the withdrawal by the defendants on the 8th of 
October of their offer of the 1st was inoperative; and a complete 
contract binding on both parties was entered into on the 11th of 
October, when the plaintiffs accepted the offer of the 1st, which 
they had no reason to suppose had been withdrawn. Before leaving 
this part of the' case it may be as well to point out the extreme in- 
justice and inconvenience which any other conclusion would pro- 
duce. If the defendants' contention were to prevail no person who 
had received an offer by post and had accepted it would know his 
position until he had waited such a time as to be quite sure that a 
letter withdrawing the offer had not been posted before his acceptance 
of it. It appears to me that both legal principles and practical con- . / 
venience require that a person wh o has accepted an offer not known jC-^ 
to him to have been revoked, shaTTbe in a position safely to act upon 


the footing that the offer and acceptance constitute a contract bind- 
ing on both parties.^ 


In Chancery, December 8, 1840 
[Reported in 3 Beavan, 334] 

This case came on upon general demurrer to a bill for specific per- 
formance, which stated to the effect f olloMang : — 

The defendant, being desirous of disposing of an estate, offered, by 
his agent, to sell it to the plaintiff for 1,200?., which the plaintiff, 
by his agent, declined; and on the 6th of June the defendant wrote 
to his agent as follows : "I have to notice the refusal of your friend 
to give me 1,200/. for my farm; I will only make one more offer, 
which I shall not alter from ; that is, 1,000L lodged in the bank until 
Michaelmas, when title shall be made clear of expenses, land, tax, &c. 
I expect a reply by return, as I have another application." This 
letter was forwarded to the plaintiff's agent, who immediately called 
on the defendant; and, previously to accepting the offer, offered to 
give the defendant 950L for the purchase of the farm, but the de- 
fendant wished to have a few days to consider. 

On the 11th of June, the defendant wrote to the plaintiff's agent 
as follows : "I have written to my tenant for an answer to certain 
inquiries, and, the instant I receive his reply, will communicate 
with you, and endeavor to conclude the prospective purchase of my 
farm. I assure you I am not treating with any other person about 
said purchase." 

The defendant afterwards promised he would give an answer about 
accepting the 950/. for the purchase on the 26th of June; and on the 
27th he wrote to the plaintiff's agent, stating he was sorry he could 
not feel disposed to accept his offer for his farm at Luddenham at 

This letter being received on the 29th of June, the plaintiff's agent 
on that day wrote to the defendant as follows : "I beg to acknowledge 

» Stevenson v. McLean, 5 Q. B. D. 346; Henthorn v. Fraser, [1892] 2 Ch. 27; Re 
London & Northern Bank, [1900] 1 Ch. 220; Tayloe v. Merchants' Fire Ins. Co., 9 
How. 390; Patrick v. Bowman, 149 U. S. 411, 424; The Palo Alto, 2 Ware, 343; 
Kcnipn(!r v. Cohn, 47 Ark. 519; Sherwin v. Nat. Cash Register Co., 5 Col. App. 162; 
Wheat V. Cros.s, 31 Mfl. 99; liraiicr v. Shaw, 168 Mass. 198, ace. Th(> (contrary impli- 
cations in Cooke v. Oxley, 3 T. R. 653; Adams v. Lindscll, 1 B. & Aid. 681; Head v. 
DiKKon, .3 Man. Ac K. 97; Hebh's Case, L. R. 4 Eq. 9, must be regarded as overruled. 

In Patrifk v. Tiowman, 149 U. S. 411, the Court, after holding that a revocation of 
an offer was inf^ffectual if not received before acceptance, said (at p. 424): "There is 
ind<;ed, in a cjwc! of this kinrl, some reason for iirging that the party making the revo- 
cation should h<! estor)7>(!d tf> filaim that his attemijtcd withdrawal was not l)inding 
ur)on himself; but this f;ould not l)e done without infringing upon the inexorable rule 
that one party to a contract <!aniiot lie Ixmnd unless the oth(!r be also, notwithstanding 
that the princii)l(! of mutuality thus applied may enable a party to take advantage of 
the invalidity of iiia own act." 


the receipt of your letter of the 27th instant, informing me that you 
are not disposed to accept the sum of 950L for your farm at Lud- 
denham. This being the case, I at once agree to the terms on which 
you offered the farm; viz., 1,000L through your tenant, Mr. Kent, 
by your letter of the 6th instant. I shall be obliged by your instruct- 
ing your solicitor to communicate with me without delay, as to the 
title, for the reason which I mentioned to you." 

The bill stated, that the defendant "returned a verbal answer to the 
last-mentioned letter, to the eif ect he would see his solicitor thereon ;" 
and it charged that the defendant's offer for sale had not been with- 
drawn previous to its acceptance. 

To this bill, filed by the alleged purchaser for a specific perform- 
ance, the defendant filed a general demurrer, 

Mr. Kindersley and Mr. Keene, in support of the demurrer. 
To constitute a valid agreement there must be acceptance of the 
terms proposed. Holland v. Eyre.^ The plaintiff, instead of ac- 
cepting the alleged proposal for sale for 1,000/. on the 6th of June, 
rejected it, and made a counter proposal; this put an end to the 
defendant's offer, and left the proposal of the plaintiff alone under 
discussion; that has never been accepted, and the plaintiff could not, 
without the concurrence of the defendant, revive the defendant's 
original proposal. 

Mr. Pemherton and Mr. Freeling, contra. So long as the offer 
of the defendant subsisted, it was competent to the plaintiff to accept 
it; the bill charges that the defendant's offer had not been with- 
drawn previous to its acceptance by the plaintiff ; there therefore ex- 
ists a valid subsisting contract. Kennedy v. Lee,^ Johnson v. King,^ 
were cited. 

The Master of the Eolls 

Under the circumstances stated in this bill, I think there exists no 
valid binding contract between the parties for the purchase of the 
property. The defendant offered to sell it for 1,000?., and if that 
had been at once unconditionally accepted, there would undoubtedly 
have been a perfect binding contract; instead of that, the plaintiff 
made an offer of his own to purchase the property for 950?.. and he 
thereby rejected the offer previously made by the defendant. I 
think that it was not afterwards competent for him to revive the 
proposal of the defendant, by tendering an acceptance of it;'' and 
that therefore there exists no obligation of any sort between the 
parties; the demurrer must be allowed.^ 

1 2 Sim. & St. 194. 2 3 Mer. 454. 

3 2 Bing. 270. 4 Lord Langdale. — Ed. 

6 National Bank v. Hall, 101 U. S. 43, 50; Minneapolis, &c. Ry. Co. v. Columbus 
Rolling Mills, 119 U. S. 149; Ortman v. Weaver, 11 Fed. Rep/358; W. & H. M. 
Goulding Co. v. Hammond, 54 Fed. Rep. 639 (C. C. A.); Baker v. Johnson Co., 37 la. 
186, 189; Cartmel v. Newton, 79 Ind. 1,8; Fox v. Turner, 1 111. App. 153; Egger v. 
Nesbit, 122 Mo. 667; Harris v. Scott, 67 N. H. 437; Russell v. FaUs Mfg. Co.. 106 
Wis. 329, ace. See further 1 WilUston, Contracts, § 51. 


TEA^^Z POEL, et al, Eespondents, v. BRUNSWICK-BALKE- 

New York Couet of Appeals, October 22-]Sroveinber 23, 1915 

[Reported in 216 New York, 310] 

Seabuey, J.^ In pursuance of a conversation by telepbone, cor- 
respondence ensued between the parties culminating in a letter of 
April 4th, 1910, from the plaintiff, enclosing a draft contract for 
about twelve tons of Upriver fine Para rubber at $2.42 a pound, in 
equal monthly shipments from January to June, 1911. In reply to 
this offer the defendant on April 6th, 1910, sent the following 
letter : — 

^'Please deliver at once the following, and send invoice with goods : 

About 12 tons Upriver Fine Para Rubber at 2.42 per lb. Equal 

[onthly shipments January to June, 1911. 


'Goods on this order must be delivered when specified. In case 

ou cannot comply, advise us by return mail stating earliest date 

of delivery you can make, and await our further orders. 

v The acceptance of this order which in any event you must promptly 

acknowledge will be considered by us as a guarantee on your part 
y)f prompt delivery within the specified time. 
Vjerms F. O. B." 

The fundamental question in this case is whether these writings 
constitute a contract between the parties. If they do not, no ques- 
tion as to whether these writings meet the requirements of the 
Statute of Frauds need be considered. An analysis of their provisions 
will show that they do not constitute a contract. It is not intended, 
and in face of the provisions of the plaintiff's letter of April 4th it 
cannot be claimed, that that letter is in itself a contract. It is 
merely an offer or proposal by the plaintiffs that the defendant should 
accept the proposed contract inclosed which is said to embody an 
oral order that the defendant had that day given the plaintiffs. The 
object of this letter was to have the terms of the oral agreement 
reduced to writing so that there could be no uncertainty as to the 
terms of the contract. The letter of the defendant of April 6th did 
not accept this offer. If the intention of the defendant had been 
to accept the offer made in the plaintiff's letter of April 4th, it 
would have been a simple matter for the defendant to have indorsed 
its acceptance upon thf; proposed contract which the plaintiff's let- 
tr-r of April 4tb hiid inclosed. Instead of adopting this simple and 
obvious method of itidieatiufi; iin intent to accept the contract pro- 
* A portion of the opinion is omitted. 



posed by the plaintiffs the defendant submitted its own proposal 
and specified the terms and conditions upon which it should be 
accepted. The defendant's letter of April 6th was not an acceptance 
of this offer made by the plaintiffs in their letter of April 4th. It 
was a counter-offer or proposition for a contract. Its provisions 
make it perfectly clear that the defendant (1) asked the plaintiffs 
to deliver rubber of a certain quality and quantity at the price 
specified in designated shipments; (2) it specified that the order 
'-" therein given was conditional upon the receipt of its order being 
c^^ promptly aclcnowledged, and (3) upon the further condition that the 
* y plaintiffs would guarantee delivery within the time specified. It 
■^ ***p'/ may be urged that the condition specified in the defendant's order 
\„,,,,tA^ that the plaintiffs would guarantee the delivery of the goods within 
the time specified added nothing of substance to the agreement, be- 
"^•^^jJL cause if the offer was accepted the acceptance itself would involve 
'"^tf^T^ this obligation on the part of the plaintiffs. The other condition 
.^r^^^^<^ specified by the defendant cannot be disposed of in the same man- 

fner. That provision of the defendant's offer provided that the offer 
t,jtjjS^,..^*j^^^ conditional upon the receipt of the order being promptly ac- 
^^y^ knowledged. It embodied a condition that the defendant had the 
right to annex to its offer. The import of this proposal was that the 
r defendant should not be bound until the plaintiffs signified thTn- 
assent to the terms set tortk ! When this assent was given and the 
acknowledgment made, this contract was then to come into existence 
and would be completely expressed in writing. The plaintiffs did 
not acknowledge the receipt of this order and the proposal remained 
^ unaccepted . As the party making this offer deemed this provision 
' material and as the offer was made subject to compliance with it 
by the plaintiffs it is not for the court to say that it is immaterial. 
When the plaintiffs submitted this offer in their letter of April 4th 
to the defendant only one of two courses of action was open to the 
defendant. It could accept the offer made and thus manifest that 
assent which was essential to the creation of a contract or it could 
reject the offer. There was no middle course. If it did not accept 
the offer proposed it necessarily rejected it. A proposal to accep t 
the offer if modified or an acceptance subject to other terms and 
conditions was equivalent to an absolute rejection of the offer made 
by the plaintiffs. Mactier's Admrs. v. Frith, 6 Wend, 103; Vassar 
V. Camp, 11 N". Y. 441 ; Chicago k G. E. R. Co. v. Dane, 43 ^T. Y. 
240; Sidney Glass Works v. Barnes & Co., 86 Hun, 374; Mahar v. 
Compton, 18 App. Div. 536, 540; ]^undy v. Matthews, 34 Hun, 74; 
Barrow Steamship Co. v. Mexican C. R. Co., 134 IST. Y. 15. 



West Virginia Supeeme Coukt of Appeals, June 6-November 

1, 1904 
[Reported in 56 West Virginia, 161] 

Poffexbargee, President.^ In the Circuit Court a demurrer to a 
bill for the specific performance of two alleged contracts for the 
sale of a vein of coal was sustained on the ground that the acceptance 
of the plaintiff was insufficient. The acceptance in question was 
as follows : 

''Morgantown, W. Va., Feb. 21, 1902. Mr. William McCormick: 
I hereby notify you that your coal will be accepted according to 
terms of the option given to me on same and respectfully request 
you to make delivery of deed, with abstract of title, to me, in Mor- 
gantown, W. Va., on Saturday, June 28th, 1902, hour and place to 
be decided later. Yours truly, E. D. Turner." 

Counsel for appellee say that if the first clause standing alone 
would amount to unconditional acceptance, converting the option 
into a contract, binding upon both parties, the addition of the re- 
quest that delivery of the deed be made on the 28th day of June, 
a date more than ninety days after acceptance and after the time 
in which acceptance could be made, renders the notice insufficient. 
They say this request does not relate to performance of the contract 
after the making thereof as proposed, and that the insertion thereof 
in the written notice was an attempt to engraft upon the contract 
proposed conditions or terms not embodied in the original propo- 
sition ; and, as the bill does not show any acceptance in writing of this 
new condition, the effort to change the original proposition has 
failed and no contract has been made. .If this last clause of the deed 
thus fiualified the first, it would Avork a change as to the time of 
paynifii t of the j)urchase money and delivery of the deed. It woulcT" 
also (Jesigriate a place of payment as to which the options are silent. 

The contention of counsel for appellee is unsupported by authority. 
"If an offer is accepted as made, the acceptance is not conditional 
and dofs not vary from the offer because of inquiries whether the 
offcrfT will change his terms, or as to future acts, or the expression 
of a hope, or suggestions, etc." 9 Cyc. 269. "Plaintiff answered a 
proposition to lease *I will accept your offer to lease to you at $200 
per year for three or five years as you choose.' Defendant 
anawered, 'Make out lease for place for five years at $200 
per year.' He also said in this letter that he would like to build on a 
cookroom, Avith privilege to remove it. Plaintiff recognized that a 

• A portion of the opinion is omitted. 


lease for five years existed. Held, these letters made a lease, and the 
request as to the cookroom did not attach a condition to defendant's 
acceptance." Culton v. Gilchrist, 92 la. 718. 

A case relied upon is Sawyer v. Brossart 67 la. 678. In that case, 
the defendant, a resident of Los Angeles, California, offered for sale, 
by letter, two business rooms in Iowa City, saying to the 
plaintiff: "You can have that building for thirty-five hundred dol- 
lars, or the two for $5,000, Let me hear from you at once." The 
alleged acceptance was by telegram from Iowa City, saying : "Accept 
your offer for two buildings at five thousand dollars. Money at your 
order at first National Bank here." The court held that the de- 
fendant "was entitled under his offer to have the money paid to him 
at his place of residence and to deliver the deed there, and that, as the 
acceptance of plaintiff was not an acceptance of the offer as made, 
it did not bind B.," the plaintiff. It is to be noted here that the 
plaintiff did not request permission to pay the money into the bank to 
the defendant's credit at Iowa City, but said, in effect, that the money 
had been paid there to his credit. Therefore, the payment into the 
bank at Iowa City was made a part of the acceptance. By such 
payment and notice plaintiff attempted to add a new condition to 
the contract proposed, which was silent as to the place of payment 
and, therefore, in law, contemplated payment at Los Angeles. It 
was not an unqualified acceptance coupled with a request for permis- 
sion to pay at Iowa City. 

Three cases referred to in one of the briefs for appellee, are, in 
all material respects, alike. They are Robinson v. Weller, 8 S. E, 
449; Northwestern Iron Co. v. Meade, 94 Am. Dec. 557; and Egger 
V. Nesbitt, 43 Am. St. 596. They enunciate the proposition that 
an acceptance of an offer to sell land, but fixing a different place for 
the delivery of the deed and payment of the money than the resi- 
dence of the offerer, or the place named in the offer, is not an un- 
conditional acceptance so as to bind the seller. This is asserted by 
several cases. Bilbert v. Baxter, 71 la. 327; Langellier v. Schaefer, 
36 Minn 361. But they are all cases arising uj)on loose, informal 
correspondence, making it necessary to look to the whole of each 
paper to ascertain the true meaning and intent of the parties. None 
of the letters relied upon as acceptances said an offer was accepted 
in accordance with its terms, or that the property would be taken 
according to the terms of the letter of proposal. In none of them 
was the word "request" used, after language of unequivocal and 
definite acceptance as in this case. In Robinson v. "Weller, the reply 
said: "Offer accepted; money ready; send deeds at once." In 
N, W. Iron Co. v. Meade the letter said: "If this is the very best 
offer you can make, you may properly execute the within deed," 
etc. In Egger v: Nesbitt, the reply said: "I will accept your 
proposition, with the understanding that you will deliver to me all 
papers," etc. Owing to the distinctions pointed out, these precedents 


are not regarded as applicable or controlling in the present case. 

Moreover, the reasoning in some of these cases is not entirely 
satisfactory. Nor does it seem to accord with principles announced 
in Watson v. Coast, 35 W. Va. 463. If a man says "I accept your 
offer," that makes a contract. It assents to all the terms of the 
offer. What more is necessary? There is a complete "aggregatio 
Tnentium." The acceptance conforms to the offer in every par- 
ticular. Ho w can a mere request relating, not to the making of the 
c ontrac t, but to its performance , be deemed to change i t? Would 
the acceptor be permitted to excuse himself from performance on 
the ground of such request? No precedent of that kind has been 
found. They are all cases in which the proposer, desiring to escape 
from the consequences of his offer, because somebody else has pro- 
posed a higher price than the first asked, seeks to repudiate the 
transaction and sell to the other party. Property rights are sacred 
and should be well guarded by the law, but when a man has de- 
liberately made a fair contract of sale, he ought not to be permitted 
to avoid it on some flimsy pretext, in order to avail himself of a 
better bargain. Time and place of payment, when not mentioned 
in an accepted offer, are fixed by law, and are matters of performance, 
carrying out the contract, a thing wholly distinct and separate from 
the making of the agreement. If, contemporaneously with, or subse- 
quent to the making of the contract, either party suggest, request 
or propose a time, place or mode of performance, different from 
that agreed upon that does not of itself effect such change nor does 
it cause a breach, giving right of action or rescission to the other 
party. Swiger v. Hayman et als, 56 W. Va. 123. Either can 
compel the other to perform the contract as made. He may ignore 
the suggested, requested or proposed alteration of, or deviation from, 
the contract, as to the performance thereof. Watson v. Coast, 35 W. 
Va. 463. But, if the suggested departure in performance is not 
accompanied by a declaration of unqualified and unconditional ac- 
ceptance of the offer, it would be otherwise of course. Some of the 
cases here referred to disclosed such acceptance and others did not. 
The former do not harmonize with the principles enunciated by this 
Court, and the latter do. 

This somewhat lengthy review of the authorities bearing upon 
the question seems to establish the following propositions : First — 
A rfrMu;st for a change or modification of a proposed fontr^i pt. made 
before an accr^ptance thereof, amounts to a rejection of it. Second — 
A mere inquiry as to whether the proposer will alter or modify 
its terms, made before acceptance or rejection, docs not amount to a 
rejer-tion, and if the offer be not withdrawn before acceptance made 
witliiri a reasonable time, the offer becomes a binding contract. 
Third — A request, suggestion or proposal of alteration or modifica- 
tion, made after unconditional acceptance, and not assented to 
by the opposite party, does not affect the contract put in force and 


effect by the acceptance, nor amount to a breach thereof, giving 
right of rescission. Fourth — Acceptance of a formal and care- 
fully prepared option of sale of land, within the time by it allowed, 
and according to its terms, although accompanied by a request for 
a departure from its terms as to the time and place of perform- 
ance, is an unconditional acceptance and converts the option into 
an executory contract of sale, provided the re quest b e not so worded 
as to li mit or qualify the acceptance . 

The bill alleges a verbal acceptance of both options at the time 
of delivery of the acceptance in writing, and a verbal agreement 
extending the time of performance until June 28th. These allega- 
tions have provoked a good deal of argument on the subject of an 
extension of time of performance and alterations of written con- 
tracts by parol agreement. The conclusion above indicated renders 
it unnecessary to go into these questions or to examine the authorities 
cited as bearing upon them. 

Our conclusion is that the acceptance in writing of the second pro- 
posal is unconditional and converts the proposal into a binding 
contract. The other option does not require the acceptance to be 
in writing. It was verbally accepted, and that is sufficient when the 
option does not require a written acceptance. Weaver v. Burr, 31 W. 
Va. 776; Watson v. Coast, 35 W. Va. 463; Barrett v. McCallister, 
33 W. Va. 745 ; Creigh v. Boggs, 19 W. Va. 240 ; Capehart v. Hale, 
6 W. Va. 547. 

For the foregoing reasons, the decree complained of is reversed, 
the demurrer overruled and the cause is remanded for further pro- 
ceedings. Reversed. 


In the Queen's Bench Division, May 25, 1880 

{^Reyorted in 5 Queen's Bench Division, 346] 

Ltjsh, J. This is an action for non-delivery of a quantity of iron 
which it was alleged the defendant contracted to sell to the plaintiffs 
at 405. per ton, nett cash. The trial took place before me at the 
last assizes at Leeds, when a verdict was given for the plaintiffs for 
1900L, subject to further consideration on the question whether, 
under the circumstances, the correspondence between the parties 
amounted to a contract, and subject also, if the verdict should stand, 
to a reference, if required by the defendant, to ascertain the amount 
of damages. The question of law was argued before me on the 7th 
of May last. 

The plaintiffs are makers of iron, and iron merchants at Middles- 
borough. The defendant being possessed of warrants for iron, which 
he had originally bought of the plaintiffs, wrote on the 24th of Sep- 



tember to the plaintiffs from London, where he carries on his busi- 
ness : "I see that No. 3 has been sold for immediate delivery at 39s., 
which means a higher price for warrants. Could you get me an 
offer for the whole or part of my warrants? I have 3800 tons, and 
the brands you know." 

On the 26th one of the plaintiffs wrote from Liverpool: "Your 
letter has followed me here. The pig-iron trade is at present very 
excited, and it is difficult to decide whether prices will be maintained 
or fall as suddenly as they have advanced. Sales are being made 
freely for forward delivery chiefly, but not in warrants. It may, 
however, be found advisable to sell the warrants as maker's iron. I 
would recommend you to fix your price, and if you will write me 
your limit to Middlesborough, I shall probably be able to wire you 
something definite on Monday." This letter was crossed by a letter 
written on the same day by the clerk of one Fossick, the defendant's 
broker in London, and which was in these terms : — 

"Referring to R. A. McLean's letter to you re warrants, I have seen him again 
to-day, and he considers .39s, too low for same. At 40s. he says he would consider an 
offer. However, I shall be obliged by your kindlV wiring me, if possible, your best 
offer for all or part of the warrants he has to dispose of." 

On the 27th (Saturday) the plaintiffs sent to Fossick the following 
telegram : — 

"Cannot make an offer to-day; warrants rather easier. Several sellers think might 
get 39s. &d. if you would wire firm offer subject reply Tuesday noon." 

In answer to this Fossick wrote on the same day : — 

"Your telegram duly to hand re warrants. I have seen Mr. McLean, but he is 
not inclined to make a firm offer. I do not think he is likely to sell at 39s. 6rf., but 
will probably prefer to wait. Please let me know immediately you get any likely 

On the same day the defendant, who had then received the Liver- 
pool letter of the 26th, wrote himself to the plaintiffs as follows : — 

"Mr. Fossick's clerk showed me a telegram from him yesterday mentioning 39s. 
^ for No. 3 as present price, 40s. for forward delivery. I instructed the clerk to wire 
you that I would now sell for 40s., nett cash, open till Monday." 

No such telegram was sent by Fossick's clerk. 

The plaintiffs were thus on the 28th (Sunday) in possession of 
both letters, the one from Fossick stating that the defendant was not 
inclined to make a firm offer; and the other from the defendant him- 
self, to the effect that he would sell for 40s., nett cash, and would 
hold it open all Monday. This it was admitted must have been the 
meaning of "opon till Monday." 

On the Monday morning, at 9.42, the plaintiffs telegraphed to the 
dfifendant : — 


"Plnasn wire whc:thfT yrni would accept forty for delivery over two months, or if 
not, longest limit you would give." 


This telegram was received at tlie office at Moorgate at 10 a.m., 
and was delivered at the defendant's office in the Old Jewry shortly 

No answer to this telegram was sent by the defendant, but after 
its receipt he sold the warrants, through Fossick, for 40s.;, nett cash, 
and at 1.25 sent off a telegram to the plaintiffs: — ^^*4'l • T 

"Have sold all my warrants here for forty nett to-day." ^^i/UX-—- '^'^*-''^ 

This telegram reached Middlesborough at 1.46, and was delivered 
in due course. 

Before its arrival at Middlesborough , however, and at 1.34, the 
plaintiffs telegraphed to defendant : — {Pji j 

"Have secured your price for payment next Monday — write you fully by post." '>-'*-**{**-< 

By the usage of the iron market at Middlesborough, contracts made ,^,,jzit^ 
on a Monday for cash are payable on the following Monday . ~iLu^la^ 

At 2.6 on the same day, after receipt of the defendant's telegram < 

announcing the sale through Fossick, the plaintiffs telegraphed: 

"Have your telegram following our advice to you of sale, per your instructions, 
which we cannot revoke, but rely upon your carrying out." 

The defendant replied : 

"Your two telegrams received, but your sale was too late; your sale was not per 
my instructions." 

And to this the plaintiffs rejoined : — 

"Have sold your warrants on terms stated in your letter of twenty-seventh." 

The iron was sold by plaintiffs to one "Walker at 41s. 6d., and the 
contract note was signed before 1 o'clock on Monday. The price of 
iron rapidly rose, and the plaintiffs had to buy in fulfillment of their 
contract at a considerable advance on 40s. 

The only question of fact raised at the trial was, whether the rela- 
tion between the parties was that of principal and agent, or that of 
buyer and seller. The jury found it was that of buyer and seller, 
and no objection has been taken to this finding. 

Two objections were relied on by the defendant: first, it was con- 
tended that the telegram sent by the plaintiffs on the Monday morn- 
ing was a rejection of the defendant's offer and a new proposal on 
the plaintiffs' part, and that the defendant had therefore a right to 
regard it as putting an end to the original negotiation. 

Looking at the form of the telegram, the time when it was sent, and 
the state of the iron market, I cannot think this is its fair meaning. ^ 

The plaintiff Stevenson said he meant it only as an inquiry, expect- ' ''' 
ing an answer for his guidance, and this, I think, is the sense in (^^^^^^ 
which the defendant ought to have regarded it^ CCS^f- 

It is apparent throughout the correspondence, that the plaintiffs 
did not contemplate buying the iron on speculation, but that their 
acceptance of the defendant's offer depended on their finding some 


one to" take the warrants off their hands. All parties knew that the 
market was in an unsettled state, and that no one could predict at the 
early hour when the telegram was sent how the prices would range 
during the day. It was reasonable that, under these circumstances, 
they should desire to know before business began whether they were 
to be at liberty in case of need to make any and what concession as 
to the time or times of delivery, which would be the time or times 
of payment, or whether the defendant was determined to adhere to 
the terms of his letter; and it was highly unreasonable that the 
plaintiffs should have intended to close the negotiation while it was 
uncertain whether they could find a buyer or not, having the whole 
of the business hours of the day to look for one. Then, again, the 
form of the telegram is one of inquiry. It is not "I offer forty for 
delivery over two months," which would have likened the case to 
Hyde v. Wrench, 3 Beav. 334, where one party offered his estate for 
1000/., and the other answered by offering 950/. Lord Langdale, 
in that case, held that after the 950/. had been refused, the party 
offering it could not, by them agreeing to the original proposal, claim 
the estate, for the negotiation was at an end by the refusal of his. 
counter proposal. Here there is no counter proposal. The words 
are, "Please wire whether you would accept forty for delivery over 
two months, or, if not, the longest limit you would give." There 
is nothing specific by way of offer or rejection, but a mere inquiry, 
which should have been answered and not treated as a rejection of 
the offer. This ground of objection therefore fails. 

The remaining objection was one founded on a well-known passage 
in Pothier, which has been supposed to have been sanctioned by the 
Court of Queen's Bench in Cooke v. Oxley, 3 T. R. 653, that in order 
to constitute a contract there must be the assent or concurrence of 
the two minds at the moment when the offer is accepted; and that if,, 
when an offer is made, and time is given to the other party to deter- 
mine whether he will accept or reject it, the proposer changes his 
mind before the time arrives, although no notice of the withdrawal , 
has been given to the other party, the option of accepting it is gone. 
The case of Cooke v. Oxley, 3 T. R. 653, does not appear to me to 
warrant the inference which has been drawn from it, or the supposi- 
tion that the judges ever intended to lay down such a doctrine. The 
declaration stated a proposal by the defendant to sell to the plaintiff 
266 hogsheads of sugar at a specific price, that the plaintiff desired 
time to agree to, or dissent from, the proposal till 4 in the afternoon, 
and that defendant agreed to give the time, and promised to sell 
and deliver if the plaintiff would agree to purchase and give notice 
thereof before 4 o'eloek. The Court arrested the judgment on the 
ground tliat there was no consideration for the defendant's agree- 
ment to wait till 4 o'eloek, nrid that the alleged promise to wait was 
nufhim par him. 

All that the judgment affirms is, that a party who gives time to 


another to accept or reject a proposal is not bound to wait till the 
time expires. And this is perfectly consistent with legal principles 
and with subsequent authorities, which have been supposed to con- 
flict with Cooke v. Oxley, 3 T. R. 653. It is clear that a unilateral 
promise is not binding, and that if the person who makes an offer 
revokes it before it has been accepted, which he is at liberty to do, 
the negotiation is at an end: see Routledge v. Grant, 4 Bing. 653. 
But in the absence of an intermediate revocation, a party who makes 
a proposal by letter to another is considered as repeating the offer 
every instant of time till the letter has reached its destination and 
the correspondent has had a reasonable time to answer it : Adams v. 
Lindsell, 1 B. & A. 681. "Common sense tells us," said Lord Cot- 
tenham, in Dunlop v. Higgins, 1 H. L. C. 381, "that transactions 
cannot go on without such a rule." It cannot make anv difference 
whether the negotiation is carried on by post, or by telegrRp h. or bv 
oral message . If the offer is not r etracted, it is in force as a con- 
tinuing offer till the time for accepting or rejecting it has arrived . 
But if it is retracted, there is an end of the proposal. Cooke v. 
Oxley, 3 T. E. 653, if decided the other way, would have negatived 
the right of the proposing party to revoke his offer. 

Taking this to be the effect of the decision in Cooke v. Oxley, 
3 T. R. 653, the doctrine of Pothier before adverted to, which is 
undoubtedly contrary to the spirit of English law, has never been 
affirmed in our Courts. Singularly enough, the very reasonable 
proposition that a revocation is nothing till it has been communi- 
cated to the other party, has not, until recently, been laid down, no 
case having apparently arisen to call for a decision upon the point. 
In America it was decided some years ago that "an offer cannot be 
withdrawn unless the withdrawal reaches the party to whom it is 
addressed before his letter of reply announcing the acceptance has 
been transmitted :" Tayloe v. Merchants' Fire Insurance Co., 9 How. 
Sup. Court Rep. 390; and in Byrne & Co. v. Leon Van Tienhoven & 
Co., 49 L. J. (C. P.) 316, my brother Lindley, in an elaborate judg- 
ment, adopted this view, and held that an uncommunicated revocation 
is, for all practical purposes and in point of law, no revocation at all. 

It follows, that as no notice of withdrawal of his offer to sell at 
40s., nett cash, was given by the defendant before the plaintiffs sold 
to Walker, they had a right to regard it as a continuing offer, and 
their acceptance of it made the contract, which was initiated by the 
proposal, complete and binding on both parties. 

My judgment must, therefore, be for the plaintiffs for 19001., but 
this amount is liable to be reduced by an arbitrator to be agreed on 
by the parties, or, if they cannot agree within a week, to be nomi- 
nated by me. If no arbitrator is appointed, or if the amount be not 
reduced, the judgment will stand for 19007. The costs of the arbitra- 
tion to be in the arbiter's discretion. 

Judgment for the plaintiffs. 



In the High Coukt of Justice, January 25, 26, 1876 
In the Coukt of Appeal, March 31, April 1, 1876 

[Rejpoy'ted in 2 Chancery Division, 463] 

On "Wednesday, the 10th of June, 1874, the defendant John Dodds 
signed and delivered to the plaintiff, George Dickinson, a memoran- 
dum, of which the material part was as follows : — 

I hereby agree to sell to Mr. George Dickinson the whole of the dwelling houses, 
garden ground, stabling, and outbuildings thereto belonging, situate at Croft, belong- 
ing to me, for the sum of 800Z. As witness my hand this tenth day of June, 1874. 

800L (Signed) John Dodds. 

P.S. — This offer to be left over until Friday, 9 o'clock, a.m. J.D. (the twelfth), 
12th June, 1874. (Signed) J. Dodds. 

The bill alleged that Dodds understood and intended that the 
plaintiff should have until Friday, 9 a.m., within which to determine 
whether he would or would not purchase, and that he should abso- 
lutely have, until that time, the refusal of the property at the price 
of 800?., and that the plaintiff in fact determined to accept the offer 
on the morning of Thursday, the 11th of June, but did not at once 
signify his acceptance to Dodds, believing that he had the power to 
accept it until 9 a.m. on the Friday. 

In the afternoon of the Thursday the plaintiff was informed by a 
Mr. Berry that Dodds had been offering or agreeing to sell the prop- 
erty to Thomas Allan, the other defendant. Thereupon the plaintiff, 
at about half-past seven in the evening, went to the house of Mrs. 
Burgess, the mother-in-law of Dodds, where he was then staying, and 
left with her a formal acceptance, in writing, of the offer to sell the 
property. According to the evidence of Mrs. Burgess, this document 
never in fact reached Dodds, she having forgotten to give it to him. 

On the following (Friday) morning, at about seven o'clock. Berry, 
who was acting as agent for Dickinson, found Dodds at the Darling- 
ton railway station, and handed to him a duplicate of the acceptance 
by Dickinson, and explained to Dodds its purport. He replied that it 
was too late, as he had sold the property. A few minutes later Dick- 
inson himself found Dodds entering a railway carriage, and handed 
him another duplicate of the notice of acceptance, but Dodds declined 
to receive it, saying, "You are too late. I have sold the pro]>erty." 

It appeared that on the day before, Thursday, the 11th of June, 
Dodd.s had signed a formal contract for the sale of the property to 
the dofondant Allan for 800/., and had received from him a deposit 
of 40/. 

The bill in this suit prayed that the defendant Dodds might be 
decreed specifically to perform the contract of the 10th of June, 1874; 
that he might be restrained from conveying the property to Allan; 
that Allan might be restrained from taking any such conveyance; 


that, if any such conveyance had been or should be made, Allan might 
be declared a trustee of the property for, and might be directed to 
convey the property to, the plaintiff; and for damages. 

The cause came on for hearing before Vice-Chaucellor Bacon on 
the 25th of January, 1876. 

Kay, Q. C, and Caldecott, for the plaintiff. 
Sivanston, Q. C, and Grossley, for the defendant Dodds. 
Jackson, Q. C, and Gazdar, for the defendant Allan, 
[Bacon, V. C, decreed specific performance in favor of the plain- 
tiff, on the ground that by the original offer or agreement with the 
plaintiff, and by relation back of the acceptance to the date of the 
offer, Dodds had lost the power to make a sale to Allan. From this 
decision the defendants appealed.] 

James, L.J., after referring to the document of the 10th of June, 
1847, continued: — 

The document, though beginning "I hereby agree to sell," was 
nothing but an offer, and was only intended to be an offer, for the 
plaintiff himself tells us that he required time to consider whether he 
would enter into an agreement or not. Unless both parties had then 
agreed, there was no concluded agreement then made ; it was in effect 
and substance only an offer to sell. The plaintiff, being minded not 
to complete the bargain at that time, added this memorandum: 
"This offer to be left over until Friday, 9 o'clock a.m., 12th June, 
1874." That shows it was only an offer. There was no consideration 
given for the undertaking or promise, to whatever extent it may be 
considered binding, to keep the property unsold until 9 o'clock on 
Friday morning; but apparently Dickinson was of opinion, and 
probably Dodds was of the same opinion, that he (Dodds) was 
bound by that promise, and could not in any way withdraw from it, 
or retract it, until 9 o'clock on Friday morning, and this probably 
explains a good deal of what afterwards took place. But it is clear 
settled law, on one of the clearest principles of law, that this promise, 
being a mere nudum pactum, was not binding, and that at any mo- 
ment before a complete acceptance by Dickinson of the offer, Dodds 
was as free as Dickinson himself. Well, that being the state of 
things, it is said that the only mode in which Dodds could assert that 
freedom was by actually and distinctly saying to Dickinson, "Now 
I withdraw my offer." It appears to me that there is neither prin- 
ciple nor authority for the proposition that there must be an express 
and actual withdrawal of the offer, or what is called a retraction. It 
must, to constitute a contract, appear that the two minds were at 
one at the same moment of time; that is, that there was an offer con- 
tinuing up to the time of the acceptance. If there was not such 
a continuing offer, then the acceptance comes to nothing. Of course 
it may well be that the one man is bound in some way to let the other 
know that his mind with regard to the offer has been changed; but 
in this case, beyond all question, the plaintiff knew that Dodds was no 


longer minded to sell the property to him as plainly and clearly as 
if Dodds had told him in so many words, "I withdraw the offer." 
This is evident from the plaintiff's own statements in the hill. 

The plaintiff says in effect that, having heard and knowing that 
Dodds was no longer minded -to sell to him, and that he was selling 
or had sold to some one else, thinking that he could not, in point of 
law, withdraw his offer, meaning to fix him to it, and endeavoring to 
bind him, "1 went to the house where he was lodging, and saw his 
mother-in-law, and left with her an acceptance of the offer, knowing 
all the while that he had entirely changed his mind. I got an agent 
to watch for him at 7 o'clock the next morning, and I went to the 
train just before 9 o'clock, in order that I might catch him and give 
him my notice of acceptance just before 9 o'clock, and when that 
occurred he told my agent, and he told me, you are too late, and he 
then threw back the paper." It is to my mind quite clear that, before 
there was any attempt at acceptance by the plaintiff, he was per- 
fectly well aware that Dodds had changed his mind, and that he had 
in fact agreed to sell the property to Allan. It is impossible, there- 
fore, to say there was ever that existence of the same mind between 
the two parties which is essential in point of law to the making of an 
agreement. I am of opinion, therefore, that the plaintiff has failed 
to prove that there was any binding contract between Dodds and 

Mellish, L.J. I am of the same opinion. The first question is, 
whether this document of the 10th of June, 1874, which was signed by 
Dodds, was an agreement to sell, or only an offer to sell, the property 
therein mentioned to Dickinson; and I am clearly of opinion 
that it was only an offer, although it is in the first part of it, inde- 
pendently of the postscript, worded as an agreement. I apprehend 
that, until acceptance, so that both parties are bound, even though 
an instrument is so worded as to express that both parties agree, it 
is in point of law only an offer, and, until both parties are bound, 
neither party is bound. It is not necessary that both parties should 
be bound within the Statute of Frauds, for, if one party makes an 
offer in writing, and the other accepts it verbally, that will be suffi- 
cient to bind the person who has signed the written document. But, 
if thfire be no agreement, cither verbally or in writing, then, until 
acceptance, it is in point of law an offer only, although worded as if 
it were an agreement. But it is hardly necessary to resort to that 
doctrine in tlie prosent case, because the postscript calls it an offer, 
and says, "Tbis offer to be left over until Friday, 9 o'clock a.m." 
W<11, tlieti, tbis being only ,'tn offer, the law says — and it is a per- 
fectly clear rule of laAV — that, nlthough it is said that the offer is to 
be left open until Friday morning at 9 o'clock, that did not bind 
Dodds. He was not in point of l;iw bound to bold the offer over until 
9 o'clock on Friday morning. TTr' not so bound either in law 
or in equity. Well, that being so, when, on the next day, he made an 


agreement with Allan to sell the property to him, I am not aware of 
any ground on which it can be said that contract with Allan was not 
as good and binding a contract as ever was made. Assuming Allan 
to have known (there is some dispute about it, and Allan does not 
admit that he knew of it, but I will assume that he did) that Dodds 
had made the offer to Dickinson, and had given him till Friday 
morning at 9 o'clock to accept it, still, in point of law, that could not 
prevent Allan from making a more favorable offer than Dickinson, 
and entering at once into a binding agreement with Dodds. 

Then Dickinson is informed by Berry that the property has been 
sold by Dodds to Allan. Berry does not tell us from whom he heard 
it, but he says that he did hear it, that he knew it, and that he in- 
formed Dickinson of it. ISTow, stopping there, the question which 
arises is this : If an offer has been made for the sale of property, and, 
before that offer is accepted, the person who has made the offer enters 
into a binding agreement to sell the property to somebody else, and 
the person to whom the offer was first made receives notice in some 
way that the property has been sold to another person, can he after 
that make a binding contract by the acceptance of the offer? I am 
of opinion that he cannot. The law may be right or wrong in saying 
that a person wdio has given to another a certain time within which to 
accept an offer is not bound by his promise to give that time; but. 
if he is not bound by that promise, and may still sell the property to 
some one else, and if it be the law that, in order to make a contract, 
the two minds must be in agreement at some one time, that is, at the 
time of the acceptance, how is it possible that when the person to 
whom the offer has been made knows that the person who has made 
the offer has sold the property to some one else, and that, in fact, he 
has not remained in the same mind to sell it to him, he can be at 
liberty to accept the offer and thereby make a binding contract? It 
seems to me that would be simply absurd. If a man makes an offer 
to sell a particular horse in his stable, and says, "I will give you until 
the day after to-morrow to accept the offer," and the next day goes 
and sells the horse to somebody else, and receives the purchase-money 
from him, can the person to whom the offer was originally made then 
■come and say, "I accept," so as to make a binding contract, and so as 
to be entitled to recover damages for the non-delivery of the horse? 
If the rule of law is that a mere offer to sell property, which can be 
withdrawn at any time, and which is made dependent on the accept- 
ance of the person to whom it is made, is a mere nudum pactum, how 
is it possible that the person to whom the offer has been made can, 
by acceptance, make a binding contract after he knows that the 
person who has made the offer has sold the property to some one else ? 
It is admitted law that, if a man who makes an offer dies, the offer 
cannot be accepted after he is dead,^ and parting with the property 

1 The Palo Alto, 2 Ware, 343, 359; Pratt v. Baptist Soc, 93 111. 475: Beach v. First 
M. E. Church, 96 111. 179; Wallace v. Townsend, 43 Ohio St. 537; Phipps v. Jones, 


has very much the same effect as the death o£ the owner, for it makes 
the performance of the offer impossible. I am clearly of opinion 
that, just as, when a man who has made an offer dies before it is 
accepted, it is impossible that it can be accepted, so when once the 
person to whom the offer was made knows that the property has been 
sold to some one else, it is too late for him to accept the offer, and on 
that ground I am clearly of opinion that there was no binding con- 
tract for the sale of this property by Dodds to Dickinson, and even 
if there had been, it seems to me that the sale of the property to 
Allan was first in point of time. However, it is not necessary to 
consider, if there had been two binding contracts, which of them 
would be entitled to priority in equity, because there is no binding 
contract between Dodds and Dickinson.^ 


SuPEEME Court of the United States, October Term, 1875 

{^Reported in 92 United States, 73] 

Appeal from the Court of Claims. 

Henry B. Ste. Marie filed his petition in the Court of Claims to 
recover the sum of $15,000, being the balance alleged to be due him 
of the reward of $25,000 offered by the Secretary of War, on the 
20th of April, 1865, for the apprehension of John H. Surratt, one 
of Booth's alleged accomplices in the murder of President Lincoln. 

The court below found the facts as follows : — 

1. On the 20th April, 1865, the Secretary of War issued, and 
caused to be published in the public newspapers and otherwise, a 
proclamation, whereby he announced that there would be paid by the 
War Department "for the apprehension of John H. Surratt, one of 
Booth's accomplices," $25,000 rcAvard, and also that "liberal re- 
wards will be paid for any information that shall conduce to the 
arrest of either of the above-named criminals or their accomplices;" 
and such proclamation was not limited in terms to any specific 
period, and it was signed "Edwin M. Stanton, Secretary of War." 
On the 14th ISTovomber, 1865, the President caused to be published 
his order revoking the reward offered for the arrest of Jo hn H. Sur- 
ratt. 13 Stilt. 778. " 

20 Pa. 200 Ilolfonstcin's Est., 77 Pa. 328; Foust v. Board of Publication, 8 Lea, 555, 
ace. This nilf is tho samo in tho civil law. Val/iry, Contrats par Corrospondancc, 
5 204; Winfl.sfhcid. Pandc-ktcnrccht, §307 (2). The 'RurKcrliches Gosctzbuch, how- 
ever, hmt chanped the nile in f'.ermany. Tt provides, § 153, "A contract is not pre- 
vcntefl from cominK into existence by the death or incapacit.v of the offerer before 
accfptance, unless the offerer has expressed a contrary intention." 

' BatrKnllay, .T. A., concurred, and the bill was dismissed with costs. Coleman v. 
ApplcRarth, OH Md. 21, was very similar in its facts to Dickinson v. Dodds, and that 
case was fit<'fl and followed. Tf) the same effect arc Watters v. Lincoln, 29 S. Dak. 98; 
Frank v. Stratford-Hancock, 13 Wyo. 37. Compare Shcrley v. Peehl, 84 Wis. 46. 52. 


2. In April, 1866, John H. Surratt was a zouave in tlie military 
service of the Papal government, and the claimant was also a zouave 
in the same service. During that month he communicated to Mr. 
King, the American minister at Rome, the fact that he had dis- 
covered and identified Surratt, who had confessed to him his par- 
ticipation in the plot against the life of President Lincoln. The 
claimant also subsequently communicated further information to the 
same eifect, and kept watch, at the request of the American minister, 
over Surratt. Thereupon certain diplomatic correspondence passed 
between the government of the United States and the Papal govern- 
ment relative to the arrest and extradition of Surratt; and on the 
6th ]^^ovember, 1866, the Papal government, at the reqiiest of the 
United States, ordered the arrest of Surratt, and that he be brought 
to Rome, he then being at Yeroli. Under this order of the Papal 
government, Surratt was arrested; but, at the moment of leaving 
prison at Veroli, he escaped from the guard having him in custody, 
and, crossing the frontier of the Papal territory, embarked at Naples, 
and escaped to Alexandria in Egypt. Immediately after his escape 
and both before and after his embarkation at ISTaples, the American 
minister at Rome, being informed of the escape by the Papal govern- 
ment, took measures to trace and rearrest him, which was done in 
Alexandria. From that place he was subsequently conveyed by the 
American government to the United States; but the American min- 
ister, having previously procured the discharge of the claimant from 
the Papal military service, sent him forward to Alexandria to iden- 
tify Surratt. At the time of the first interview between the claimant 
and the American minister, and at all subsequent times until the final 
capture of Surratt, they were ignorant of the fact that the reward 
offered by the Secretary of "War for his arrest had been revoked by 
the President. The discovery and arrest of Surratt were due entirely 
to the disclosures made by the claimant to the American minister at 
Rome; but the arrest was not made by the claimant, either at Veroli, 
or subsequently at Alexandria. 

3. There has been paid to the claimant by the defendants, under 
the act of 27th July, 1868 (15 Stat. 234, sect. 3), the sum of $10,000. 
Such payment was made by a draft on the treasury payable to the 
order of the claimant, which draft was by him duly indorsed. 

The Court found as a matter of law that the claimant's service, as 
set forth in the foregoing finding, did not constitute an arrest of Sur- 
ratt within the meaning of the proclamation, but was merely the 
giving of information which conduced to the arrest. For such infor- 
mation the remuneration allowed to him under the act of Congress 
was a full satisfaction, and discharges the defendants from all lia- 

The petition was dismissed accordingly : whereupon an appeal was 
taken to this Court. 

Ste. Marie having died pendente lite, his executor was substituted 
in his stead. 


Mr. D. B. Meany and Mr. F. Carroll Brewster, for the appellant. 

Mr. Assistant Attorney-General Edwin B. Smith, contra. 

Mr. Justice Strong delivered the opinion o£ the Court. 

We agree with the Court of Claims, that the service rendered by 
the plaintiff's testator was, not the apprehension of John H. Surratt, 
for which the War Department had offered a reward of $25,000, but 
giving information that conduced to the arrest. These are quite dis- 
tinct things, though one may have been a consequence of the other. 
The proclamation of the Secretary of War treated them as different ; 
and, while a reward of $25,000 was offered for the apprehension, the 
offer for information was only a "liberal reward." The findings of 
the Court of Claims also exhibit a clear distinction between making 
the arrest and giving the information that led to it. It is found as 
a fact, that the arrest was not made by the claimant, though the dis- 
covery and arrest were due entirely to the disclosures made by him. 
The plain meaning of this is, that Surratt's apprehension was a con- 
sequence of the disclosures made. But the consequences of a man's 
act are not his acts. Between the consequence and the disclosure 
that leads to it there may be, and in this case there were, intermedi- 
ate agencies. Other persons than the claimant made the arrest, — 
persons who were not his agents, and who themselves were entitled to 
the proffered reward for his arrest, if any persons were. We think, 
therefore, that at most the claimant was entitled to the "liberal re- 
ward" promised for information conducing to the arrest; and that 
reward he has received. 

But, if this were not so, the judgment given by the Court of Claims 
is correct. 

The offer of a reward for the apprehension of Surratt was revoked 
on the twenty-fourth day of November, 1865 ; and notice of the revo- 
cation was published. It is not to be doubted that the offer was 
revocable at any time before it was accepted, and before anything 
had been done in reliance upon it . There was no contract until its 
terms were complied with. Like any other offer of a contract, it 
might, therefore, be withdra wn before rights had accrued under it_ ; 
and it was withdrawn through the same channel in which it was 
made. The same notoriety was given to the revocation that was 
given to the offer; and the findings of fact do not show that any in- 
formation was given by the claimant, or that he did anything to 
entitle him to the reward offered, until five months after the offer had 
been withdrawn. True, it is found that tlion, and at all times until 
the arrest was actually made, he was ignorant of the withdrawal; but 
that is an immaterial fact. The offer of tlie reward not having been 
made to him directly, but by means of a pu])lished proclamation, he 
should have known that it could be revoked iii tlie manner in Avhich 
it was made. Jvdr/mrnt affirmed.^ 

* See also Hudson Real Estate Co. v. Tower, 161 Mass. 10. 

/..3 V -f "^-^^ -'^^^"'^ 


^ U^A^^^^ir*^ 

BIGGERS ET. AL. V. OWEN et al. ?» ^ "^ Jk^rn/^^*^ 

Georgia Supreme Court, October Term, 1887 £> /? ^ V ^ 

\Eeyorted in 79 Ga. 658.] P-7 ^ 

Blandford, Justice. McMichael and Owens brought their action 
of assumpsit against B. A. Biggers, P. J. Biggers, Jr., and T. J. 
Pearce (the plaintiff in error here) in the city court of Columbus, to 
recover a reward of $500, which they alleged had been offered by the 
defendants. The offer of reward was printed as an advertisement in 
a newspaper in Columbus, as follows : — 

"We will pay $500, the above reward, for the delivery to the she riff of Muscogee 
County of the party or parties, with e vidence to convict, who administered the poison 
in the meal which proved fatal to J . w . niggers and J . V. Burgess and wife on the 11th 
of November." 

Signed B. A. Biggebs, P. J. Biggers, Jr., T. J. Pearce. 

Upon the trial of the case, the jury rendered a verdict in favor of 
the plaintiffs for the amount of the reward, $500. 

It appeared from the evidence that when this reward was offered, 
the plaintiffs arrested a certain woman, and delivered her to the 
sheriff of Muscogee County; that a committing trial was had before 
a justice of the peace and the woman discharged for the want of 
sufficient evidence to commit. The reward was then withdrawn; but 
McMichael testifies that after it was withdrawn, Pearce told him to 
go on, that he would pay him w^hat his services were worth. After 
this, a warrant was sued out for the same woman by Mr. Pearce. 
McMichael, being a bailiff in the Court, executed the warrant and 
arrested her. She was indicted for the poisoning, was tried and con- 
victed. The judge in the Court below charged the jury that if this 
reward was offered, and the plaintiffs thereupon furnished evidence 
going to show that this woman was guilty of the crime, they were 
entitled to recover the amount of the reward. The Court was re- 
quested to charge that if, after this reward was offered, it was with- 
drawn before the plaintiffs performed the services contemplated by 
the reward, that no recovery could be had, under the declaration in 
this case. The Court refused to give this in charge as requested, 
but charged to the contrary. 

We think the Court erred in declining to charge as requested, and 
in charging as he did . An offer of reward is nothing more than a 
proposition; it is an offer to the public, and until some one com- 
plies with the terms or conditions of that offer, it may be withdrawn. 
This is Avell-settled law, as to which there can be no dispute, and 
counsel in this case did not contend otherwise. When this offer of 
reward was withdrawn, and Pearce afterwards told McMichael to go 
on with the case, that he would pay for his services, Pearce did 
not thereby become liable to pay him the amount of this reward, but 
only to pay him for the value of his services. And this is not an 


action upon a quantum meruit to recover tlie value of such services; 
but is an action to recover specifically the amount of this reward, 
$500, There was no evidence introduced in the Court below to show 
what the value of the services was, and the record does not distinctly 
show w^at services were performed. 

The Court having erred in failing to change as requested, and in 
charging the jury as above set out, we consider it unnecessary to say 
more about the case; and we therefore reverse the judgment. 

Judgment reversed. 



Supreme Judicial Court of Maine, October 27, 1917 
[Reported in 116 Maine, 399] 

Cornish, C.J.^ The defendant, Mrs. Sarah D. P. Hodgkin, on the 
eighth day of Pebruary, 1915, was the owner of certain real estate, 
her home farm, situated in the outskirts of Lewiston. She was a 
widow and was living alone. She was the mother of six adult chil- 
dren, five sons, one of whom, Walter, is the co-defendant, and one 
daughter, who is the co-plaintiff. The plaintiffs were then re- 
siding in Independence, Missouri. Many letters had passed be- 
tween mother and daughter concerning the daughter and her hus- 
band returning to the old home and taking care of the mother, and 
finally, on February 8, 1915, the mother sent a letter to the daughter 
and her husband which is the foundation of this bill in equity. In 
this letter she made a definite proposal, the substance of which was 
that if the Brackenburys would move to Lewiston and maintain a nd 
care for M rs. Hodgkin on the home place during her life , and pay 
the moving expenses, they were to have the use and income of the 
premises, together with the use of the household goods, with certain 
exceptions, Mrs. Hodgkin to have what rooms she might need. The 
letter closed, by way of postscript, with the words: "you to have 
the place when I have passed away." 

Relying upon this offer, which was neither withdrawn nor modi- 
fied, and in acceptance thereof, the plaiutiiTs moved from Missouri 
late in April, 1915, went upon the premises described and entered 
upon the performance of the contract. Trouble developed after a 
few weeks and the relations between the parties grew most disagree- 
able. The mother brought two snits against her son-in-law on 
trifling matters and finally ordered the plaintiffs from the place, but 
they refused to leave. Then on November 7, 1916, she executed and 
delivered to her son, Walter C. Hodgkin, a deed of the premises, 
reserving a life estate in herself, Walter, however, was not a bona 
* A portion of the opinion is omitted. 


fide purchaser for value without notice but took the deed with full 
knowledge of the agreement between the parties and for the sole 
purpose of evicting the plaintiffs : On the very day the deed was 
executed he served a notice to quit upon Mr. Brackenbury, as pre- 
liminary to an action of forcible entry and detainer which was 
brought on JSTovember 13, 1916. This bill in equity was brought by 
the plaintiffs to secure a reconveyance of the farm from Walter to 
his mother, to restrain and enjoin Walter from further prosecuting 
his action of forcible entry and detainer and to obtain an adjudi- 
cation that the mother holds the legal title impressed with a trust in 
favor of the plaintiffs in accordance with their contract. 

The sitting Justice made an elaborate and carefully considered 
finding of facts and signed a decree, sustaining the bill with costs 
against Walter C. Hodgkin and granting the relief prayed for. The 
case is before the Law Court on the defendants' appeal from this 

Four main issues are raised. 

1. As to the completion and existence of a valid contract. 

A legal and binding contract is clearly proven. The offer on the 
part of the mother was in writing and its terms cannot successfully be 
disputed. There was no need that it be accepted in words nor that a 
counter promise on the part of the plaintiffs be made. The offer 
was the basis, not of a bilateral contract, requiring a reciprocal 
promise, a promise for a promise, but of a unilateral contract re- 
quiring an act for a promise. /'In the latter case the only acceptance 
of the offer that is necessary is the performance of the act. In 
other words the promise becomes binding when the act is performed." 
6 E. C. L., 607. This is elementary law. 

The plaintiffs here accepted the offer by moving from Missouri to 
the mother's farm in Lewiston and entering up on the performance of 
the specified facts, and they have continued performance since that" 
time so far as they have been permitted by the mother to do so. 
The existence of a completed and valid contract is clear. ^ 

' By express provision of the codes in many European countries, an offer is irrev- 
ocable until the person addressed has had a reasonable time to answer it. See Valery, 
Contrats par Correspondance, p. 167. In the absence of such legislation the weight 
of opinion in the civil law is that an offer may be revoked, ibid. There has been much 
discussion and difference of opinion, however, as to the liability of an offerer who 
revoked his offer for such damage as the person addressed may have incurred by 
acting in reliance on the offer. The theory of the offerer's liability was'^first carefully 
elaborated by von Ihering, Jahrbiicher fiir Dogmatick, IV. p. 1 seq., under the head- 
ing of cvlpa in contrahendo. For the varying views of other writers, see Windscheid, 
Lehrbuch des Pandektenrechts, II, §307, n. 8 (8th ed.); Valery, § 185. 


C. — Acceptance 


In the Exchequer, January 20, 1864 

\_Reported in 2 Hurlstone & Coltman, 906] 

Declaration : for that it was agreed between the plaintiff and 
the defendants, to wit, at Liverpool, that the plaintiff should sell to 
the defendants, and the defendants buy of the plaintiff, certain goods, 
to wit, 125 bales of Surat cotton, guaranteed middling fair merchant's 
Dhollerah, to arrive ex "Peerless" from Bombay ; and that the cotton 
should be taken from the quay, and that the defendants would pay 
the plaintiff for the same at a certain rate, to wit, at the rate oi 11\d. 
per pound, within a certain time then agreed upon after the arrival 
of the said goods in England. Averments : that the said goods did 
arrive by the said ship from Bombay in England, to wit, at Liverpool, 
and the plaintiff was then and there ready and willing and offered 
to deliver the said goods to the defendants, &c. Breach : that the 
defendants refused to accept the said goods or pay the plaintiff for 

Plea : that the said ship mentioned in the said agreement was 
meant and intended by the defendants to be the ship called the 
"Peerless," which sailed from Bombay, to wit, in October; and that 
the plaintiff was not ready and willing and did not offer to deliver to 
the defendants any bales of cotton which arrived by the last-men- 
tioned ship, but instead thereof was only ready and willing and 
offered to deliver to the defendants 125 bales of Surat cotton which 
arrived by another and different ship, which was also called the 
"Peerless," and Avhich sailed from Bombay, to wit, in December. 

Demurrer, and joinder therein. 

'Milward, in support of the demurrer. The contract was for the 
sale of a number of bales of cotton of a particular description, which 
the plaintiff was ready to deliver. It is immaterial by what ship 
the cotton was to arrive, so that it was a ship called the " Peerless," 
The words " to arrive ex 'Peerless' " only mean that, if the vessel 
Ib lost on the voyage, the contract is to be at an end. [Pollock, C. B. 
It would be a question for the jury whether both parties meant 
the same ship called the "Peerless."] That would be so if the con- 
tract was for the sale of a ship called the "Peerless;" but it is for 
the sale of cotton on board a ship of that name. [Pollock, C. B. 
The defendant only bought that cotton which was to arrive by a par- 
tinular ship. It may as Avell be saiM, that, if there is a contract for 
the purchase of certain goods in warehouse A., that is satisfied by the 
delivery of goods of the same description in warehouse B.] In that 


case there would be goods in both warehouses ; here it does not appear 
that the plaintiff had any goods on board the other ''Peerless." 
[Martin^ B. It is imposing on the defendant a contract different 
from that which he entered into. Pollock, C. B. It is like a con- 
tract for the purchase of wine coming from a particular estate in 
France or Spain, where there are two estates of that name.] The de- 
fendant has no right to contradict by parol evidence a written con- 
tract good upon the face of it. He does not impute misrepresenta- 
tion or fraud, but only says that he fancied the ship was a different 
one. Intention is of no avail, unless stated at the time of the 
contract. [Pollock, C. B. One vessel sailed in October and the 
other in December.] The time of sailing is no part of the contract. 

Mellish (Cohen with him), in support of the plea. There is 
nothing on the face of the contract to show that any particular ship 
called the "Peerless" was meant ; but the moment it appears that two 
ships called the "Peerless" were about to sail from Bombay, there 
is a latent ambiguity, and parol evidence may be given for the pur- 
pose of showing that the defendant meant one "Peerless" and the 
plaintiff another. That being so, there was no consensus ad idem, 
and therefore no binding contract. [He was then stopped by the 

Pee Cukiam. There must be judgment for the defendants. 

Judgment for the defendants. 


In the Privy Council, on Appeal from the Supreme Court of 
ISTew South Wales, December 6, 9, 1899. 

[Reported in [1900] Appeal Cases, 176] 

The judgment of their Lordships was delivered by 

Lord Macnaghten. Mr. Falck, who was plaintiff in the action 
and is now the appellant, was a shipowner residing in Norway; 
Williams, the respondent, was a shipbroker in Sydney, New South 

Through one Buch, who was a shipbroker and chartering agent 
at Stavanger, in Norway, Falck did a good deal of business with 

Buch and Williams corresponded by means of a telegraphic code, 
or rather a combination of two codes arranged between them. It was 
owing to a misunderstanding of a code message relating to one of 
Falck's vessels called the "Semiramis" that the difficulty arose which 
led to the present litigation. 

Falck sued Williams for breach of a contract of affreightment to 
load the "Semiramis" with a cargo of copra in Fiji for delivery in 


the United Kingdom or some port in Europe. Williams understood 
the proposal made to him to be a proposal for carriage of a cargo 
of shale to be loaded at Sydney and delivered at Barcelona, and he 
accepted the proposal under this impression. It was conceded that 
both parties acted in good faith, and that the mistake was unin- 
tentional, whoever might be to blame for the misunderstanding. 

The case came on for trial before Owen, J., and a jury. A verdict 
was taken by consent for the defendant. . The amount of damages, 
if damages were recoverable, was fixed by agreement. All other 
questions were reserved for the Full Court. The Full Court dis- 
missed the action with costs. 

The first question is, Was there a contract? If there was no con- 
tract in fact, Was the proposal made on Falck's behalf so clear and 
unambiguous that Williams cannot be heard to say that he misunder- 
stood it? If that question be answered in the negative, all other 
questions become immaterial. 

The negotiation in reference to the "Semiramis" began apparently 
on February 7, 1895, by a telegram from Williams to Buch. Williams 
offered to load the "Semiramis" with shale at Sydney Wharf for 
Barcelona "at freight per ton dead weight 27s." Buch replied by 
telegram, dated February 9, asking 2250Z, as a lump sum for freight. 
On February 12 Williams offered 27s. Qd. "per ton dead weight." 
On the 13th Buch offered to accept that sum on the ship's dead weight 
"capacity." By telegram on the 14th Williams explained that the 
rate offered was "per ton dead weight discharged." On the 15th 
Buch replied that the freight was to be payable "on guaranteed 
dead weight capacity," or to be a lump sum of 2100?., adding a word 
interpreted to mean "Do your best to obtain our figures, vessel will 
not accept less." Then, on the 16th, Williams asked what was the 
guaranteed dead weight capacity of the ship. The answer on the 
17th was "1550" tons. On the 18th Williams telegraphed, "Shippers 
will not pay more than they have already offered at per ton dead 
weight discharged." He also offered in the same telegram to engage 
a vessel to load shale at Sydney for Liverpool, at freight per ton dead 
weight 23s. 

Having had no reply to his telegram of the 18th, Williams, on the 
2l8t, telegraphed to Buch, "Why do you not reply to our last tele- 
graph? It is very important that we have immediate reply." 
And he went on to offer to engage a vessel to load copru at two 
ports in the Fiji Islands, deliverable in the United Kingdom, or some 
port on the Continent, at 47s, 6rZ. per ton cargo delivered. 

'I'bcii wc come to the disputed message. On February 22 Buch 
telegraphed as follows: "Slialc Coj)yriglit Somiramis Begloom 
Estcortf! Sultana Brilliant Argentina Bronchil." That message 
with the code words interpreted runs thus: "Shale. Your rate is too 
low, impossible to work business at yonr figures. Scmiramis. Have 
closed in accordance with your order. Confirm. Two ports Fiji 


Islands. Sultana. Brilliant. Argentina. Keep a good look-out 
for business for this vessel and wire us when anything good offers." 

On the following day Williams telegraphed, "Semiramis, we con- 
firm charter." And, in accordance with his reading of the telegram 
of February 22, he at once proceeded in the name and on behalf of 
Falck to charter the "Semiramis" to carry a cargo of shale from 
Sydney to Barcelona. So the controversy arose. And after mutual 
explanations or mutual recrimination the action was brought. 

Now, it is impossible to contend that there was a contract in fact. 
Obviously the parties were not at one. Obviously the acceptance by 
Williams as he meant it to be understood had no connection with 
or reference to the proposal which Buch intended to make and 
thought he was making. 

But then, said the learned counsel for the appellant, the message 
of February 22 was too plain to be misread. An intelligent child 
would have understood it. Business cannot go on if men of business 
are allowed to shelter themselves under such a plea. Their Lord- 
ships are unable to take that view of the disputed message. When 
the message was sent there were three matters under consideration. 
There was the Barcelona charter for the "Semiramis," there was the 
offer for a Liverpool charter, and there was the Fiji proposal. • Of 
these the most important and the most pressing was the Barcelona 
charter. True, the negotiation was at a deadlock for the moment, but 
the parties were so nearly at one that it was only reasonable to expect 
that they would come to terms, and it is to be observed that during 
the negotiation, which seems to have been unusually protracted, the 
"Semiramis" was never once mentioned in connection with any other 
voyage. Whether the appellant's view or the respondent's view 
be correct, the telegram of February 22 seems to deal with all 
three points. The appellant says that the first two words of the code 
message deal compendiously with both the Barcelona charter and 
the Liverpool proposal, and that the next three words deal with the 
"Semiramis," the last word of the three indicating clearly that 
she was to be sent to Fiji. The respondent says that the first two 
words refer to the Liverpool proposal, the second two to the Bar- 
celona charter, and that the fifth word, "estcorte," is to be read with 
what follows. Indeed, the whole controversy when the matter is 
threshed out seems to be narrowed down to this question — "Is the 
word "estcorte" to be read with what has gone before or with what 
follows? In their Lordships' opinion there is no conclusive reason 
pointing one way or the other. The fault lay with the appellant's 
agent. If he had spent a few more shillings on his message, if he had 
even arranged the words he used more carefully, if he had only 
put the word "estcorte" before the word "begloom" instead of after 
it, there would have been no difficulty. It is not for their Lordships 
to determine what is the true construction of Buch's telegram. 
It was the duty of the appellant as plaintiff to make out that the 


construction whicli he put upon it was the true one. In that he must 
fail if the message was ambiguous, as their Lordships hold it to be. 
If the respondent had been maintaining his construction as plaintiff 
he would equally have failed. 

Their Lordships will therefore humbly advise Her Majesty that 
this appeal must be dismissed. The appellant will pay the costs 
of the appeal. 


SuPEEME Judicial Couet of Massachusetts, March 23-June 21, 


[^Reported in 147 Massachusetts, 304] 

Holmes, J. : This is a bill specifically to enforce a covenant to 
sell to the plaintiff "the farm situated in that part of Mount Desert 
Island called Pretty Marsh, and consisting of between two hundred 
and sixty and two hundred and seventy acres, and standing in the 
name of Benjamin Hodgdon, for the sum of fifteen hundred dollars 
cash, at any time within thirty days from the date hereof." The 
instrument is dated January 15, 1887, and is signed by the defendant 
Hodgdon, but not by his wife. The defendant Clara E. Allen is a 
subsequent grantee of the premises, and the remaining defendant, 
"William H. Allen, is her husband. The judge who heard the wit- 
nesses made a decree for the plaintiff, and, the evidence having been 
reported, the defendants appealed. 

Giving to the finding of the judge the weight which it must have, 
we think the evidence must be taken to establish the following facts. 
The instrument was sealed by Hodgdon, and has not been altered. 
The plaintiff expressed his election to purchase within the thirty 
days allowed. There was evidence of a message to that effect having 
been left at Hodgdon's house within ten days. It appears that a 
blank deed to the plaintiff and another was left there about the same 
time, and there was evidence that a message was sent to Hodgdon 
to execute it if he found it correct. There was also evidence that 
the deed was returned unexecuted, with the message that Mrs. 
Hodgdon refused to sign it, and with no other objection in the 
first instance. These facts warranted a finding that sending the deed 
implif'fl, and was understood to imply, notice that the plaintiff in- 
tended to buy, at least if the deed corresponded to the contract (see 
Warner ?;. Willington, 3 Drew. 523, 533), and perhaps whether it cor- 
rcsporifled or not, as the message, even as testified to by Hodgdon, 
imported a willingness to correct mistakes. 

The defendants take the ground that this deed did not correspond 
to the contract, because the deed included a mountain lot which is 
alleged not to be included in the land described by the contract. The 


question whether that lot is included in the contract is also im- 
portant, of course, in deciding what land, if any, the defendant 
Allen should be required to convey. The words used must be con- 
strued in the light of the circumstances, and thus construed they 
might well have been found to import, and to have warranted the 
plaintiff in understanding that they imported, all the defendant 
Hodgdou's land in Mount Desert. 

Hodgdon owned only three lots in Mount Desert. Two, of seventy 
and eighty acres respectively, are admitted to be embraced in the 
contract. The mountain lot, seemingly then regarded as of little or 
no value, and said to contain sixty acres, brings the total up to two 
hundred and ten acres. The contract was for between two hundred 
and sixty and two hundred and seventy acres. Hodgdon says that 
the plaintiff was introduced to him by a letter saying that he wished 
the refusal of the property down East for thirty days, evidently 
suggesting a bargain for the whole. The plaintiff testifies that, 
before signing, Hodgdon said that he had not so much land as was 
mentioned, but had so many acres in one lot, so many in another, 
and so many in a third, amounting in all to two hundred and fifteen 
acres, and that was all he owned; that the plaintiff said it did not 
make any difference whether it was two hundred and fifteen, or two 
hundred and sixty, or two hundred and seventy acres; and that 
thereupon Hodgdon signed. Hodgdon acquired all the land by one 
deed, had previously offered the whole land as two hundred and sixty 
acres to others, subsequently made a deed of the three lots to the 
plaintiff, which was not delivered, and conveyed them by a similar 
deed to the defendant Mrs. Allen. 

It is suggested that Hodgdon understood that the plaintiff was to 
pay him $1,500 for the land, subject to a mortgage. But the agree- 
ment contains no such qualification, and must be construed as an 
agreement to convey a good title free from incumbrances, which 
there is evidence tending to show was the meaning of the parties. 
Linton v. Hichborn, 126 Mass. 32. If, without the plaintiff's 
knowledge, Hodgdon did understand the transaction to be different 
from that which his words plainly expressed, it is immaterial, as his 
obligations must be measured by his overt acts. Western Railroad 
V. Babcock, 6 Met. 346, 352; O'Donnell v. Clinton, 145 Mass. 461, 

1 See also Baines v. Woodlall, 6 C. B. N. s. 657; Smith v. Hughes, L. R. 6 Q. B. 
607; Ireland v. Livingston, L. R. 5 H. L. 395; Preston i;. Luck, 27 Ch. D. 497; Van 
Praagh v. Everidge, [1902] 2 Ch. 266; Thompson v. Ray, 46 Ala. 224; Wood v. Du- 
yal, 100 la. 724; Lull v. Anamosa Nat. Bank 110 la. 537; Wood v. AUen, 111 la. 97 
Miller i;. Lord, 11 Pick, 11; Stoddard ?;. Ham, 129 Mass. 383; Tallant v. Stedman, 176 
Mass. 460, 466; Home F. I. Co.i). Bredehoft, 49 Neb. 152; Phillip v. Gallant, 62 N. Y. 
256; Neufville v. Stuart. Hill Esq. (S.C.) 159; J. A. Coates & Son v. Buck, 93 Wis. 
128. But see Green v. Bateman, 2 Wood & M. 359: Lamar Elevator Co. v. Crad- 
dock, 5 Col. App. 203; Hartford, &c. R. R. Co. v. Jackson, 24 Conn. 514; Rowland 
New York, &c. R. R. Co. 61 Conn. 103; Brant v. Gallup, 5 111. App. 262; Clav v. 
Rickets. 662; la. 363; Hogue v. Mackey, 44 Kan. 277; Frazer d. Small, 59 Hun. 619. 


The plaintiff, although he signified his election to take the land 
within thirty days, did not pay or tender the money within that 
time. But there is evidence that Hodgdon was responsible for this. 
At or soon after the time when word was sent that Mrs. Hodgdon 
refused to sign, a demand or request was made that Mrs. Hodgdon 
should have three acres out of one of the other lots as a consideration 
for her signing the deed. Of course, under the contract the plaintiff 
had a right to call upon Mr. Hodgdon to give a good title to the 
whole, but he was disposed to yield something. A discussion ensued, 
of course on the footing that the plaintiff was desirous of making the 
purchase, which of itself was evidence that the defendant Hodgdon 
had notice of the fact, and this was prolonged beyond the thirty 
days. When the parties came to terms, a new deed was prepared and 
tendered, was executed by the Hodgdons, and was handed to a Mr. 
Chapin, who had acted as a go-between. But later in the same 
day Chapin was ordered not to deliver the deed, and the bargain 
with the plaintiff was repudiated. There is no dispute that the 
plaintiff was ready to pay for the land at any time when he could 
get a conveyance. 

Afterwards Hodgdon conveyed to Mrs. Allen, Mrs. Hodgdon re- 
leasing dower. But Mrs. Allen had full notice of the agreement 
with the plaintiff before the conveyance to her, and before any 
agreement was made with her or her husband, and, although in- 
formed that the thirty days had gone by, she had notice that the 
plaintiff was expecting a conveyance, and that Hodgdon might have 
trouble by reason of his refusal to convey to the plaintiff. Connihan 
V. Thompson, 111 Mass. 270; Hansard v. Hardy, 18 Ves. 455, 462. 
Mr. Allen was asked whether he knew that the plaintiff had sued 
Hodgdon for damages before the purchase. This must have meant 
before the final conveyance to Mrs. Allen, as Mrs. Allen was party to 
getting the deed back from Mr. Chapin, and had notice of the plain- 
tiff's rights at that time, before any suit was begun. But the evidence 
was excluded, and Mr. Allen's answer is not properly before us. 
He did not suggest that he was led by his knowledge to assume that 
the plaintiff would not seek specific performance, and must be taken 
to have known that the plaintiff still had the right to do so. Connihan 
V. Thompson, hhi supra. 

The defendant Hodgdon's undertaking not having been a mere 
offnr, but a conditional covenant to sell, bound him irrevocably to 
sell in case the plaintiff should elect to buy, and should pay the 
price within thirty days. The usual doctrine as to conditions applies 
to siK'h a covenant, and as the covenantor by his own conduct caused 
a failure to comply with the condition in respect of time, he Avaived 
it to that extent. And upon the same principle he exonerated the 
plaintiff from making any tender when the new terms had been 
atrrcfd npon, ])y wholly repudiating the contract. Carpenter v. 
Holcomb, 105 Mass. 280, 282; Ballon v. Billings, 136 Mass. 307; 


Gormley v. Kyle, 137 Mass. 189; Lowe v. Harwood, 139 Mass, 133, 
136. If it be true, as testified for the defendant, that he also objected 
to signing a deed conveying the mountain lot, this was a further 
excuse for the delay. Galvin v. Collins, 128 Mass. 525, 527. 

Decree affirmed.^ 



Supreme Judicial Court of Maine^ August 24, 1887 

[Reported in 79 Maine, 493] 

. Emery, J. On report. The defendant telegraph company was 
engaged in the business of transmitting messages by telegraph 
between Bangor and Philadelphia, and other points. The plaintiff, 
a lumber dealer in Bangor, delivered to the defendant company in 
Bangor, to be transmitted to his correspondent in Philadelphia, the 
following message : — 

" Will sell 800M. laths, delivered at your wharf, two ten net cash. July shipment. 
Answer qiiick." 

The regular tariff rate was prepaid by the plaintiff for such trans- 
mission. The message delivered by the defendant company to the 
Philadelphia correspondent was as follows : — 

"Will sell 800M. laths delivered at your wharf two net cash. July shipment. 
Answer quick." 

It will be seen that the important word "ten" in the statement of 
price was omitted. 

The Philadelphia party immediately returned by telegraph the 
following answer : — 

"Accept your telegraphic offer on laths. Cannot increase price spruce." 
Letters afterward passed between the parties which disclosed the 
error in the transmission of the plaintiff's message. About two 
weeks after the discovery of the error, the plaintiff shipped the laths, 
as per the message received by his correspondent, to wit, at $2.00 
per M. He testified that his correspondent insisted he was entitled 
to the laths at the price, and they were shipped accordingly. 

The defendant telegraph company offered no evidence whatever, 
and did not undertake to account for, or explain the mistake in the 
transmission of, the message. The presumption therefore is, that the 
mistake resulted from the fault of the telegraph company. We can- 
not consider the possibility that it may have resulted from causes 
beyond the control of the company. In the absence of evidence on 
that point we must assume that for such an error the company was in 
fault. Bartlett v. Tel. Co., 62 Maine, 221. 

' A portion of the opinion is omitted. 


The fault and consequent liability of the defendant company 
being thus established, the only remaining question is the extent of 
that liability in this case. The plaintiif claims it extends to the 
difference between the market price of the laths and the price at 
which they were shipped. The defendant claims its liability is 
limited to the amount paid for the transmission of the message. It 
claims this limitation on two grounds.^ 

11, The defendant company also claims that the plaintiff was not 
in fact damaged to a greater extent than the price paid by him for 
the transmission. It contends that the plaintiff was not bound by 
the erroneous message delivered by the company to the Phila- 
delphia party, and hence need not have shipped the laths at the lesser 
price. This raises the question, whether the message written by the 
sender and entrusted to the telegraph company for transmission, or 
the message written out and delivered by the company to the re- 
ceiver at the other end of the line, as and for the message intended to 
be sent, is the better evidence of the rights of the receiver against the 

The question is important and not easy of solution. It would be 
hard, that the negligence of the telegraph company, or any error in 
transmission resulting from uncontrollable causes, should impose 
upon the innocent sender of a message a liability he never author- 
ized nor contemplated. It would be equally hard that the innocent 
receiver, acting in good faith upon the message as received by him, 
should, through such error, lose all claim upon the sender. If one, 
owning merchandise, write a message offering to sell at a certain 
price, it would seem unjust that the telegraph company could bind 
him to sell at a less price by making that error in the transmission. 
On the other hand, the receiver of the offer may, in good faith, upon 
the strength of the telegram as received by him, have sold all the 
merchandise to arrive, perhaps at the same rate. It would seem 
unjust that he should have no claim for the merchandise. If an 
agent receive instructions by telegraph from his principal, and in 
good faith act upon them as expressed in the message delivered him 
by the company, it would seem he ought to be held justified, though 
there were an error in the transmission. 

It is evident that in case of an error in the transmission of a tele- 
gram, either the sender or receiver must often suffer loss. As be- 
tween the two, upon whom should the loss finally fall. "We think the 
safer and more equitable rule, and the rule the public can most easily 
adapt itself to, is, that, as between sender and receiver, the party 
who selects the telegraph as the means of communication shall bear 
the loss caused by the errors of the telegraph. The first proposer can 
selfct one of many modes of commnnir'ntion, both for the proposal 

' Thr; firnt (n-onrul wfis n stipulation printed on the tcl<>Kr.'vph blank, purporting to 
limit th»- lirihility of thf conipHiiy for unrcpoatod messages. A part of the opinion in 
whi'-h this dc.Umcc was hold invalid is omittod. 


and the answer. The receiver has no such choice, except as to his 
answer. If he cannot safely act upon the message he receives 
through the agency selected by the proposer, business must be seri- 
ously hampered and delayed. The use of the telegraph has become 
so general, and so many transactions are based on the words of the 
telegram received, any other rule would now be impracticable. 

Of course the rule above stated presupposes the innocence of the 
receiver, and that there is nothing to cause him to suspect an error. 
If there be anything in the message, or in the attendant circum- 
stances, or in the prior dealings of the parties, or in anything else,. 
indicating a probable error in the transmission, good faith on the 
part of the receiver may require him to investigate before acting. 
Neither does the rule include forced messages, for in such case the 
supposed sender did not make any use of the telegraph. 

The authorities are few and somewhat conflicting, but there are 
several in harmony with our conclusion upon this point. In Durkee 
V. Vt. C. E. K. Co., 29 Vt. 137, it was held, that where the sender 
himself elected to communicate by telegraph, the message received by 
the other party is the original evidence of any contract. In Saveland 
V. Green, 40 Wis. 431, the message received from the telegraph com- 
pany was admitted as the original and best evidence of a contract^ 
binding on the sender. In Morgan v. People, 59 111. 58, it was said 
that the telegram received was the original, and it was held that the 
sheriff, receiving such a telegram from the judgment creditor, was 
bound to follow it, as it read. There are dicta to the same effect, in 
Wilson V. M. & N. Ky. Co., 31 Minn. 481, and Howdey v. Whipple, 
48 N. H. 488. 

Tel. Co. V. Schotter, 71 Ga. 760, is almost a parallel case. The 
sender wrote his message, ''Can deliver hundred turpentine at sixty- 
four." As received from the telegraph company it read, "Can deliver 
hundred turpentine at sixty," the word four being omitted. The 
receiver immediately telegraphed an acceptance. The sender shipped 
the turpentine and drew for the price at sixty-four. The receiver 
refused to pay more than sixty. The sender accepted the sixty, and 
sued the telegraph company for the difference between sixty and the 
market. It was urged, as here, that the sender was not bound to 
accept the sixty, as that was not his offer. The Court held, however, 
that there was a complete contract at sixty — that the sender must 
fulfil it, and could recover his consequent loss of the telegraph 

It follows, that the plaintiff in this case is entitled to recover the 
difference between the two dollars and the market, as to laths. The 
evidence shows that the difference was ten cents per M. 

Judgment for plaintiff for eighty dollars, loith interest from the 
date of the writ} 

^ Western Union Tel. Co. v. Flint River Lumber Co. 114 Ga. 576; Haubelt v. Rea 
& Page Mill Co., 77 Mo. App. 672; J. L. Price Brokerage Co. v. Chicago &c. R. 





District of Columbia Coukt of Appeals, March 4-April 6, 1914 
[Reported in 42 Appeal Cases, District of Columbia, 162] 

[ )J- Action by the Moneyweight Scale Company based on a written 
■^ order for a scale. The defendant made affidavit of defence alleging 

jr that the plaintiff's agent called upon him, and, after importuning 
him to buy a scale and being refused, "shoved the paper partly 
printed and partly written at affiant, who can neither read nor write 
English, saying: 'that paper was the necessary authorization to send 
said scale on approval.' " 

Mr. Justice Eobb delivered the opinion of the Court: 
If the averments in the affidavit of defense are true, and we must 
here assume them to be, the defendant was induced to sign the order 
and note through the misrepresentations of plaintiff's agent. May 
he defend this action upon such a ground? It is true that it is as 
much the duty of a person who cannot read the language in which 
a contract is written, to have someone read it to him before he signs 
it as it is the duty of one who can read to peruse it himself before 
signing it. Toledo Computing Scale Co. v. Garrison, 28 App. 
D. C. 243. But this general rule does not reach the case before us. 
As between the parties to a written contract, the party who, though 
able to read, was induced through the misrepresentations of the other 
party as to its contents to sign it without reading, may avoid it on 
the ground of fraud. Thus, in Providence Jewelry Co. v. Crowe, 113 
Miim. 209, 129 N. W. 224, the action was upon a written contract 
for goods sold and delivered. The defendant was a business man 
who signed the written contract without reading it, having been 
induced to do so by the representations of the plaintiff's agent to the 
effect that its terms were in accordance with the oral agreement 
preceding it. The court ruled that, although the defendant had 
shown "want of ordinary business procedure in signing the contract 
without reading it," he could nevertheless defend on the ground of 
fraud as against the other party. The court said : "Plaintiff cannot 
escape from the consequences of its fraud by asserting that the 
defendant ought not to have confided in its integrity." To the 
same effect are American Fine Art Co. v. Eeeves Pulley Co. 62 

(Mo. App.) 109 S. W. Kcp. 732; Howley v. Whipple, 48 N. H. 487 ace; Henkel v. 
Pape, L. 71. Ex. 7; Vcrdin v. Robertson, 10 Ct. Scss. Cas. (3d scries) 35; Jackson 
Lumber Co. v. Western Union Tel. Co. 7 Ala. App. 644; Postal Tel. Co. v. Schaefer 
110 Ky. 907; ShinKlcur v. Western Union Tel. Co. 72 Miss. 1030; Pepper v. Telegraph 
Co., 87 Tenn. .'».'J4, contra. See also Penobscot Fish Co. v. Western Union Tel. Co. 
Conn. 3.0, and eompare Cc^rniaiii Fruit Co. v. Western Union Tel. Co. 137 Cal. 598; 
Central of fleornia Ky. v. Cortatowsky, 123 Ga. 306. 

The (piestion has be<ai flisputed on the <n)iitinent of Europe also. See Lyon- 
Caen et Renault, 'I'rait^ de Droit Commercial, Vol. III. § 23. 


C. C. A. 488, 127 Fed. 808 ; Elizabeth v. Mitchell, 74 N. J. L, 342, 
68 Atl. 89 ; J. Weil & Co. v. Quidnick Mfg. Co. 33 R. I. 58, 80 Atl. 
447; Linington v. Strong, 107 111. 295; Prestwood v. Carlton, 162 
Ala. 327, 50 So. 254. It is apparent, from the foregoing, that the 
affidavit of defense should have been held sufficient to entitle the 
defendant to a hearing upon the merits. Codington v. Standard 
Bank, 40 App. D. C. 409.^ 


New York Couet of Appeals, March 26-April 14, 1914 

[Reported in 211 New York, 68] 

Caedozo, J. : The plaintiff sues to recover damages for breach of 
an implied warranty. The contract was made between the defendant 
and one Booth. The plaintiff says that Booth was in truth its 
agent, and it sues as undisclosed principal. The question is whether 
it has the right to do so. 

The general rule is not disputed. A contract not under seal made 
in the name of an agent as ostensible principal, may be sued on by 
the real principal at the latter's election. (Henderson, Hull & Co. 
V. McNally, 48 App. Div. 134; affirmed on opinion below, 168 N. Y. 
646; Cothway v. Eennell, 10 B. & C. 671.) The defendant says 
that we should establish an exception to that rule, where the identity 
of the principal has been concealed because of the belief that, if it 
were disclosed, the contract would not be made. We are asked 
to say that the reality of the defendant's consent is thereby destroyed, 
and the contract vitiated for mistake. 

The plaintiff and the defendant were competitors in business. The 
plaintiff's president suspected that the defendant might refuse to 
name him a price. The suspicion was not based upon any previous 
refusal, for there had been none; it had no other origin than their 
relation as competitors. Because of this doubt the plaintiff availed 
itself of the services of Booth, who, though interested to the defend- 
ant's knowledge in the plaintiff's business was also engaged in a like 
business for another corporation. Booth asked the defendant for a 
price and received a quotation, and the asphalt blocks required for the 
plaintiff's pavement were ordered in his name. The order was ac- 
cepted by the defendant, the blocks were delivered and payment was 
made by Booth with money furnished by the plaintiff. The paving 
blocks were unmerchantable, and the defendant, retaining the price 
contests its liability for damages on the ground that if it had known 
that the plaintiff was the principal, it would have refused to make the 

^ The statement of facts is abbreviated and a portion of the opinion omitted. 


We are satisfied that upon the facts before us the defense cannot 
prevail. A contract involves a meeting of the minds of the con- 
tracting parties. If "one of the supposed parties is wanting," there 
is an absence of "one of the formal constituents of a legal transac- 
tion." (Rodliif V. Dallinger, 141 Mass. 1, 6.) In such a situation 
there is no contract. A number of cases are reported where A has 
ordered merchandise of B, and C has surreptitiously filled the order. 
The question has been much discussed whether C, having thrust him- 
self without consent into the position of a creditor, is entitled to 
recover the value of his wares. (Boston Ice Co. v. Potter, 123 Mass. 
28; Boulton v. Jones, 2 H. & JST. 564; Gordon v. Street, L. E. (2 Q. B. 
1899) 641; Barcus v. Dorries, 64 App. Div. 109; Kling v. Irving 
Nat Bank, 21 App. Div. 373; 160 N. Y. 698; Randolph Iron Co. 
V. Elliot, 34 N. J. L. 184; 7 Halsbury, The Laws of England, title 
Contracts, pp. 354, 355.) That question is not before us, but we 
express no opinion concerning it. We state it merely to accentuate 
the distinction between the cases which involve it and the case at 
hand. Neither of the supposed parties was wanting in this case. The 
apparent meeting of the minds between determinate contracting par- 
ties was not unreal or illusory. The defendant was contracting with 
the precise person with whom it intended to contract. It was contract- 
ing with Booth. It gained whatever benefit it may have contemplated 
from his character and substance. (Humble v. Hunter, 12 Ad. & El. 
(N.S.) 311; Arkansas Smelting Co. v. Belden Co., 127 U. S. 379, 
387; American Colortype Co. v. Continental Colortype Co., 188 
U. S, 104.) An_agent who contracts in his own name for an un- 
disclosed principal does not cease to be a party because of his 
agency. (Higgins v. Senior, 8 M. & W. 834, 844.) Indeed, such an 
agent, having made himself personally liable, may enforce the con- 
tract though the principal has renounced it. (Short v. Spackman, 
2 B. & Ad. 962. See also, Briggs v. Partridge, 64 N. Y. 357, 362 ; 
Jemison v. Citizens' S. Bank, 122 N. Y. 135, 143.) As between 
himself and the other party, he is liable as principal to the same 
extent as if he had not been acting for another. It is impossible in 
such circumstances to hold that the contract collapses for want of 
parties to sustain it. The contract tie cannot exist where there are 
not persons to be bound, but here persons were bound, and those 
the very persons intended. If Booth had given order in his own 
right and for his own benefit, but with the expectation of later 
assigning it to the plaintiff, that undisclosed expectation would not 
have nullified the contract. His undisclosed intention to act for a 
principal who was known to the defendant, was equally inefl"ective 
to destroy the contract in its inception. 

If, therefore, the contract did not fail for want of parties to sustain 
it, the unsuspected existence of an undisclosed principal can supply 
no gronnr! ff)r the iivoi<hinc(! of a contract unless fraud is provf^d. 
We must distinguish between mistake such as we have been dis- 


cussing, which renders the contract void ab initio, because the con- 
tractual tie has never been completely formed, and fraud, which 
renders it voidable at the election of the defrauded party. (Kodliff 
V. Dallinger, 141 Mass. 1, 6.) In the language of Kolmhh, J., in 
the case cited : "Fvaud only becomes important as such when a 
contract is complete in its formal elements, and therefore 
valid unless repudiated, but the right is claimed to rescind it." 
If one who is in reality an agent denies his agency when questioned, 
and falsely asserts that his principal has no interest in the transaction, 
the contract, it may be, becomes voidable, not because there is a want 
of parties, but because it has been fraudulently procured. That was 
substantially the situation in Winchester v. Howard (97 Mass. 
303). When such a case arises, we shall have to consider 
whether a misrepresentation of that kind is always so material as to 
justify rescission after the contract has been executed. (Leake on 
Contracts (6th ed.), pp. 19, 340.) But no such situation is disclosed 
in the case at hand. Booth made no misrepresentation to the de- 
fendant. He was not asked anything, nor did he say anything, about 
the plaintiff's interest in the transaction. Indeed, neither he nor the 
plaintiff's officers knew whether the defendant would refuse to deal 
with the plaintiff directly. They suspected hostility, but none had 
been expressed. The validity of the contract turns thus, according to 
the defendant, not on any overt act of either the plaintiff or its 
agent, but on the presence or absence of a mental state. We are 
asked to hold that a contract complete in form, becomes a nullity in 
fact because of a secret belief in the mind of the undisclosed prin- 
cipal that the disclosure of his name would be prejudicial to the 
completion of the bargain. We cannot go so far. (Stoddard v. 
Ham, 129 Mass. 383.) It is unnecessary, therefore, to consider 
whether, even if fraud were shown, the defendant, after the contract 
was executed, could be permitted to rescind without restoring the 
difference between the price received for the defective blocks and 
their reasonable value. It is also unnecessary to analyze the evidence 
for the purpose of showing that the defendant, after notice of the 
plaintiff's interest in the transaction, continued to make delivery, 
and thereby waived the objection that the contract was invalid. 
(Cincinnati S.-L. 111. Gas Co. v. Western Siemens-L. Co., 152 TJ. S. 
200, 202; Mudge v. Oliver, 1 Allen, 74.) 

Other rulings complained of by the defendant have been considered, 
but no error has been found in them. 

The judgment should be affirmed, with costs. 

WiLLARD Bartlett, Ch. J., Werner, Chase, Collin, Cuddeback 
and HoGAN, JJ., concur. 

Judgment affirmed.^ 

1 In Werlin v. Eqiiitable Surety Co. 227 Mass. 157, it was held that an individual 
person cannot maintain an action against a surety company on a bond in which the 
obligee is described only as the "New Boston Biscuit Company, corporation of 



In the King's BencH;, April 18, 1833 

[Reported in 4 Barneivall & Adoiphus, 621] 

Assumpsit to recover 201., which the defendant promised to pay to 
any person who should give such information as might lead to the 
discovery of the murder of Walter Carwardine. Plea, general issue. 
At the trial before Park, J., at the last Spring Assizes for the county 
of Hereford, the following appeared to be the facts of the case: 
One Walter Carwardine, the brother of the defendant, was seen on the 
evening of the 24th of March, 1831, at a public house at Hereford, 
and was not heard of again till his body was found on the 12th of 
April in the river Wye, about two miles from the city. An inquest 
was held on the body on the 13 th of April and the following days 
till the 19th; and it appearing that the plaintiff was at a house with 
the deceased on the night he was supposed to have been murdered, she 
was examined before the magistrates but did not give them any in- 
formation which led to the apprehension of the real offender. On the 
25th of April the defendant caused a handbill to be published, 
stating that whoever would give such information as should lead to 
a discovery of the murder of Walter Carwardine, should, on con- 
viction, receive a reward of 201.; and any person concerned therein, 
or privy thereto (except the party who actually committed the 
offence), should be entitled to such reward, and every exertion used 
to procure a pardon; and it then added, that information was to 
be given, and application for the above reward was to be made, to 
William Carwardine, Holmer, near Hereford. Two persons were 
tried for the murder at the Summer Assizes, 1831, but acquitted. 
Soon after this, the plaintiff was severely beaten and bruised by one 
Williams; and on the 23d of August, 1831, believing she had not 
long to live, and to ease her conscience, she made a voluntary state- 
ment, containing information which led to the subsequent con- 
viction of Williams. Upon this evidence it was contended, that as 
the plaintiff was not induced by the reward promised by the de- 
fendant to give evidence, the law would not imply a contract by the 
defendant to pay her the 201. The learned Judge was of opinion, 

Maiden, Massachusetts," where the plaintiff testifies that there was no such corpora- 
tion as the New Boston Biscuit Company in existence, and the defendant's agent, 
who exofmted the bond for it, testifies that acting for the defendant ho believed at the 
time of the (!Xf;cution and delivery of the bond that the surety company was making 
a contract with a Massachusetts corporation and not with the plaintiff indi\'idually, 
and that, if he had been informed that th(! New Boston Biscuit Company did not 
exist aa a corporation but that the plaintiff individually was the projmetor of the 
b\iHincss mentioned in the bond, he would not hav(' executed tlu; bond in behalf of 
the d'-f'iidant, at least not witliout further investiKation, and where it also appears 
that thf; defendant was not informed initil the action was brought that the plaintiff 
claimed to \x: thf; obligee named in the l)ond; tliere being no evidence of a contract 
between the plaintiff and the defendant. 


that the plaintiff, having given the information which led to the 
conviction of the murderer, had performed the condition on which 
the 201. was to become payable, and was therefore entitled to re- 
cover it; and he directed the jury to find a verdict for the plaintiff, 
but desired them to find specially whether she was induced to give 
the information by the offer of the promised reward. The jury 
found that she was not induced by the offer of the reward, but by 
other motives. 

Curwood now moved for a new trial. There was no promise 
to pay the plaintiff the sum of 20L That promise could only be 
enforced in favor of persons who should have been induced to make 
disclosures by the promise of the reward. Here the jury have 
found that the plaintiff was induced by other motives to give the 
information. They have, therefore, negatived any contract on the 
part of the defendant with the plaintiff. 

Denman, C. J. The plaintiff, by having given information which 
led to the conviction of the murderer of Walter Carwardine, has 
brought herself within the terms of the advertisement, and therefore 
is entitled to recover. 

LiTTLEDALE, J. The advertisement amounts to a general promise 
to give a sum of money to any person who shall give information 
which might lead to the discovery of the offender. The plaintiff 
gave that information. 

Paeke, J. There was a contract with any person who performed 
the condition mentioned in the advertisement. 

Pattesoist, J. I am of the same opinion. We cannot go into the 
plaintiff's motives. Rule refused.^ 

In the Queen's Bench Division, April 22, 1891 
[Reported in 64 Law Times, New Series, 594] 

Motion to set aside a nonsuit. 

Day, J. This action is brought to recover a reward, which the 
defendant advertised as payable to the person who should prosecute 
to conviction the perpetrator of a certain crime. The facts are 
simple. The defendant published on the 29th May a handbill, in 
which he stated that he would give 25?. to any person who should 
give information leading to the conviction of the offender in ques- 
tion, such information to be given to a superintendent of police of 
the name of Penn. The plaintiff is a police officer, and, in the early 
morning of the 29th May, the day of the afternoon of which the bill 

^ It may be inferred from the report of the case at nisi prius in 5 C. & P. 566 that 
the plaintiff knew of the offer of reward when she gave the requested information. 


was published, communicated important information which led to the 
conviction of the offender to a comrade and fellow policeman called 
Coffin, telling Coffin, as his agent, to carry the information to the 
proper authority. Coffin, in accordance with the rules of the force, 
first informed his superior officer. Inspector Lenuan, and Lennan 
sent on the information to Superintendent Penn. Both Coffin and 
Lennan were the agents of the plaintiff to carry on a message set 
going by him, and it reached Penn at a time when he had notice that 
the person sending him such information was entitled to the reward 
of 25L The condition was fulfilled after the publication of the hand- 
bill and the announcement therein contained of the defendant's offer 
of the reward to the informant. 

Lawrence, J. I entirely agree. 

Nonsuit set aside, and verdict entered for the plaintiff for 25Z.^ 

JOHN" VITTY, Appellant, v. THOMAS ELEY, Trustee of 
School Disteict, No. 16 

Appellate Division' of New York Supreme Court, April 

Term, 1900 

{^Reported in 51 New York, Appellate Division, 44] 

Spring, J. : The defendant is trustee of a school district in the 
town of Lockport. In January, 1899, the schoolhouse in this district 
was broken into by one Joe White, and a quantity of property stolen 
therefrom or destroyed. The trustee, probably by authority of the 
citizens o£ the district, although his authority is not in question, 
offered a reward of twenty-five dollars "for the arrest and conviction 
of the party or parties" who perpetrated the crime. The evidence 
shows that White and the plaintiff lived together and were cronies. 
White, after breaking into the schoolhouse in the night, returned to 
the plaintiff's house bringing with him chalk, flags, window catches, 
and other stuff which he had taken from the schoolhouse. He also 
had two chickens, evidently stolen, which were eaten in the house- 
hold. The plaintiff saw White burn two of these flags and secrete 
the other stuff under a board of the floor. White told the plaintiff 
not to "say anything about this." The testimony, therefore, shoAvs 
that the plaintiff knew that White had stolen this stuff. Later on, 
after tlie reward and with notice of it, he testified that he told the 
bartender in the saloon of Mahar & Byrnes thiit Joe White broke 
into the schoolhouse; that Peter Hayes, who was working up the 
case, was called in from the back room and the plaintiff then volun- 

' EbkIo v. Hmith, 4 lloiist, 293; Driwkins r. SappinRton, 20 Jnd. 199; Auditor V. 
Ballfird, 9 HuhIi, r,72; Coffey v. (';<)nnrK)riwc!ilf li (Ky.), 37 S. W. Rep. 575; Russoll v. 
Stewart, 44 Vt. 170, ace. Sec also Drunimond v. United States, 35 Ct. Claims, 356. 


-tX^t-IK. t^l"—. S-t>-<«_ 


tarily told him what he had seen, incriminating White. Hayes con- 
tradicted the plaintiff and said he was called from the back room, and 
the following occurred : ''I said, 'I want you to come up to the 
sheriff's office and make a statement as to what you know about 
breaking into this schoolhouse.' He says, 'I don't know anything 
about it; I was home in bed the night the schoolhouse was broken 
into.' I said 'From what I hear, either you or Joe or both of you 
went into that schoolhouse.' He said, 'I didn't go in there.' I 
said, 'If you don't come up to the sheriff's office and tell what you 
know about it, I will swear out a warrant against you.' He said 
that if he told what he knew about it, he would have no place to stay. 
I said, 'I will find you a place to stay, come with me,' and went 
to the courthouse and called the sheriff out. I said, 'This man will 
make a statement.' We went into a side room. He said about 
what he testified this forenoon." If his version of the transaction is 
correct, the plaintiff did not voluntarily give up this information with 
the expectation of obtaining the reward, but it was extorted from him 
through fear that he might be arrested himself for complicity with 

There is considerable contrariety in the decisions as to the real 
basis of the right to a reward. It, however, seems to be settled in 
this State that it is in the nature of a contract inuring to the benefit 
of the person who gives the information. A few principles out of 
the conflicting cases I think may be stated, although there is no uni- 
formity among them. 

1. The information must be given with knowledge of the reward. 
Fitch V. Snedaker, 38 N. Y. 248; Howland v. Lounds, 51 id. 604.^ 

I think the evidence warrants the conclusion that plaintiff knew of 
the reward, although it is a little shadowy, for apparently he could 
not read. 

2. As I have suggested, it is a contract obligation. This being 
so, it must be the voluntary giving up of the information by the 
person. If cork-screwed out of him by threats inducing fear of 
prosecution, I take it no recovery could be had. That would destroy 
the contract element. In the early English case of Williams v. Car- 
wardine (4 Barn. & Aid. 621) the question of the motive was held to 
be unimportant, but the text writers and American authorities do not 
seem to have followed this doctrine strictly, although I find no case 
in this State distinctly overruling it. That case cannot be good law 

1 Morrell v. Quarles, 35 Ala. 544; Wilson v. Stump, 103 Cal. 255; Chicago, &c. 
R. R. Co. V. Sebring, 16 111. App. 181; Ensminger v. Horn, 70 111. App. 605; Williams 
V. West Chicago St. Ry. Co., 191 111. 610; Lee v. Flemingsburg, 7 Dana, 28 (over- 
ruled); Ball V. Newton, 7 Cuch. 599; Forsythe v. Murnane, 113 Minn. 181; Smith 
V. Vernon County, 180 Mo. 501; Mayor of Hoboken v. Bailey, 36 N. J. L. 490; Fitch 
V. Snedaker, 38 N. Y. 248; Sheldon v. George, 132 N. Y. App. D. 470; Stamper v. 
Temple, 6 Humph, 113; Broadnax v. Ledbetter, 100 Tex. 375 ace. See also City 
Bank v. Bangs, 2 Edw. Ch. 95; Brecknock School District v. Frankhouser, 5S Pa. 380. 
Compare Taft v. Hyatt, 105 Kans. 35; Choice v. Dallas, (Tex. Civ. App.) 210 S. W. 
Rep. 753. 


if the liability is contractual, as assent and a voluntary surrender of 
the information would be essential. 

3. The authorities hold that the information must be imparted 
with a view to obtaining the reward. 18 Encyc. of PI. & Pr. 1155; 
Hewitt V. Anderson, 56 Cal. 476. And in Holland v. Lounds 
{supra) the court says, at page 609 : "That a party claiming a reward 
of this character must give some information or do something having 
some reference of the reward offered, is very obvious. The action 
is, in fact, upon contract. Where a contract is proposed to all the 
world, in the form of a proposition, any party may assent to it, 
and it is binding, but he cannot assent without knowledge of the 

In the present case the plaintiff does not claim that there was any 
talk between him and Hayes to the effect that he expected any reward. 
The information given by the plaintiff was undoubtedly valuable, and 
even essential to secure the conviction of White. The justice, how- 
ever, on conflicting evidence, or upon inferences properly deducible 
from the evidence, has decided adversely to the plaintiff. This deci- 
sion implies that he reached the conclusion that the information was 
imparted through fear of arrest, or without any expectation of receiv- 
ing the reward. The conclusion is supported by the proofs, and we 
are not inclined to interfere with the disposition of the case made by 
the justice. 

The Judgment is affirmed, with costs to the respondent. 



Illinois Supreme Court, October 24, 1901 

[Reported in 191 Illinois, 610] 

Mr. Justice Hand delivered the opinion of the Court: — 

This is an action of assumpsit brought by the appellant, against 

the appellee, in the Circuit Court of Cook County, to recover a 

reward offered by the appellee for the arrest and conviction of the 

murderer or murderers of C. B. Birch, who was killed while in the 

service of the appellee, which as published, was in the following 

terms : — 

"$5,000 Howard. 

"Office West Chicago Street Railroad Co., 
"Juno 24, 1805. 

"Tho abovo reward will bo paid by tho Wost, ChioaKO Stroot Railroad Company 
for thf; arroHt and convirtion of tho murdoror or nnirdorcrs of C. B. Birch, wlio was 
fatally shot while in discharge of his duty as receiver, on the morning of .June 23, at 
the Armitage Avenue barn. 

"Charles T. Yerkes, Prcs't." 


At the close of all the evidence the Court directed the jury to find 
the issues for the defendant, which was accordingly done, and a judg- 
ment having been rendered on said verdict, which judgment has been 
affirmed by the Appellate Court for the First District, a further 
appeal has been prosecuted to this Court. 

At about two o'clock on Sunday morning, June 23, 1895, Birch, 
whose duty it was to receive the money brought in by the conductors, 
was fatally shot at the barn of appellee located at Armitage Avenue, 
in the city of Chicago. The appellant, who was also an employee of 
the appellee, and whose duty consisted of going from barn to barn 
each night to inspect the cash registers, was in the barn from mid- 
night until two o'clock in the morning, and left just before the killing 
of Birch. As he drove away in his buggy he noticed two men coming 
across the street toward the barn. They looked sharply at him and 
he looked at them. On Monday morning, June 24, the appellant 
went to the appellee's office, where he met his general superintendent, 
who inquired of him if he saw any men near the barn as he drove 
away. Appellant told him that he had seen two men and that he 
thought he could identify them, whereupon the superintendent gave 
him a note and told him to go and see Captain Larson of the police 
force. He called upon Captain Larson that afternoon, told him what 
he had seen and gave him a description of the two men, whereupon 
the officer said that he had a man in custody at that time who he 
thought answered the description of one of the men described by 
him. The man, whose name was Julius Mannow, was brought up 
and was identified by the appellant as one of the men he had seen near 
the barn as he drove away. Captain Larson told him to come to the 
station the next day, and in the meantime he would hunt up and have 
arrested the other man he had described. The murder of Birch led 
the police authorities to at once issue what was termed a "drag-net 
order," — that is, an order to the various patrolmen to arrest all 
suspicious characters in their respective districts and bring them in 
for examination as to their whereabouts at the time of the commis- 
sion of the crime. Mannow was thus arrested and brought to the 
station. A police officer named Jurs testified upon the trial of this 
cause that about two months before the time of the murder Man- 
now had narrated to him a plan for the robbing of a coal office in the 
manner in which the Armitage Avenue robbery was accomplished, and 
had described Joseph Windrath as concerned in the plan, and that 
after the Armitage Avenue robbery and the murder of Birch the wit- 
ness at once recalled this fact and suspected Mannow and Windrath 
and took steps to cause their arrest. This was before the informa- 
tion was given by the appellant. On Tuesday morning, the 25th day 
of June, the appellant for the first time learned of the offered reward 
by reading the same as published in the "Chicago Tribune." After- 
wards, on that day, he went again to the police station and identified 
Windrath, who had been arrested in the meantime, as the man he 


had seen in company with Mannow near the barn just before the 
killing. The services rendered by the appellant in connection with 
the arrest and conviction of Mannow and Windrath after he kneAv of 
the offered reward, consisted in his identification of Windrath, and 
his testifying before the coroner's jury, the grand jury, and upon the 
trial in the criminal court, that he had seen Mannow and Windrath 
together near the Armitage Avenue barn on the night and near the 
time of the commission of the crime. Other information was ob- 
tained by the police authorities shortly after the identification of 
Mannow and Windrath which fastened the crime upon the two men. 
Mannow pleaded guilty and Windrath was tried and convicted. The 
offered reward was paid by the appellee to another claimant. 

The offer of a reward remains conditional until it is accepted by 
the performance of the service, and one who offers a reward has the 
right to prescribe whatever terms he may see fit, and such terms must 
be substantially complied with before any contract arises between 
him and the claimant. Thus, if the reward is offered for the arrest 
and conviction of a criminal, or for his arrest and the recovery of the 
money stolen, both the arrest and conviction or arrest and recovery 
of the money are conditions precedent to the recovery of the reward; 
and when the offer is for the delivery of a fugitive at a certain place 
the reward cannot be earned by the delivery of him at another place, 
and an offer for a capture of two is not acted upon by the capture of 
one. The reward cannot be apportioned. The offer is an entirety, 
and as such must be enforced, or not at all. 21 Am. & Eng. Ency. 
of Law, 1st ed., 391-397; Hogan v. Stophlet, 179 111. 150; Furman 
V. Parke, 21 N. J. L. 310; Fitch v. Snedaker, 38 N. Y. 248; Juniata 
County V. McDonald, 122 Pa. St. 115; Shuey v. United States, 92 
U. S. 73. 

In Hogan v. Stophlet, supra, which Avas an action for the recovery 
of a reward offered for the "apprehension and conviction of a crim- 
inal," this Court said (p. 153) : "The reward was offered for the 
apprehension and conviction of the person or persons who burned or 
caused the building to be burned. It thus appears that the reward 
was offered, not for the conviction alone, but for the apprehension 
and conviction of the guilty party. Appellant is entitled to recover 
for both or he cannot recover at all. The reward cannot be appor- 
tioned, — that is to say, there can be no apportionment of it between 
what is due for the apprehension and what is (hie for the conviction. 
The offer must be enforced as an entirety, or not at all." 

In Fnrnian v. Parke, supra, the reward was "for the apprehension 
and conviction of such person or persons as may have been impli- 
cated in the murder of John B. Parke, John Castner, Maria Castner 
and child." The Court say : "The reward is to bo paid for the 
apprehension and conviction, not of one of several persons impli- 
catcf], but of tbf pcrHoii fif one) or the pfrsoTis (\f more than one) 
who w(!re implicatec], not in the murder of John B. Parke alone, but 


of John B. Parke and three other persons. . . . The person, there- 
fore, to be entitled to the reward, must aver and prove that the person 
or persons implicated in each of the four murders has or have been 
apprehended and convicted." 

In Fitch V. Snedaker, 38 IsT. Y. 248, the offer was "to any person 
or persons who will give such information as shall lead to the ap- 
prehension and conviction of the person or persons guilty of the 
murder," etc. It appeared that the claimant gave evidence which 
led to the conviction of the offender but did nothing towards secur- 
ing his discovery or arrest, and it was held that he was not entitled 
to the reward. The Court said (p. 250) : "It is entirely clear that 
in order to entitle any person to the reward offered in this case he 
must give such information as shall lead to both apprehension and 
conviction — that is, both must happen, and happen as a conse- 
quence of information given. ISTo person could claim a reward whose 
information caused the apprehension, until conviction followed. Both 
are conditions precedent. ISTo one could therefore claim the reward 
who gave no information whatever until after the apprehension, al- 
though the information he afterward gave was the evidence upon 
which conviction was had, and however clear that had the informa- 
tion been concealed or suppressed there could have been no convic- 
tion. This is according to the plain terms of the offer of the re- 

In Juniata County v. McDonald, supra, the reward was for the 
capture and delivery of a criminal to the jail, and a person who fur- 
nished information from which the capture resulted, but who did 
not deliver the prisoner or cause him to be delivered, was held not 
to be entitled to the reward. The Court said : "A mere reading of 
this paper settles the whole controversy. The reward was not offered 
for information as to the prisoner's whereabouts, but for his capture 
and delivery. How, then, could one be entitled to that reward who 
neither captured nor delivered him ? Admitting, then, that the plain- 
tiff gave the sheriff accurate information as to where the culprit could 
be found, and that he v/ent with him and acted as one of his posse, 
yet on that officer fell the duty of arrest and the plaintiff was re- 
lieved of all responsibility." 

And in Shuey v. United States, supra, which was a suit for a re- 
ward offered by the Secretary of "War "for the apprehension of John 
H. Surratt, one of Booth's accomplices," it was held that one who 
had made disclosures to which were due the discovery and arrest 
of Surratt was not entitled to the reward for his apprehension. The 
Court say: "It is found as a fact that the arrest was not made by 
the claimant, though the discovery and arrest were due entirely to 
the disclosures made by him. The plain meaning of this is, that 
Surratt's apprehension was a consequence of the disclosures made. 
But the consequences of a man's act are not his acts. Between the 
consequence and the disclosure that leads to it there may be, and in 


this case there were, intermediate agencies. Other persons than the 
claimant made the arrest — persons who were not his agents, and 
who themselves were entitled to the proffered reward for his arrest, 
if any persons were." 

Under the authorities above cited the appellant cannot recover 
unless the evidence shows he caused the arrest and conviction of both 
Mannow and Windrath. He did neither. At most he furnished 
some information to the police which led to the arrest of Windrath, 
and identified both men as having been in the vicinity of the barn 
at the time of the commission of the crime, which does not bring him 
within the terms of the offered reward, which was for "the arrest 
and conviction of the murderer or murderers of C. B. Birch." 

We are of the opinion that the appellant is not entitled to recover 
in this case for the further reason that the services performed by 
him were substantially all rendered before the reward was offered or 
at a time when he was ignorant of the fact that a reward had been 
offered. After the appellant had informed the superintendent of 
appellee and the captain of police that he had seen Mannow and 
his companion near the scene of the murder at about the time the 
same was committed, he did nothing towards securing the conviction 
of the prisoners other than what he could have been required to do 
as a witness. The reward was not offered for information which was 
already in the possession of the officers nor for witnesses who would 
come forward and testify to facts which were then known to be 
within their knowledge, but for the arrest and conviction of the mur- 
derer or murderers. The right to recover a reward arises out of the 
contractual relation which exists between the person offering the 
reward and the claimant, which is implied by law by reason of the 
offer on the one hand and the performance of the service on the other, 
the reason of the rule being that the services of the claimant are ren- 
dered in consequence of the offered reward, from which an implied 
promise is raised on the part of the person offering the reward to 
pay him the amount thereof by reason of the performance by him 
of such service, and no such promise can be implied unless he knew 
at the time of the performance of the service that the reward had 
been offered, and in consideration thereof, and with a view to earning 
the same, rendered the service specified in such offer. Fitch v. Sned- 
akor, supra; Howlands v. Lounds, 51 N. Y. 604; Stamper v. Temple, 
6 Humph. (Term.) 113; 44 Am. Dec. 296. 

In Stamper v. Temple, supra, which was an action to recover the 
amount of a reward, the Court say : "To make a good contract there 
must be an aggrcfjatio mentium, — an agreement on the one part to 
give and on the other to receive. How could there be such an agree- 
ment if the plaintiffs in this case made the arrest in ignorance that 
a reward had been offered?" 

Tn Fitch /'. Snedakcr, supra, on the trial several questions were 
asked of the plaintiff, who was a witness in his own belialf, relative 


to the person to whom he gave information in relation to the murder 
before the reward was offered or before he heard of it. The Court 
sustained objections thereto and excluded the evidence. The ruling 
of the trial court in this regard on appeal was held to be correct, 
and the Court on page 251 say : "The form of action in all such cases 
is assumpsit. The defendant is proceeded against as upon his con- 
tract to pay, and the first question is, was there a contract between 
the parties? To the existence of a contract there must be mutual 
assent, or, in another form, offer and consent to the oifer. . . . 
Without that there is no contract. How, then, can there be consent 
or assent to that of which the party has never heard? . . . The 
offer could only operate upon plaintiffs after they heard of it." 

And in Howlands v. Lounds, supra, the Court say (p. 605) : "In 
order to entitle a party to recover a reward offered, he must establish 
between himself and the person offering the reward, not only the 
offer and his acceptance of it, but his performance of the services for 
which the reward was offered; and upon principle, as well as upon 
authority, the performance of this service by one who did not know 
of the offer and could not have acted in reference to it cannot re- 

We are of the opinion the appellant failed to make out a cause of 
action, and that the trial court, for the reasons above suggested, 
properly directed a verdict for the appellee. The judgment of the 
Appellate Court will therefore be affirmed. Judgment affirmed. 


In the Common Pleas, June 2, 1862 
[Reported in 12 Common Bench Reports, New Series, 748] 

This was an action upon a guaranty. The first count of the dec- 
laration stated, that by a certain instrument in writing signed by 
the defendants, and addressed and delivered by the defendants to 
the plaintiff, the defendants undertook, promised, and agreed with 
the plaintiff in the words and figures following, that is to say: "We, 
the undersigned, in consideration of your discounting, at our re- 
quest, bills of exchange for Messrs. Davies & Co., of Newtown, Mont- 
gomeryshire, drapers, hereby jointly and severally guarantee for the 
space of tivelve calendar months the due payment of all such bills 
of exchange, to the extent of 600L And we further jointly and 
severally undertake to make good any loss or expenses you may sus- 
tain or incur in consequence of advancing Messrs. Davies & Co. such 
moneys." Averment, that the plaintiff, relying on the said promise 
of the defendants, after the making of the said promise, and within 


the space of twelve calendar mouths thereafter, did discount divers 
bills of exchange for the said Messrs. Davies & Co., of Newtown afore- 
said, certain of which bills of exchange became due and payable be- 
fore the commencement of this suit, but were not then or at 
any other time duly paid, and the said bills respectively were dis- 
honored ; and that the plaintiff, after the making of the said promise, 
and within the said twelve calendar months, advanced to the said 
Messrs. Davies & Co. divers sums of money on and in respect of the 
discount of the said last-mentioned bills so dishonored as aforesaid, 
certain of which moneys were due and owing to the plaintiff 
before and at the time of the commencement of this suit; and that 
all things had happened and all times had elapsed necessary, &c. ; 
yet that the defendants broke their said promise, and did not pay 
to the plaintiff, or to the respective holders for the time being of 
the said bills of exchange so dishonored as aforesaid, or to any other 
person entitled to receive the same, the respective sums of money 
payable by the said bills of exchange; nor did the defendants pay 
to the plaintiff the said sums of money so advanced by the plaintiff 
as aforesaid, or any part thereof; whereby the sums payable by the 
said bills of exchange so dishonored as aforesaid became lost to the 
plaintiff, and he became liable to pay and take up certain of the 
said bills of exchange, and did pay and take up certain of the said 
bills of exchange, and was forced and obliged to and did expend cer- 
tain moneys in endeavoring to obtain part of certain of the said 
bills of exchange, and the plaintiff lost the interest which he might 
have made of his moneys, if the said bills had been duly paid at 

Fourth plea, to the first count, — so far as the same relates to 
the sums payable by the defendants in respect of the sums of money 
payable by the said bills of exchange, and the said sums so advanced, 
— that, after the making of the said guaranty, and before the plain- 
tiff had discounted such bills of exchange, and before he had ad- 
vanced such sums of money, the defendants countermanded the said 
guaranty, and requested the plaintiff not to discount such bills of 
exchange, and not advance such moneys. 

To this plea the plaintiff demurred; the ground of demurrer stated 
in the margin being "that the fourth plea offers no defence to that 
part of the declaration to which it is pleaded, for that a party giv- 
ing a guaranty [for a definite period | has no power to countermand 
it without tlie assent of the person to whom it is given." Joinder. 

Prentice (with whom was Brandt), in support of the demurrer. 
A guaranty lik(! this, to secure advances for twelve months, is a con- 
tract which cannot be rescinded or countermanded within that time 
without the assent of the person to whom it is given. [Byles, J. 
What consideration have these defendants received?] For any thing 
disclosed by the plea, the plaintiff might have altered his position 
in consequence of the guaranty, l)y having (entered into a contract 


with Davies & Co., of Newtown, to discount their bills for twelve 
months. In Calvert v. Gordon, 1 M. & R. 497, 7 B. & C. 809, 3 M. 
& R. 124, it was held that the obligor of a bond conditioned for the 
faithful service of A. whilst in the emijloy of B. cannot discharge 
himself by giving notice that after a certain period he will be no 
longer answerable; nor can the personal representative of the obligor 
discharge himself by such a notice.^ Lord Tenterden, in giving 
judgment in that case, says (3 M. & R. 128): "The oiily question 
raised by the defendant's second plea is, whether it is competent to 
the surety to put an end to his liability by giving a notice which is 
to take effect from the very day on which it is given. It would be 
Si hardship upon the master if this could be done. It is said that it 
would be a hardship on the surety if this liability must necessarily 
continue during the whole time that the principal remains in his 
service; but, looking at the instrument itself, it would appear that 
it was the intention of the testator to enter into this unlimited en- 
gagement. It was competent to him to stipulate that he should be 
discharged from all future liability after a specified time, after no- 
tice given. This he has not done." Here, the defendants have stipu- 
lated that their liability shall discontinue at the end of twelve 
calendar months. What pretence is there for relieving them from 
that bargain? [Byles, J. Suppose a man gives an open guaranty, 
with a stipulation that he will not withdraw it, — what is there to 
bind him to that?] If acted upon by the other party, it is submitted 
that that would be a binding contract. Hassell v. Long, 2 M. & 
Selw. 363, is an authority to the same effect as Calvert v. Gordon. 
E. James, Q. C. (with whom was T. Jones), contra. The cases 
upon bonds for guaranteeing the honesty of clerks or servants are 
inapplicable : there the contract attaches as soon as the clerk or serv- 
ant enters the service, and it is not separable. This, however, is not 
a case of contract at all. It is a mere authority to discount, and 
a promise to indemnify the plaintiff in respect of each bill dis- 
counted; and it was perfectly competent to the defendants at any 
time to withdraw that authority as to future transactions of dis- 
count. This is more like the mandatum pecunice credendce treated 
of by Pothier — on Obligations, Part II. c. 6, § 8, art. 1. If so, it 
is subject to all incidents of a mandate or authority. [Willes, J. 
Mandatum does not mean a bare authority which may be revoked.] 
... A mutual agreement to rescind can only be necessary where 
there is a mutual contract. But, in a case like this, where 
there is no complete contract until something is done by the manda- 
tory, the assent of both parties cannot be required. Suppose Davies 
& Co., of ISTewtown, had become notoriously insolvent, would the 
defendants continue bound by their guaranty, if the plaintiffs, with 
notice of that fact, chose to go oii discounting for them ? [Williams, 

^ And see Gordon v. Calvert, 2 Rim. 253, 4 Russ. 581, where an injunction to restrain 
proceedings at law upon the bond was dissolved. 


J. Suppose I guarantee the price of a carriage, to be built for a 
third party who, before the carriage is finished, and consequently 
before I am bound to pay for it, becomes insolvent, — may I recall 
my guaranty?] Not after the coach-builder has commenced the 
carriage. [Erle, C. J. Before it ripens into a contract, either party 
may withdraw, and so put an end to the matter. But the moment 
the coach-builder has prepared the materials, he would probably be 
found by the jury to have contracted.] In an American work of con- 
siderable authority, Parsons on Contracts, p. 517, it is said, "A 
promise of guaranty is always revocable, at the pleasure of the 
guarantor, by sufficient notice, unless it be made to cover some specific 
transaction which is not yet exhausted, or unless it be founded upon 
a continuing consideration, the benefit of which the guarantor can- 
not or does not renounce. If the promise be to guarantee the pay- 
ment of goods sold up to a certain amount, and, after a part has 
been delivered, the guaranty is revoked, it would seem that the revo- 
cation is good, unless it be founded upon a consideration which has 
been paid to the guarantor for the whole amount; or unless the 
seller has, in reliance on the guaranty, not only delivered a part to 
the buyer, but bound himself by a contract, enforceable at law, 
to deliver the residue." Brocklebank v. Moore, cor. Abbott, C. J., 
Guildhall Sittings after Trinity Term, 1823, referred to in 2 Stark. 
Evid., 3d edit. 510, n., is a direct authority that "a continuing guar- 
anty is countermandable by parol." And the same principle is 
clearly deducible from Mason v. Pritchard, 12 East, 227. 
[Williams, J. That would have been applicable, if this had been 
a guaranty for 6001., with no mention of the twelve calendar months.] 
The mention of twelve months would not compel the plaintiff to go 
on discounting for that period. In Holland ik Teed, 7 Hare, 50, 
under a guaranty given to a banking-house consisting of several 
partners, for the payment of such bills drawn upon them by one of 
their customers as the bank might honor, and any advances they 
might make to the same customer, within a certain time, it was held 
that the guaranty ceased upon the death of one of the partners in 
the bank before the expiration of the time to which the guaranty 
was expressed to extend; that bills accepted before the death of the 
partner, and payable afterwards, were within the guaranty; and 
that th(! amount guaranteed could not be increased by any act of 
the continuing firm and the customer after the death of the partner, 
although such amount might be diminished by such act. [Byles, J. 
The case of a change in the firm is now provided for by the Mer- 
cantile Law Amendment Act, 19 & 20 Vict. c. 97, § 4. Erle, C. J. 
WliJit meaning do you attribute to the words "at our request" in 
this guaranty?] As and when we request. The notice operated 
a retractation of the request, and any discount which took place after 
th.'it notice was not a disconnt at the request of tlie defendants. 
Brandt, in reply. The Court of Exchequer have decided in this 


term, in a case of Bradbury v. Morgan/ that the death of the surety 
does not operate a revocation of a continuing guaranty. If that be 
so, it is plain that the guaranty is not a mere mandatum, but a 
contract. In Gordon v. Calvert, 2 Sim. 253, 4 Russ. 581, the execu- 
trix of the deceased surety gave notice to Calvert & Co., the obligees, 
that she would no longer consider herself liable on the bond ; but the 
Vice-Chancellor (Sir L. Shadwell) said, that, ''by the original con- 
tract, the liability of the surety was to continue as long as Calvert 
& Co. kept Richard Edwards, or he chose to remain in their service; 
chat after Calvert & Co. had received the plaintiff's letter they never 
gave her any intimation that they did not consider her as continuing 
liable under her husband's bond; that their conduct did not operate 
in any manner upon her; and that therefore the injunction ought 
to be dissolved." That shows that, in the opinion of that learned 
Judge, the assent of the three persons concerned and interested in 
the bargain would be requisite to its dissolution. The fourth plea 
does not allege that notice of revocation was given before any bills 
had been discounted by the plaintiffs. It must therefore be assumed 
that some discounts had taken place. [T. Jones. The fact un- 
doubtedly is so.] 

Cur. adv. vult. 

Erle^ C. J., now delivered the judgment of the Court. 

The declaration alleged a contract by the defendants, in considera- 
tion that the plaintiff would, at the request of the defendants, dis- 
count bills for Davies & Co., not exceeding 6001., the defendants 
promised to guarantee the repayment of such discounts for twelve 
months, and the discount, and no repayment. The plea was a revo- 
cation of the promise before the discount in question; and the de- 
murrer raised the question whether the defendants had a right to 
revoke the promise. We are of opinion that they had, and that, con- 
sequently, the plea is good. 

This promise by itself creates no obligation.^ It is in effect con- 
ditioned to be binding if the plaintiff acts upon it, either to the 

1 Since reported, 31 Law J. Exch. 462; [1 H. & C. 249]. There the guaranty was 
in the following terras: "Messrs. Bradbury & Co., — I request you will give credit 
in the usual way of your business to H. L. ; and, in consideration of your doing so, I 
do hereby engage to guarantee the regular payment of the running balance of his 
account with you, until I give you notice to the contrary, to the extent of 100/.;" and it 
was held, that the liability was not determined by the death of the suretj% but that 
his executors were liable to Bradbury & Co. for goods sold and credit given to H. L. 
subsequently to the surety's death, — on the ground (contrary to the doctrine laid 
down in Smith's Mercantile Law, 4th edit. 425, 6th edit. 477, and adopted in Williams 
on Executors, 5th edit. 1604) that the guarantj' was a contract to be answerable to the 
extent stipulated for credit given to the principal debtor, until the creditors should 
receive a notice to put an end to it. — Rep. 

2 "A great number of cases are of contracts not binding on both sides at the time 
when made, and in which the whole duty to be performed rests with one of the con- 
tracting parties. A guaranty falls under that class; when 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 


benefit of the defendants or to the detriment of himself. But, until 
the condition has been at least in part fulfilled, the defendants have 
the power of revoking it. In the case of a simple guaranty for a 
proposed loan, the right of revocation before the proposal has been 
acted on did not appear to be disputed. Then are the rights of the 
parties affected either by the promise being expressed to be for twelve 
months, or by the fact that the same discounts had been made before 
that now in question, and repaid? We think not. 

The promise to repay for twelve months creates no additional lia- 
bility on the guarantor, but, on the contrary, fixes a limit in time 
beyond which his liability cannot extend. And, with respect to other 
discounts, which had been repaid, we consider each discount as a 
separate transaction, creating a liability on the defendant till it is 
repaid, and after repayment leaving the promise to have the same 
operation that it had before any discount was made, and no more. 

Judgment for the defendants. 


SuPBEME Judicial Court of Massachusetts, March 13- 
June 19, 1894 

[^Reported in 161 Massachusetts, 496] 

Contract, on a guaranty. Writ dated Eebruary 2, 1892. Trial 
in the Superior Court without a jury, before Braley, J., who found 
the following facts. 

The plaintiff in 1886 was a resident of Sycamore in the State of 
Illinois, and was to some extent connected in business with Harry 
H. Eaton, a brother of the defendant. In December, 1886, the de- 
fendant in a letter to the plaintiff said, "If Harry needs more money, 
let him have it, or assist him to get it, and I will see that it is paid." 

On January 7, 1887, Harry Eaton gave his promissory note for 
two hundred dollars to one Stark, payable in one year. The plain- 
tiff signed the note as surety, relying on the letter of the defendant, 
and looked to the defendant solely for reimbursement, if called upon 
to pay tbo note. Shortly afterward the plaintiff wrote to the de- 
fendant a letter stating that the note had been given and its amount, 
and deposited the letter in the mail at Sycamore, postage prepaid, 
and properly addressed to the defendant at his home in Nova Scotia. 
The letter, according to the testimony of the defendant, was never 
received by him. At the maturity of the note the time for its pay- 

giiaranty; biit if ho do employ him, thm fho KU.'ir.'uity jittaohos and boromos liind- 
ing on tho party who Ravo it." Parkn, B., Konnoway i>. Trclcavan, f) M. <fe W. 408, 
501. "Suppose 1 Hay, if you will furnish Roods to a third porsf)n, I will p:\inraiitoe 
tho payment: there yo\i are not boiuirl to them; yet if you do furnish Ihem 
in piirmianee of the eontraet, you may sue mc on my Ruaranty." Pattcson, ■!., Mor- 
ton V. Burn, 7 Ad. fc El. 19. 23. 


ment was extended for a year, but whether with the knowledge or 
consent of the defendant was in dispute. In August, 1889, in an 
interview between them, the plaintiff asked the defendant to take up 
the note still outstanding, and pay it, to which the defendant re- 
plied: "Try to get Harry to pay it. If he don't, I will. It shall 
not cost you anything." 

On October 1, 1891, the plaintiff paid the note, and thereafter 
made no effort to collect it from Harry Eaton, the maker. The de- 
fendant testified that he had no notice of the payment of the note 
by the plaintiff until December 22, 1891. 

The judge ruled, as matter of law upon the findings of fact, that 
the plaintiff was entitled to recover, and ordered judgment for him ; 
and the defendant alleged exceptions.^ 

F. G. Cool-, for the defendant. 

R. W. Light, for the plaintiff. 

Knowlton, J. The first question in this case is whether the con- 
tract proved by the plaintiff is an original and independent con- 
tract or a guaranty. The judge found that the plaintiff signed the 
note relying upon the letter, "and looked to the defendant solely for 
reimbursement if called upon to pay the note," The promise con- 
tained in the letter was in these words : "If Harry needs more money, 
let him have it, or assist him to get it, and I will see that it is 
paid." On a reasonable interpretation of this promise, the plaintiff 
was authorized to adopt the first alternative, and to let Harry have 
the money in such a way that a liability of Harry to him would be 
created, and to look to the defendant for payment if Harry failed 
to pay the debt at maturity or he might adopt the second alternative 
and assist him to get money from some one else in such a way as 
to create a debt from Harry to the person furnishing the money, 
and, if Harry failed to pay, might look to the defendant to relieve 
him from the liability. The words fairly imply that Harry was to 
be primarily liable for the debt, either to the plaintiff or to such 
other persons as should furnish the money, and that the defendant 
was to guarantee the payment of it. We are therefore of opinion, 
that, if the plaintiff relied solely upon the defendant, he was author- 
ized by the letter to rely upon him only as a guarantor. 

The defendant requested many rulings in regard to the law ap- 
plicable to contracts of guaranty, most of which it becomes necessary 
to consider. The language relied on was an offer to guarantee, which 
the plaintiff might or might not accept. "Without acceptance of it 
there was no contract, because the offer was conditional and there 
was no consideration for the promise. But this was not a proposition 
which was to become a contract only upon the giving of a promise 
for the promise, and it was not necessary that the plaintiff should 
accept it in words, or promise to do anything before acting upon 
it. It was an offer which was to become effective as a contract upon 
' The defendant's requests for rulings are omitted. 



the doing of the act referred to. It was an offer to be bound in con- 
sideration of an act to be done, and in such a case the doing of the 
act constitutes the acceptance of the offer and furnishes the con- 
sideration. Ordinarily there is no occasion to notify the offerer of 
the acceptance of such an offer, for the doing of the act is a suffi- 
cient acceptance, and the promisor knows that he is bound when ho 
sees that action has been taken on the faith of his offer. But if the 
act is of such a kind that knowledge of it will not quickly come to 
the promisor, the promisee is bound to give him notice of his accept- 
ance within a reasonable time after doing that which constitutes 
the acceptance . In such a case it is implied in the offer that , to 
complete the contract, notice shall be given with due diligenc e, so that 
the promisor may know that a contract has been made. But where 
the promise is in consideration of an act to be done, it becomes bind- 
ing upon the doing of the act so far that the promisee cannot be 
affected by a subsequent withdrawal of it, if within a reasonable 
time afterward he notifies the promisor. In accordance with these 
principles, it has been held in cases like the present, where the 
guarantor would not know of himself, from the nature of the trans- 
action, whether the offer has been accepted or not, that he is not 
bound without notice of the acceptance, seasonably given after the 
performance which constitutes the consideration. Babcock v. Bryant, 
12 Pick. 133 Whiting v. Stacy, 15 Gray, 270 Schlessinger v. Dickin- 
son, 5 Alen, 47. 

In the present case the plaintiff seasonably mailed a letter to the 
defendant, informing him of what he had done in compliance with 
the defendant's request, but the defendant testified that he never 
received it, and there is no finding that it ever reached him. The 
judge ruled, as matter of law, that upon the facts found, the plain- 
tiff was entitled to recover, and the question is thus presented whether 
the defendant was bound by the acceptance when the letter was 
properly mailed, although he never received it. 

When an offer of guaranty of this kind is made, the implication 
is that notice of the act which const itute s an acceptance of it shall 
be given in a reasonable way. What kind of a notice is required 
depends upon the nature of the transaction, the situation of the 
parties, and the inferences fairly to be drawn from their previous 
dealings, if any, in regard to the matter. If they are so situated 
that communication by letter is naturally to be expected, then the 
deposit of a letter in the mail is all that is necessary. If that is done 
which is fairly to be contemplated from their relations to the sub- 
ject matter and from their course of dealing, the rights of the parties 
arc- fixed, and a failure actually to receive the notice will not affect 
the obligation of tlio guarantor. 

The plaintiff in tbe case now before us resided in Illinois, and the 
defendant in Nova Scotia. Tlic offer wns made by letter, and the 
defendant must have contemplated that information in regard to the 


plaintiff's acceptance or rejection of it would be by letter. It would 
be a harsh rule which would subject the plaintiff to the risk of 
the defendant's failure to receive the letter giving notice of his ac- 
tion on the faith of the offer. We are of opinion that the plaintiff, 
after assisting Harry to get the money, did all that he was required 
to do when he seasonably sent the defendant the letter by mail in- 
forming him of what had been done. 

How far such considerations are applicable to the case of an ordi-i a. ^ 
nary contract made by letter, about which some of the early decisions | ' '^ ^ 
are conflicting, we need not now consider. 

The plaintiff was not called upon under his contract to attempt 
to collect the money from the maker of the note, and it is no de- 
fence that he did not promptly notify the defendant of the maker's 
default, at least in the absence of evidence that the defendant was 
injured by the delay. This rule in cases like the present was estab- 
lished in Massachusetts in Vinal v. Richardson, 13 Allen, 521, after 
much consideration, and it is well founded in principle and strongly 
supported by authority. 

We find one error in the rulings which requires us to grant a new 
trial. It appears from the bill of exceptions that when the note 
became due the time for the payment of it was extended without 
the consent of the defendant. The defendant is thereby discharged 
from his liability, unless he subsequently assented to the extension 
and ratified it. Chace v. Brooks, 5 Cush. 43 ; Carkin v. Savory, 14 
Gray, 528. The Court should therefore have ruled substantially in 
accordance with the defendant's eighth request, instead of finding 
for the plaintiff, as matter of law, on the facts reported. Whether 
the judge would have found a ratification on the evidence if he had 
considered it, we have no means of knowing. 

Exceptions sustained.^ 


In the House of Lokds, February 21, 22, 24, 1848 

DuNLOP AND Others, Appellants 
Vincent Higgins and Others, Respondents 

{^Reported in 1 House of Lords Cases, 381] 

This was an appeal against a decree of the Court of Session, 
made under the following circumstances : Messrs. Dunlop & Co. were 
iron masters in Glasgow, and Messrs. Higgins & Co. were iron mer- 
chants in Liverpool. Messrs. Higgins had written to Messrs, Dunlop 

^ The authorities upon the question whether notice of acceptance is necessary to 
the formation of a contract of guaranty are collected in Ames's Cases on Suretyship, 
225, note 2; 1 Williston, Contracts, §§69, 69a. The different reasons given in the 
decisions, holding notice necessary, are considered in Ames, 230, 231 and notes and in 
Williston, loc. cit. 


respecting the price of iron, and received the following answer: 
"Glasgow, 22d January, 1845. We shall be glad to supply you with 
2000 tons, pigs, at 65 shillings per ton, net, delivered here." Messrs. 
Higgins wrote the following reply: "Liverpool, 25th January, 1845. 
You say 65s. net, for 2000 tons pigs. Does this mean for our usual 
four-months' bill ? Please give us this information in course of post, 
as we have to decide with other parties on Wednesday next." On 
the 28th Messrs. Dunlop wrote, "Our quotation meant 65s. net, 

^ and not a four-months' bill." This letter was received by Messrs. 
Higgins on the 30th of January, and on the same day, and by post, 
but not by the first post of that day, they despatched an answer in 

_«*^ese terms: " We will take the 2000 tons pigs you offer us . Your 
letter crossed ours of yesterday, but we shall be glad to have your 

'^ answer respecting the additional 1000 tons. In your first letter you 
omitted to state any terms hence the delay." This letter was dated 
"31st January." It was not delivered in Glasgow until 2 o'clock 
P.M. on the 1st of February, and, on the same day, Messrs. Dunlop 
sent the following reply: "Glasgow, 1st February, 1845. We have 
your letter of yesterday, but are sorry that we cannot now enter 
the 2000 tons pig-iron, our offer of the 28th not having been ac- 
cepted in course." Messrs. Higgins wrote on the 2d February to 
say that they had erroneously dated their letter on the 31st January, 
that it was really written and posted on the 30th, in proof of which 
they referred to the post-mark. They did not, however, explain the 
delay which had taken place in its delivery. The iron was not fur- 
nished to them, and iron having risen very rapidly in the market, 
the question whether there had been a complete contract between 
these parties was brought before a court of law. Messrs. Higgins 
instituted a suit in the Court of Session for damages, as for breach 
of contract. The defence of Messrs. Dunlop Avas, that their letter 
of the 28th, offering the contract, not having been answered in due 
time there had been no such acceptance as would convert that offer 
into a lawful and binding contract; that their letter having been 
delivered at Liverpool before eight o'clock in the morning of the 30th 
of January, Messrs. Higgins ought, according to the usual prac- 
tice of merchants, to have answered it by the first post, which left 
Liverpool at three o'clock p.m. on that day. A letter so despatched 
would be due in Glasgow at two o'clock p.m. on the 31st of January; 
another post left Liverpool for Glasgow every day at one o'clock 
A.M., and letters to be despatched by that post must be put into the 
office during the preceding evening, and if any letter had been sent 
by that post on the morning of the 31st, it must have been delivered 
in Glasgow in the regular course of post at eight o'clock in the morn- 
ing of the 1st of February. As no communication from Messrs. 
Higgins arrived by either of these posts, Messrs. Dunlop contended 
that thfy wore entitled to treat their offer as not accepted, and that 
they were not bound to wait until the third post delivered in Glasgow 


at two o'clock p. M, of Saturday, the 1st of February (at which time 
Messrs. Higgins' letter did actually arrive), before they entered into 
other contracts, the taking of which would disable them from per- 
forming the contract they had offered to Messrs. Higgins.^ 

Mr. Bethell and Mr. Anderson, for the appellants. 

Mr. Stuart Worthley and Mr. Hugh Hill, for the respondents, 
were not called on. 

The Lord Chancellor.^ The case certainly appears to me one 
which requires great ingenuity on the part of the appellants, be- 
cause I do not think that, in the facts of the case, there is anything 
to warrant the appeal. The contest arises from an order sent from 
Liverpool to Glasgow, or rather a proposition sent from Glasgow 
to Liverpool, and accepted by the house at Liverpool. It is unneces- 
sary to go earlier into the history of the case than the letter sent 
from Liverpool by Higgins, bearing date the 31st of January. A 
proposition had been made by the Glasgow house of Dunlop, Wilson, 
& Co., to sell 2,000 tons of pig-iron. The answer is of that date 
of the 31st of January: "Gentlemen, we will take the 2,000 tons, 
pigs, you offer us." Another part of the letter refers to other ar- 
rangements; but there is a distinct and positive offer to take the 
2,000 tons of pigs. To that letter there is annexed a postscript in 
which they say, "We have accepted your offer unconditionally; but 
we hope you will accede to our request as to delivery and mode of 
payment by two months' bill." 

That, my Lords, therefore, is an unconditional acceptance, by the 
letter dated the 31st of January, which was proved to have been put 
into the post-office at Liverpoo l on the 30t h ; but it was not delivered, 
owin g t o the state oT severe frost at that time, which delaye d the 
mail from reaching Gla sgow at the time at which, in the ordinary 
course, it would have arrived there. The letter having been put in 
on the 30th of January, it ought to have arrived at Glasgow on the 
following day, but it did not arrive till the 1st of February. 

The first question raised by the first exception applies not to the 
summing up of the learned Judge, but to the admission of evidence 
by him. 

My Lords, the exception states, "that the pursuers having admitted 
that they were bound to answer the defenders' offer of the 28th, 
by letter written and posted on the 30th, and the only answer re- 
ceived by the defenders being admitted to be dated on the 31st of Jan- 
uary, and received in Glasgow by the mail which in due course ought 
to bring the Liverpool letters of the 31st, but not Liverpool letters 
of the 30th, it is not competent in a question as to the right of the 
defenders to withdraw or fall from the offer, to prove that the letter 
bearing date the 31st of January was written and despatched from 
Liverpool on the 30th, and prevented by accident from reaching 

1 The statement of the proceedings in the lower courts have been omitted. 
"^ Lord Cottenham. Portions of the opinion are omitted. 


Glasgow in due course, especially as it is not alleged that the de- 
fenders were aware (previous to the 3rd of February) of any such 
accident having occurred." 

The exception is that the learned Judge was wrong in permitting 
the pursuer to explain his mistake. The proposition is, that if a 
man is bound to answer a letter on a particular day, and by mistake 
puts a date in advance, he is to be bound by his error, whether it 
produces mischief to the other party or not. It is unnecessary to 
do more than state this proposition in order to induce you to assent 
to the view I take of the objection, and to come to the conclusion 
that the learned Judge was right in allowing the pursuer to go into 
evidence to show the mistake. 

The next exception to be considered is the second, and that raises 
a more important question, though not one attended with much diffi- 
culty. The exception is, that his Lordship did direct the jury in 
point of law, that if the pursuers posted their acceptance of the 
offer in due time, according to the usage of trade, they are not re- 
sponsible for any casualties in the post-office establishment. 

Now, there may be some little ambiguity in the construction of 
that proposition. It proceeds on the assumption that, by the usage 
of trade, an answer ought to have been returned by the post, and 
that the 30th was the right day on which that answer ought to have 
been notified. Then comes the questioji, whether under those circum- 
stances, that being the usage of trade, the fact of the letter being 
delayed, not by the act of the party sending it, but by an accident 
connected with the post, the party so putting the letter in on the 
right day is to lose the benefit which Avould have belonged to him if 
the letter had arrived in due course? 

I cannot conceive, if that is the right construction of the direction 
of the learned Judge, how any doubt can exist on the point. If a 
party does all that he can do, that is all that is called for. If there 
is a usage of trade to accept such an offer, and to return an answer 
to such an offer, and to forward it by means of the post, and if the 
party accepting the offer puts his letter into the post on the correct 
day, has he not done every thing he was bound to do? How can he 
be responsible for that over which he has no control? It is not the 
same as if the date of the party's acceptance of the offer had been 
the subject of a special contract : as if the contract had been, "I 
make you this offer, but you must return me an answer on the 30th, 
and on the earliest post of that day." The usage of trade would 
rer|nire an answer on the day on which the offer was received, and 
Messrs. Hitrtriiis. therefore^ did on tlie 30t]i, in proper time, return 
ar: answer by the right conveyance — the post-office. 

Jf that was not correct, and if you were to have reference now 
to any usage constituting the contract between the parties a specific 
contract, it is quite clear to me that the rule of law would necessarily 
be that which has obtained by the usage of trade. It has been so 


decided in cases in England, and none has been cited from Scot- 
land which controverts that proposition; but the cases in England 
put it beyond all doubt. It is not disputed — it is a very frequent 
occurrence — that a party having a bill of exchange, which he tenders 
for payment to the acceptor, and payment is refused, is bound to give 
the earliest notice to the drawer. That person may be resident 
many miles distant from him; if he puts a letter into the post at 
the right time, it has been held quite sufficient; he has done all that 
he is expected to do as far as he is concerned; he has put the letter ^ 
into the post, and whether that letter be delivered or not, is a matter ^o<-*. 
quite immaterial, because for accidents happening at the post-office "^^^-^ 
he is not responsible. 

My Lords, the case of Stocken v. Collin^ is precisely a case of that 
nature, where the letter did not arrive in time. In that case Baron 
Parke says, "It was a question for the jury whether the letter was 
put into the post-office in time for delivery on the 28th. The post- 
office mark certainly raised a presumption to the contrary, but it 
was not conclusive. The jurors have believed the testimony of the 
witness who posted the letter, and the verdict was therefore right. 
If a party puts a notice of dishonor into the post, so that in due 
course of delivery it would arrive in time, he has done all that can 
be required of him, and it is no fault of his if delay occurs in the 
delivery." Baron Alderson says, "The party who sends the notice 
is not answerable for the blunder of the post-office. I remember to 
have held so in a case on the Norfolk Circuit, where a notice ad- 
dressed to Norwich had been sent to Warwick. If the doctrine that 
the post-office is only the agent for the delivery of the notice was 
correct, no one could safely avail himself of that mode of trans- 
mission. The real question is whether the party has been guilty 
of laches." 

There is also the other case which has been referred to, which de- 
clares the same doctrine, the case of Adams v. Lindsell. That is 
a case where the letter went, by the error of the party sending it, 
to the wrong place, but the party receiving it answered it, so far 
as he was concerned, in proper time. The party, however, who 
originally sent the offer not receiving the answer in proper time, 
thought he was discharged, and entered into a contract and sold the 
goods to somebody else. The question was, whether the party mak- 
ing the offer had a right to withdraw after notice of acceptance. He 
sold the goods after the party had written the letter of acceptance, 
but before it arrived he said, "I withdraw my offer." Therefore he 
said, "before I received your acceptance of my offer I had withdrawn 
it." And that raised the question when the acceptance took place, 
and what constituted the acceptance. It was argued, that "till the 
plaintiff's answer was actually received, there could be no binding 
contract between the parties, and that before then the defendants had 

1 7 Meeson & Welsby, 515. 




retracted their offer by selling the wool to other persons." But the 

Court said, "If that were so, no contract could ever be completed by 

the post, for if the defendants were not bound by their offer when 

accepted by the plaintiffs till the answer was received, then the 

]a/^ I plaintiffs ought not to be bound till after they had received the noti- 

jfication that the defendants had received their answer and assented 

fc^A-y*- to it. And so it might go on ad infinitum. The defendants must 

^_^,J***4be considered in law as making, during every instant of the time 

— 7" their letter was travelling, the same identical offer to the plaintiffs, 

and then the contract is completed by the acceptance of it by the 


.^.^^t***^ Those two cases leave no doubt at all on the subject. Common 
sense tells us that transactions cannot go on without such a rule, 
and these cases seem to be the leading cases on the subject, and we 
have heard no authority cited which in the least degree affects the 
I principle on which they proceed. The law of Scotland appears to 
be the same as the law of England, for Mr. Bell's Commentary lays 
.^1 down the same rule as existing in Scotland, and nothing has been 
stated to us in contradiction of his opinion. 

^.—^ It was ordered that the interlocutor complained of should he 
^ '^'^ affirmed with costs} 

^^*^Qi Adams v. Lindsell, 1 B. & Aid. 681; Potter v. Sanders, 6 Hare, 1; Dunlop v. 

Ua*,^ Higgins, 1 H. L. C. 381; Duncan v. Topham, 8 C. B. 225; Hebb's Case, L. R. 4 Eq. 

^^^ 9; Harris's Case, L. R. 7 Ch. 589; Byrne v. Van Tienhoven, 5 C. P. D. 344; Grant 

(x. v. Household Fire Ins. Co. 4 Ex. D. 216; Brogden v. Metropolitan Ry. Co., 2 App. 

Cas. 666; McGiverin v. James, 33 U. C. Q. B. 203; Tayloe v. Merchants' F. Ins. Co., 
9 How. 390; Patrick v. Bowman, 149 U. S. 411; Winterport, &c. Co. v. The Jasper, 
1 Holmes, 99; Re Dodge, 9 Ben. 482; Darlington Iron Co. v. Foote, 16 Fed. Rep. 
646; Sea Ins. Co. v. Johnston, 105 Fed. Rep. 286, 291, (C. C. A.) ; Levisohn v. Waganer, 
76 Ala. 412; Linn v. McLean, 80 Ala. 360; Kempner v. Cohn, 47 Ark. 519; Porter v. 
Gossell 112 Ark. 380; Mercer Elec. Mfg. Co. v. Connecticut Elec. Mfg. Co. 87 Conn. 
691; Bryant v. Booze, 55 Ga. 4.38; Haas v. Myers, 111 111. 421; Chytraus v. Smith, 
141 111. 231, 2.57; Kentucky Mut. Ins. Co. v. Jenks, 5 Ind. 96; Moore v. Pierson, 6 
la. 279; Ferrier v. Storcr, 63 la. 484; Gipps Brewing Co. v. De France, 91 la. 108, 
112; Chiles v. Nelson, 7 Dana, 281; Shaw v. Ingram-Day Lumber Co. 152 Ky. 329; 
Bailey v. Hope Ins. Co., .56 Me. 474; Emerson Co. v. Proctor, 97 Me. 360; Wheat v. 
Cross, 31 Md. 99; Lungstrass v. German Ins. Co., 48 Mo. 201; Lancaster v. Elliot 
42 Mo. App. 503; Egger v. Nesbitt, 122 Mo. 667, 674; Horton v. New York Life 
Ins. Co., 151 Mo. 604; Abbott v. Shepard, 48 N. H. 14; Davis v. ^tna Mut. F. I. 
Co., 67 N. H. 218; Hallock v. Commercial Ins. Co., 26 N. J. L. 268; Commercial In. 
Co. V. Hallock, 27 N. J. L. 645; Northampton, &c. Ins. Co. v. Tuttle, 40 N. J. L. 
476; Mactier v. Frith, 6 Wend. 103; Vassar v. Camp. 11 N. Y. 441; Trevor v. Wood, 
36 N. Y. .307; Watson v. Russell, 149 N. Y. 388, .391; Wester v. Casein Co. 200 N. Y. 
606; Hacheny v. Leary, 12 Ore. 40; Hamilton v. Lycoming M. I. Co., 5 Pa. St. 339; 
McClintock V. South Penn. Oil Co., 146 Pa. 144, 161; Otis v. Payne, 86 Tenn. 663; 
Blake V. Hamburg Bremen F. I. Co., 67 Tex. 160; Haarstick v. Fox, 9 Utah, 110; 
Durkff! V. VrTmorit Central R. R. Co., 29 Vt. 127; Hartford Ins. Co. v. Lasher Stock- 
ing Co., 60 Vt. 439; Malloy v. Drumheller, 68 Wash. 106; Washlnirn v. Fletcher. 42 
Wis. 152, ncc. The only contrary decision not overruled secims to bo McCuUoch v. 
Eagle In.s. CVj., 1 Pick. 278. The h^ttcir must, however, be properly directed and 
stamped. Pots v. Whit<!head, 5 C. E. Green, 55; Britton v. Phillips, 24 How. Pr. 
Ill; Blake v. Hamljurg Bremen F. I. Co., 67 Tex. 160. 

The of ex parli; C;ote, L. R. 9 Ch. 27, seems to indicate that the English doc- 
trine is based on the assuTiii)tioii that a letter when mailed is no longer within the 
control of th(t Hcrruler, and that wliere as in France; the sender may reclaim his letter 
the contract should not be regarded as completed by the mailing of an acceptance. 





In the Chancery Division^ Court of Appeal March 3, 26, 1892 
[Reported in [1892] 2 Chancery, 27] 

In 1891 the plaintiff was desirous of purchasing from the Hus- 
kisson Benefit Building Society certain houses in Flamank Street, 
Birkenhead. In May he, at the office of the society in Chapel Street, 
Liverpool, signed a memorandum drawn up by the secretary, offer- 
ing £600 for the property, which offer was declined by the directors ; 
and on the first of July he made in the same way an offer of £700, 
which was also declined. On the 7th of July he ag ain called at the 
office, and the secretary verbally offered to sell to him for £750. 
This offer was reduced into writing, and was as follows : — 

*'I hereby give you the refusal of the Flamank Street property at 
£750 for fourteen days." 

The secretary, after signing this, handed i t to^ the plaintiff, who 
took it away with him for consideration. 

On the morning of the 8th another person called at the office and 
offered £760 for the property, which was accepted, and a contract 
for purchase signed, subject to a condition for avoiding it if the 
society found that they could not withdraw from the offer to the 

Between 12 and 1 o'clock on that day the secretary posted to the 
plaintiff, who resided in Birkenhead, the following letter : — 

"Please take notice that my letter to you of the 7th instant, giving 
you the option of purchasing the property, Flamank Street, Birken- 
head, for £750, in fourteen days, is withdrawn, and the offer can- 

By the United States Postal Laws, §§ 531, 533, the sender of a letter may regain it by 
complying with required formalities. See also Crown Point Iron Co. v. ^tna Ins. 
Co., 127 N. Y. 608, 619. But in McDonald 1). Chemical Nat. Bank, 174 U. S. 610, 
620, the Court said; " Nor can it be conceded that except on some extraordinary occa- 
sion and on evidence satisfactory to the post-office authorities, a letter once mailed 
can be withdrawn by the party who mailed it. When letters are placed in a post-ofBce, 
they are within the legal custody of the officers of the government, and it is the duty 
of postmasters to deliver them to the parties to whom they are addressed. United 
States V. Pond, 2 Curtis, C. C. 265; Buell v. Chapin, 99 Mass. 594; Morgan v. Rich- 
ardson, 13 Allen, 410; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390." 

If the use of the telegraph is authorized expressly or impliedly, the delivery of the 
acceptance to the telegraph office is held to complete the contract. Stevenson v. Mc- 
Lean, 5 Q. B. D. 346; Cowan v. O'Connor, 20 Q. B. D. 640; Minnesota Oil Co. v. 
Collier Lead Co., 4 Dill. 431; Garretson v. North Atchison Bank, 47 Fed. Rep. 867 
Andrews v. Schreiber, 93 Fed. Rep. 369; Weld v. Victory Co. 205 Fed. Rep. 770 
Bank of Yolo. v. Sperry Flour Co. 141 Cal. 314; Haas v. Myers, 111 111. 421, 427 
Cobb V. Foree, 38 111. App. 255; Trevor v. Wood, 36 N. Y. 307; Perry v. Mt. Hope 
Iron Co., 15 R. I. 380. Contra is Beaubien Produce Co. v. Robertson Rap Jud 
Quebec, 18 C. S. 429. 

The question when a contract by mail or telegraph is completed has been much 
disputed in the civil law, and there are four or five theories each of which has adher- 
ents. See Val^ry, Contrats par Correspondance, § 130 seq.; Windscheid Pandekten- 
recht, II. §306. 



- This letter, it appeared, was delivered at_t be plaintiff's a ddress 

^Qy^^^^hetwee n 5 a nd 6 in the eveni ng ; Init, as Hewas out, did not reach h is 
hands Till^aBout b o'clock ."" 

On the same 8th of July the plaintiff's solicitor, by the plaintiff's 
direction, wrote to the secretary as follows : — 

"I am instructed by Mr. James Henthorn to write to you, and ac- 
cept your offer to sell the property, 1 to 17 Flamank Street, Birken- 
head, at the price of £750. Kindly have contract prepared and for- 
^^ . warded to me." 

|J^ This letter was addressed to the society's office, and was posted in 

^tf'^^^ Birkenhead at 3.30 p.m.^ was delivered at 8.30 p.m . after the closing 

of the office, and was received by the secretary on the following 

morning. The secretary replied, stating that the society's offer had 

been withdrawn. 

The plaintiff brought this action in the Court of the County Pala- 
tine for specific performance. The Vice-Chancellor dismissed the 
action, and the plaintiff appealed. 

Farwell, Q. C, and T. R. Hughes, for the appeal. 

Neville, Q. C, and P. 0. Lawrence, for the defendant : — 

We insist that the Vice-Chancellor has drawn a correct inference, 
— that there was no authority to accept by post ; and if that be 
so, the acceptance will not date from the posting. Dunlop v. Higgins, 
1 H. L. C. 381, went on the ground that it was the understanding of 
both parties that an answer should be sent by post. In Brogden v. 
Metropolitan Kailway Company, Lord Blackburn puts it on the 
ground "that w^here it is expressly or impliedly stated in the offer 
that you may accept the offer by posting a letter, the moment you 
post the letter the offer is accepted." It would be very inconvenient 
to hold the post admissible in all cases. Here, Liverpool and Birk- 
enhead are at such a short distance from each other that it cannot 
be considered that the plaintiff had an authority to reply by post. 
If the offer had been sent by post that would, no doubt, be held to 
give an authority to reply by post; but the offer was delivered by 
hand to the plaintiff, who was in the habit of calling at the defend- 
ant's office, and lived only at a short distance, so that authority to 
reply by post cannot be inferred. The post is not prohibited; the 
acceptance may be sent in any way; but, unless sending it by post 
was authorized, it is inoperative till it is received. Suppose, im- 
C mediately after posting the acceptance, the plaintiff had gone to the 
office and retraced it, surely he would have been free. 

[Lord Herscitell. — It is not clear that he would, after sending 
an acceptance in such a way that ho could not prevent its reaching 
/the othfr party. Possibly a case where the question is as to the 
date from which an acceptance which has been received is operative 
may not stand on precisely the same footing as one where the ques- 
tion is whether the person making the offer is bound, though the 
acceptance has never been received at all. More evidence of au- 

SECT. l] HENTHORN V. FRASER 'S'*^'^ • '■^^*- 105 /rt±?~ 

thority to accept by post may be required in the latter case than in ^^*^ ^ 

the former.] A^^"^"""^-^ 

Dickinson i;. Dodds, 2 Ch. D. 463, shows that a binding contract ^— -^^ 

to sell to another person may be made while an offer is pending, and *^^^'\ "' 

that it will be a withdrawal of the offer. CoM-*-^ 

[Lord Hebschell. — In that case the person to whom the offer ^^'-<»-* *" 

was made knew of the sale before he sent his acceptance.] (£*-4>^A-«^<i 

Farwell, in reply. 

1892, March 26. Lord Heeschell.^ If the acceptance by the ^ "t" 
plaintiff of the defendant's offer is to be treated as complete at the X*/*'-^^ 
time the letter containing it was posted, I can entertain no doubt ^jj^,^^^ 
that the society's attempted revocation of the offer was wholly in- ^r^^*^ 
effectual. I think that a person who has made an offer must be con- '*-*^ '^ 
sidered as continuously making it until he has brought to the knowl- -'^w*'^-*^ 
edge of the person to whom it was made that it is withdrawn. This /3 L,t->^ 
seems to me to be in accordance with the reasoning of the Court of '^^ 
King's Bench in the case of Adams v. Lindsell, 1 B, & Al. 681, which 
was approved by the Lord Chancellor in Dunlop v. Higgins, 1 H. 
L. C. 381, 399, and also with the opinion of Lord Justice Hellish 
in Harris's case. Law Kep. 7 Ch. 587. The very point was decided 
in the case of Byrne v\ Van Tienhoven, 5 C. P. D. 344, by Lord 
Justice Lindley, and his decision was subsequently followed by Mr. j^"*"*** *1 
Justice Lush. The grounds upon which it has been held that the ^ ^^ 
acceptance of an offer is complete when it is posted have, I think, f~ s 
no application to the revocation or modification of an offer. These 
can be no more eft'ectual than the offer itself, unless brought to the '"^'^ ^ 
mmd of the person to whom t he off er is made ! But it is contended 4-a^\.>..*. 
on behalf of the defendants that the acceptance was complete only '^- 
when received by them, and not on the letter being posted. It can- 
not, of course, be denied, after the decision in Dunlop v. Higgins, A-''^*A 
1 H. L. C. 381, in the House of Lords, that, where an offer has been /v«,tTi.^ 
made through the medium of the post, the contract is complete as ,v».v« ^ 
soon as the acceptance of the offer is posted, but that decision is. 4. * * 
said to be inapplicable here, inasmuch as the letter containing the 
offer was not sent by post to Birkenhead, but handed to the plaintiff '''**^ 
in the defendant's office at Liverpool. The question therefore arise s to *yo^ 
in wha t circumstances the acceptance of an offer is to be regarded . . 
as complete as soon as it is postej^ . In the case of the Household ■ j 
Fire and Carriage Accident Insurance Company v. Grant, 4 Ex. D. 
216, Lord Justice Baggallay said (ibid. 227) : "I think that the prin- ^IT^ 
ciple established in Dunlop v. Higgins is limited in its application ^^^^^ 
to cases in which by reason of general usage, or of the relations be- "^ 't"^ 
tween the parties to any particular transactions, or of the terms in «/ ^^^^.^.^ 
which the offer is made, the acceptance of such offer by a letter '. 
through the post is expressly or impliedly authorized." And in the ^^ '*^ 

' Lord Herschell's restatement of the case is omitted. The concurring opinions of 
Lindley, L. J., and Kay, L. J., are also omitted. 

ZoJUa. -UU^ i^ ^*^ ux-^-tJU) »U. /Uxv-tf-«.atM>^ d^ '-^^^ ^ 


same case Lord Justice Thesiger based his judgment, 4 Ex. D. 218, 
on the defendant having made an application for shares under cir- 
cumstances "from which it must be implied that he authorized the 
company, in the event of their allotting to him the shares applied 
for, to send the notice of allotment by post." The facts of that case 
were that the defendant had, in Swansea, where he resided, handed 
a letter of application to an agent of the company, their place of 
business being situate in London. It was from these circumstances 
that the Lord Justices implied an authority to the company to ac- 
cept the defendant's offer to take shares through the medium of the 
post. Applying the law thus laid down by the Court of Appeal, I 
think in the present case an authority to accept by post must be im- 
plied. Although the plaintiff received the offer at the defendants' 
office in Liverpool, he resided in another town, and it must have been 
in contemplation that he would take the offer, which by its terms 
was to remain open for some days, with him to his place of residence, 
and those who made the offer must have known that it would be 
according to the ordinary usages of mankind that if he accepted it 
he should communicate his acceptance by means of the post. I am 
not sure that I should myself have regarded the doctrine that an 
acceptance is complete as soon as the letter containing it is posted 
as resting upon an implied authority by the person making the offer 
to the person receiving it to accept by those means. It strikes me 
as somewhat artificial to speak of the person to whom the offer is 
made as having the implied authority of the other party to send 
his acceptance by post. He needs no authority to transmit the ac- 
ceptance through any particular channel; he may select what means 
he pleases, the post-office no less than any other. The only effect of 
the supposed authority is to make the acceptance complete so soon 
as it is posted, and authority will obviously be implied only when 
the tribunal considers that it is a case in which this result ought to 
be reached. I should prefer to state the rule thus : Where the cir- 
cumstances are such that it must have been within the contemplation 
of the parties that, according to the ordinary usages of mankind, 
the post might be used as a means of communicating the acceptance 
of an offer, the acceptance is complete as soon as it is posted.^ It 
matters not in which way the proposition be stated, the present case 
is in either view within it. The learned yice-Chancellor appears 
to have based his decision to some extent on the fact that before 
the acceptance was posted the defendants had sold the property to 
another person. The case of Dickinson v. Dodds, 2 Ch. D. 463, 

' In P(!rry v. Mt. Hope Iron Co., 15 R. I. 380, an ofFor made in Boston in conversa- 
tion was to "staiifl until tho next day." The plaintiff toloRraphed an aocoptance from 
Providoncfi. It wa,s hfld that tho contract was cr>mi)Icto(l in Rhode Island. "If there 
bo any riucstion that tho tolcgraph is a natural and ordinary mode of transmitting 
such an accoptanco, that is :i ((uc^stion of fact for th(> jury; hut wo are of opinion that 
if it ho shown that tho acceptance duly reacherl the defendant, the question of the 
mode, no mode having Vieen specified, is immaterial." See also Wilcox v. Cline, 70 
Mich. 617. 


was relied upon iu support of that defence. In that case, however, ^^', yc 

the plaintiff knew of the subsequent sale before he accepted the offer, ^, ^j ' 
which, in my judgment, distinguishes it entirely from the present-^^ ' 

case. For the reasons I have given, I think the judgment must -^ <*-** 
be reversed, and the usual decree for specific performance made. The '^7^*1 
respondents must pay the costs of the appeal and of the action. (^"^■A^^T^— 

^ ^ _^ T^ -c/-'^=^^;;^7^^ ^ 


In the Chancery Division, November 15-17, 1899 
[Reported in [1900] 1 Chancery, 220] 

Cozens-Hardy, J. : On October 15, 1898, Dr. Jones, who resides 
at Sheffield, applied for 1000 ordinary shares of lOZ. each in the 
company, upon which he paid a deposit of 500?., being 10s. per 
share. His letter of application, with cheque enclosed, was received 
in due course by the company. On October 26 Dr. Jones wrote from 
Sheffield a letter withdrawing his application and asking for a re- 
turn of his 500L This letter of withdrawal was sent as a registered 
letter. It was delivered at the office of the company at about 8.30 
on the morning of October 27 before the arrival of the secretary. 
On the afternoon of October 26 a board meeting of the company was 
held, at which it was resolved to allot 1000 shares to Dr. Jones. An 
allotment letter addressed to Dr. Jones, dated October 26, was de- 
livered in Sheffield at about 7.30 in the evening of October 27. Dr. 
Jones now applies to have his name removed from the register in 
respect of the 1000 shares, and for a return of his deposit, on the 
ground that his application was withdrawn before notice of accept- 

The company alleges that, although the notice of allotment did 
not reach Dr. Jones until the evening of the 27th, it was posted at 
or about 7.30 on the morning of the 26th, and therefore before the 
letter of withdrawal arrived. It is settled law that an offer is to 
be deemed accepted when the letter of acceptance is posted, the reason "L 
being that the post-office is considered the common agent f^f T^ntli * 
parties " Harris's Case (1872), L. R. 7 Ch. 587. Hence, no delay 
on the part of the post-office in delivering the letter will be material. 
The withdrawal, in order to be effectual, must be before the offer 
is clinched by the posting of the letter of acceptance. The question 
I have to decide is this : Was the letter of allotment posted before 
the letter withdrawing the offer was received by the company? 
jN"ow, the envelope containing the letter of allotment is produced. 
It bears a stamp impressed with the words "11 a.m., 27 Oct., '98," 
with the figures "44" below. It has been proved that this stamp 
indicates that the letter was not posted at the general post-office at 
all, but was deposited at one of the district post-offices in London, 


from which letters are collected and taken to the general post-office. 
The letters thus collected are placed upon a separate bench or table, 
and this particular stamp is impressed on them. No work is done 
at this table until after 9.15. Letters posted at the general post- 
office are dealt with at a different table and are impressed with a 
different stamp. If the letter had been posted at 7.30 at the general 
post-office, it would have been forwarded by the 10 o'clock train to 
Sheffield and have been delivered before 7.30. It was in fact sent 
down in the ordinary course by a train at or about 12 o'clock, and 
was delivered in due course at 7.30. 

This evidence raises a strong presumption in favor of the appli- 
cant. The company seeks to rebut this presumption, and the result 
of the evidence on its behalf is as follows : Mr. Claxton, who was 
employed by the promoters with a staff of about ten clerks, was en- 
gaged from shortly after the end of the board meeting on the after- 
noon of the 26th throughout the whole night in preparing from the 
allotment sheets the letters of allotment. Their task ended at about 
7 in the morning, when Mr. Claxton and one of his clerks took the 
letters, which were fastened in bundles of fifty, in a cab to St. Mar- 
tin's-le-Grand. They got out of the cab, and, seeing a porter in livery 
outside the building, had some conversation with him, in the course 
of which a postman came by and offered to take the letters. They 
gave him sixpence or a shilling for his trouble. He went into St. 
Martin's-le-Grand, came back, and said it was "all right." Mr. 
Claxton was not, in some respects, a satisfactory witness, but for 
the purposes of my judgment I assume that the letter of allotment 
to Dr. Jones was among those taken to St. Martin's-le-Grand and 
thus dealt with. 

It was contended that this was a posting of the letter at St. Mar- 
tin's-le-Grand. It seems to me, however, that the postman was not 
an agent of the post-office to receive the letters. The Postal Guide, 
at p. 47, expressly states that town postmen are not allowed to take 
charge of letters for the post. Mr. Anderson, the witness from the 
post-office, stated that any man would be reported if discovered to 
have done any such thing. I cannot, therefore, regard the postman 
as anything better than a boy messenger employed by Claxton to 
post the letters, and the mere fact of handing the letter to the post- 
man outside St. Martin's-le-Grand was not a posting of the letter. 

It is further urged that directly the postman entered St. Martin's- 
le-Grand the letter thereupon came into the lawful custody of the 
post-office, and was posted, without reference to what the postman 
did with it. I am, however, unable to follow this view. It is not 
possible for me to ascertain precisely what was done with the letters 
by the unknown postman. He may have left them at a table or in 
a bag until some later liour. He may have taken them to a branch 
office. All I know is tli;it it was not until a much later hour that 
they were found on the table appropriated to branch office letters. 


However that may be, I think that the company has failed to prove 
that the letter, which did not leave the post-office until about 11 
o'clock, was posted before 8.30, or before 9,30, at which hour the 
secretary arrived and opened the letter of withdrawal. 

As to the point that the notice of withdrawal did not reach the 
company when it was opened by the secretary, I think there is no 
foundation for the suggestion. The secretary is the man whose duty 
it was to receive and open letters of that nature. The result is that 
I think the withdrawal was in time, and I must therefore make an 
order removing the name of Dr. Jones from the register in respect 
of the 1000 shares; and I must order the return of the deposit, with 
interest at 4 per cent. The company must pay the costs of the mo- 


y - s rT— I -^'- W. S. DAVIS, ET AL. ^ ^ ^ , • 

^.l^ tUA^ ^ — Usj^ ^^^^^^ojJT' aL,JjL k^cU TCtU /3 -*«*-/ ^-«-t- 
Texas Supkeme'Ijoitrt, May 11, 1903,^;^^^^^^ ^ "^ ^ -^ 

{Reported m 96 Texas, 504] ^ a^^-^t^^jt Lj /w.^^ 

Brown, Associate Justice. — W. S. Davis sued the Scottish- 
American Mortgage Company, Limited, and Brown Brothers to re- a*,*:/ 
cover commissions alleged to be due to him from them for procuring ^^^^ 
a purchaser for certain lands. Brown Brothers were the agents ^ ^^^ 
of the mortgage company and repi-esented it in the transaction. The ' 

mortgage company and Brown Brothers pleaded over against J. E. ^ 
Couts, the alleged purchaser, but he was dismissed from the case on a *'-^ 
plea of his privilege to be sued in Parker County. The following are abtou 
the findings of fact by the Court of Civil Appeals : • v- 

"The evidence discloses that Brown Bros, resided in Austin, Texas. 
Davis resided in Fort Worth, Texas, and the communication between 
them was through the mails. Couts resided in Weatherford and 
Davis first got in communication with him through Hon. I. "W. 
Stephens, who stated to Davis that Couts would like to purchase the 
land. After various communications between the parties, Brown 
Bros, submitted, through Davis, to Couts a proposition to sell. This 
Couts declined : Davis then went to "Weatherford, saw Couts, and se- 
cured from him a written proposition to purchase. This was sent by 
Davis to Brown Bros., and on January 23, 1900, Brown Bros, re- 

^ "It is clear that when the plaintiff in pursuance of defendant's request, deposited 
the duplicate of the contract signed by her, with her address, in the United States 
street mailing-box, the agreement by that act became complete." Watson v. Russell, 
149 N. Y. 388, 391. See also Wood v. Calnan, 61 Mich. 402, 411; Greenwich Bank v. 
De Groot, 7 Hun, 210, ace. In Pearce v. Langfit, 101 Pa. 507, 511, the Court said: 
"It certainly can make no difference whether the letter is handed directly to the car- 
rier, or is first deposited in a receiving box and taken from thence by the same carrier. 
. . . The postal regulations of the United States require that carriers while on their 
rounds shall receive all letters prepaid that may be handed them for mailing." 


turned tlie same to Davis with this interlineation : 'Subject to letter 
from Brown Bros, to W. S. Davis & Co., dated 20th of January, 
1900.' The letter of January 20, 1900, mentioned, related to a tax 
title on twelve sections of said land and stated, 'You will recollect 
that there is an old absolutely invalid tax title on twelve sections. 
"We could clear off this title by suit easily, but prefer that the pur- 
chaser do it and would pay half of the costs of the suit.' The 
proposition so in terl ined by Brown Bros, was sent to Couts by Davis. 
After receiving same (Jouts, on the morning of January 26, 1900, 
met Judge Stephens in Weatherford on his way to take the train 
for Fort Worth, and told him (Stephens) that he could tell Davis 
that he (Couts) had decided to take the land. Stephens said for him 
to confer direct with Brown Bros., which he assented to. When 
Judge Stephens reached Fort Worth he told Davis of the conversa- 
tion he had with Couts. Davis on the same day wired Brown Bros., 
that Couts had accepted and followed same with a letter. On that 
same day Couts mailed to Brown Bros, the following letter, to wit: 

'"January 26, 1900. 
"'Messrs. Brown Bros., Austin, Texas: 

"'Gentlemen. — You are hereby notified that I accept the interlineation above 
the last line of first page of preliminary contract and will take the land as indicated 
by said agreement. 

"'I think, however, that you people ought to pay the whole cost of clearing title, 
but will not let that prevent the trade. You will please advise me what you think ia 
best plan of procedure in clearing title. Shall we sue for same or act on the defense 
and wait for adverse claimant to institute proceedings? 

"'The abstract received, which is too large for immediate examination. I accept 
relying on your statement and that it will show up as represented. Yours truly, 

"'J. R. Couts.' 

" This letter never reached Brown Bro s., it being intercepted the 
next day by a telegram sent by one Holland at the instance of _C outs 
to the postmaster at Austin , who returned it to Couts, and on that ^y 
27th, Couts telegraphed Brown Bros, that he objected to the land 
on account of its shape and declared the trade off. In the letter from 
Brown Bros, to Davis of January 22d, in which Couts' proposal was 
returned interlined by Brown Bros,, they said : 'Your commission, 
of course, will be payable only in the event of the sale going through 
according to the contract.' This is the first time Brown Bros, said 
anything to Davis as to when the commissions were payable." 

A judgment was entered in favor of Davis against the mortgage 
company and Brown Bros, for $3382, which was affirmed against the 
mortgage company and reversed and rendered in favor of Brown 
Bros, by the Court of Civil Appeals. 

The controlling question in this case is, was there at any time a 
contract between the mortgage company and Couts which could have 
been enforced by either party? The first proposition in writing that 
passed bc^tAVfcn the parties was sent by Brown Bros., as agents of the 
mortgage c-ompany, to Davis to be submitted to Couts, who rejected it 
and returned the proposition in a modified form to Brown Bros, for 


their acceptance. Brown Bros, did not accept the proposition as 
modified by Gouts, but in turn added other terms, and returned it to 
Davis to be again submitted to Gouts, who took the matter under ad- 
visement, which left the proposition open for rejection by either 
party. Up to this time their minds had not met in agreement. Gouts, 
after consideration of the proposed contract, told his friend. Judge 
Stephens, that he would accept it, and authorized Stephens to state 
that fact to Davis in Fort Worth, but upon the suggestion of 
Stephens, Gouts concluded to communicate through the mail with 
Brown Bros, and to close the trade with them. Judge Stephens 
stated the conversation between himself and Gouts to Davis at 
Port Worth, telling him that Gouts would communicate directly with 
Brown Bros, and "close the contract with them." These facts did 
not constitute a binding obligation on Gouts; he might withhold his 
intended acceptance. When Gouts put his acceptance of the proposi- 1 
tion in the postoffice to be delivered to Brown Bros, at Austin it 
was still subject to his control, and might be recalled at any time be- 
fore actual delivery, unless the facts bring it within the rule of law 
hereafter stated. 

The authorities are well-nigh unanimous in asserting that, when a 
party submits to another through the mail a proposition of purchase 
or sale, the receiver of the proposition has the right within a reason- 
able time and before it is withdrawn to accept by a writing deposited 
in the postoiiice duly stamped, ready for carriage and delivery, and 
such an aceptance binds the proposer of the contract from the time 
the deposit is made in the postoffice, whether it be delivered or not. 
Blake v. Insurance Go., 67 Texas, 163; Bryant v. Booze, 55 Ga., 445; 
Levy V. Gohen, 4 Ga., 13; Moore v. Pierson, 6 Iowa, 292; Vassar v. 
Gamp, 11 N". Y., 441 ; Hunt v. Higman, 30 K W. Eep., 769 ; Hallock 
V. Insurance Go., 2 Dutch., 280; Dunlop v. Higgins, 1 H. L. G., 397. 
Any number of authorities to the same effect might be added. 

The f acts of this case do not bring it within the rule above laid 
down, because there had been no proposition submitter! by Brown 
Bros, on behalf of the mortgage company to Gouts through the mai l. 
hence there was no implied authority for Gouts to accept by inail e-^ 
cept by actual delivery nf hi<; acceptance . When Gouts deposited 
tis letter in the postoffice it was subject to his control until delivered 
to the party addressed, and he had a perfect right to withdraw his 
acceptance and abandon the contract, because it did not bind the 
mortgage company until delivered and could not bind Gouts alone, — 
it must be mutual. There never was a time when Gouts was legally 
bound to take the land. Davis never did present Gouts "able, ready 
and willing" to accept a deed for the land from the mortgage 
company, nor did the mortgage company ever decline to carry out 
the proposed contract; on the contrary, after Brown Bros, received 
the telegram withdrawing the proposition they made an earnest and 
persistent effort to induce Gouts to carry out the trade but he refused. 






Neither Bro'^ai Bros., Davis, nor the mortgage company ever knew 
that Couts had mailed a written acceptance until after he had re- 
peatedly rejected all propositions from Brown Bros, to carry it out 
and suit had been commenced by Davis to recover his commissions. . 

There is no evidence to support the judgment in favor of Davis \ 
against the mortgage company, and, from the undisputed facts, it is 
evident that no right of action can be established upon another trial 
in favor of Davis. It is therefore ordered that the judgment of the ''^ 
Court of Civil Appeals as between Davis and the mortgage company ^ 
be reversed, and that judgment be here entered in favor of the >^ 
mortgage company that Davis take nothing by his suit and for all ^ 
costs. The judgment of the Court of Civil Appeals as to all the ^ 
other parties is affirmed. Reversed and rendered. 


'^^ S. E. LUCAS, Appellant, v. WESTEEN UNION ^5 


>^\y^\}- Iowa Supreme Court, October 19, 1906 
^.^. J^' , [Reported in 131 Iowa, 669] 

^ ^jo^ Ladd, J.^ Plaintiif sought to recover profits he would have made 
^Mn an exchange of real estate but for the negligence of defendant in 
»Jt failing to promptly transmit a telegram. Verdict w^as directed for 
^r' defendant on two grounds: (1) There was no proof of damages; and 
\y\ (2) the delay in transmitting the message did not occasion the loss. 
^, Plaintiff resided at Anthon, Iowa, and was engaged in the business 
' of ''buying and selling lands and exchanging real property." He 

had been negotiating for some time to exchange property at Shelby, 
this state, with William Sas of Dexter, Iowa, and, in the evening 
of November 11, 1904, received a letter, written and mailed b}^ Sas 
two days previous, making the following proposition : "I will put 
in my store property here with the extra piece of ground back of it 
just as I showed you last spring and $6500 in cash, any encumbrance 
now on property to be deducted from above amt. and assumed by 
me. If above is satisfactory please make out your contract and 
send down. I will make a $1500 deposit until the papers can be 
made out and abstract brought down, if I get the building I expect 
I can make a better deal with Jacobs. My man here takes my stock 
between 5th and 10th of January. I will have to know at once, as 
I have another deal pending." At 9.10 o 'cl^fk tho n^vf; jn orning plaiii- 
tiff liaiuhid defendant's agent at Anthon tliis telegram: "November 
12, Aritbon, Iowa, 1904. To William Sas, Dexter, Iowa. Just re- 
ceived letter. Off(!r accepted. Send contract today. S. E. Lucas." 
It was not sent until 4. 41 o'clock , p.m. and was delivered to Sas the 

' A r)ortion of the opinion is omitted. 

L ' t *■<■■■■' ' i .. 

I I -i. ■] 


^ ^- same evening at three minutes after 6 o'clock. The latter immedi- 
jL <:> ately wrote plaintiff that he had put another party off until 3.30 
C ^ o'clock P.M. of that day, and, not hearing from him, had negotiated 
^ ^n exchange with another. Evidence was offered tending to support 
9 C'^the statement. 

i T^ The proposition of an exchange w^as made to plaintiff by letter. 
^(Vsoln committing it, properly addressed to the mails for transmission, the 
y^.-j ^ post-office became the agent of Sas to carry the offer , he taking the 
j 3 :: chances of delays in the transmission. Mactier's Adm'rs. v. Frith, 
^ ^-6 Wend. (N. Y.) 103 (21 Am. Dec. 262); Adams v. Lindsell, 1 B. 
t '^%k Aid. 681; Averill v. Hedge, 12 Conn. 424, 9 Cyc. 294. Having 
y '^Tsent the proposition by mail he impliedly authorized its acceptance 
5^ ^^ through the same agency. Such implication arises (1) when the 
^ Si post is used to make the offer and no other mode is suggested, and 
Xi"^ (2) when the circumstances are such that it must have been within 

v\ the contemplation of the parties that the post would be used in C^f***""*^ 
**^ <| making the answer. Tuttle v. Iowa State Traveling Men's xisso-''''^.^ r^ 
jfj ciation, 132 Iowa,*^.^The contract is complete in such a case when ijjl^^"^ 
\ ^ the letter containing the acceptance is properly addressed and de-/ - ^^,^^4- 
\ "X. posited in the United States mails. Trevor v. Wood, 36 N. Y. 

307 (93 Am. Dec. 511) and note; Brewer v. Horst-Lachmund Co., 

127 Cal. 643 (50 L. K. A. 240) and extended note; Dunlop v. 

Higgins, 1 H. L. C. 381; Household Ins. Co. v. Grant, 41 L. T. 

JSr. S. 298, 9 Cyc. 295. This is on the ground that the offerer by de- 

.^ positing this letter in the post-office, selects a common agency through 

^^^ which to conduct the negotiations, and the delivery of the letter to 

'^^ it is in effect a delivery to the off erer. Thereafter the acceptor has 

no right to the letter and cannot withdraw it from the mails. Even // t^r**^ 


fj if he should succeed in doing so the withdrawal will not invalidate 1 1 /»****** 

'^ V the contract previously entered into. tftfu^c " 

^V But plaintiff did not adopt this course. On the contrary he chose 

* X to indicate his acceptance by transmitting a telegram to Sas by 

f "^ the defendant company. Sas had done nothing to indicate his will- 

s 05 lingness to adopt such agency and the defendant in undertaking to 

- transmit the message was acting solely as the agent of the plaintiff. 

J «^ The latter might have withdrawn the message or stopped its de- 

^ livery at any time before it actually reached Sas. It is maifest 

;N that handing the message to his ow n agent was not notice to the 

i send ee ot tiie telegram. The most formal declaration of an inten- -^ 

tion of acceptance ot an offer to a third person will not constitute 

a contract. A written letter or telegram, like an oral acceptance, \C- 

must be communicate:d to the party who has made the offer or to 

some o ne expressly or impliedly authorized to receive iL and this 

rule IS not complied with by delivering it to the writer's own agent 

or messenger even with direction to deliver to the offerer. Hebbs' 

Case, L. E. 4 Eq. 9. In that case Hebbs wrote asking that certain 

shares in a newly formed company might be allotted to him. The 

' / ":' - rr. 


directors instructed their agent through the mail that such an al- 
lotment should be made and the shares were registered as Hebbs'. 
It was held that this did not complete the contract or render it ob- 
ligatory on him to take and pay for the shares. Lord llomilly, in 
the course of the opinion said : "If A writes to B a letter offering 
to buy land of B for a certain sum of money, and B accepts the 
offer and sends his servant with a letter containing his acceptance, 
I apprehend that, until A receives the letter, A may withdraw his 
offer, and B may stop his servant on the road and alter the terms 
of his acceptance or withdraw it altogether; he is not bound by 
communicating the acceptance to his own agent." Dunlop v. Hig- 
^gins, supra, decides that the posting of a letter accepting an offer 
constitutes a binding contract, but the reason for that is that the 
post-office is the common agent of both parties. 

The party miaking the offer may be entirely satisfied to trust the 
mails, and not be willing to chance the use of the telegraph. The 
principle is lucidly stated so as to make the company his agent in 
the somewhat recent work of Hare on Contracts, 363. 

It is very evident on authority and principle that, in the absence 
of any suggestion, one transmitting an offer by mail cannot be bound 
by an acceptance returned in some other way until it is received or 
he has notice thereof. 

The plaintiff, then, did not accept the offer of Sas until the tele- 
gram was received by the latter, a few minutes after 6 o'clock p.m. 
of the day after the letter had been received and the question arises 
whether this was "at once" within the meaning of the offer which 
stated that another deal was pending. Like "forthwith" and "im- 
mediately," "at once" does not mean instantaneously but requires 
action to be taken within a reasonable time, or, as said in Warder, 
Bushnell & Glessner Co. v. Home, 110 Iowa, 283, it is synonymous 
with the words mentioned and "as soon as possible," and is "usually 
construed to mean within such reasonable time as shall be required 
under all the circumstances for doing the particular thing." It is 
doubtful whether the same vigilance should be extracted in the ac- 
ceptance of an offer to exchange or purchase real estate as in trans- 
actions relating to the transfer of chattel property. See Kempner 
V. Cohn, 47 Ark. 519 (1 S. W. 869, 58 Am. Eep. 775). The cir- 
cumstances of each case necessarily have an important bearing. 
There was no evidence of the time a letter, if promptly mailed, 
might have reached Sas. He had indicated in his letter that he 
was contemplating another deal, and we think ordinary minds fairly 
differ as to whether, in these circumstances, an acceptance twenty- 
tliree or twenty-four hours after the hotter had been received was 
in time to bii)d the party making the offer, and the issue was for 
tlic jury to dctcrniino. There are numerous decisions determining 
that th(! time witliin which an acceptance has been made is reasonable 
or unreasonable, but few passing upon the question as to whether 


the circumstances were such as to carry that issue to the jury. Each 
case necessarily depends upon its particular facts, and for this reason 
authorities are of slight aid in determining the question. 

If, because of unreasonable delay in the acceptance, the contract 
was not completed, then it was also for the jury to say whether the 
defendant was negligent in transmitting the message, and, owing 
to this, plaintiff lost the benefit of entering into the contract. It 
follows that the court erred in directing a verdict for the defendant. 



Mississippi Supreme Court, October 1908 
[Reported in 93 Mississippi 540] 

Mayes, J., delivered the opinion of the court. 

Floyd Willis was engaged in buying and selling cotton in the 
city of Jackson, Miss. On the 5th day of December, 1906, he sent 
a telegram to Knight, Yancey & Co., of Mobile, Ala., submitting 
to them an offer to sell certain cotton which he then owned. The 
message was duly transmitted by the telegraph company to Mobile 
and duly delivered. On receipt of the telegram Knight, Yancey 
& Co. wired Willis, accepting the offer. This message of acceptance 
by them was duly delivered to the telegraph company at Mobile, and 
by it sent to Willis, at Jackson, and received at the Jackson office 
at 1.05 P.M. At 2 o'clock of the same day this message of acceptance 
had not been delivered to Willis although his office was within a 
short distance of the telegraph office. About 2 o'clock, and while 
this message lay undelivered in the Jackson office. Morrow, agent 
and manager of the firm of Knight, Yancey & Co., of Mobile, called 
Willis over the phone, and according to Mr. Willis's own statement 
asked him (Willis) if he had received the acceptance of his offer; 
that is, the acceptance he sent by telegraph, Willis replied to him 
over the phone that he had not. Whereupon Morrow said he was 
very glad of it, and would then withdraw his acceptance, to which^ 
-^ Willis assented . Willis, up to this time, had not received the tele- 
' gram of acceptance from the telegraph office, and went immediately 
to the telegraph office, called for the telegram, and the same was 
delivered to him. The same cotton was subsequently sold about 
10 o'clock at night to the same parties, at a loss of some $218 to 
Willis, land the object of this suit is to hold the telegraph company 
liable for the loss thus sustained by Willis. There was a verdict 
in the court below in favor of the plaintiff, from a judgment on 
which the telegraph company appeals. 

It is settled law and seems to be conceded on both sides, that under 
ordinary circumstances the acceptance of Willis' offer was complete 


when the telegram of acceptance of the proposition made was de- 
livered by Knight, Yancey & Co. to the telegraph company in Mo- 
bile, and that the agreement then and there became a binding 
contract according to the express terms contained in the telegram 
from "Willis. The main contention of appellees is that, while this 
is ordinarily true, yet in this particular instance the contract was 
not a binding contract, for the reason that, according to the custom 
prevailing among men engaged in the cotton business, the accept- 
ance ot the otter did not become binding until the actual delivery 
of the t elegram by the telegraph company into the hands of Willis.^ 
it IS claimed on the part of appellee that this is a general custom or 
usage prevailing among those engaged in the cotton trade, recognized 
and acted under by them, and for this reason there was no contract 
until actual delivery to Willis, and, because there was no contract, 
the loss to the plaintiff was occasioned directly by the negligence of 
the telegraph company in failing to properly deliver the message. 
On the other hand, it is claimed by the telegraph company that there 
was a binding contract at the time when this telegram was delivered 
in Mobile, and that any action taken by Mr. Willis occasioning loss 
to him was caused by his own act in releasing Knight, Yancey & Co. 
from a valid contract ; that they cannot be held responsible for it, be- 
cause no loss occurred by reason of their negligence. According to 
Willis' own testimony, he was advised of the fact that there had been 
a telegram of acceptance before the order was cancelled over the 

The contract made by the parties by virtue of these telegrams is 
clear, unambiguous, and valid, unless the so-called usage or custom 
can be invoked to relieve the parties from the legal effect of their 
acts. There is no such uncertainty about this contract as makes 
it necessary, because of indeterminate terms, to resort to custom or 
usage in order to understand exactly what was meant; but the con- 
tract is express in its terms, unambiguous, and became binding on 
the parties when the telegram of acceptance was delivered to the 
telegraph company in Mobile. It would be in the highest degree 
impolitic, and be the cause of introducing interminable confusion 
into contracts, if, when the terms of a contract are express, clear, 
and valid under the law, its legal cifect could be controlled by some 
local or trade custom. Our court has long since been committed to 
this wise doctrine. Shackleford /;. N. O., J. & Great Northern Ey., 
37 Miss. 202. In the case of Hopper v. Sage, 112 N. Y. 530, 20 
N". E. 350, 8 Am. Lt. Rep. 771, citing many authorities, the court 
says : "Usage and custom cannot be proved to contravene a rule of law, 
or to alter or contradict the express or implied terms of a contract 
free from ambiguity, or to make the legal rights or liabilities of the 
parties to a contract other than they arc by the terms thereof. When 
the terms of a contract are clear, unambiguous, and valid, they must 
prevail, and no evidence of custom can be permitted to change them." 


In the case of Shackleford v. jSTew Orleans, Jackson & Great 
ISTorthern Railroad Company, 37 Miss. 202, the court has said: 
"These usages, many judges are of the opinion, should be sparingly 
adopted by the courts as rules of law, as they are often founded 
on mere mistake, or on the want of enlarged and comprehensive 
views of the full bearings of principles. Their true office is to in - 
terpr et the otherwise indeterminate intentions of parties, and to ascer- 
tain the nature and extent of the contracts^ arising, not frnm express 
stipulations^ but from mere implications and presumptions and ants 
of a doubtful and equivocal character , and to fix and explain tbft 
meaning of words and expressions of doubtful or various senses . On 
this principle the usage or habit of trade, or conduct of an indi- 
vidual, which is known to the person who deals with him, may be 
given in evidence to prove what was the contract between them." 
2 Greenleaf's Ev. § 251 and note 5. And the court further says 
that, where a custom or usage is resorted to, such customs must be 
certain, uniform, reasonable, and not contrary to law. To the same 
effect is 2 Page on Contracts, p. 928 : "The true and appropriate 
office of a usage or custom is to interpret the otherwise indeterminate 
intention of parties, and to ascertain the nature and extent of their 
contracts, arising, not from express stipulations, but from mere im- 
plications, assumptions, and acts of a doubtful or equivocal char- 

Where the contract is definite and certain, the obligations of a 
party, by reason of the contract, become fixed by law by the terms 
of the contract which they have entered into, and, where there is 
nothing uncertain left in the contract, usage or custom has no place. 
There are many instances in which a contract may be explained 
and controlled by a custom prevailing among men engaged in a 
certain line of business, but this is not one of them. We think the 
court below erred in refusing to exclude all evidence in reference 
to the damages arising out of the failure of appellant to deliver the 

Tor this reason the case is reversed and remanded. 



Supreme Judicial Court of Massachusetts, l^ovember 11, 1880- 

January 6, 1881 

[Reported in 130 Massachusetts, 173] 

Contract for breach of the covenants of a written lease of a 
tenement in Boston. Trial in the Superior Court, without a jury, 
before Rockwell, J., who allowed a bill of exceptions in substance as 
follows : 


The defendant admitted that there had been a breach of the con- 
ditions of the lease, and agreed that judgment might be entered for 
the plaintiff in the sum $2,168.22, unless the facts herein stated con- 
stituted a defence to this action. 

The judge found that the defendant, who was a resident of New 
York in the year 1868, was, during the summer of that year, tem- 
porarily residing and practising his profession as a physician at 
Gape May, in the State of jSTew Jersey, and that the plaintiff and her 
husband, Dr. Dio Lewis, residents of Boston at that time, were 
temporarily residing at Oakland, in the state of California; that, 
on June 10, 1878, Lewis, who was and still is the authorized agent 
of his wife, the plaintiff, wrote the defendant a letter, which was 
received by him, in which he requested the defendant to make him 
an offer for a new lease of said premises. The defendant replied, 
making such offer, by letter dated June 22, 1878. In this letter 
the defendant gave, as a reason for desiring to make the new con- 
tract, his anxiety to be released from all claim by the plaintiff. 

On July 8, 1878, Lewis wrote the defendant a letter, which he 
received on July 17, 1878, at Cape May, in which Lewis accepted 
the defendant's offer with slight modifications, and w^hich contained 
the following: ''If you agree to this plan, and will telegraph me 
on receipt of this, I will forward power of attorney to Mr. Ware. 
Telegraph me 'yes,' or 'no.' If 'no,' I will go on at once to Boston 
with my wife, and between us we will try to recover our lost ground. 
If I do not hear from you by the 18th or 20th, I shall conclude 'no.' " 

The defendant, on said July 17, went to the telegraph office of 
the Western Union Telegraph Company in Cape May, wrote a tele- 
graphic despatch directed to Dio Lewis, Oakland, Cal., delivered it 
to the telegraphic agent and operator of said company, and paid 
the full price for its transmission to Oakland, and gave directions 
to have it forwarded at once. The defendant did not keep a copy 
of the telegram. He gave notice to the plaintiff to produce the 
telegram, and testified that he had exhausted all the means in his 
power in Boston, New York, and New Jersey in his endeavors to 
produce the telegram; that he had been to the Cape May office of 
the company, and had learned that the operator to whom he gave 
his dispatch was not in charge of that office; that he had made 
diligent search for him without being able to learn his whereabouts; 
and that in this search he had had the aid of the superintendent 
and other officers of the company in Boston. He also offered to 
prove, by an officer of the company in Boston, that both by rule 
and custom of the company, so far as he knew the custom, the de- 
spatches received and sent from all the offices of the company were 
destroyed after they had been in the possession of the company six 
months. If, under these circumstances, it was competent to prove 
the contents of said despatch by oral testimony, the judge found 
that the word telegraphed was "yes." 


The judge also found that Lewis never received said telegram; 
that the new lease to be made, as stipulated in the letters of Lewis 
and the defendant, was to be like the former lease in form, with the 
various modifications and changes contained in said letters, and was 
to be delivered in Boston, and the consideration then paid; and that 
the Mr. Ware mentioned in Lewis's letter was the plaintiff's at- 
torney, residing in Boston. 

The defendant contended that a contract was completed by said 
letters and telegram on July 17, under the law of the State of New 
Jersey; and that this case was controlled by the law of New Jersey. 
The judge found that the law of New Jersey is as stated in Hallock 
V. Commercial Ins. Co., 2 Dutcher, 268; ruled, as matter of law, 
that the facts as above set forth did not show a new contract, and 
constituted no defence to this action; and found for the plaintiff 
in the sum agreed upon. The defendant alleged exceptions. 

0. T. Gray, for the defendant. 

D. E. Ware, for the plaintiff, was not called upon. 

Gray, C. J. In M'Culloch v. Eagle Ins Co., 1 Pick. 278, this 
court held that a contract made by mutual letters was not complete 
until the letter accepting the offer had been received by the person 
making the offer; and the correctness of that decision is maintained, 
upon an able and elaborate discussion of reasons and authorities, 
in Langdell on Contracts (2d ed.), 989-996. In England, New 
York, and New Jersey, and in the Supreme Court of the United 
States, the opposite view has prevailed, and the contract has been 
deemed to be completed as soon as the letter of acceptance has been 
put into the post-office duly addressed. Adams v. Lindsell, 1 B. & 
Aid. 681; Dunlop v. Higgins, 1 H. L. Cas. 381, 398-400; Newcomb 
V. De Eoos, 2 E. & E. 271; Harris's case, L. E. 7 Ch. 587; Lord 
Blackburn in Brogden v. Metropolitan Railway, 2 App. Cas. 666, 
691, 692; Household Ins. Co. v. Grant, 4 Ex. D. 216; Lindley, J., 
in Byrne v. Van Tienhoven, 5 C. P. D. 344, 348; 2 Kent Com. 
477, note c; Mactier v. Frith, 6 Wend. 103; Vassar v. Camp, 1 
Kernan, 441; Trevor v. Wood, 36 N. Y. 307; Hallock v. Commer- 
cial Ins. Co., 2 Dutcher, 268, and 3 Dutcher, 645; Tayloe v. Mer- 
chants' Ins. Co., 9 How. 390. 

But this case does not require a consideration of the general ques- 
tion; for, in any view, the person making the offer may always, if 
he chooses, make the formation of the contract which he proposes 
dependent upon the actual communication to himself of the accep- 
tance. Thesiger, L. J., in Household Ins. Co. v. Grant, 4 Ex. D. 
223; Pollock on Cont. (2d ed.) 17; Leake on Cont. 39, note. And 
in the case at bar, the letter written in the plaintiff's behalf by her 
husband as her agent on July 8, 1878, in California, and addressed 
to the defendant at Boston, appears to us clearly to manifest such 
an intention. After proposing the terms of an agreement for a 
new lease, he says : "If you agree to this plan, and will telegraph 


me on receipt of this, I will forward power of attorney to Mr, 
Ware," the plaintiff's attorney in Boston. "Telegraph me 'yes' or 
'no.' If 'no/ I will go at once to Boston with my wife, and between 
us we will try to recover our lost ground. If I do not hear from 
you by the 18th or 20th, I shall conclude 'no.' " Taking the whole 
letter together, the offer is made dependent upon an actual communi- 
cation to the plaintiff of the defendant's acceptance on or before the 
20th of July, and does not discharge the old lease, nor bind the plain- 
tiff to execute a new one, unless the acceptance reaches California 
within that time. Assuming, therefore, that the defendant's delivery 
of a despatch at the telegraph office had the same effect as the mail- 
ing of a letter, he has no ground of exception. 

Exceptions overruled.^ 

In the Exchequer Chamber, May 14, 15, 1873 
[Reported in 29 Law Times (New Series), 271] 

This was an action brought by the plaintiff against the defendants 
to recover damages in respect of a breach of contract to deliver 800 
tons of iron; and by the consent of the parties, and by order of 
Martin, B., dated 30th May, 1872, the facts were stated for the 
opinion of the Court of Exchequer in the following 

Special Case 

1. The plaintiff, Mr. Joseph Tinn, is an iron manufacturer, car- 
rying on business at the Ashton Row Rolling Mills, near Bristol; 
and the defendant, who trades under the name and style of Hoffman 
and Co., is an iron merchant, carrying on business at Middlesbro'- 

2. In the months of November and December, 1871, the following 
correspondence passed between the plaintiff and the defendant re- 
lating to the proposed purchase and sale of certain iron, the par- 
ticulars of which fully appear in the letters hereinafter set forth. 

The plaintiff to the defendant : — 

Nov. 22, 1871. 
Messrs. Hoffman and Co.: 

Dear Sirs, — Please quote your lowest price for 800 tons No. 4 
Cleveland, or other equally good brand, delivered at Portishead at 
the rate of 200 tons per month, March, April, May, and June, 1872. 
Payment by four months' acceptance. 

Yours truly, J. Tinn. 

' Household Ins. Co. v., 4 Ex. D. 210, 223, 238; Pennsylvania &c. Ins. Co. 
V. Mc-yor, 120 Fed. 3r)2, 3.'')4; Haas v. Myers, 111 111. 421, 423; McCone v. Eccles, 42 
Nov. 451; Vaasar ». Camp, 11 N. Y. 441, ace 


3. The defendant's reply : — 

Koyal Exchange Buildings, Middlesbro'-on-Tees, 

24th Nov. 1871. 
Joseph Tinn, Esq., Bristol: 

Dear Sir, — We are obliged by your inquiry of the 22d inst., and 
by the present beg to offer you 800 tons No. 4 forge Middlesbro' 
pig iron (brand at our option, Cleveland if possible) at 69s. per 
ton delivered at Portishead, delivery 200 tons per month, March, 
April, May, and June, 1872, payment by your four months' accept- 
ance from date of arrival. 

We shall be very glad if this low offer would induce you to favor 
us with your order, and waiting your reply by return, we remain, 
dear Sir, 

Yours truly, A. Hoffman and Co. 

4. The plaintiff to the defendant: — 

Bristol, 27th Nov., 1871. 
Messrs. Hoffman and Co.: 

Dear Sirs, — The price you ask is high . If I made the quantity 
1,200 tons, delivery 200 tons per month for the first six months of 
next year I s uppose you would make the price lower ? Your reply 
per return will oblige, J. Tinn. 

5. The defendant to the plaintiff, in reply : — 

Eoyal Exchange Buildings, Middlesbro'-on-Tees, 

28th Nov., 1871. 
Joseph Tinn, Esq., Bristol: 

Dear Sir, — In reply to your favor of yesterday, we beg to state 
that we are willing to make you an offer of further 400 tons No. 4 
forge Middlesbro' pig iron, 200 tons in Jan., 200 tons in Feb., at 
the same price we quoted you by ours of the 24th inst., though the 
rate of freight at the above-named time will doubtless be consider- 
ably higher than that of the following months. 

Our to-day's market was very firm again, and we feel assured 
we shall see a further rise ere long. 

Kindly let us have your reply of post as to whether you accept 
our offers of together 1,200 tons and oblige yours truly, 

A. Hoffman and Co. 

6. The plaintiff to the defendants : — 

Bristol, 28th Nov., 1871. 
Messrs. Hoffman and Co.: 

No. 4 Pig iron. 
Dear Sirs, — You can enter me 800 tons on the terms and con- 
ditions named in your favor of the 24th inst., but I trust you will 
enter the other 400, making in all 1,200 tons, referred to in my 
last, at 68s. per ton. 

Yours faithfully, Joseph Tinn. 


7. The defendant's reply : — 

Eoyal Exchange Buildings, Middlesbro'-on-Tees, 

29th Nov., 1871. 
Joseph Tinn, Esq.: 

Dear Sir, — We are obliged by your favor of yesterday, in reply 
to which we are sorry to state that we are not able to book your 
esteemed order for 1,200 tons No. 4 forge at a lower price than 
that offered to you by us of yesterday, viz., 69s., and even that offer 
we can only leave you on hand for reply by to-morrow before twelve 
o'clock. Waiting your reply, we remain, dear sir, yours truly, 

A. Hoffman and Co. 

8. On the 1st Dec, 1871, the plaintiff sent a telegram to the de- 
fendants, of which the following is a copy — 

From Tinn, Ashton. 

To Hoffman and Co., Middleshro'-on-T ees. 
Book other 400 tons pig iron for me, same terms and conditions 
as before. 

[Other immaterial correspondence followed.] 

14. It is agreed that all the facts and circumstances mentioned 
in the above correspondence are true, and that the court are to have 
power to draw all inferences of facts in the same way as a jury 
might do. 

15. The course of post between Bristol and Middlesbrough is one 

The questions for the opinion of the court are, first, whether, 
upon the facts stated and documents set out in the case, there is any 
binding contract on the part of the defendants to deliver 800 tons 
of iron to the plaintiff; secondly, whether, upon the facts and docu- 
ments set out in the case, there is any binding contract on the part 
of the defendants to deliver any quantity of iron to the plaintiff, 
and if yea, what quantity, and on what terms and conditions. 

In the Court of Exchequer, Br am well, Channell, and Pigott, BB., 
held the defendant entitled to judgment; Kelly, C. B., dissented. 

Kinr/dom, Q. C, and Arthur Charles, for the plaintiff. 

A. L. Smith and H. Lloyd, A. C, for the defendants. 

BrtKTT. J. The question is, whether upon a true construction of 
this corrf'sporulr-iifo there is a binding contract between the plaintiff 
and the dfffiulants for the SCO tons of iron at 69,s, It is argued 
on the one side that such a contract is disclosed because, it is said, 
that the defendants' letter of the 24th November is an offer for the 
sale of 800 tons of iron, and this letter of the 28th November leaves 
open tbe time for accfpting that offfr of the 24th November, and 
makf'H a new offer with regard to another 400 tons; and that the 
defendants' offer of the 24th November being thus opened by their 
Ifttor of the 28tb, the plaintifTs' letter of the 28th is an acceptance 


of the defendants' offer of the 24th. On the other side it is argued 
that the defendants' letter of the 28th IsTovember is not an opening 
of their offer of the 24th, but that it is an offer with regard to 1,200 
tons; and that even if it were a separate offer with regard to 800 
tons and 400 tons, still that the true view of the matter is not that 
it reopens the letter of the 24th, but that it makes a new offer with 
regard to the 800 tons, and another separate offer with regard to 
400 tons; and that, upon such a view, the renewed offer with regard 
to 800 tons is not accepted, because the letter of the plaintiff of the 
28th November was not in answer to that offer, but was a letter 
crossing it. ]^ow, with regard to the construction of the defendants' 
letter of the 28th ISTovember, it seems to me that we must consider 
that the defendant's letter of the 24th November is in answer to 
a request of the plaintiff's of the 22d November for an offer with 
regard to 800 tons, and is therefore an offer by them with regard 
to 800 tons. That offer left open to the plaintiff to accept it within 
a period which is to be computed by the return of post. I agree 
that the words "Your reply by return of post" fixes the time for 
acceptance, and not the manner of accepting.^ But that time elapsed; 
there was no acceptance within the limited time. So far from there 
being an aceptance, it seems to me that the plaintiff's letter of the 
27th November rejects that offer; it rejects it on the ground that 
the price is higher than the plaintiff is willing to give. The offer 
is, therefore, not accepted within the limited time, but is rejected, 
and it seems to me is at once dead. The letter of the 27th then 
asks for an offer with respect to 1,200 tons, and the letter of the 
28th November is a letter written "In reply to your favor of yester- 
day," — that is. In reply to your request for an offer with regard 
to 1,200 tons, — "I now make you this offer." That seems to show 
that the letter of the 28th November of the defendants is an offer 
with regard to 1,200 tons, and not with regard to 800 tons and 
400 tons separately. The way in which the offer with regard to the 
1,200 tons is made is this: "With regard to the first 800 of them, I 
make you a new offer upon the same terms as I made in the former 
offer on the 24th. With regard to the remaining 400 tons, I offer 
you to deliver them at the same price, but at different periods of 
delivery." I think that the defendants' letter of the 28th November, 
being a letter in answer to a request with regard to 1,200 tons, is an 
offer with regard to 1,200 tons, and that no such offer was ever 
accepted; but even if it could be taken that it was a separate offer 
with regard to 800 tons and 400 tons, I cannot accede to the view 
that it reopened the offer of the 24th November. That offer was 
dead, and was no longer binding upon the defendants at all; and 
therefore it seems to me to be a wrong phrase to say that it reopened 
the offer of the 24th November. The only legal way of construing 

1 As to the effect of these words, see Ortman v. Weaver, 11 Fed. Rep. 358, 362; 
Maclay v. Harvey, 90 111. 525; Bernard v. Torrance, 5 G. & J. 383; Taylor v. Rennie, 
35 Barb. 272; Howells v. Stroock, 50 N. Y. App. Div. 344. 

124 mactier's administrators v. frith [chap. I 

it is to say that it is a new offer with regard to 800 tons. If it 
were a separate offer, which I should think it was not, it then would 
be a new offer with regard to 800 tons, and a separate offer with 
regard to 400 tons; but, even if it were so, I should think that the 
new offer with regard to the 800 tons had never been accepted, so 
as to make a binding contract. The new offer would not, in my 
opinion, be accepted by the fact of the plaintiff's letter of the 28th 
November crossing it. If the defendants' letter of the 28th JSTo- 
vember is a new o ffer of the 800 tons, that could not be accepted by 
" the plaintilt until it came to his knowledtjg . and his letter of the 
28th November could only be considered as a cross offer. Put it 
thus: If I write to a person and say, "If you can give me £6,000 
for my house, I will sell it you," and on the same day, and before 
that letter reaches him, he writes to me, saying, "If you will sell 
me your house for £6,000 I will buy it," that would be two offers 
crossing each other, and cross offers are not an acceptance of each 
other; therefore there will be no offer of either party accepted by 
the other. That is the case where the contract is to be made by 
the letters, and by the letters only. I think it would be different if 
there were already a contract in fact made in words, and then the 
parties were to write letters to each other, which crossed in the post ; 
those might make a very good memorandum of the contract already 
made, unless the Statute of Frauds intervened. But where the con- 
tract is to be made by the letters themselves, you cannot make it 
by cross offers, and say that the contract was made by one party 
accepting the offer which was made to him. It seems to me, there- 
fore, in both views, that the judgment of the court below was right. 
Judgment of the majority of the court below affirmed.^ 

L Eespondent 

/^ ,r J^ New York Court of Errors, December, 1830 

xf^\y [Reported in 6 Wendell, 103] 

Appeal from Chancery. At New York, in the autumn of 1822, 



the respondent and Henry Mactier, the intestate, agreed to embark 

^ in a commercial adventure, in which they were to be jointly and 

equally interested. Frith was to direct a shipment of 200 pipes of 

brandy from France to New York, to be consigned to Mactier, who 

was to ship to the respondent at Jacmel, in St. Domingo, provisions 

^ to the amount of the invoice cost of the brandy, and the respondent 

>- was to place the shippers of the brandy in funds by shipments of 

^ ' Blackbtjiin, AncHiBALD and Keating, JJ., dolivored concurrinp;, and Honyman 
W and C^UAiN, JJ., dissontinK, opinions. The statement of facts and of the decision in 
th<; lower court has been ahhrevialed. 

^^J^ y" a*j^k\ >i. ^ '^*^ ^^ ^-^- ^ ^ c/'*'^**^ 


coffee to France, in French vessels, and the parties were to share 
equally in the result of the speculation all around. 

In pursuance of this arrangement, Frith, on the 5th September, 
1822, wrote Firebrace, Davidson, & Co., a mercantile house at Havre, 
to ship 200 pipes of brandy to New York to the consignment of 
Mactier, On the 24th of December, Frith, who had returned to 
Jacmel, where he did business as a merchant, wrote a letter to Mactier 
on a variety of subjects, in which was contained a paragraph in 
these words : "I also have the pleasure of handing you copies of 
Messrs, Firebrace, Davidson, & Co.'s letters regarding the brandy 
order. By-the-bye, as your brother, before I left N^ew York, de- 
clined taking the interest I offered him in this speculation, and 
wishing to confine myself in business as much as possible, so as 
to bring my concerns to a certain focus, / would propose to you to 
take the adventure solely to your own account, holding the value 
to cover the transaction to my account in l^Tew York." On the 
17th January, 1823, Mactier wrote to Frith, acknowledging the re- 
ceipt of his letter of the 24th ult. ; thanks him for sending the copy 
of Firebrace, Davidson, & Co.'s letter on the subject of the brandy 
order; says that he has received a letter from them, informing that 
the brandy would be shipped and leave Bordeaux about the 1st of 
December then past; and adds, "This has been from the first a 
favorite speculation with me, and am pleased to say it still promises 
a favorable result; but to render it complete, I am desirous the 
speculation should go forward in the way first proposed, thereby 
making it a treble operation. As you have, however, expressed a 
wish that I should take the adventure to my own account, / shall 
delay coming to any determination till I again hear from you. The 
prospect of war between France and Spain may defeat the object 
of this speculation, as far as relates to the shipment of provisions 
hence to Hayti, to be invested in coffee for France, in which case I 
will at once decide to tahe the adventure to my own account. Our 
London accounts, down to the 5th of December, speak confidently 
of a war between France and Spain, — a measure which, if carried 
into effect, would operate to your disadvantage." Also, ''The next 
arrival from Europe will probably decide the question of peace or 
war, and I will lose no time in communicating the same to you;" 
and also, "Let what will happen, I trust you will in no way be a 
sufferer." On the 7th March, 1823, Frith wrote Mactier,^ making 
no other allusion to the last letter of Mactier than the following: 
"I have received your esteemed favors of the 17th and 31st January, 
and note their respective contents." On the twelfth day of March, 
1823, the ship La Claire arrived at 'New York, laden with the brandy 
in question, and was at the wharf on the morning of the 13th of 
March. A clerk of Mactier testified that he had a conversation with 
Mactier about the time the brandy arrived, perhaps the morning 
^ This letter was received on the 7th of April. 1 Paige, 434, 442. 

126 mactier's administrators v. frith [chap. I 

after, and Mactier then said he should take it to himself. A mer- 
chant of New York also testified that Mactier consulted with him 
on the subject of some brandy which he expected to arrive; there 
was some offer for his taking it on his own account, and he ap- 
peared inclined to take it. From the state of things, he advised 
Mactier to take it, and there was a letter drafted by Mactier upon 
the subject, in which the merchant made some alterations. The 
letter stated that he, Mactier, should take the brandy to his own 
account. On the 17th of March, Mactier entered the brandy at the 
custom-house as owner, and not as consignee, took the usual oath, 
and gave a bond for the duties. On the twenty-second day of March, 
he sold 150 pipes of the brandy on the wharf to several commercial 
houses, and took their notes for the price of the same. The re- 
maining 50 pipes were put in the public store, and remained there 
in bond, the liquidated duties not having been secured to be paid 
by Mactier. On the twenty-fifth day of Marc h, Mactier wrote a 
letter directed to Frith at Jacmel, in which he~said: "I have now 
to advise the arrival of French ship La Claire with the 200 pipes of 
brandy, and that in consequence of the probability of war between 
France and Spain, and in compliance with the wish expressed in 
your regarded favor of the 24th December, and my answer thereto 
of the 17th January last, I have decided to tahe this adventure to 
my ov:n account. I therefore credit you with the amount of the 
invoice," amounting to $14,254.57. To this letter was attached 
a postsc ript, dat ed the 31st of March . On the twenty-eighth day 
of March, ±ritti wrote a letter to Mactier, dated at Jacmel, in which, 
speaking of the brandy in question, he says: "With regard to this 
adventure, I would wish to confirm, if altogether satisfactory to 
you, what I mentioned to you some time ago, and which I omitted 
to repeat to you in my previous letter, in reply to yours of the 17th 
of January. I find the more one does in this country, in the present 
state of trade, the more one's affairs get shackled." Previous to 
the arrival of these two last letters at their respective places of 
direction, Mactier was dea d, he having departed this life on the 10th 
of April, 1S23. On the 21st of April, Frith again wrote a letter 
addressed to Mactier, in which he acknowledges the receipt of his 
letter of the 25th of March, says he has noted its contents, and 
requests Mactier to charter on his account a stanch, first-class vessel, 
and send out to Jacmel by her 400 barrels of flour, 150 barrels of 
pork, 150 barrels of beef, 100 barrels of mackerel, &c., &c., In the 
moan time, however, Mactier having died, administration of his 
goods, &c., was granted to A. N". Lawrence and another, who, in 
May, 1823, gave the requisite bonds to secure the duties on the 50 
pipes of brandy which had not been bonded for by Mactier in his 
life-time, except by the general bond on entering the goods at the 
custom-housf, and look the 50 pipes from the public store and sold 
them at public auction. 


The respondent, unwilling to come in as a general creditor of 
Mactier and receive a pro rata distribution, on the 1st of April, 
1824, filed his bill in the Court of Chancery, alleging that the brandy 
was shipped from France on his sole account, and that Mactier was 
only the consignee thereof. 

By the answer it was admitted that the defendants had found 
among the papers of Henry Mactier two invoices of the 200 pipes 
of brandy, similar in all respects, except that one states the shipment 
to have been made "to the address and for the account of Henry 
Mactier," and the other states it to have been made "for the account 
of the complainant to the address of Henry Mactier." The first of 
the invoices was used upon entering the brandy at the custom-house. 
It also aj)peared in evidence that on the first day of March, 1823 
Mactier effected an insurance on commissions arising on a consign- 
ment from Bordeaux to New York, to the amount of $1500. In 
a petty cash-book of Mactier's there is the following entry: "1823, 
March 17, John A. Frith's sales of brandy, paid entry at custom- 
house, eighty cents." The clerk of Mactier, who made this entry, 
testified that the name of Frith, prefixed to the entry in the petty 
cash book, does not necessarily prove that the brandy was Frith's, 
but it shows that he at that time supposed the brandy to be Frith's; 
if it had then belonged to Mactier, or if Mactier had decided to take 
it, and any entry in the books had been made showing that fact, he 
would have entered it, "Sales of brandy Dr. for entering," &c. At 
the time of making the entry, he considered the fact of ownership 
contingent. Mactier afterwards directed the account to be opened 
in the books, charging the brandy to himself, the account to be "Sales 
of brandy," An entry was made in the daybook, of the twenty- 
eighth day of March, crediting Frith with the invoice amount of 
the brandy. Entries, he said, are sometimes made several days 
after the transaction; then the entry refers back to the true date of 
the transaction, mentioning the time. The entry was made by the 
thirty-first day of March. He also testified that the letter of the 
13th of March, mentioned in the complainant's bill, was copied on 
the night of that day, but he had no recollection when it left the 
office; it possibly might not have gone until the La, Claire arrived. 
Chancellor Walworth on exceptions to a master's report decreed 
that the master should report the amount due the complainant, on 
the principle that he, as survivor, is entitled to the net proceeds of 
the adventure of brandy, so far as they can be traced and identified, 
and has a specific lien on the net proceeds of the 50 pipes of brandy 
sold by the administrators, and on the proceeds of the notes given 
for the 150 pipes which remained uncollected or not passed away 
at the time of Mactier's death, or on so much as is necessary to 
satisfy the balance due complainant for payment and disburse- 
ments on account of that adventure, after deducting from those pro- 
ceeds the balance of the amount paid for duties and expenses, if any, 

128 mactier's administrators v. frith [chap. I 

over and above the amount of proceeds of the shipment of brandy 
which were received by Mactier in his lifetime. From this decree 
the defendants appealed. For the reasons of the Chancellor for the 
decree pronounced by him, see 1 Paige, 434. The cause was argued 
here by 

S. Boyd and S. A. Talcott, for the appellants. 

S. Stevens and G. Griffin, for the respondent. 

By Mr. Justice Marcy : What shall constitute an acceptance 
will depend in a great measure upon circumstances. The mere de- 
termination of the mind, unacted on, can never be an acceptance. 
Where the offer is by letter, the usual mode of acceptance is the 
sending of a letter announcing a consent to accept ; where it is made 
by a messenger, a determination to accept, returned through him, 
or sent by a nothe r, would seem to be all the law requires, if the 
contract may be consummated without writing. There are other 
modes which are equally conclusive upon the parties : keeping silence, 
under certain circumstances, is an assent to a proposition; any thing 
that shall amount ot a manifestation of a formed determination to 
accept, communicated or put in the proper way to be communicated 
to the party making the offer, would doubtless complete the contract ; 
but a letter written would not be an acceptance, so long as it re- 
mained in the possession or under the control of the writer. An 
acceptance is the distinct act of one party to the contract, as much 
as the offer is of the other; the knowledge, by the party making 
the offer, of the determination of the party receiving it, is not an 
ingredient of an acceptance. It is not compounded of an assent by 
one party to the terms offered, and a knowledge of that assent by 
the other. 

I will now apply this law to the facts of this case. Frith's offer 
to sell his interest in the brandy certainly continued till his letter 
of the 24th of December was received at New York, and Mactier 
had a fair opportunity to answer it. If the answer of the 17th of 
January had contained an unqualified acceptance, the bargain would 
have been closed when it was sent away for Jacmel; but the offer 
was not then accepted. There was a promise to accept upon a con- 
tingency; for Mactier says, after alluding to the prospect of a war 
between France and Spain, "in which case," that is, in case of such 
a war, "I will at once decide to take the adventure to my own ac- 
count." This concluded nothing. If the event had actually hap- 
pened, and Frith had insisted on enforcing this conditional accep- 
tance, it would not have been in his power to do so. The most that 
Mactier said was, that if an expected event happened, he would do 
an act which wonh] complete the liargain. The happening of the 
event could not, witliout the act, complete it. The Roman law re- 
garded the tense of -the verb used by the contracting parties to de- 
termine whether the bargain was concluded: Verhum imperfecti 
temporis rem adhuc imperfectum significat. There is a wide differ- 


ence between a promise to give an assent to a proposition for a con- 
tract on the happening of a contingency, and the annunciation of 
a present assent to it. If the expected event happens, and the act 
promised is performed, the bargain is closed; but it is the promised 
acceptance, and not the happening of the event, that gives validity 
to the contract. If, in this case, the oifer of Frith had been to 
Mactier to take the brandy on the happening of a French and Span- 
ish war, and Mactier had promised to decide to take it in such an 
event, the simple fact of his taking it after the war would have 
enabled Frith to treat him as the purchaser of it. Such an act would 
have been a valid acceptance; but a conditional acceptance of an 
unconditional oifer, followed up by acts of the acceptor, after the 
condition was fulfilled on which the acceptance depended, might not 
be considered as completing the bargain, without the acquiescence 
of the party making the offer in those acts, because the minds of 
the parties would not have met on the precise terms of the contract. 

To conclude the bargain, Mactier must have accepted the offer 
as tendered to him by Frith, and that acceptance must have been 
while the offer, in contemplation of law, was still held out to him. 
That there was an acceptance, or rather that Mactier did all that 
was incumbent on him to do to effect an acceptance was not denied; 
but it was insisted, on the part of the respondent, that it was made 
after the offer was withdrawn. It will be necessary to consider when 
this acceptance took place, as preparatory to settling the fact of the 
continuance of the offer down to that time. There is not the slightest 
evidence of the determination on the part of Mactier to take the 
brandy before the seventeenth day of March. The insurance that 
he effected on his commissions on the 1st of March disproves the 
existence of such a determination on that day; but if the situation 
of the parties was changed, and Frith was now endeavoring to set 
up the contract, I am at a loss to conceive how Mactier's represen - 
tatives could withstand the force of the facts which took place on 
the 1 7th of March, In answer to the offer, Mactier delayed coming 
to a~determination thereon, but promised to accept it if there should 
be a war; on the 17th of March, when that event was considered 
settled, he entered the brandy as his own property, and told his clerk 
that he had determined to take it. But if there should be anv doubt 
as to the effect^of this conduct , there can be none as to his subse- 
quent acts. By a letter dated the 25th, with a postscript of the 
31st of March, he accepts the offer. This letter was immediately 
transmitted to Frith, and as soon as the 28th of March entries were 
made in his books, showing that he had become the purchaser. 
Enough was done by the 31st to constitute an acceptance of Frith's 
offer and to complete the bargain, if the offer can be considered as 
standing till that day. 

An offer, when once made, continues, as I have heretofore shown, 
to the satisfaction of my own mind at least, until it is expressly re- 

130 mactier's administrators v. frith [chap. I 

voked, or until circumstances authorize a presumption that it is 
revoked. The offer itself may show very clearly when the presump- 
tion of revocation attaches. Where it is made to be replied to by 
return mail, the party to whom it is addressed must at once perceive 
that it is not to stand for an acceptance to be transmitted after the 
mail. If an offer stands until it is expressly withdrawn, or is pre- 
sumed to be withdrawn, whether it is held out to a party at a par- 
ticular period or not, is a matter of fact. Then we are to deter- 
mine, as a matter of fact, whether Frith's offer was held out for 
Mactier's acceptance until the 31st of March; if Frith intended it 
should stand so, and he viewed himself as tendering it to Mactier 
down to that time, we are bound to regard it as standing, unless his 
intention was the result of the fraudulent conduct of Mactier. The 
acts of Frith, after the death of Mactier, could do nothing towards 
completing an unfinished contract; but I think they may be fairly 
adverted to for the purpose of ascertaining his intentions in relation 
to the continuance of his offer. On the 7th of March he acknowl- 
edges Mactier's letter of the 17th of January, which did not decline, 
as it has been construed to do, the offer, but apprised him that it 
was kept under advisement ; and by using the expression, "noting the 
contents," Frith is, I think, to be understood as yielding to the pro- 
posed delay. If a doubt as to this construction of that letter could 
spring up in the mind, it would be at once removed by the perusal 
of the letter of the 28th of the same month. In that he expresses 
a wish to confirm what he had said in the letter making the offer 
to sell, and declares that he had in a previous letter, which must 
mean that of the 7th, omitted to communicate the same thing. In 
answering Mactier's letter which contained the acceptance of his 
offer he recognizes the bargain as closed, and gives directions as to 
investing the proceeds of the brandy. All the subsequent correspond- 
ence acquiesces in the sale. It appears to me to be impossible to 
sav after reading the letters of Frith written subsequent to his knowl- 
edge of Mactier's acceptance, that he did not consider the offer as 
held out to Mactier down to the time when it was accepted, and the 
bargain closed by that acceptance; and I think we must adjudge 
it to have been closed, unless the agreement was nugatory by reason 
that the thing to which it related had not an actual or potential 
existence when the contract was consummated.^ . . . 

Whereupon, on the question being put, Sliall the decree of the 
Chancellor appealed from be reversed? Chief Justice Savage and 
Justices ScTJiERLAND and Marcy, and eighteen Senators, voted in 
the affirmative; and three Senators voted in the negative, — viz., 
ScMators MoCauty, Todd, and Wheeler. 

The decree of the Chancellor was accordingly reversed with costs. 

* Portions of the statement of facts and of the opinion are omitted. Concurring 
opinions were delivered by Senators Benton, Maynard, Oliver, and Throop. 

"IA» />■*-« >. .<1.'<LA- ^V**-^ t^*^ 

SECT. l] WHEAT f. CROSS <t«^*/<vt*4v^ ^ <*- 131 /O-^-*-- 

Maryland Court of Appeals, April Term, 1869 '^ •^ 
[Reported in 31 Maryland, 99] 

Bartol, C. J., delivered the opinion of the Court. 

This suit was brought by the appellee to recover the price of a 
horse sold to the appellants. 

The plaintiff resided in Frostburg, and the defendants were en- 
gaged in the business of buying and selling horses in Baltimore. 
The contract of sale was made by correspondence between the parties 
through the mails. 

The facts of the case, so far as it is material to state them, were 
as follows: On the 23d of August, 1867, the defendants received the 
horse in their possession, to be sold on commission, at that time 
apparently sound and in good condition. On the 12th of September, 
1867, they addressed a letter to the plaintiif, stating that the horse 
had been sick, but is doing well at this time, and offering $140 for 
him clear of all expenses, and saying, "you can draw on us at sight 
for $140." This letter was received on the 15th or 16th of Sep- 
tember; on the 16th the plaintiff signified his acceptance of the offer 
by drawing on the defendants for $140. The draft was sent on that 
day, and on the 17th the defendants refusing to pay the draft, it 
was protested. 

On the 16th of September, the defendants addressed a letter to 
the plaintiff withdrawing their offer of the 12th, stating tliat 'Vhen 
they wrote they did not think the horse was so bad, but since it 
has turned out to be 'farcy,' they would not buy at any price," and 
directing him "not draw on them for the money, that they will not 
pay the draft until they see how the horse gets." This letter was 
not received by the plaintiff till after he had acce pted the offe r con- 
tained in the letter of the 12th, by^ sending the dratj . 

In the argument of the case two positions have been taken by the 
defence — 

1st. That there was not such mutual assent between the parties 
as to constitute a binding contract. 

2d. That the offer by the defendants was made through mistake 
of a material fact as to the condition of the horse, and the nature 
of the disease under which it was suffering; and was withdrawn as 
soon as the mistake was discovered, and the acceptance thereof was 
not binding upon them.^ 

1st. On the first question, we consider the law well settled that 
where parties are at a distance from each other, and treat by corre- 
spondence through the post, an offer made by one is a continuing 
offer until it is received, and its acceptance then completes the ag- 
gregatio mentium necessary to make a binding bargain. The bar- 

* Part of the opinion, holding the mistake immaterial, is omitted. 


gain is complete as soon as the letter is sent containing notice of 
acceptance. This rule applies where the offer and acceptance are 

The offer may be withdrawn, and the withdrawal thereof is effec- 
tual so soon as the notice thereof reaches the other party; hut if 
before that time the offer is accepted, the party making the offer 
is bound, and the withdrawal thereafter is too late. 

In this case it appears the defendants' letter of withdrawal was 
sent on the same day on which the notice of the plaintiff's acceptance 
of their previous offer was transmitted, and it has been argued 
that the onus is on the plaintiff to show that the sending of the ac- 
ceptance preceded the sending of the letter of withdrawal. This 
position is not correct; it is quite immaterial to inquire whether the 
defendants' letter of the 16th, or the draft of the same date, was 
first sent. 

Until the notice of the withdrawal of the offer actually reached 
the plaintiff, the offer was continuing, and the acceptance thereof 
completed the contract. 

This point was expressly decided in Tayloe v. Merchants' Fire 
Ins. Co., 9 Howard, 390. That was a case arising upon an insur- 
ance contract, but the reasoning of the Court on this question, and 
the principles decided, are applicable alike to all contracts made by 
correspondence between parties at a distance from each other. There 
the terms upon which the company was willing to insure were made 
known by letter, and it was held "that the contract was complete 
when the insured placed a letter in the post-office accepting the 


SuPEEME Court of the United States, Eeb. 17, 20, 1819 

[Reported in 4 Wheaton, 225, 4 Curtis, 382] 

Error to the Circuit Court for the District of Columbia. 

Jones and Keij, for the plaintiff in error. 

Swann, for the defendant in error. 

Washington, J., delivered the opinion of the Court. 

This is an action, brought by the defendant in error, to recover 
damages for the non-performance of an agreement, alleged to have 
been entered into by the plaintiffs in error, for the purchase of a 
quantity of flour at a stipulated price. The evidence of this contract, 
givf-n in the court bellow, is stated in a bill of exceptions, and is to 
the following effect: A letter from tlie plaintiffs to tlie defendant, 
dated the 10th of February, 1813, in which they say: "Captain Conn 
informs us that you have a quantity of flour to dispose of. We are 
in the practice of purchasing flour at all times in Georgetown, and 


will be glad to serve you, either in receiving your flour in store when 
the markets are dull, and disposing of it when the markets will 
answer to advantage, or we will purchase at market price when de- 
livered; if you are disposed to engage two or three hundred barrels 
at present, we will give you $9.50 per barrel, deliverable the first 
water in Georgetown, or any service we can. If you should want 
an advance, please write us by mail, and will send you part of the 
money in advance." In a postscript they add : ^^ Please write bv 
return of wa^'on whether you accept our ofPer. " This letter was 
sent from the house at which the writer then was, about two miles 
from Harper's Ferry, to the defendant at his mill, at Mill Creek, 
distant about twenty miles from Harper's Ferry, by a wajypner 
then employed by the defendant to haul flour from his mill to 
Harper's Ferry , and then about to return home with his wagon. 
He delivered the letter to the defendant on the 14th of the same 
month, to which an answer, dated the succeeding day, was written 
by the defendant, addressed to the plaintiffs at Georgetown , and 
despatched by a mai l which left Mill Creek on the 19 th, being the 
first regular mail from that place to Georgetown. In this letter 
the writer says : "Your favor of the 10th instant was handed me 
by Mr. Chenoweth last evening. I take the earliest opportunity to 
answer it by post. Your proposal to engage 300 barrels of flour, 
delivered in Georgetown by the first water, at $9.50 per barrel, I 
accept, and shall send on the flour by the first boats that pass down 
from where my flour is stored on the river; as to any advance, will 
be unnecessary, — payment on delivery is all that is required." 

On the 25th of the same month, the plaintiffs addressed to the 
defendant an answer to the above, dated at Georgetown, in which 
they acknowledge the receipt of it, and add : "Not having heard from 
you before, had quite given over the expectation of getting your 
flour, more particularly as we requested an answer by return of 
wagon the next day, and as we did not get it, had bought all we 

The wagoner, by whom the plaintiffs' first letter was sent, in- 
formed them, when he received it, that he should not probably re- 
turn to Harper's Ferry, and he did not in fact return in the de- 
fendant's employ. The flour was sent down to Georgetown some 
time in March, and the delivery of it to the plaintiffs was regularly 
tendered and refused. 

Upon this evidence, the defendants in the Court below, the plain- 
tiffs in error, moved that Court to instruct the jury, that, if they 
believed the said evidence to be true as stated, the plaintiff in this 
action was not entitled to recover the amount of the price of the 
300 barrels of flour, at the rate of $9.50 per barrel. The Court being 
divided in opinion, the instruction prayed for was not given. 

The question is, whether the court below ought to have given the 
instruction to the jury, as the same was prayed for. If they ought, 


the judgment, which was in favor of the plaintiff in that court, must 
be reversed. 

It is an undeniable principle of the law of contracts, that an offer 
of a bargain by one person to another imposes no obligation upon 
the former, until it is accepted by the latter according to the terms 
in which the offer was made. Any qualification of or departure 
from those terms invalidates the offer, unless the same be agreed to 
by the person who made it. Until the terms of the agreement have 
received the assent of both parties, the negotiation is open, and im- 
poses no obligation upon either. 

In this case, the plaintiffs in error offered to purchase from the 
defendant two or three hundred barrels of flour^ to be delivered at 
Georgetown by the first water, and to pay for the same $9.50 per 
barrel. To the letter containing this offer they required an answer 
by the return of the wagon by which the letter was despatched. 
This wagon was at that time in the service of the defendant, and 
employed by him in hauling flour from his mill to Harper's Ferry, 
near to which place the plaintiffs then were. The meaning of the 
writers was obvious. They could easily calculate, by the usual length 
of time which was employed by this wagon in travelling from Har- 
per's Ferry to Mill Creek, and back again with a load of flour, about 
what time they should receive the desired answer; and, therefore, 
it was entirely unimportant whether it was sent by that or another 
wagon, or in any other manner, provided it was sent to Harper's 
Ferry, and was not delayed beyond the time which was ordinarily 
employed by wagons engaged in hauling flour from the defendant's 
mill to Harper's Ferry. Whatever uncertainty there might have 
been as to the time when the answer would be received, there was 
none as to the place to which it was to be sent; this was distinctly 
indicated by the mode pointed out for the conveyance of the answer. 
The place, therefore, to which the answer was to be sent constituted 
an essential part of the plaintiffs' offer. 

It appears, however, from the bill of exceptions, that no answer 
to this letter was at any time sent to the plaintiffs at Harper's Ferry. 
Their offer, it is true, was accepted by the terms of a letter ad- 
dressed Georgetown, and received by the plaintiffs at that place; but 
an acceptance communicated at a place different from that pointed 
out by the plaintiffs, and forming a part of their proposal, imposed 
no obligation binding upon them, unless they had acquiesced in it, 
which they declined doing. 

It is no argument that an answer was received at Georgetown; 
the plaintiffs in error had a right to dictate the terms upon which 
they would purchase the flour; and, unless they were complied with, 
th(!y were not bound by them. All their arrangements may have 
been made with a vic^w to the circumstance of place, and they were 
the only judges of its importance. There was, therefore, no con- 
tract concluded between these parties; and the Court ought, there- 


fore, to have given the instruction to the jury which was asked for. 
Judgment reversed. Cause remanded, with directions to award a 
venire facias de novo. 

SAMUEL P. WHITE, Eespondent, v. JOHN W. COKLIES and 
JONATHAN N. TIFT, Appellants 

New York Court of Appeals, November 17-20, 1871 

[Reported in 26 New Yorh, 467] 

Appeal from judgment of the General Term of the first judicial 
district affirming a judgment entered upon a verdict for .plaintiff. 

The action was for an alleged breach of contract. 

The plaintiff was a builder, with his place of business in Fortieth 
Street, New York City. 

The defendants were merchants at 32 Dey Street. 

In September, 1865, the defendants furnished the plaintiff with 
specifications for fitting up a suite of offices at 57 Broadway, and 
requested him to make an estimate of the cost of doing the work. 

On September twenty-eighth the plaintiff left his estimate with the 
defendants, and they were to consider upon it, and inform the plain- 
tiff of their conclusions. 

On the same day the defendants made a change in their specifi- 
cations and sent a copy of the same, so changed, to the plaintiff for 
his assent under his estimate, which he assented to by signing the 
same and returning it to the defendants. 

On the day following the defendants' book-keeper wrote the plain- 
tiff the following note : — 

New York, September 29 th. 

Upon an agreement to finish the fitting up of offices 57 Broadway 
in two weeks from date, you can begin at once. 

The writer will call again, probably between five and six this p.m. 

W. H. R., 
For J. W. CoRLiEs & Co. 
32 Dey Street, 

No reply to this note was ever made by the plaintiff; and on the 
next day the same was countermanded by a second note from the 

Immediately on receipt of the note of September twenty-ninth, 
and before the countermand was forwarded, the plaintiff commenced 
a performance by the purchase of lumber and beginning work thereon. 

And after receiving the countermand, the plaintiff brought this 
action for damages for a breach of contract. 

The court charged the jury as follows: "From the contents of 
this note which the plaintiff received, was it his duty to go down 


to Dey Street (meaning to give notice of assent) before commencing 
4;he work." 

"In my opinion it was not. He had a right to act upon the note 
and commence the job, and that was a binding contract between the 

To this defendants excepted. , 

L. Henry, for the appellants. 

Mr. Field, for respondent. 

FoLGER, J. We do not think that the jury found, or that the 
testimony shows, that there was any agreement between the parties, 
before the written communication of the defendants of September 
thirtieth was received by the plaintiff. This note did not make an 
agreement. It was a proposition, and must have been accepted by 
the plaintiff before either party was bound, in contract, to the other. 
The only overt action which is claimed by the plaintiff as indicating 
on his part an acceptance of the offer, was the purchase of the stuff 
necessary for the work, and commencing work as we understand the 
testimony, upon that stuff. 

We understand the rule to be, that where an offer is made by one 
party to another when they are not together, the acceptance of it 
by that other must be manifested by some appropriate act. It does 
not need that the acceptance shall come to the knowledge of the one 
making the offer before he shall be bound. But though the mani- 
festation need not be brought to his knowledge before he becomes 
bound, he is not bound if that manifestation is not put in a proper 
way to be in the usual course of events in some reasonable time com- 
municated to him. Thus a letter received by mail containing a pro- 
posal, may be answered by letter by mail containing the acceptance. 
And in general, as soon as the answering letter is mailed tlie con- 
tract is concluded. Though one party does not know of the accep- 
tance, the manifestation thereof is put in the proper way of reaching 

In the case in hand, the plaintiff determined to accept. But a 
mental determination not indicated by speech, or put in course of 
indication by act to the other party, is not an acceptance which will 
bind the other. Nor does an act which, in itself is no indication of 
an acceptance, become such, because accompanied by an unevinced 
mental determination. Where the act, uninterpreted by concurrent 
evidence of the mental purpose accompanying it, is as well referable 
to one state of facts as another, it is no indication to the other party 
of an acceptance, and does not operate to hold him to his offer. 

Conceding that the testimony shows that tlie plaintiff did resolve 
to accept this offer, he did no act which indicated an acceptance of 
it to the defendants. He, a carpenter and builder, purchased stuff 
for the work. But it was stuff as fit for any other like work. He 
began work upon the stuff, but as hv. woulf] liave done for any other 
like work. There was nothing in his thought formed but not uttered, 


or in his acts, that indicated or set in motion an indication to the 
defendants of his acceptance of their offer, or which could neces- 
sarily result therein. 

But the charge of the learned judge was fairly to be understood 
by the jury as laying down the rule to them, that the plaintiff need 
not indicate to the defendants his acceptance of their offer, and that 
the purchase of stuff and working on it after receiving the note, 
made a binding contract between the parties. In this we think 
the learned judge fell into error. 

The judgment appealed from must be reversed, and a new trial 
ordered, with costs to abide the event of the action. 

All concur but Allen, J., not voting. 

Judgment reversed and new trial ordered?- 


In the Common Pleas, ISTovember 6, 1783 

[Reported in Law Reports, 9 Common Pleas, 16] 

The cause was tried before Brett, J., at the sittings at West- 
minster after the last term. The facts were as follows: In October, 
1871, the plaintiffs advertised for tenders for the supply of goods 
(amongst other things iron) to be delivered at their station at Don- 
caster, according to a certain specification. The defendant sent in 
a tender, as follows : — 

I, the undersigned, hereby undertake to supply the Gveat Northern 
Railway Company, for twelve months from the 1st of November, 
1871, to 31st of October, 1872, with such quantities of each or any 
of the several articles named in the attached specification as the 
company's storekeeper may order from time to time, at the price 
set opposite each article respectively, and agree to abide by the con- 
ditions stated on the other side. 

(Signed) Samuel Witham 

^ There are many cases where an acceptance, so called, did not complete the con- 
tract, because it imposed a new condition or slightly but materially varied the terms 
of the offer. See 'Honeyman v. Marryat, 6 H. L. C. 112; English, &c., Credit Co. v. 
Arduin, L. R. 5 H. L. 64; Appleby v. Johnson, L. R. 9 C. P. 158; Stanley v. Dowdes- 
weU, L. R. 10 C. P. 102; Crossley v. Maycock, E. R. 18 Eq. 180; Jones v. Daniel, 
[1894] 2 Ch. 332; Lloyd v. Nowell, [1895] 2 Ch. 744; Ortman v. Weaver, 11 Fed. 
Rep. 358; Martin v. Northwestern Fuel Co., 22 Fed. Rep. 596; Coffin v. Portland, 43 
Fed. Rep. 411; James v. Darby, 100 Fed. Rep. 224 (C. C. A.); Robinson v. Weller, 
81 Ga. 704; Corcoran v. White, 117 111. 118; Middaugh v. Stough, 161 111. 312; Stagg 
V. Compton, 81 Ind. 171; Siebold v. Davis, 67 la. 560; Gilbert v. Baxter, 71 la. 327; 
Howard v. Industrial School, 78 Me. 230; Putnam v. Grace, 161 Mass. 237; Falls 
Wire Mfg. Co. v. Broderick, 12 Mo. App. 379; Commercial Telegram Co. v. Smith 
47 Hun, 494; Olds v. East Tenn. Stone Co. (Tenn.), 48 S. W. Rep. 333; North Texas 
Building Co. v. Coleman (Tex. Civ. App.), 58 S. W. Rep. 1044; Virginia Hot Springs 
Co. V. Harrison, 93 Va. 569; Baker v. Holt. 56 Wis. 100. And see 7 Am. & Eng. Encyc. 
of Law, 132. Compare: Hussey v. Home Payne, 4 App. Cas. 311; Smith v. Webster, 
3 Ch. D. 49; North v. Percival, [1898] 2 Ch. 128. 


The company's officer wrote in reply as follows: — 
Mr. S. Witham: 

SiK, — I am instructed to inform you that my directors have ac- 
cepted your tender, dated, &c., to supply this company at Doncaster 
station any quantity they may order during the period ending 31st 
of October, 1872, of the descriptions of iron mentioned on the in- 
closed list, at the prices specified therein. The terms of the eon- 
tract must be strictly adhered to. Requesting an acknowledgment 
of the receipt of this letter, 

(Signed) S. Fitch, Assistant Secretary. 

To this the defendant replied : — 

I beg to own receipt of your favor of 20th instant, accepting my 
tender for bars, for which I am obliged. Your specifications shall 
receive my best attention. 

S. "Witham. 

Several orders for iron were given by the company, which were 
from time to time duly executed by the defendant; but ultimately 
the defendant refused to supply any more, whereupon this action 
was brought. 

A verdict having been found for the plaintiffs, — 

Dighy Seymour, Q. C, moved to enter a nonsuit, on the ground 
that the contract was void for want of mutuality. He contended 
that, as the company did not bind themselves to take any iron what- 
ever from the defendant, his promise to supply them with iron was 
a promise without consideration. He cited Lees v. Whitcomb, 5 
Bing. 34; Burton v. Great Northern Railway Co., 9 Ex. 507, 23 
L. J. (E.) 184; Sykes v. Dixon, 9 Ad. & Ex. 693; and Bealey v. 
Stuart, 7 H. & N. 753, 31 L. J. (Ex.) 281. Cur. adv. vult. 

Brett, J. The company advertised for tenders for the supply 
of stores, such as they might think fit to order, for one year. The 
defendant made a tender offering to supply them for that period 
at certain fixed prices; and the company accepted his tender. If 
there were no other objection, the contract between the parties would 
be found in the tender and the letter accepting it. This action is 
brought for the defendant's refusal to deliver goods ordered by the 
company; and the objection to the plaintiff's right to recover is, 
that the contract is unilateral. I do not, however, understand what 
objection that is to a contract. Many contracts are obnoxious to the 
same complaint. If I say to another, "If you will go to York, I 
will give you 1001.," that is in a certain sense a unilateral contract. 
II(! lias not proniisf'.d to go to York; but if he goes it cannot be 
<lonbtf'd tliat ho will be entitled to receive the lOO/.r/ His going to 
York at my request is a sufficient consideration f o ■ my promise. 
8o, if one says to another, "If you will give me an )rder for iron. 


or other goods, I will supply it at a given price;" if the order is 
given, there is a complete contract which the seller is bound to ptsr- 
form. There is in such a case ample consideration for the promis^L' 
So, here, the company having given the defendant an order at his 
request, his acceptance of the order would bind them. If any au- 
thority could have been found to sustain Mr. Seymour's contention, 
I should have considered that a rule ought to be granted. But none 
has been cited. Burton v. Great Northern Railway Company, 9 Ex. 
507, 23 L. J. (Ex.) 184, is not at all to the purpose. This ia 
matter of every day's practice; and I think it would be wrong to 
countenance the notion that a man who tenders for the supply of 
goods in this way is not bound to deliver them when an order is^. 
given. I agree that this judgment does not decide the question, 
whether the defendant might have absolved himself from the further- 
performance of the contract by giving notice.^ 

Gkove, J. I am of the same opinion, and have nothing to add. 

Bule refused.^ 

PANY, Appellant, v. FRANCIS B. DANE and Others, Re- 

New York Court of Appeals, December 13-20, 1870 

[Reported in 43 New YorJc, 240] 

This is an appeal from a judgment of the General Term of the 
Supreme Court in the first judicial district, affirming a judgment 
for the defendant entered upon the report of a referee. 

This action was brought to recover damages on an alleged con- 
tract of the defendant to carry and transport a quantity of railroad 
iron from New York to Chicago for the plaintiffs. The only evi- 
dence of the contract were the letters quoted in the opinion of the 
court. The defendant insisted that the agreement was invalid for 
want of the proper U. S. internal revenue stamp affixed at the time 
it was made. But the referee overruled the objection, holding that 
it was sufficient under section 173 of the Revenue Act of June 30, 
1864, to stamp the instrument on its production in court. This point 
was not passed on in this court. 

L"It would be an ordinary case of a unilateral contract growing out of an offer of 
one party to do something if the other will do or refrain from doing something else. 
If the party to whom such an offer is made acts upon it in the manner contemplated, 
either to the advantage of the offerer or to his own disadvantage, such action makes 
the contract complete, and notice of the acceptance of the offer is rmnecessary. Lent 
V. Padelford, 10 Mass. 230; Train v. Gold, 5 Pick. 380; Brogden v. Metropelitan Rail- 
way, 2 App. Gas. 666, 691; Weaver v. Wood, 9 Pa. 220; Patton v. Hassinger, 69 Pa. 
311." Knowlton, J., in First Nat. Bank v. Watldns, 154 Mass. 385, 387. 

2 See Queen v. Demers, [1900] A. C. 103; Ford v. Newth, [1901] 1 K. B. 683; 
Attorney-General v. Stewards, 18 T. L. R. 131. 

' A statement of the pleadings and the concurring opinion of Keating, J., are 
omitted. . . 

ZkjL ^tW" 'l[ *^ ^yO^ati^^^u^ G^y^iAjL^etL. CL^,y^^U-X\^J ^ *-«^-»-l>- 


Titus and Westervelt, for the appellant. 

H. W. Johnson, for the respondents, 

Gkovee, J. Whether the letter of the defendants to plaintiff, and 
the answer of plaintiff thereto (leaving the question of revenue 
stamps out of view), proved a legal contract for the transportation 
of iron by the defendants for the plaintiff from ISTew York to Chi- 
cago upon the terms therein specified, depends upon the question 
whether the plaintiff became thereby bound to furnish any iron to 
the defendants for such transportation, as there was no pretence 
of any consideration for the promise of the defendants to transport 
the iron, except the mutual promise of the plaintiff to furnish it 
for that purpose, and to pay the specified j)rice for the service. Un- 
less, therefore, there was a valid undertaking by the plaintiff so to 
furnish the iron, the promise of the defendants was a mere nude 
pact, for the breach of which no action can be maintained. The 
material part of the defendants' letter affecting this question is as 
follows: "We hereby agree to receive in this port (I!^ew York), 
either from yard or vessel, and transport to Chicago, by canal and 
rail or the lakes, for and on account of the Chicago and Great 
Eastern Railway Company, not exceeding six thousand tons gross 
(2,240 lbs.) in and during the months of April, May, June, July, 
and August, 1864, upon the terms and for the price hereinafter 
specified." This letter was forwarded by the defendants to the 
plaintiff April 15, 1864. On the 16th of April, the plaintiff answered 
this letter, the material part of which was as follows : "In behalf of 
this company I assent to your agreement, and will be bound by its 
terms." We have seen that the inquiry is, whether this bound the 
plaintiff to furnish any iron for transportation. It is manifest that 
the word "agree" in the letter of the defendants was used as synony- 
mous with the word "offer," and that the letter was a mere propo- 
sition to the plaintiff for a contract to transport for it any quantity 
of iron upon the terms specified, not exceeding 6,000 tons, and that 
it was so understood by the plaintiff. The plaintiff was at liberty 
to accept this proposition for any specified quantity not beyond 
that limited; and had it done so, a contract mutually obligatory 
would have resulted therefrom, for the breach of which by either 
party the other could have maintained an action for the recovery 
of the damages thereby sustained. This mntnal obligation of the 
parties to perform the contract Avould liave constituted a considera- 
tion for the promise of each. But the plaintiff did not so accept. 
TJpon the receipt of the defendants' offer to transport not to exceed 
6,000 tons upon th(! terms specified, it merely aceptcd such offer, 
and agreed to be bound by its tf-rrns. This amounted to nothing 
more than the acceptance of an option by the plaintiff for the trans- 
jjortation of such quantity of iron by the defendants ns it chose; and 
liad therr ber'n a consideration given to the dc>feiidants for such 
option, the dcf(!iid!iiits would have been bound to transport for the 


plaintiff such iron as it required within the time and quantity speci- 
fied, the plaintiff having its election not to require the transportation 
of any. But there was no consideration received by the defendants 
for giving any such option to the plaintiff. There being no con- 
sideration for the promise of the defendants, except this acceptance 
by the plaintiff, and that not binding it to furnish any iron for trans- 
portation unless it chose, it follows that there was no cofisideration 
for any promise of the defendants, and that the breach of such prom- 
ises furnishes no foundation for an action. The counsel for the 
plaintiff insists that the contract may be upheld for the reason that 
at the time the letters were written the defendants were engaged 
in transporting iron for the plaintiff. But this had no connection 
with the letters any more than if the defendants were at the time 
employed in any other service for the plaintiff. ISTor does the fact 
that the defendants, after the letters were written, transported 
iron for the plaintiff at all aid in upholding the con- 
tract. This did not oblige the plaintiff to furnish any additional 
quantity, and consequently constituted no consideration for a prom- 
ise to transport any such. The counsel for the appellant further 
insists that the letter of defendant was a continuing offer, and that 
the request of the plaintiff, in August, to receive and transport a 
specified quantity of iron was an acceptance of such offer, and that 
the promises then became mutually obligatory, if not so before. This 
position cannot be maintained. Upon receipt of the defendants' 
letter, the plaintiff was bound to accept in a reasonable time and 
give notice thereof, or the defendant was no longer bound by the 
offer. The judgment appealed from must be affirmed with costs. 

All the judges concurring, except Allen, J., who, having been of 
counsel, did not sit. Judgment affirmed.^ 



New York Court of Appeals, November 14-December 4, 1917 

[Reported in 222 New Yorlc, 88] 

Caedozo, J. The defendant styles herself "a creator of fashions." 
Her favor helps a sale. Manufacturers of dresses, millinery and 
like articles are glad to pay for a certificate of her approval. The 
things which she designs, fabrics, parasols and what not, have a 
new value in the public mind when issued in her name. She em- 
ployed the plaintiff to help her to turn this vogue into money. He 
was to have the exclusive right, subject always to her approval, to 
place her indorsements on the designs of others. He was also to 
have the exclusive right to place her own designs on sale, or to 
license others to market them. In return, she was to have one-half 
1 See Thayer v. Burchard, 99 Mass. 508. 


of "all the profits and revenues" derived from any contracts he might 
make. The exclusive right was to last at least one year from April 
1, 1915, and thereafter from year to year unless terminated by 
notice of ninety days. The plaintiff says that he kept the contract 
on his part, and that the defendant broke it. She placed her in- 
dorsement on fabrics, dresses and millinery without his knowledge, 
and withheld the profits. He sues her for the damages, and the 
case comes here on demurrer. 

The agreement of employment is signed by both parties. It has 
a wealth of recitals. The defendant insists, however, that it lacks 
the elements of a contract. She says that the plaintiff does not bind 
himself to anything. It is true that he does not promise in so many 
words that he will use reasonable efforts to place the defendant's 
indorsements and market her designs. "We think, however, that such 
a promise is fairly to be implied. The law has outgrown its primi- 
tive stage of formalism when the precise word was the sovereign 
talisman, and every slip was fatal. It takes a broader view to- 
day. A promise may be lacking, and yet the whole writing may be 
"instinct with an obligation," imperfectly expressed. (Scott, J., in 
McCall Co. V. Wright, 133 App. Div. 62; Moran v. Standard Oil 
Co., 211 'N. Y. 187, 198.) If that is so, there is a contract. 

The implication of a promise here finds support in many circum- 
stances. The defendant gave an exclusive privilege. She was to 
have no right for at least a year to place her own indorsements or 
market her own designs except through the agency of the plaintiff. 
The acceptance of the exclusive agency was an assumption of its 
duties, (Phoenix Hermetic Co. v. Filtrine Mfg. Co., 164 App. 
Div. 424; TV. G. Taylor Co. v. Bannerman, 120 Wis. 189; Mueller 
V. Bethesda Mineral Spring Co., 88 Mich. 390.) We are not to 
suppose that one party was to be placed at the mercy of the other 
(Hearn v. Stevens & Bro., 11 App. Div. 101, 106; Kussell v. Aller- 
ton, 108 N. Y. 288). Many other terms of the agreement point the 
same way. We are told at the outset by way of recital that "the 
said Otis F. Wood possessed a business organization adapted to 
the placing of such indorsements as the said Lucy, Lady Duff-Gordon 
has approved." The implication is that the plaintiff's business or- 
ganization will be used for the purpose for which it is adapted. 
But the terms of the defendant's compensation are even more sig- 
nificant. Her sole compensation for tbo grant of an exclusive agency 
is to be one-half of all the profits resulting from tlie plaintiff's 
efforts. Unless he gave his efforts, she could never get anything. 
Without an implied promise, the transaction cannot have such busi- 
ness "efficiency as both parties must have intended that at all events 
it should have" (Bowkn, L. J., in The Moorcock, 14 P. D. 64, 
68). But the contract does not stop there. The plaintiff goes on 
to promise that he will account monthly for all moneys received 
by him, and that he will take out all such patents and copyrights and 


tradesmark as may in his judgment be necessary to protect the 
rights and articles affected by the agreement. It is true, of course, 
as the Appellate Division has said, that if he was under no duty 
to try to market designs or to place certificates of indorsement, his 
promise to account for profits or take out copyrights would be value- 
less. But in determining the intention of the parties, the promise 
has a value. It helps to enforce the conclusion that the plaintiff 
had some duties. His promise to pay the defendant one-half of the 
profits and revenues resulting from the exclusive agency and to 
render accounts monthly, was a promise to use reasonable efforts to 
bring profits and revenues into existence. For this conclusion, the 
authorities are ample. (Wilson v. Mechanical Orguinette Co., 170 
InT. Y. 542; Phoenix Hermetic Co. v. Filtrine Mfg. Co., supra; Jac- 
quin V. Boutard, 89 Hun, 437; 157 N. Y, 686; Moran v. Standard 
Oil Co., supra; City of N". Y. v. Paoli, 202 N". Y. 18; M'Intyre v. 
Belcher, 14 C. B. (K". S.) 654; Devonald v. Rosser & Sons, 1906, 
2 K. B. 728; "W. G. Taylor Co. v. Bannerman, supra; Mueller v. 
Bethesda Mineral Spring Co., supra; Baker Transfer Co. v. Mer- 
chants' R. & I. Mfg. Co., 1 App. Div. 507.) 

The judgment of the Appellate Division should be reversed, and 
the order of the Special Term afiirmed, with costs in the Appellate 
Division and in this court. 

CuDDEBACK, McLatjghlin and Andrews, J J., concur; Hiscock, 
Ch. J., Chase and Crane, JJ., dissent. 

Judgment reversed, etc. 

jOYNSoJsr V. huj^t & soisr 

In the Court of Appeal, July 26, 1905 
\_Reported in 93 Law Times {^. S.) 470] 

The defendants carried on business in the glove trade; and the 
plaintiff was a commission agent. 

On the 18th July 1902 the defendants wrote the following letter 

to the plaintiff: 

In reply to your favour I beg to say we will give the 2\ per cent, commission on all 
business you do for us in London, whether you send the buyers to buy or orders come 
through the post, or you take them and send them direct. You let us know to whom 
you show our samples, and, if business results from the transaction, we will forward 
your commission quarterly as you suggest. This refers to orders executed. 

The defendants gave samples to the plaintiff, and the plaintiff 
obtained orders for the defendants. 

Subsequently the defendants terminated the agency of the plain- 
tiff without giving any notice; and thereupon the plaintiff brought 
this action to recover damages. 

At the trial before Lawrence, J. with a jury, the plaintiff tendered 
the evidence of witnesses to prove that there was a custom in the 
glove trade that six months' notice must be given to terminate the 


agency of a commission agent. The learned judge held that the 
defendants were entitled to terminate the agency without notice, 
and rejected the evidence of the alleged custom; and he directed a 
verdict and judgment to be entered for the defendants. 

The plaintiff appealed, asking for judgment or for a new trial. 

RoMEK, L, J. : I desire to make it clear that it is quite possible 
that a good custom might be pleaded and proved as to notice being 
necessary to terminate an ordinary contract whei'e the principal 
employs the agent to sell on commission. This case, however, turns 
upon the special terms of the contract between these parties. In 
my opinion that contract does not show any employment by the 
defendants of the plaintiff at all. It is only an arrangement that 
the plaintiff might obtain orders for the defendants if he thought 
fit to do so, and that if he did obtain orders the defendants might 
accept them if they thought fit to do so, and that if business re- 
sulted commission would be paid to the plaintiff. In my opinion 
this was not an employment by a principal of an agent at all. It 
was simply a purely voluntary arrangement on the part of principal 
and agent, neither party being bound to do anything. From the 
very nature of the arrangement made in writing, it follows that 
either party may cause it to cease at any time. To import into it 
any custom as to notice would be inconsistent with the special terms 
of the arrangement. I agree that the appeal fails.^ 

^ \X MICHAEL A. CAVANAUGH, and Another, v. D. W. KAj^LET 

SuPEEME Judicial Court of Massachusetts, November 16- 
February 27, 1918 

[Reported in 229 Massachusetts, 366] 

Action for breach of a contract to deliver a carload of straight 
clipped white oats guaranteed to be "cool and sweet," or for the 
recovery of $537.93 paid by the plaintiff for a carload of inferior 
oats which he had no opportunity to inspect. 

After a conversation by telephone, the defendant sent by mail to 
the plaintiffs a paper called in the record a "confirmation" of the 
telephone conversation, which stated that a certain shipment of 
clipped white oats had been sold to Cavanangh Brothers, "Arr. cool 
and sweet." The printed form on which this so-called confirmation 
was made out contained in print at the bottom the following: 

This sale subject to rules of T3oston Chamber of Commerce gov- 
erning trade in grain. 

Stiitfr or official board of trade, inspection and test weights shall 
be fin.'il. 

' CoLLiNB, M. Tl. and Mathews, L. J. delivered concurrinp; opinions. 


'J'liis is a contract and wil l be considered mutually binding; unless 
we are advised of it s non-acceptance by wire. 

If any error m above please advise by return mail. 
"We thank you for the order. 

Yours truly, 

The D. W. Eanlet Co., 
Per .... Smith 

N"o answer was sent by the plaintiffs. 

The plaintiff paid a draft for the price on tender of a bill of 
lading. On arrival the oats were found not cool and sweet, but the 
defendant contended that notice of the defect was not given within 
the time required by the rules of the Boston Chamber of Commerce. 

At the close of the evidence the Judge ordered a verdict for the 
defendant and reported the case for determination by this court; 
the parties stipulating that if the jury would have been warranted 
in returning a verdict for the plaintiff, judgment should be entered 
for him in the sum of $645.52. 

Braley, J. : If the paper sent by defendant to the plaintiffs is 
examined, the word "confirmation" is not found. It purj)orts to be 
a memorandum of a sale of two cars "straight clipped white oats," 
one of which is the car in question, with a statement of the price, 
warranty and terms of shipment. It does not purport to confirm 
the oral contract. It is of itself an offer to sell which upon accept- 
ance by the offerees would become a binding sale. The words, "This 
is a contract and will be considered mutually binding unless we 
are advised of its non-acceptance by wire. If any error in above 
please advise by return mail," immediately preceding the defendant's 
signature, admit of no other satisfactory construction. I t could 
not be ruled as matter of law, that, if the "confirmation" were 
treated as an olter, it became a binding agreement from the failure 
of t he plaintiffs to reply . The jury under all the circumstances were 
to say whether the plaintiffs' silence amounted to an assent. Quin- 
tard V. Bacon, 99 Mass. 185. Borrowscale v. Bosworth, 99 Mass, 
378. Metropolitan Coal Co. v. Boutell Transportation & Towing 
Co. 185 Mass. 391, 395. If the jury found the oral contract had 
not been established, then, if accepted by the plaintiffs, the "con- 
firmation" would constitute the contract. Metropolitan Coal Co. v. 
Boutell Transportation & Towing Co. ubi supra. But, if they found 
the oral contract had been proved, the further question, w^hether 
that contract had been mutually modified, rescinded or abandoned, 
was a question of fact under suitable instructions. Hanson & Parker, 
Ltd. V. Wittenberg, 205 Mass. 319, 326, and cases cited. 

Judgment for the plaintiff in the agreed sum. ivas ordered} 

^ The statement of facts is abbreviated and a portion of the opinion omitted. 


JOHN F. WHEELER and Anothee v. A. W. KLAHOLT 

AND Anothee 

SuPEEME Judicial Court of Massachusetts, January 7- 
March 1, 1901 

[Re'ported in 178 Massachusetts, 141] 

Holmes, C. J. This is an action for the price of one hundred 
and seventy-four pairs of shoes, and the question raised by the de- 
fendants' exception is whether there was any evidence, at the trial, 
of a purchase by the defendants.^ 

The evidence of the sale was this. The shoes had been sent to the 
defendants on the understanding that a bargain had been made. It 
turned out that the parties disagreed, and if any contract had been 
made it was repudiated by them both. Then, on September 11, 
1899, the plaintiffs wrote to the defendants that they had written 
to their agent. Young, to inform the defendants that the latter might 
keep the go ods "at the price you offer if you send us net spot cash 
at once. If you ca nnot send us cash draft by return mail, please re- 
turn the g oods to us immediately via Wabash & Fitchbur^ Railro ad, 
otEerwise'T^hey will go through New York City and it would take 
three or four weeks to get them." On September 15, the defendants 
enclosed a draft for the price less four per cent, which they said 
was the proposition made by Young. On September 18 the plain- 
tiffs replied, returning the draft, saying that there was no deduction 
of four per cent, and adding, "if not satisfactory please return the 
goods at once by freight via Wabash & Fitchburg Railroad." This 
letter was received by the defendants on or before September 20, 
but the plaintiffs heard nothing more until October 25, when they 
were notified by the railroad company that the goods were in Boston. 

It should be added that when the goods were sent to the defendants 
they were in good condition, new, fresh, and well packed, and that 
when the plaintiffs opened the returned cases their contents were 
more or less defaced and some pairs of shoes were gone. It fairly 
might be inferred that the cases had been opened and the contents 
tumbled about by the defendants, although whether before or after 
the plaintiffs' final offer perhaps would be little more than a guess. 

Both parties invoke Hobbs v. Massasoit Whip Co., 158 Mass. 194, 
the defendants for the suggestion on p. 197 that a stranger by send- 
ing goods to another cannot impose a duty of notification upon him 
at the risk of finding himself a jmrchaser against his own will. We 
are of opinion that this proposition gives tbe defendants no help. 
The parties were not strangers to each other. The goods had not 
been foisted upon the defendants, but were in their custody pre- 
Buma})ly by tlicir previous assent, at all events by their assent im- 
plied by their later conduct. The relations between the parties were 
1 A part of the opinion relating to a question of practice is omitted. 


SO far similar to those in the case cited, that if the plaintiffs' offer 
had been simply to let the defendants have the shoes at the price 
named, with an alternative request to send them back at once, as 
in their letters, the decision would have applied, and a silent re- 
tention of the shoes for an unreasonable time would have been an 
acceptance of the plaintiffs' terms, or, at least would have warranted 
a finding that it was. See also Bohn Manuf. Co. v. Sawyer, 169 
Mass. 477. 

The defendants seek to escape the effect of the foregoing prin- 
ciple, if held applicable, on the ground of the terms offered by the 
plaintiffs. They say that those terms made it impossible to accept 
the plaintiffs' offer, or to give the plaintiffs any reasonable ground 
for understanding that their offer was accepted, otherwise than by 
promptly forwarding the cash. They say that whatever other lia- 
bilities they may have incurred they could not have purported to 
accept an offer to sell for cash on the spot by simply keeping the 
goods. But this argument appears to us to take one half of the 
plaintiffs' proposition with excessive nicety, and to ignore the al- 
ternative. Probably the offer could have been accepted and the bar- 
gain have been made complete before sending on the cash. At all 
events we must not forget the alternative, which was the immediate 
return of the goods. 

The evidence warranted a finding that the defendants did not re- 
turn the goods immediately or within a reasonable time, although 
subject to a duty in regard to them. The case does not stand as 
a simple offer to sell for cash received in silence, but as an alterna- 
tive offer and demand to and upon one who was subject to a duty /J^e^t-^r- 
to return the goods , allowing him either to buy for cash or to return 
the shoes at once, followed by a failure on his part to do anything. 
Under such circumstances a jury would be warranted in finding that -t^ 
a neglect of the duty to return imported an acceptance of the alter- • / (.^ 
native offer to sell, although coupled with a failure to show that «^ /y. j j 
promptness on which the plaintiffs had a right to insist if they saw y ^..^ ^ 
fit, but which they also were at liberty to waive. «<> t^ tf^^^-Xri^ V. ^^\ 

Exceptions overruled. ^^«*^ 

!N^EW Hampshire Supreme Court, June, 1898 

[Reported in 69 New Hampshire, 305] 

Assumpsit. The declaration alleged, in substance, that the de- 
fendants, as insurance agents, had insured the plaintiff's buildings 
in the Manchester Fire Insurance Company until February 1, 1897; 
that on January 23, 1897, they notified him that they would renew 
the policy and insure his buildings for a further term of one year 


from February 1, 1897, in the sum of $500, unless notified to the 
contrary by him; that he, relying on the promise to insure unless 
notified to the contrary, and believing, as he had a right to believe, 
that the buildings would be insured by the defendants for one year 
from February 1, 1897, gave no notice to them to insure or not to 
insure; that they did not insure the buildings as they had agreed and 
did not notify him of their intention not to do so ; that the buildings 
were destroyed by fire March 1, 1897, without fault on the plaintiff's 
part. The defendants demurred. 

John T. Barthtt, Burnham, Brown & Warren, and Isaac W. 
Smith, for the plaintiff. 

Drury & Peaslee, for the defendants. 

Blodgett, J. "While an offer will not mature into a complete 
and effectual contract until it is acceded to by the party to whom 
it is made and notice thereof, either actual or constructive, given to 
the maker (Abbot v. Shepard, 48 N. H. 14, 17; Perry v. Insurance 
Co., 67 ]^. H. 291, 294, 295), it must be conceded to be within the 
power of the maker to prescribe a particular form or mode of accept- 
ance; and the defendants having designated in their offer what they 
would recognize as notice of its acceptance, namely, failure of the 
plaintiff to notify them to the contrary, they may properly be held 
' to have waived the necessity of formally communicating to them the 
fact of its acceptance by him. 

But this did not render acceptance on his part any less necessary 
than it would have been if no particular form of acceptance had 
been prescribed, for it is well settled that "a. party cannot, by the 
wording of his offer, turn the absence of communication of accept- 
ance into an acceptance, and compel the recipient of his offer to re- 
fuse it at the peril of being held to have accepted it." Clark Cont. 
31, 32. "A person is under no obligation to do or say anything con- 
cerning a proposition which he does not choose to accept. There 
must be actual acceptance or there is no contract." More v. In- 
surance Co., 130 ]Sr. Y. 537, 547. And to constitute acceptance, 
"there must be words, written or spoken, or some other overt act." 
Bish. Cont., s. 329, and authorities cited. 

If, therefore, the defendants might and did make their offers in 
such a way as to dispense Avith the conrrmmicntion of its acceptance 
to tlicm in a formal and di ro c-t imiiino v, tlioy did not and could not 
80 frame it as to render the plaintiff liable as having accepted it 
mendy because he did not communicate liis intention not to accept it. 
And if the plaintiff was not bound by the offer until he accepted 
it, the defendants could not be, because "it takes two to make a 
bargain," and as contracts rest on mutual promises, both parties 
an; bonnd, or neither is bound. 

The inquiry as to the defendants' liability for the non-performance 
of their offer thus becomes restricted to the question. Did the plain- 
tiff accept the offer, so that it became by his action clothed with 


legal consideration and perfected with the requisite condition of 
mutuality ? As, in morals, one who creates an expectation in another 
by a gratuitous promise is doubtless bound to make the expectation 
good, it is perhaps to be regretted that, upon the facts before us, 
we are constrained to answer the question in the negative. While 
a gratuitous undertaking is binding in honor, it does not create a 
legal responsibility. Whether wisely and equitably or not, the law 
requires a consideration for those promises which it will enforce; 
and as the plaintiff paid no premium for the policy which the de- 
fendants proposed to issue, nor bound himself to pay any, there was 
no legal consideration for their promise, and the law will not en- 
force it. 

Then, again, there was no mutuality between the parties. All the 
plaintiff did was merely to determine in his own mind that he would 
accept the offer — for there was nothing whatever to indicate it 
by way of speech or other, appropriate ac t. Plainly, this did not 
create any right in his favor as against the defendants. From the 
very nature of a contract this must be so; and it therefore seems 
superfluous to add that the universal doctrine is that an uncom- 
municated mental determination cannot create a binding contract. 

'Not is there any estoppel against the defendants, on the ground 
that the plaintiff relied upon their letter and believed they would 
insure his buildings as therein stated. 

The letter was a representation only of a present intention or 
purpose on their part. "It was not a statement of a fact or state 
of things actually existing, or past and executed, on which a party 
might reasonably rely as fixed and certain, and by which he might 
properly be guided in his conduct. . . . The intent of a party, how- 
ever positive or fixed, concerning his future action, is necessarily 
uncertain as to its fulfilment, and must depend on contingencies 
and be subject to be changed and modified by subsequent events and 
circumstances. . . . On a representation concerning such a matter 
no person would have a right to rely, or to regulate his action in 
relation to any subject in which his interest was involved as upon 
a fixed, certain, and definite fact or state of things, permanent in 
its nature and not liable to change. . . . The doctrine of estoppel 
... on the ground that it is contrary to a previous statement of 
a party does not apply to such a representation. The reason on 
which the doctrine rests is, that it w^ould operate as a fraud if a 
party was allowed to aver and prove a fact to be contrary to that 
which he had previously stated to another for the purpose of inducing 
him to act and to alter his condition, to his prejudice, on the faith 
of such previous statement. But the reason wholly fails when the 
representation relates only to a present intention or purpose of a 
party, because, being in its nature uncertain and liable to change, it 
could not properly form a basis or inducement upon which a party 
could reasonably adopt any fixed and permanent course of action." 


Langdon v. Doud, 10 Allen, 433, 436, 437, Jackson v. Allen, 120 
Mass. 64, 79; Jorden v. Money, 5 H. L. Cas. 185, 

^'An estoppel cannot arise from a promise as to future action with 
respect to a right to be acquired upon an agreement not yet made." 
Insurance Co. v. Mowry, 96 U. S. 544, 547. "The doctrine has no 
place for application when the statement relates to rights depending 
upon contracts yet to be made, to which the person complaining is 
to be a party. He has it in his power in such cases to guard in 
advance against any consequences of a subsequent change of intention 
by the person with whom he is dealing." lb. 548. See, in addition : 
White V. Ashton, 51 N. Y. 280; Mason v. Bridge Co., 28 W. Ya. 
639, 649; Jones v. Parker, 67 Tex. 76, 81, 82; Big. Estop. (5th ed.) 

To sum it up in a few words, the case presented is, in its legal 
aspects, one of a party seeking to reap where he had not sown, and 
to gather where he had not scattered. Demurrer sustained.^ 

Peaslee, J., did not sit : the others concurred. 

AUGUSTUS L. PHILLIPS, by his Guardian, v. 

Supreme Judicial Court of Maine, March 8, 1880 

[Reported in 71 Maine, 78] 

Barrows, J.^ Negotiations by letter, looking to the purchase by 
the defendant of a quantity of hay in the plaintiff's barn, had re- 
sulted in the pressing of the hay by the defendant's men, to be paid 
for at a certain rate if the terms of sale could not be agreed on; 
and in written invitations from plaintiff's guardian to defendant, 
to make an offer for the hay, in one of which he says : "If the price 
is satisfactory I will write you on receipt of it;" and in the other: 
"If your offer is satisfactory I shall accept it; if not, I will send 
you the money for pressing." Friday, June 14th, defendant made 
an examination of the hay after it had been pressed, and wrote to 
plaintiff's guardian, same day . . . "Will give $9.50 per ton, for 
all but three tons, and for that I will give $5.00." Plaintiff's 
guardian lived in Carmel, fourteen miles from Bangor, where de- 
fendant lived, and there is a daily mail communication each way 
between the two places. The card containing defendant's offer was 
mailed at Bangor, June 15, and probably received by plaintiff in 
rf't^nlar conrsc, about nine o'clock a.m. that day. The plaintiff does 
not fleiiy tliis, tliough he says he does not always go to the office, and 
thf mail is sometimes carried by. deceiving no better offer, and 

• Folthousf V. Hinflloy, 11 C. B. N. h. 868, arc. 

' A y)f)rtif)ri of thi- opinion is omittnd in whir'li it was held that on the COmpletiOEt 
of the eontruct, title to the hay passed to the buyer. 


being offered less by another dealer, on Thursday, June 20th, he 
went to Bangor, and there, not meeting the defendant, sent him 
through the post-office a card, in which he says he was in hopes de- 
fendant would have paid him $10.00 for the best quality: "But you 
can take the hay at your offer, and when you get it hauled in, if 
you can pay the $10.00 I would like to have you do it, if the hay 
proves good enough for the price." Defendant received this card 
that night or the next morning, made no reply, and Sunday morn- 
ing the hay was burnt in the barn. Shortly after, when the parties 
met, the plaintiff claimed the price of the hay and defendant denied 
his liability, and asserted a claim for the pressing. Hence this suit. 

The guardian's acceptance of the defendant's offer was absolute 
and unconditional. It is not in any legal sense qualified by the 
expression of his hopes, as to what the defendant would have done, 
or what he would like to have him do, if the hay when hauled proved 
good enough. Aside from all this, the defendant was told that he 
could take the hay at his own offer. It seems to have been the in- 
tention and understanding of both the parties that the property 
should pass. The defendant does not deny what the guardian testi- 
fies he told him at their conference after the hay was burned, — that 
he had agreed with a man to haul the hay for sixty cents a ton. 
The guardian does not seem to have claimed any lien for the price, 
or to have expected payment until the hay should have been hauled 
by the defendant. But the defendant insists that the guardian's ac- 
ceptance of his offer was not seasonable; that in the initiatory cor- 
respondence the guardian had in substance promised an immediate 
acceptance or rejection of such offer as he might make, and that 
the offer was not, in fact, accepted within a reasonable time. 

If it be conceded that for want of a more prompt acceptance the 
defendant had the right to retract his offer, or to refuse to be bound 
by it when notified of its acceptance, still the defendant did not 
avail himself of such right. Two days elapsed before the fire after 
the defendant had actual notice that his offer was accepted, and he 
permitted the guardian to consider it sold, and made a bargain with 
a third party to haul it. 

It is true that an offer, to be binding upon the party making it, 
must be accepted within a reasonable time. Peru v. Turner, 10 
Maine, 185; but if the party to whom it is made, makes known his 
acceptance of it to the party making it, within any period which 
he could fairly have supposed to be reasonable, good faith requires 
the maker, if he intends to retract on account of the delay, to make 
known that intention promptly. If he does not, he must be regarded 
as waiving any objection to the acceptance as being too late.^ 

1 "In the instruction the Court ruled, in effect, that the acceptance became binding 
upon the parties, unless the plaintiff immediately notified the defendant that he had 
withdrawn his offer. The rule now supported by the great preponderance of author- 
ity, and almost, if not quite, universally adhered to, is that, when a proposal is accepted 
by letter, the contract is deemed to become complete when the letter is mailed, pro- 



A. — Early Development 


In the Common Pleas, Michaelmas Term, 1504 

l^Reported in Keilwey, 77 placitum, 25] 

In action of trespass on the case the plaintiff counted that he 
had bought of the defendant twenty quarters of malt for a certain 
sum of money paid beforehand, and he left it with the defendant 
to safely keep to the use of the plaintiff until a certain day now 
passed, and to do this the defendant super se assumpsit. Before 
the day the defendant from the good custody of the defendant him- 
self had converted the said malt to his own use, to the injury and 
damage of the plaintiff, &c. More. The plaintiff has counted that 
he bought twenty quarters of malt and has not shown that it was 
in sacks, so by the purchase no property was passed, for the plaintiff 
cannot take this malt from the storehouse of the defendant because 
of such a purchase of uncertain malt, nor can he have action of 

vided the offer is standing, and the acceptance is made within a reasonable time. . . . 
It will be seen that the rule is sharply defined. The instruction given seems to us to 
be a departure from it. It assumes that the contract in the case at bar was not neces- 
sarily complete when the letter of acceptance was mailed, and that no contract would 
have been made, if the plaintiff immediately upon the receipt of the letter had notified 
the defendant that the offer wag withdrawn. The departure from the recognized rule 
must have been deemed called for upon the ground that the letter of acceptance was 
not mailed within a reasonable time. The court, doubtless, assumed the rule to be, 
that a contract by the correspondence is not completed by the mailing of the letter of 
acceptance, where that is not done, within a reasonable time. . . . Taking this to be 
the rule, we have to inquire whether an acceptance after the time limited, or, in the 
absence of an express limitation, after the lapse of a reasonable time, imposes upon 
the jjorson making the offer any obligation. The theory of the court below seems to 
have been that it does. But in our opinion it does not. The offer, unless sooner with- 
drawn, stands during the time limited, or, if there is no express limitation, during a 
rcasonaljh; time. Until the end of that time the offer is regarded as being constantly 
repeated. Chitty on Cont. (11th ed.), 17. After that there is no offer, and, properly 
con.sidered, nothing to withdraw. The time having expired, there is nothing which 
the acceptor can do to revive the offer, or produce an extension of time." Ferrier v. 
Storer, G.3 la. 484, 4S7. See also Maclay v. Harvey, 90 111. 525. 

fThe offerer when he has received an acceptance which is too late] "would act 
nnifl'Titlv and fairly if he infornied his corrcspoiHleiit that lie had given up the trans- 
actif)ii and was no longer disposed to bind hiiriself i)y the agreement in regard to 
which he harl at first taken the initiative. Otherwise, indeed, his silence might be 
foriHidercfl as imi)orting tacit assent to the proposition ex novo contained in the late 
acceptance. . • • These conHideration,s have such force that they have led to some 
IcciHhitiori imposiiig on every one who luus niad(; an offer by correspondence the duty 
to inform his corrcHpoiKlfnt that the acfv-ptance has arrivt-d too late. German 
Commercial Corle, Art. :{11>; Swiss Foderal Code of Obligations, Art. 5;" Val6ry 
Contrats par f:orr.;.spondanee, § 2[i\i. 


detinue, nor, for the same reason, action on the case, but as the case 
is here he is put to his action of debt for the malt. And the matter 
was discussed at the bar, and then by all the bench. On which 
Fkowike said : Truly the case is good, and many good cases touching 
the matter have been put; nevertheless the words at the purchase 
are the whole matter. As, if a man sells me one of his horses in his 
stable, and grants further that he will deliver the horse to me by 
a certain day, I shall not take the horse without his delivery. But 
if he sells to me one of his horses within his stable for a certain 
sum of money paid beforehand, I can take the horse — that is such 
horse as pleases me — without any delivery. And in both cases if 
he aliens or converts all his horses to his own use so that I cannot 
have my bargain carried out, I shall have action on my case against 
him because of the payment of the money. And so if I sell ten 
acres of land, parcel of my manor, and then I make feoffment of 
the manor, you will have good action against me on your case be- 
cause of the receipt of your money, and in this case you have no 
other remedy against me. And so if I sell you certain land, and 
I covenant further to enfeoff you by a certain day and do not, you 
will have good action on the case, and that is adjudged. And so 
if I sell you twenty oaks from my wood for money paid, and then 
I alien the wood, action on the case lies. And so if I deliver money 
to his own use, I can elect to have action of account against him or 
action on my case; but the stranger has no other remedy except 
action of account. And so if I bail my goods to a man to safely 
keep, and he takes the custody upon him, and my goods for lack of 
good custody are lost or destroyed, I shall have action of detinue, 
or on my case at my pleasure, and shall charge him by this word 
super se assumpsit. And if I make use of my action of detinue and 
he wages his law, I shall be barred in action on my case, because 
since I had liberty to elect action of detinue it was at my peril, 
and I have lost the advantage of the action on my case, and this 
is adjudged. As, if I hold an acre of land by fealty, twenty shillings 
of rent, or by a hawk or a rose, in the disjunctive, in this case before 
the rent day I have liberty to pay the hawk, rose, or otherwise the 
twenty shillings, at my pleasure. And if I covenant with a car- 
penter to build a house and pay him twenty pounds for the house 
to be built by a certain day, now. I shall have good action on my 
case because of payment of my money, and still it sounds only in 
covenant, and without payment of money in this case no remedy; 
and still if he builds it and misbuilds it, action on my case lies. And 
also for nonfeasance, if the money is paid action on the case lies. 
And hence it seems to me in the case at bar the payment of the 
money is the cause of the action on the case without any passing of 
any property, &c., et adjournatur, &c.^ 

1 The stages in the early development of assumpsit are shown in Professor Ames's 
articles on The History of Assumpsit, 2 Harv. L. Rev. 1, 53. 

154 SMITH AND smith's CASE [CHAP. I 


Eastee Tekm, 1568 
{Reported in Dyer, 272] 

The servant of a man was arrested, and imprisoned in the Compter 
in London for trespass; and he was let to mainprize by the manu- 
caption of two citizens of London (who were all acquainted with 
the master), in consideration that the business of the master should 
not go undone. And afterwards, before judgment and condemnation, 
the master upon the said friendly consideration promised and un- 
dertook to one of the mainpernors to save him harmless against the 
party plaintiff from all damages and costs, if any should be adjudged, 
as happened afterwards in reality; whereupon the surety was com- 
pelled to pay the condemnation, sc. 31L, &c. And thereupon he 
brought an action on the case, and the undertaking was traversed 
by the master, and found in London at nisi prius against him. And 
now in arrest of judgment it was moved that the action does not lie. 
And by the opinion of the Court it does not lie in this matter, be- 
cause there is no consideration whereupon the defendant should be 
charged for the debt of his servant, unless the master had first prom- 
ised to discharge the plaintiff before the enlargement and mainprize 
made of his servant, for the master did never make request to the 
plaintiff for his servant to do so much, but he did it of his own 
head. Wherefore, &c. 

But in another like action on the case, brought upon a promise 
of 20/. made to the plaintiff by the defendant, in consideration that 
the plaintiff, at the special instance of the said defendant, had taken 
to wife the cousin of the defendant, that was good cause, although 
the marriage was executed and past before the undertaking and 
promise, because the marriage ensued the request of the defendant.^ 
And land may be also given in frank-marriage with the cousin of 
the donor as well after the marriage as before, because the marriage 
may be intended the cause, &c. And therefore the opinion of the 
Court in this case this Term was, that the plaintiff should recover 
upon the verdict, &c. And so note the diversity between the afore- 
said cases. 


In the Qteen's Bench, Michaelmas Term, 1583 

[Reported in 3 Leonard, 88] 

Lambert Smith, executor of Tho. Smith, brought an action upon 

the case against John Smith, that whereas the testator, having diAJ-ers 

' TliKKH V. P.tillinKham, Cro. Eliz. 715; BoHclon v. Thinno, Yolv. 40; Fiold v. Dalo, 
1 RoIIc'h A1). 11, plac. 8; Townsend v. Hunt, Cro. Car. 418; Oliverson v. Wood, 3 
Lev. 419, ace. 


children infants, and lying sick of a mortal sickness, being careful 
to provide for his said children infants, the defendant, in considera- 
tion the testator would commit the education of his children, and 
the disposition of his goods after his death, during the minority of 
his said children, for the education of the said children, to him 
promised to the testator to procure the assurance of certain custom- 
ary lands to one of the children of the said testator; and declared 
further, that the testator thereupon constituted the defendant over- 
seer of his will, and ordained and appointed by his will that his 
goods should be in the disposition of the defendant, and that the 
testator died, and that by reason of that will, the goods of the tes- 
tator to such a value came to the defendant's hands to his great 
profit and advantage. And upon non assuvfipsit pleaded, it was 
found for the plaintiff. And upon exception to the declaration in 
arrest of judgment for want of sufficient consideration, it was said by 
Wkay, C. J., that here is not any benefit to the defendant that should 
be a consideration in law to induce him to make this promise; for 
the consideration is no other but to have the disposition of the goods 
of the testator pro educatione liherorum. For all the disposition is 
for the profit of the children; and notwithstanding that such over- 
seers commonly make gain of such disposition, yet the same is against 
the intendment of the law, which presumes every man to be true 
and faithful if the contrary be not showed; and therefore the law 
shall intend that the defendant hath not made any private gain to 
himself, but that he hath disposed of the goods of the testator to the 
use and benefit of his children according to the trust reposed in 
him. Which Ayliffe, J., granted; Gawdy, J., was of the contrary 
opinion. And afterwards by award of the Court it was that the 
plaintiff nihil capiat per hillam. 


In the Common Pleas, Eastee Term, 1585 

[^Reported in 2 Leonard, 224] 

In an action upon the case upon a promise, the plaintiff declared 
that he, at the request of the defendant, was surety and bail for 
J. S., who was arrested in the King's Bench upon an action of 30Z., 
and that afterwards, for the default of J. S., he was constrained to 
pay the 30L; after which the defendant, meeting with the plaintiff, 
promised him for the same consideration that he would repay that 
30/., which he did not pay ; upon which the plaintiff brought the ac- 
tion„ The defendant pleaded non assumpsit, upon which issue was 
joined, which was found for the plaintiff. Walmesley, Serjt., for 
the defendant, moved the Court that this consideration will not 
maintain the action, because the consideration and promise did not 
concur and go together; for the consideration was long before exe- 


cuted, so as now it caimot be intended that the promise was for 
the same consideration : as if one giveth me a horse, and a month 
•after I promise him 101. for the said horse, he shall never have 
debt for the 101., nor assumpsit upon that promise; for there it is 
neither contract nor consideration, because the same is executed. 
Anderson. This action will not lie; for it is but a bare agreement 
and nudum pactum, because the contract was determined, and not 
in esse at the time of the promise; but he said it is otherwise upon 
a consideration of marriage of one of his cousins, for marriage is 
always a present consideration. Windham agreed with Anderson, 
and he put the case in 3 H. 7. If one selleth a horse unto another, 
and at another day he will warrant him to be sound of limb and 
member, it is a void warrant, for that such warranty ought to have 
been made or given at such time as the horse was sold. Periam, J,, 
conceived that the action did well lie; and he said that this case is 
not like unto the cases which have been put of the other side: for 
there is a great difference betwixt contracts and this case; for in 
contracts upon sale, the consideration and the promise and the sale 
ought to meet together; for a contract is derived from con and 
trahere, which is a drawing together, so as in contracts every thing 
which is requisite ought to concur and meet together, viz., the con- 
sideration of the one side, and the sale or the promise on the other 
side. But to maintain an action upon an assumpsit, the same is not 
requisite, for it is sufficient if there be a moving cause or considera- 
tion precedent; for which cause or consideration the promise was 
made; and such is the common practice at this day. For in an 
action upon the case upon a promise, the declaration is laid that 
the defendant, for and in consideration of 20L to him paid (postea 
sell.), that is to say, at a day after super se assum,psit, and that is 
good; and yet there the consideration is laid to be executed. And 
he said that the case in Dyer, 10 Eliz. 272, would prove the case. 
For there the case was, that the apprentice of one Hunt was ar- 
rested when his master Hunt was in the country, and one Baker, 
one of the neighbors of Hunt, to keep the said apprentice out of 
prison, became his bail, and paid the debt. Afterwards Hunt, the 
master, returning out of the country, thanked Baker for his neigh- 
borly kindness to his apprentice, and promised him that he would 
repay him the sum which he had paid for his servant and appren- 
tice: and afterwards, upon that promise, Baker brought an action 
upon the case against Hunt, and it was adjudged in that case that 
the action would not lie, because the consideration was precedent 
to the promise, because it was executed and determined long before. 
But in that case it was holden by all the justices that if Hunt had 
TcqucHU'.d Bak(;r to have been surety or bail, and afterwards Hunt 
had made the promise for the same consideration, the same had been 
good, for that the consideration did precede, and was at the instance 
and request of the defendant. Rhodes, J., agreed with Periam; 


and he said that if one serve me for a year, and hath nothing for 
his service, and afterwards, at the end of the year, I promise him 
201. for his good and faithful service ended, he may have and main- 
tain an action upon the case upon the same promise, for it is made 
upon a good consideration; but if a servant hath wages given him, 
and his master ex abundanti doth promise him 101. more after his 
service ended, he shall not maintain an action for that 10/. upon 
the said promise; for there is not any new cause of consideration 
preceding the promise; which difference was agreed by all the jus- 
tices; and afterwards, upon good and long advice, and consideration 
had of the principal case, judgment was given for the plaintiif ; and 
they much relied upon the case of Hunt and Baker, 10 Eliz., Dyer, 


In the Queen's Bench, Michaelmas Teem, 1586 

{^Reported in 1 Rolls' s Abridgment, 30] 

If a man, in consideration of a surrender and of 10/. paid, prom- 
ises to do such a thing, although the surrender cannot be made, so 
that that consideration is void, yet the action is maintainable upon 
the other consideration.^ 


In the Queen's Bench, Michaelmas Term, 1587 

{^Reported in Crohe Elizabeth, 67] 

Assumpsit. The case was, the plaintiff had made a lease to J. S. 
of land for life, rendering rent. J. S. grants all his estate to the 
defendant; the rent was behind for divers years; the plaintiff de- 
mands the rent of the defendant, who assumed that if the plaintiff 
could show to him a deed that the rent was due, that he would pay 
to him the rent and the arrearages; the plaintiff allegeth that upon 
such a day of, &c., at Warwick, he showed unto him the indenture 
of lease by which the rent was due, and notwithstanding he had not 
paid him the rent and the arrearages due for four years. Upon 
non assumpsit pleaded, it was found for the plaintiff, and damages 
assessed to so much as the rent and arrearages did amount unto. 
And it was moved in arrest of judgment, that there was no considera- 
tion to ground an action ; for it is but the showing of the deed, which 
is no consideration. 2. The damages ought only to be assessed 

^ In 1 Leon, 296, s. c. nom. Crisp and Go! ding's Case, it was said by Coke, arguendo: 
"Where two or many considerations are put in a declaration, although some be void, 
yet if one be good, the action well lieth, and damages shall be taxed accordingly." 
Bradburne v. Bradburne, Cro. El. 149; Colston v. Carre, 1 Rolle's Ab. 30, Cro. El. 
847; Crisp v. Gamel, Cro. Jac. 128; Best v. Jolly, 1 Sid. 38, ace. 


for the time tlie rent was behind, and not for the rent and the arrear- 
ages; for he hath other remedy for the rent; and a recovery in 
this action shall be no bar in another action. But it was adjudged 
for the plaintiff : for when a thing is to be done by the plaintiff, 
be it never so small, this is a sufficient consideration to ground an 
action; and here the showing of the deed is a cause to avoid suit; 
and the rent and arrearages may be assessed all in damages. But 
they took order that the plaintiff should release to the defendant 
all the arrearages of rent before execution should be awarded. 

Nota. In this case it was alleged that it hath been adjudged, 
when one assumeth to another, that if he can show him an obligation 
in which he was bound to him, that he would pay him, and he did 
show the obligation, &c., that no action lieth upon this assumpsit; 
which was affirmed by the justices. 


In the Queen's Bench, 1588 ok 1589 

[Reported in 4 Leonard, 3] 

Note. That a promise against a promise will maintain an action 
upon the case, as in consideration that you do give to me 101. on 
such a day, I promise to give you 101. such a day after.^ 


In the Common Pleas, Michaelmas Term, 1595 

[Reported in Crohe Elizabeth, 442] 

Assumpsit. And declares that, in consideration quod deliherasset 
et dedisset to the defendant twenty sheep, he assumed to pay unto 
him five pounds at the time of his marriage; and alleged in facto 
that he was married, &c. The issue was non assumpsit, and found 
for the plaintiff; and now moved in arrest of judgment, because it 
is for a consideration past; for it is in the preter tense deliherasset, 
and therefore no cause of action. And of that opinion was the 
whole court; wherefore judgment was stayed.^ 


In the Queen's Bench, Easter Term, 1601 

[Reported in Yelverton, 4] 

In an action on the case the plaintiff declared that, in considera- 
tion b(; had delivered to the defendant twenty quarters of wheat, the 

> Son also Pfcko v. "Rfdman, Dyer, 113 (1555). 

* Barker v. Halifax, Cro. Eliz., 741; Docket v. Voyel, Cro. Eliz., 411, ace. 

SECT, ii] slade's case 159 

defendant promised upon request to deliver the same wheat again to 
the plaintiff. And adjudged a good consideration; for by Popham 
and tot. cur the very possession of the wheat might be a credit and 
good countenance to the defendant to be esteemed a rich farmer in 
the country, as in case of the delivery of 1,000/. in money to deliver 
again upon request; for by having so much money in his possession 
he may happen to be preferred in marriage. Quoere, for it seems 
an hard judgment; for the defendant has not any manner of profit 
to receive, but only a bare possession. Nota, the truth of the case 
was (which doth not alter the reason supra) that the plaintiff had 
delivered to the defendant the said twenty quarters of wheat to 
deliver over to J. S. to whom the plaintiff v>^as indebted in so many 
quarters, and the defendant promised to deliver the same quarters 
to J. S. And because they were not delivered, the plaintiff brought 
his action ut supra; and adjudged ut supra. But nota, the judg- 
ment was reversed in the Exchequer, Mich. 44 & 45 Eliz., as Hitcham 
told Yelverton.^ 


In the King's Bench, Trinity Term, 1601 

[Reported in Moore, 711] 

Maylard brings action on the case against Kester on assumpsit, 
in consideration that he would sell and deliver to Kester woollen 
cloth for the funeral of a clerk, Kester assumed to pay him cum 
inde requisitus. And alleges that he sold and delivered divers cloth 
to him at various prices, viz., thirty-one black striped garments for 
19Z., and so he recites other lots in the same manner, and the sum 
amounted to 1601., which he requested Kester to pay, and he did 
not pay according to the promise and assumption aforesaid. The 
defendant pleaded non assumpsit, and verdict was for the plaintiff, 
and judgment given. And on writ of error brought, the judgment 
was reversed in the Exchequer Chamber, Michaelmas Term, 41 
& 42 Elizabeth, because debt properly lies, and not action on the 
case, the matter proving a perfect sale and contract. 


In the King's Bench, Trinity Term, 1602 

[Reported in 4 Cohe, 92^^] 

John Slade brought an action on the case in the King's Bench 
against Humphrey Morley (which plea began Hil. 38 Eliz. Rot. 

^ Howlet V. Osborne, Cro. El., 380; Game v. Harvie, Yelv. 50; Pickas v. Guile, 
Yelv. 128, ace: Wheatley v. Low. Cro. Jac. 668, contra. See 2 Harv. L. Rev. 5. 
2 Some authorities and illustrations are omitted. 

160 blade's case [chap, i 

305), and declared, that whereas the plaintiff, 10th of JSTovember, 
36 Eliz. was possessed of a close of land in Halberton, in the county 
of Devon, called Eack Park, containing by estimation eight acres 
for the term of divers years then and yet to come, and being so pos- 
sessed, the plaintiff the said 10th day of November, the said close 
had sowed with wheat and rye, which wheat and rye, 8 Maii, 37 
Eliz. were grown into blades, the defendant, in consideration that 
the plaintiff, at the special instance and request of the said Humph- 
rey, had bargained and sold to him the said blades of wheat and rye 
growing upon the said close (the tithes due to the rector, &c. ex- 
cepted}, assumed and promised the plaintiff to pay him 16?. at 
the feast of St. John the Baptist then to come : and for non-pay- 
ment thereof at the said feast of St. John Baptist, the plaintiff 
brought the said action : the defendant pleaded non assumpsit 
modo et forma; and on the trial of this issue the jurors gave a 
special verdict, sc, that the defendant bought of the plaintiff the 
wheat and rye in blades growing upon the said close as is aforesaid, 
prout in the said declaration is alleged, and further found, that 
between the plaintiff and the defendant there was no other promise 
or assumption but only the said bargain; and against the main- 
tenance of this action divers objections were made by John Dod- 
deridge of counsel with the defendant. 

1. That the plaintiff upon this bargain might have ordinary 
remedy by action of debt, which is an action formed in the Register, 
and therefore he should not have an action on the case, which is 
an extraordinary action, and not limited within any certain form 
in the Register; for uhi remedium ordinarium, ibi decurritur ad 
extraordinarium, et nunquam decurritur ad extraordinarium ubi 
valet ordinarium, as appears by all our books; et nullus debet agere 
actionem de dolo, ubi alia actia subest. The second objection was, 
that the maintenance of this action takes away the defendant's bene- 
fit of wager of law, and so bereaves him of the benefit which the 
law gives him, which is his birthright. For peradventure the de- 
fendant has paid or satisfied the plaintiff in private betwixt them, 
of which payment or satisfaction he has no witness, and therefore 
it would be mischievous if he should not wage his law in such case. 
And that was the reason (as it was said) that debts by simple con- 
tract shall not be forfeited to the King by outlawry or attainder, 
because then by the King's prerogative the subject would be ousted 
of his wager of law, which is his birthrigbt, as it is held in 40 
E. 3. 5 a. 50 Ass. 1. 16 E. 4. 4 b. and 9 Eliz. Dyer 262. and if 
the King shall lose the forfeiture and the debt in such case, and the 
debtor ])y judgment of the law shall bo rather discharged of his 
debt, Ix'foro be shall be deprived of the benefit which the law gives 
liini Tor bis discharge, although in truth the debt was due and pay- 
able; a forh'ori in the case at bar, the defendant shall not be charged 
in an action in which he shall be ousted of his law, when he may 

SECT. II ] blade's case 161 

charge him in an action, in which he may have the benefit of it; 
and as to these objections, the Courts of King's Bench and Common 
Pleas were divided; for the Justices of the King's Bench held, that 
the action (notwithstanding such objections) was maintainable, and 
the Court of Common Pleas held the contrary. And for the honor 
of the law, and for the quiet of the subject in the appeasing of such 
diversity of opinions (quia nil in lege intolerahilius est eandem rem 
diverso jure censeri) the case was openly argued before all the Jus- 
tices of England, and Barons of the Exchequer, sc. Sir John Pop- 
ham, Knt. C. J. of England, Sir Edm. Anderson, Knt. C. J. of the 
Common Pleas, Sir "W. Periam, Chief Baron of the Exchequer, 
Clark, Gawdy, Walmesley, Fenner, Kingsmill, Savil, Warburton, 
and Yelverton, in the Exchequer Chamber, by the Queen's Attorney- 
General for the plaintiff, and by John Dodderidge for the defendant, 
and at another time the case was argued at Serjeants' Inn, before 
all the said Justices and Barons, by the Attorney-General for the 
plaintiff, and by Francis Bacon for the defendant, and after many 
conferences between the Justices and Barons, it was resolved, that 
the action was maintainable, and that the plaintiff should have judg- 
ment. And in this case these points were resolved : — 1. That al- 
though an action of debt lies upon the contract, yet the bargainor 
may have an action on the case, or an action of debt at his elec- 
tion, and that for three reasons or causes: 1. In respect of infinite 
precedents (which George Kemp, Esq., Secondary of the Prothono- 
taries of the King's Bench showed me), as well in the Court of 
Common Pleas as in the Court of King's Bench, in the reigns of 
King H. 6. E. 4. H. 7. and H. 8. by which it appears, that the 
plaintiffs declared that the defendants, in consideration of a sale 
to them of certain goods, promised to pay so much money, &c., in 
which cases the plaintiffs had judgment. . . . The second cause 
of their resolution was divers judgments and cases resolved in our 
books where such action on the case on Ass. has been maintainable, 
when the party might have had an action of debt, 21 H. 6. 55 b. 
12 E. 4. 13. 13 H. 7. 26. 20 H. 7. 4 b. and 20 H. 7. 8 b. which 
case was adjudged as Fitz James cites it, 22 H. 8. Dyer 22 b. 27 
H. 8. 24 & 25. in Tatam's case, ISTorwood and Read's case adjudged 
Plowd. Com, 180. 3. It was resolved, that every contract executory 
imports in itself an assumpsit, for when one agrees to pay money, 
or to deliver anything, thereby he assumes or promises to pay, or 
deliver it, and therefore when one sells any goods to another, and 
agrees to deliver them at a day to come, and the other in considera- 
tion thereof agrees to pay so much money at such a day, in that 
case both parties may have an action of debt, or an action on the 
case on assumpsit, for the mutual executory agreement of both 
parties imports in itself reciprocal actions upon the case, as well 
as actions of debt, and therewith agrees the judgment in Bead and 
Norwood's case, PI. Com, 128. 4. It was resolved, that the plain- 

162 slade's case [chap, i 

tiff in this action on the case on assumpsit should not recover only 
damages for the special loss (if any be) which he had, but also 
for the whole debt, so that a recovery or bar in this action would be 
a good bar in an action of debt brought upon the same contract; 
so vice versa, a recovery or bar in an action of debt, is a good bar 
in an action on the case on assumpsit. Vide 12 E. 4. 13 a. 2 R. 
3. 14. (32) 33 H. 8. Actio7i sur le case. Br. 105. 5. In some cases 
it would be mischievous if an action of debt should be only brought, 
and not an action on the case, as in the case inter Redman and Peck, 
2 & 3 Ph. and Mar. Dyer 113, they bargained together, that for a 
certain consideration Redman should deliver to Peck twenty quarters 
of barley yearly during his life, and for non-delivery in one year, 
it is adjudged that an action well lies, for otherwise it would be 
mischievous to Peck, for if he should be driven to his action of debt, 
then he himself could never have it, but his executors or adminis- 
trators, for debt doth not lie in such case, till all the days are in- 
curred, and that would be contrary to the bargain and intent of the 
parties, for Peck provides it yearly for his necessary use : so 5 Mar. 
Br. Action sur le case 108, that if a sum is given in marriage to 
be paid at several days, an action upon the case lies for non-pay- 
ment at the first day, but no action of debt lies in such case till all 
the days are past. Also it is good in these days in as many cases 
as may be done by the law, to oust the defendant of his law, and 
to try it by the country, for otherwise it would be occasion of much 
perjury. 6. It was said, that an action on the case on assumpsit 
is as well a formed action, and contained in the register, as an action 
of debt, for there is its form : also it appears in divers other cases 
in the register, that an action on the case will lie, although the plain- 
tiff may have another formed action in the Register. , . . And 
therefore it was concluded, that in all cases when the Register has 
two writs for one and the same case, it is in the party's election 
to take either. But the Register has two several actions, sc. action 
nnon the case upon assumpsit, and also an action of debt, and there- 
fore the party may elect either. And as to the objection which has 
been made, that it would be mischievous to the defendant that he 
should not wage his law, forasmuch as he might pay it in secret: 
to that it was answered, that it should be accounted his folly that 
he did not toke sufficient witnesses with him to prove the payment 
he made: but the mischief would be rather on the other party, for 
now experience proves that men's consciences grow so large that the 
respect of their private advantage rather induces men (and chiefly 
those who have d'T-liiiing estates) to perjury: for Jurare in propria 
causa (b.h one saitli) est smpenumrrn hoc seculo pro'cipitium, diaholi 
ofJ dt'lriidendas miserorum animas ad, infernum,: and th(M'(>fore m 
debt or other action where wager of law is admitted by the law, 
tlif! Judges witliout good admonition and due exiunination of the 
party do not admit him to it. And as to the case which was cited, 


that debts or duties due by single contract where the party may 
wage his law, shall not be forfeited by outlawry, because the debtor 
will be thereby ousted of his law : to that it was answered by the 
Attorney-General that in such case by the law, debts or duties shall 
be forfeited to the King, and so are the better opinions of the books. 

KAI^N AND Another, Executors of Maky Hughes, v. ISABELLA 
HUGHES, Administratrix of J. Hughes 

In the House of Lokds, May 14, 1778 

[Reported in 7 Term Reports, 350, note (a)] 

The declaration stated that on the 11th of June, 1764, divers 
disputes had arisen between the plaintiffs' testator and the defend- 
ant's intestate, which they referred to arbitration; that the arbi- 
trator awarded that the defendants' intestate should pay to the plain- 
tiffs' testator 983/.; that the defendant's intestate afterwards died 
possessed of effects sufficient to pay that sum; that administration 
was granted to the defendant; that Mary Hughes died, having ap- 
pointed the plaintiffs her executors; that at the time of her death 
the said sum of £983 was unpaid : by reason of which premises the 
defendant, as administratrix, became liable to pay to the plaintiffs, 
as executors, the said sum; and being so liable, she, in consideration 
thereof, undertook and promised to pay . &c. The defendant pleaded 
non assumnsii . plene administravit, and plene administravit except 
as to certain goods, &c., which were not sufficient to pay an out- 
standing bond-debt of the intestate's therein set forth, &c. The 
replication took issue on these pleas. Verdict for the plaintiff on 
the first issue , and for the defendant on the two last; and on tlie 
first a general judgment was entered in B. R. against the defend- 
ant de bonis propriis. This judgment was reversed in the Exchequer 
Chamber; and a writ of error was afterwards brought in the House 
of Lords, where, after argument, the folloAving question was pro- 
posed to the judges by the Lord Chancellor; Whether sufficient 
matter appeared upon the declaration to warrant after verdict the 
judgment against the d efendant in error in her personal capacity ; 
upon whicii the L,ord Chief Baron Skynner delivered the opinion of 
the judges to this effect : It is undoubtedly true that every man is, 
by the law of nature, bound to fulfil his engagements. It is equally 
true that the law of this country supplies no means, nor affords any 
\ remedy, to compel the performance of an agreement made without 
^ sufficient consideration. Such agreement is nudem pactum, ex quo 
non oritur actio: and whatsoever may be the sense of this maxim 
in the civil law, it is in the last-mentioned sense only that it is to 
be understood in our law. The declaration states that the defendant, 
being indebted as administratrix, pron^ised to pay when requested; 


and the judgment is against the defendant generally. The being 
indebted is of itself a sufficient consideration to ground a promise; 
but t he promise must be coextensive with the consideration , unless 
some particular consideration of fact can be found here to warrant 
the extension of it against the defendant in her own capacity. If 
a person indebted in one right, in consideration of forbearance for 
a particular time, promise to pay in another right, this convenience 
will be sufficient consideration to warrant an action against him or 
her in the latter right; but here no sufficient consideration occurs 
to support this demand against her in her personal capacity, for 
she derives no advantage or convenience from the promise here 
made. For if I promise generally to pay upon request what I was 
liable to pay upon request in another right, I derive no advantage 
or convenience from this promise, and therefore there is not suffi- 
cient consideration for it. But it is said that if this promise is in 
writing, that takes away the necessity of a consid er ation^ and 06- 
viates tiie objection of' nudum pactum, for that cannot be where 
the promise is put in writing; and that, if it were necessary to sup- 
port the promise that it should be in writing, it will, after verdict, 
be presumed that it was in writing; and this last is certainly true; 
but that there cannot be nudum pactum in writing, whatever may 
be the rule of the civil law, there is certainly none such in the law 
of England. His Lordship observed, upon the doctrine of nudum 
pactum delivered by Mr. J. Wilmot in the case of Pillans v. Yan 
Mierop and Hopkins, 3 Burr. 1663, that he contradicted himself, 
and was also contradicted by Vinnius in his comment on Justinian. 
All contracts are by the laws of England distinguished into agree- 
ments by specialty, and agreements by parol; nor is there any such 
third class, as some of the counsel have endeavored to maintain, as 
contracts in writing. If they be merely written and not specialties, 
they are parol, and a consideration must be proved. But it is said 
that the Statute of Erauds has taken away the necessity of any con- 
sideration in this case: the Statute of Erauds was made for the re- 
lief of personal representatives and others, and did not intend to 
charge them further than by common law they were chargeable. 
His Lordship here read those sections of that statute which relate 
to the present subject. He observed that the words were merely 
negative, and that executors and adminstrators should not be liable 
out of their own estates, unless the agreement upon which the action 
was brought, or some memorandum thereof, was in writing and signed 
by the party. But this does not prove that the agreement was still 
not liable to be tried and judged of as all other agreements merely 
in writing are by the common law, and does not prove the converse 
of tlie T>roposition, that when in writing the party must bo at all 
events linblf. JTc liere observed upoTi the cnse of Pillans v. Van 
Microti, ill Burr., niid the case of Losb v. Williamson, Mich. 16 G. 
3, in B. 11.; and so far as these cases went on the doctrine of nudum 


pactum, he seemed to intimate that they were erroneous. He said 
that all his brothers concurred with him that in this case there was 
not a sufficient consideration to support this demand as a personal 
demand against the defendant, and that its being now supposed to 
have been in writing makes no difference. The consequence of which 
is that the question put to us must be answered in the negative. 
And the judgment in the Exchequer Chamber was affirmed.^ 

B. — General Principles 


In the Queen's Bench, June 6, 1839 

BEOOKS V. HAIGH and Another 

In the Exchequer Chamber, June 29, 1840 

[Reported in 10 Adolphus & Ellis, 309, 323] 

Assumpsit. The first count of the declaration stated that hereto- 
fore, to wit, on &c., in consideration that the said plaintiffs, at the 
special instance and request of the said defendant, . would give up 
to him a certain guaranty of 10,000L, on behalf of Messrs. John 
Lees & Sons, Manchester, then held by the said plaintiffs, he the 
said defendant undertook, and then faithfully promised the said 
plaintiffs, to see certain bills, accepted by the said Messrs. John 
Lees & Sons, paid at maturity; that is to say, a certain bill of ex- 
change, bearing date, &c., drawn by plaintiffs upon and accepted by 
the said Lees & Sons, payable three months after date, for 3466L 
13s. Id., and made payable at, &c. ; and also a certain other bill, 
&c., describing two other bills for 3000Z. and 3200Z.;, drawn by plain- 
tiffs upon and accepted by Lees & Sons, and made payable at, &c. 
Averment: that plaintiffs, relying on defendant's said promise, did 
then, to wit, on, &c., give up to the said defendant the said guaranty 
of 10,000/. Breach, non-payment of the bills, when they afterwards 
came to maturity, by Lees & Sons, or the parties at whose houses 
the bills respectively were made payable, or by defendant, or any 
other person, &c. 

Third plea to the first count: "That the said supposed guaranty 
of 10,000/., in consideration of the giving up whereof the defendant 
made such supposed promise and undertaking as therein mentioned, 
and which guaranty was so given up to the said defendant as therein 
mentioned, was a special promise to answer the said plaintiffs for 
the debt and default of other persons, to wit, the said Messrs. John 
Lees & Sons in the said first count mentioned; and that no agree- 
ment in respect of, or relating to, the said supposed guaranty or 

* In 7 Brown's Parliament Cases, 550 (vol. 4 of Tomlin's ed., p. 27) the arguments 
of counsel are given. 

'jt to -*oi. , «3 ^.^UA. /x,^ ><»*^ '^/^fi-tr-o X— 3 o t^*j^. 

166 iimSh v. brooks ^ [chap, i 

special promise, or any memorandum or note thereof, wherein any 
sufficient consideration for the said guaranty or special promise was 
stated or shown, was in writing and signed by the said defendant, 
or any other person by him thereunto lawfully authorized. And 
the said defendant further saith that the said supposed guaranty 
was and is in the words and figures and to the effect following, that 
is to say : — 

Manchester, 4th February, 1837. 
Messrs. Haigh & Franceys. 

Gent., — In consideration of your being in advance to Messrs. John Lees & Sons 
in the sum of lO.OOOL for the purchase of cotton, I do hereby give you my guaranty 
for that amount (say lO.OOOZ.) on their behalf. 

John Brooks. 

And that there was no other agreement or memorandum or note 
thereof, in respect of, or relating to, the said last-mentioned sup- 
posed guaranty or special promise; wherefore the said defendant 
says that the supposed guaranty, in consideration whereof the said 
defendant made the said supposed promise and undertaking in the 
said first count mentioned, was and is void and of no effect; and, 
therefore, that the said supposed promise and undertaking in the 
said first count mentioned was and is void and of no effect." Veri- 

Demurrer : assigning for cause, "that it is admitted by the plea 
that the memorandum, the giving up of which was the consideration 
of the guaranty in the said declaration mentioned, was actually 
given up to the said defendant by the said plaintiffs, and the con- 
sideration was, therefore, executed by the said plaintiffs; and that, 
even if the origin al memorandum was not binding in point of law , 
the giving up was a sufficient consideration for the promise m the 
declarat ion mentioned/ ' Joinder. The demurrer was argued in last 
liilary Term. 

Sir W. W. Follett for the plaintiffs. 

Sir J. Campbell, Attorney-General, contra. 

LoKD Denman, C. J., in this Term (June 6th) delivered the judg- 
ment of the court. 

It was argued for the defendant that this guaranty is of no force, 
because the fact of the plaintiffs being already in advance to Lees 
could form no consideration for the defendant's promise to guar- 
antee to the plaintiffs the payment of Lees's acceptances. In the 
first place, this is by no means clear. That "being in advance" 
must necessarily mean to assert that he was in advance at the time 
of giving the guaranty, is an assertion open to argument. It may 
possibly ^"''ivf ^'•^^-f intended as prospective. If the phrase had been 
"in consideration of your hecoming in advance," or "on condition 
of your being in advance," such would have been the clear import.^ 

> Rf!f the fliHOUHHion on the words "for giving his vote," in Lord Huntingtower v. 
Gardiner, 1 B. & ('■ 297. 


As it is, nobody can doubt that the defendant took a great interest 
in the affairs of Messrs. Lees, or believe that the plaintiffs had not 
come under the advance mentioned at the defendant's request. Here 
is then sufficient doubt to make it worth the defendant's while to 
possess himself of the guaranty ; and, if that be so, we have no con- >^ 
cern with the adequacy or inadequacy of the price paid or promised 
for i ^. 

Bni we are by no means prepared to say that any circumstances 
short of the imputation of fraud in fact could entitle us to hold 
that a party was not bound by a promise made upon any considera- 
tion which could be valuable ; while of its being so, the promise by 
which it was obtained from the holder of it must always afford 
some proof. 

Here, whether or not the guaranty could have been available within 
the doctrine of "Wain v. Walters,^ the plaintiffs were induced by 
the defendant's promise to part with something which they mi^ht 
have kept , and the defendant obtained what he desired by means 
of that promise. Both being free and able to judge for themselves, 
how can the defendant be justified in breaking this promise, by dis- 
covering afterwards that the thing in consideration of which he 
gave it did not possess that value which he supposed to belong to 
it? It cannot be ascertained that that value was what he most re- 
garded: he may have had other objects and motives, and of their 
weight he was the only judge. We therefore think the plea bad; 
and the demurrer must prevail. Judgment for the plaintiffs. 

The plaintiffs having signed judgment, error was brought in the 
Exchequer Chamber. 

The writ of error set out the pleadings, of which the material 
part is stated in the preceding report. The errors assigned were, 
that the declaration is insufficient, and that the judgment was for 
the plaintiffs below, whereas it ought to have been for the defendant. 
The writ of error was argued in Trinity Vacation, June 22d, 1840, 
before Lokd Abinger, C. B., Bosanquet, Coltman, and Maule, 
J J., and Alderson and Rolfe, BB. 

Sir /. Campbell, Attorney-General, for the plaintiff in error. . . . 

Sir W. W. Follett, contra. 

Lord Abinger, C. B., in the same Vacation (June 29th) delivered 
the judgment of the Court. 

In the case of Brooks v. Haigh the judgment of the Court is to 
affirm the judgment of the Court of Queen's Bench. 

It is the opinion of all the Court that there was in the guaranty 
an ambiguity that might be explained by evidence, so as to make 
it a valid contract; and therefore this was a sufficient consideration 
for the promise declared upon. 

It is also the opinion of all the Court, with the exception of my 

* 5 East, 10. 


brother Maule, who entertained some doubt on the question, that 
the words both of the declaration and the plea import that the paper 
on which the guaranty was written was given up ; and that the actual 
surrender of the possession of the paper to the defendant was a 
sufficient consideration without reference to its contents. 

Judgment ajfirmed} 


Indiana Supreme Court, November Term, 1861 
[^Reported in 17 Indiana, 29] 

Perkins, J. Action by J. B. Nell against Zacharias Schnell, 
upon the following instrument : — 

"This agreement, entered into this 13th day of Eebruary, 1856, 
between Zach. Schnell, of Indianapolis, Marion County, State of 
Indiana, as party of the first part, and J. B. Nell, of the same place, 
Wendelin Lorenz, of Stilesville, Hendricks County, State of Indi- 
ana, and Donata Lorenz, of Frickinger, Grand Duchy of Baden, 
Germany, as parties of the second part, witnesseth : The said Zach- 
arias Schnell agrees as follows : whereas his wife, Theresa Schnell, 
now deceased, has made a last will and testament, in which, among 
other provisions, it was ordained that every one of the above named 
second parties should receive the sum of $200; and whereas the said 
provisions of the will must remain a nullity, for the reason that no 
property, real or personal, was in the possession of the said Theresa 
Schnell, deceased, in her own name, at the time of her death, and 
all property held by Zacharias and Theresa Schnell jointly, therefore 
reverts to her husband ; and whereas the said Theresa Schnell has also 
been a dutiful and loving wife to the said Zach. Schnell, and has ma- 
terially aided him in the acquisition of all property, real and personal, 
now possessed by him; for, and in consideration of all this, and 
the love and respect he bears to his wife; and, furthermore, in con- 
si fleration of one cent, received by him of the second parties, he, 
the said Zach. Schnell, agrees to pay the above named suras of money 
to the parties of the second part, to wit: $200 to the said J. B. Nell; 
$200 to the said Wendelin Lorenz; and $200 to the said Donata 
Lorenz, in tbe following instalments, $200 in one year from the date 

' A portion of tho case is omitted. 

"Tho adnquucy of tho considoration is for the parties to consider at the time of 
making the aKrf;enient, not for th(! court when it is sought to be enforced." Black- 
bum, J., in Bolton x. Madden, L. R. 9 Q. B. 55. See also Wolford v. Powers, 85 Ind. 
294; Colt V. McConnell. 116 Ind. 249; Mullen v. Hawkins, 141 Ind. 3f)3; Train v. 
Gold, 5 Pink. .'iSO, .•{H4; Wilton v. Eaton, 127 Mass. 174; Whitney v. Clary, 145 Mass. 
150; Daily v. Minniek, 91 N. W. Hep. 9i;i (Iowa); Willaims v. .Jensen, 75 Mo. 681; 
Perkins v. Clay, .54 N. II. 518; Traphagen's Ex. v. Voorhees, 44 N. J. Eq. 21; Worth 
». Case, 42 N. Y. 362; Earl i;. Peck, 64 N. Y. 5G9; Cowee v. Cornell, 75 N. Y. 91; 
Judy V. Loudcrman, 48 Ohio St. 562; Cumming's Appeal, 67 Pa. 404; Giddings v. 
Giddings'B Adm., 51 Vt. 227. 


of these presents; $200 in two years, and $200 in three years; to 
be divided between the parties in equal portions of $66f each year, 
or as they may agree, till each one has received his full sum of $200. 
"And the said parties of the second part, for, and in consideration 
of this, agree to pay the above named sum of money [one cent], 
and to deliver up to said Schnell, and abstain from collecting any 
real or supposed claims upon him or his estate, arising from the 
said last will and testament of the said Theresa Schnell, deceased. 
"In witness whereof, the said parties have, on this 13th day of 
Pebruary, 1856, set hereunto their hands and seals. 

"Zachabias Schnell, [seal.] 
"J. B. Nell, [seal.] 

"Wen. Lobenz." [seal.] 

The complaint contained no averment of a consideration for the 
instrument, outside of those expressed in it; and did not aver that 
the one cent agreed to be paid had been paid or tendered. 

A demurrer to the complaint was overruled. 

The defendant answered, that the instrument sued on was given 
for no consideration whatever. 

He further answered, that it was given for no consideration, be- 
cause his said wife, Theresa, at the time she made the will men- 
tioned, and at the time of her death, owned, neither separately, nor 
jointly with her husband, or any one else (except so far as the law 
gave her an interest in her husband's property), any property, real 
or personal, &c. 

The will is copied into the record, but need not be into this opinion. 

The Court sustained a demurrer to these answers, evidently on the 
ground that they were regarded as contradicting the instrument sued 
on, which particularly set out the considerations upon which it was 
executed. But the instrument is latently ambiguous on this point. 
See Ind. Dig., p. 110. 

The case turned below, and must turn here, upon the question 
whether the instument sued on does not express a consideration suffi- 
cient to give it legal obligation, as against Zacharias Schnell. It 
specifies three distinct considerations for his promise to pay $600 : 

1. A promise, on the part of the plaintiffs, to pay him one cent. 

2. The love and affection he bore his deceased wife, and the fact 
that she had done her part, as his wife, in the acquisition of prop- 

3. The fact that she had expressed her desire, in the form of an 
inoperative will, that the persons named therein should have the 
sums of money specified. 

The consideration of one cent will not support the promise of 
Schnell. It is true, that as a general proposition, inadequacy of 
consideration will not vitiate an agreement. Baker v. Eoberts, 14 
Ind. 552. But this doctrine does not apply to a mere exchange of 


sums of money, of coin, whose value is exactly fixed,^ but to the ex- 
change of something of, in itself, indeterminate value, for money, 
or perhaps, for some other thing of indeterminate value. In this 
case, had the one cent mentioned been some particular one cent, a 
family piece, or ancient, remarkable coin, possessing an indetermi- 
nate value, extrinsic from its simple money value, a different view 
might be taken. As it is, the mere promise to pay six hundred 
dollars for one cent, even had the portion of that cent due from 
the plaintiff been tendered, is an unconscionable contract, void, at 
first blush, upon its face, if it be regarded as an earnest one. Har- 
desty V. Smith, 3 Ind. 39. The consideration of one cent is, plainly, 
in this case, merely nominal, and intended to be so. As the will 
and testament of Schnell's wife imposed no legal obligation upon 
him to discharge her bequests out of his property, and as she had 
none of her own, his promise to discharge them was not legally 
binding upon him, on that ground. A moral consideration, only, 
will not support a promise. Ind. Dig., p. 13. And for the same 
reason, a valid consideration for his promise cannot be found in the 
fact of a compromise of a disputed claim; for where such claim is 
legally groundless, a promise upon a compromise of it, or of a suit 
upon it, is not legally binding. Spahr v. Hollingshead, 8 Blackf. 
415. There was no mistake of law or fact in this case, as the agree- 
ment admits the will inoperative and void. The promise was simply 
one to make a gift. The past services of his wife, and the love and 
affection he had borne her, are objectionable as legal considerations 
for Schnell's promise, on two grounds: 1. They are past considera- 
tions. Ind. Dig., p. 13. 2. The fact that Schnell loved his wife, 
and that she had been industrious, constituted no consideration for 
his promise to pay J. B. ISTell, and the Lorenzes, a sum of money. 
"Whether, if his wife, in her lifetime, had made a bargain with 
Schnell, that, in consideration of his promising to pay, after her 
death, to the persons named, a sum of money, she would be indus- 
trious, and worthy of his affection, such a promise would have been 
valid and consistent with public policy, we need not decide. Nor 
is the fact that Schnell now venerates the memory of his deceased 
wife a legal consideration for a promise to pay any third person 

The instrument sued on, interpreted in the light of the facts al- 
leged in the second paragraph of the answer, will not support an 
action. The demnrr(!r to the answer should have been overruled. 
See Stevenson v. Druley, 4 Ind. 519. 

1 Wolford V. Powers, 85 Ind. 294, 301; Shepard v. Rhodes, 7 R. I. 470, ace. 


HAREISON V. CAGE and his Wife 

In the King's Bench, Michaelmas Tebm, 1698 

[Reported in 5 Modern, 411] 

This is an action on the case, wherein the plaintiff declares that, 
in consideration the plaintiff would marry the defendant, the de- 
fendant promised to marry him, and that he had offered himself to 
her, but that she refused him, and had married the other defendant. 

First. This action does not lie. Indeed it might be otherwise in 
the case of a woman ; for a marriage is an advancement to a woman, 
but not to a man, as appears in Anne Davis's Case,^ and in the case 
of a feoffment causa matrimonii proetocuti, which shows that there 
is a great difference between the two cases of a man and a woman; 
for it is a breach of a woman's modesty to promise a man to marry 
him, but it is not for a man to promise a woman to marry her. 

Secondly. Here is no time laid when this marriage was to be; 
and it may be still. 

.Thirdly. The consideration is ill; it is no more than "I will be 
your husband if you will be my wife;" it is no more than this, "I 
will be your master, and you shall be my servant." 

Fourthly. It is not reasonable that a young woman should be 
caught into a promise. 

E contra. The action very well lies; and certainly marriage is 
as much advancement to a man as it is to a woman. And I am 
sorry that the counsel on the other side has so mean an opinion of 
a good woman as to think that she is no advancement to a man. 
We say that we have offered ourselves, and that she did refuse us; 
and though we do not mention the portion, it is well enough. 

Holt, C. J. Why should not a woman be bound by her promise 
as well as a man is bound by his? Either all is a nudum pactum, 
or else the one promise is as good as the other. You agree a woman 
shall have an action; now what is the consideration of a man's 
promise? Why, it is the woman's. Then why should not his prom- 
ise be a good consideration for her promise, as well as her promise 
is a good consideration for his? There is the same parity of reason 
in the one case as there is in the other, and the consideration is 
mutual. As for the case of the m,atrimonii proelocuti, that goes 
upon another reason, there being a feoffment of lands and a condition 
annexed to it ; but this here is upon a contract. In the ecclesiastical 
court he might have compelled a performance of this promise; but 
here, indeed, she has disabled herself, for she has married another. 
Then you might have given in evidence any lawful impediment upon 
this action; as that the parties were within the Levitical degrees, 
,&c., for this makes the promise void; but it is otherwise of a pre- 

» 4Reu. i66 


TuETON, J. There is as much reason for the one as for the other; 
and Halcomb's Case in Vaughan is plain. 

EoKEBY, J. If a man be scandalized by words per quod matri- 
monium amisit, a good action lies; and why not in this case? 

TuKTON, J. This action is grounded on mutual promises. 

Holt, C. J. The man is bound in respect of the woman's prom- 
ise; if she make none, he is not bound by his promise, and then it 
is a nudum pactum; so that her promise must be good to make his 
signify anything to her; and then, if her promise be good, why 
should not a good action lie upon it ? Judgm,ent for the plaintijf. 


In the King's Bench, Tkinity Term, 1732 

[Reported in 2 Strange, 937] 

The plaintiff declared that it was mutually agreed between the 
plaintiff and defendant that they should marry at a future day which 
is past, and that, in consideration of each other's promise, each en- 
gaged to the other; notwithstanding which the defendant did not 
marry the plaintiff, but had married another, which she lays to her 
damage of 4,000Z. 

The defendant, with leave of the Court, pleaded double; viz., non 
assumpsit, and that the plaintiff, at the time of the promise, was 
an infant of fifteen years of age. 

The plaintiff joins issue on the non assumpsit, and a verdict is 
found for her, with 2,000Z. damages. And, as to the plea of infancy, 

This cause was several times argued at the bar : 1. By Mr. Strange 
for the plaintiff, and Serjeant Chappie for the defendant; when 
the Court inclined strongly with the plaintiff, because, though the 
defendant would not have the same remedy against her by action 
for damages, yet they thought he might have some remedy, viz., by 
suit in the ecclesiastical court to compel a performance, the plain- 
tiff being of the age of consent; and that would be a sufficient con- 
sideration. And therefore appointed an argument by civilians, to 
see what their law would determine in such a case. 

Upon the arguments of the civilians, no instance could be shown 
•wherein they liad compelled the performance of a minor's contract. 
And tbey who argued for the defendant strongly insisted that, in 
the case of a contract per verba dr. futuro (as this was), there was 
no remedy, even against a person of full age, in the spiritual court; 
but only an admonition. And the only reason why they bold juris- 
diction in tbr' r'aae of a contract per verba de pro'senti is because 
that is look(!d upon amongst them to be ipsum matrimonium, and 


they only decree the formality of a solemnization in the face of 
the church. 

After their arguments it was spoken to a fourth time by Mr. 
Reeve and Serjeant Eyre. And now this Term the Chief Justice 
delivered the resolution of the Court. 

The objection in this case is, that, the plaintiif not being bound 
equally with the defendant, this is nudum •pactum, and the defendant 
cannot be charged in this action. Formerly it was made a doubt by 
my Lord Vaughan whether any action could be maintained on mu- 
tual promises to marry; but that is now a point not to be disputed. 
And as to the present case, we should have had no difficulty in giving 
judgment for the plaintiif, if we could have been satisfied by the 
arguments of the civilians that, as the plaintiff was of the age of 
consent, any remedy, though not by way of action for damages, 
could be had against her. But since they seem to have had no prece- 
dent in the case, we must consider it upon the foot of the common 
law. And upon that the single question is, whether this contract, 
as against the plaintiff, was absolutely void. And we are all of 
opinion that this contract is not void, but only voidable at the elec- 
tion of the infant; and as to the person of full age it absolutely 

The contract of an infant is considered in law as different from 
the contracts of all other persons. In some cases his contract shall 
bind him; such is the contract of an infant for necessaries, and the 
law allows him to make this contract as necessary for his preserva- 
tion; and therefore in such case a single bill shall bind him, though 
a bond with a penalty shall not. 1 Lev. 87. 

Where the contract may be for the benefit of the infant, or to his 
prejudice, the law so far protects him as to give him an opportunity 
to consider it when he comes of age; and it is good or voidable at 
his election. Cro. Car. 502; 2 Eol. 24, 427; Hob. 69; 1 BrownL 
11; 1 Sid. 41; 1 Vent. 21; 1 Mod. 25; Sir W. Jones, 164. But 
though the infant has this privilege, yet the party with whom he 
contracts has not : he is bound in all events. And as marriage is 
now looked upon to be an advantageous contract, and no distinction 
holds whether the party suing be man or woman, but the true dis- 
tinction is whether it may be for the benefit of the infant, we think, 
that though no express case upon a marriage contract can be cited, 
yet it falls within the general reason of the law with regard to 
infants' contracts. And no dangerous consequence can follow from 
this determination, because our opinion protects the infant even 
more than if we rule the cpntract to be absolutely void. And as to 
persons of full age, it leaves them where the law leaves them, which 
grants them no such protection against being drawn into incon- 
venient contracts. 

For these reasons we are all of opinion that the plaintiff ought 
to have her judgment upon the demurrer. 



Supreme Judicial Court of Massachusetts, January 24- 
April 2, 1895 

[Reported in 163 Massachusetts, 362] 

Holmes, J. This is an action to recover four hundred dollars, 
put into the defendant's hands by the plaintiff through the Western 
Union Telegraph Company, under the following circumstances. One 
Hoes, an inhabitant of Chicago, committed an offence here and was 
arrested. It seems to have been for his interest to keep the matter 
private. He retained the defendant, who, on receipt of the above 
mentioned money, recognized as surety for him and obtained his 
release from arrest. Afterwards a nolle prosequi was entered by 
reason of the insanity of Hoes. When arrested Hoes telegraphed 
to the plaintiff, "Telegraph at once four hundred dollars to Hon. 
Edward J. Jenkins, my attorney. . . . Am in trouble. Don't fail." 
The plaintiff thereupon sent the money. 

It hardly needs to be said that this transaction made no contract 
between the plaintiff and the defendant. The plaintiff's advance 
was to Hoes. When the money was received by Jenkins, it was re- 
ceived by Hoes as between them and the plaintiff, and if the defend- 
ant kept it, that was by some arrangement between him and Hoes 
with which the plaintiff had nothing to do. 

But there was evidence that Hoes was insane at the time, and 
the plaintiff claims a right to recover on that ground. This must 
mean that he had a right to avoid his contract on the ground of 
the other party's insanity, and to demand his money wherever he 
could find it, unless the defendant, to whose hands it was traced, 
stood as a purchaser for value, or had changed his position, which 
fact the plaintiff had a right to deny, and did controvert in this case, 
except as to fifty or sixty dollars. We presume that the argument 
is, that if Hoes had become sane and had affirmed his dealings with 
the defendant, the plaintiff still would have had the right to prove 
that the defendant had no contract with Hoes, and was not a pur- 
chaser for value, and that, on the other hand, if Hoes had avoided 
his contract, his right to the money would be subject to the plain- 
tiff's paramount right to the same fund, always supposing that the 
plaintiff had the right to avoid his contract also. Buller v. Harri- 
son, Cowp. 565, 568; Cox v. Prentice, 3 M. & S. 344. 

But the question is whether the plaintiff had the right supposed. 
In Holt v. Ward Clarencieux, Strange, 937, it was held, on great 
consideration, that a person of full age contracting with an infant 
was bound absolutely, although the infant had a right to avoid her 
contract. The decision was on demurrer to a plea of the plaintiff's 
infancy, not alleging that the defendant was ignorant of the fact 
when iie made the contract, but seems to have been made without 


regard to whether the defendant knew or not. This case is accepted 
without dispute as the law. Thompson v. Hamilton, 12 Pick. 425, 
429 ; Warwick v. Bruce, 2 M. & S. 205 ; Bruce v. Warwick, 6 Taunt. 
118; Monaghan v. Agricultural Ins. Co., 53 Mich. 238, 243; Hunt 
V. Peake, 5 Cowen, 475 ; Cannon v. Alsbury, 1 A. K. Marsh. 76 ; 
Johnson v. Rockwell, 12 Ind, 76, 81; Field v. Herrick, 101 HI. 110; 
2 Kent, Com. 78, 236; Leake, Con. (3d ed.) 476. The analogy be- 
tween insane persons and infants is not perfect, but has prevailed 
in this matter. Allen v. Berryhill, 27 Iowa, 534; Harmon v. Har- 
mon, 51 Fed. Rep. 113; Bish. Con. § 973; Clark, Con. 268. An 
insane person like Hoes, if he was insane, not a raving madman or 
an idiot, is capable of an act, even if his act be voidable. The 
promise of an insane man is not absolutely void. Carrier v. Sears, 
4 Allen, 336, 337; Bullard v. Moor, 158 Mass. 418, 424. So that it 
cannot be argued that the contract was formally defective and void 
because only one party had done the necessary overt act. A void- 
able promise is a sufficient consideration. Plympton v. Dunn, 148 
Mass. 523, 527. If a person unwittingly dealing with an insane 
man were given the right to avoid his contract when he found out 
the fact, it would be on groundi^ of policy and fairness, and of course 
it would be possible to read in a condition or personal exception to 
that effect. But there seems to be no more reason to do it in this 
case than when a man has contracted with an infant. The general 
rule is that a man takes the risk of facts which he deems material, 
unless he expressly stipulates for them in his contract, or unless he 
is misled by a fraudulent misrepresentation. See Ring v. Phoenix 
Assurance Co., 145 Mass. 426, 429. The right to avoid is for the 
personal protection of the insane, and those who deal with them 
have been held to have no corresponding rights in all the cases which 
we have seen. Upon these considerations, and in view of the de- 
cisions cited, we are of opinion that the plaintiff cannot repudiate 
his contract with Hoes. So long as that contract stands, at least, 
he cannot maintain an action against the defendant. Other de- 
fences need not be considered. We express no opinion as to the law 
in case of a bilateral contract wholly unexecuted on both sides. 

Exceptions overruled. 


In the Queen's Bench, February 5, 1842 

[Reported in 2 Queens Bench Reports, 851] 

Assumpsit. The declaration stated an agreement between plain- 
tiff and defendant that the defendant should, when thereto required 
by the plaintiff, by all necessary deeds, conveyances, assignments, 
or other assurances, grants, &c., or otherwise, assure a certain dwell- 
ing-house and premises, in the county of Glamorgan, unto plaintiff 


for her life, or so long as she should continue a widow and un- 
married; and that plaintiff should, at all times during which she 
should have possession of the said dwelling-house and premises, pay- 
to defendant and one Samuel Thomas (since deceased), their execu- 
tors, administrators, or assigns, the sum of 11. yearly towards the 
ground-rent payable in respect of the said dwelling-house and other 
premises thereto adjoining, and keep the said dwelling-house and 
premises in good and tenantable repair. That the said agreement 
being made, in consideration thereof and of plaintiff's promise to 
perform the agreement, Samuel Thomas and the defendant prom- 
ised to perform the same; and that although plaintiff afterwards 
and before the commencement of the suit, to wit, &c., required of 
defendant to grant, &c., by a necessary and sufficient deed, &c., the 
said dwelling-house, &c., to plaintiff for her life, or whilst she con- 
tinued a widow; and though she had then continued, &c., and still 
was, a widow and unmarried, and although she did, to wit, on, &c., 
tender to the defendant for his execution a certain necessary and 
sufficient deed, &c., proper and sufficient for the conveyance, &e., 
and although, &c. (general readiness of plaintiff to perform), yet 
defendant did not nor would then or at any other time convey, &c. 

Pleas : 1. Non assumpsit. 2. That there was not the consideration 
alleged in the declaration for the defendant's promise. 3. Fraud 
and covin. Issues thereon. 

At the trial before Coltman, J., at the Glamorganshire Lent 
Assizes, 1841, it appeared that John Thomas, the deceased husband 
of the plaintiff, at the time of his death, in 1837, was possessed of 
a row of seven dwelling-houses in Methyr Tidvil, in one of which, 
being the dwelling-house in question, he was himself residing; and 
that by his will he appointed his brother Samuel Thomas (since de- 
ceased) and the defendant executors thereof, to take possession of 
al his houses, &c., subject to certain payments in the will mentioned, 
among which were certain charges in money for the benefit of the 
plaintiff. In the evening before the day of his death he expressed 
orally a wish to make some further provision for his wife; and on 
the following morning he declared orally, in the presence of two 
witnesses, that it was his will that his wife should have either the 
house in which he lived and all that it contained, or an additional 
sum of lOOL instead thereof. 

Tliis declaration being shortly afterwards brought to the knowl- 
edge of Samuel Thomas and the defendant, the executors and re- 
siduary legatees, they consented to carry the intentions of the tes- 
tator 80 expressed into effect; and after the lapse of a few days they 
and th(! j)luintiff executed the agreement declared upon, which, after 
stating tlu! parties and briefly reciting tlie Avill, proceeded as 
follows : — 

"And wliereas the said testator, shortly before his death, declared, 


in the presence of several witnesses, that he was desirous his said 
wife should have and enjoy during her life, or so long as she should 
continue his widow, all and singular the dwelling-house," &c., "or 
100/. out of his personal estate," in addition to the respective leg- 
acies and bequests given her in and by his said will; "but such 
declaration and desire was not reduced to writing in the life-time 
of the said John Thomas and read over to him; but the said Samuel 
Thomas and Benjamin Thomas are fully convinced and satisfied 
that such was the desire of the said testator, and are willing and de- 
sirous that such intention should be carried into full effect: Now 
these presents witness, and it is hereby agreed and declared by and 
between the parties, that, in consideration of such desire and of the 
premises," the executors would convey the dwelling-house, &c., to 
the plaintiff and her assigns during her life, or for so long a time 
as she should continue a widow and unmarried : "provided neverthe- 
less, and it is hereby further agreed and declared, that the said 
Eleanor Thomas or her assigns shall and will, at all times during 
which she shall have possession of the said dwelling-house, &c., pay 
to the said Samuel Thomas and Benjamin Thomas, their executors, 
&c., the sum of 11. yearly towards the ground-rent payable in respect 
of the said dwelling-house and other premises thereto adjoining, 
and shall and will keep the said dwelling-house and premises in good 
and tenantable repair:" with other provisions not affecting the ques- 
tions in this case. 

The plaintiff was left in possession of the dwelling-house and 
premises for some time; but the defendant, after the death of his 
co-executor, refused to execute a conveyance tendered to him for 
execution pursuant to the agreement, and shortly before the trial 
brought an ejectment, under which he turned the plaintiff out of 
possession. It was objected for the defendant that, a part of the 
consideration proved being omitted in the declaration, there was a 
fatal variance. The learned judge overruled the objection, reserving 
leave to move to enter a nonsuit. Ultimately a verdict was found 
for the plaintiff on all the issues; and m Easter Term last a rule 
nisi was obtained pursuant to the leave reserved. 
Chilton and T7. M. James now showed cause. 
E. V. Williams, contra. 

Lord Denman, C. J. There is nothing in this case but a great 
deal of ingenuity, and a little wilful blindness to the actual terms 
of the instrument itself. There is nothing whatever to show that 
the ground-rent was payable to a superior la ndlord; and the stipu- 
lation for the payment of it is not a mere proviso, but an express 
agreement. (His Lordship here read the proviso.) This is in terms 
an express agreement, and shows a sufficient legal consideration 
quite independent of the moral feeling which disposed the executors 
to enter into such a contract. Mr. Williams's definition of consider- 
ation is too large: the word causa in the passage referred to means 


one which confers what the law considers a benefit on the party. 
Then the obligation to repair is one which might impose charges 
heavier than the value of the life estate. 

Patteson, J. It would be giving to causa too large a construc- 
tion if we were to adopt the view urged for the defendant : it would 
be confounding consideration with motive. Motive is not the same 
thing with consideration. Consideration means something which is 
of some value in the eye of the law, moving from the plaintiff : it 
may be some detrimen t to th e plaintiff , orsome bene fit to the de ^ 
tenciant; bm aTTir'evemrj r'must Se moving from the plaintiff . 
N'ow^ that'which is suggesfeJ as the consideration here — a pious 
respect for the wishes of the testator — does not in any way move 
from the plaintiff: it moves from the testator; therefore, legally 
speaking, it forms no part of the consideration. Then it is said 
that, if that be so, there is no consideration at all, it is a mere volun- 
tary gift : but when we look at the agreement we find that this is 
not a mere proviso that the donee shall take the gif t with the 
burthens; but it is an express agreement to pay what seems to be 
a fresh ap loortionmeut of a ground-rent, an d which is made pay;- 
"aM^Tnot to a superior landlord but to the executors. So that this 
"rent is clearly not something incident to the assignment of the house ; 
for in that case, instead of being payable to the executors, it would 
have been payable to the landlord. Then as to the repairs: these 
houses may very possibly be held under a lease containing covenants 
to repair ; but we know nothing about it : for any thing that appears, 
the liability to repair is first created by this instrument. The pro- 
viso certainly struck me at first as Mr. "Williams put it, that the 
rent and repairs were merely attached to the gift by the donors; 
and, had the instrument been executed by the donors only, there 
might have been some ground for that construction; but the fact is 
not so. Then it is suggested that this would be held to be a mere 
voluntary conveyance as against a subsequent purchaser for value: 
possibly that might be so: but suppose it would: the plaintiff con- 
tracts to take it, and does take it, whatever it is, for better for worse : 
perhaps a hona fde purchase for a valuable consideration might 
override it; but that cannot be helped. , 

Coleridge, J. The concessions made in the course of the argu- 
ment have in fact disposed of the case. It is conceded that mere 
motive need not be stated; and we are not obliged to look for the 
legal consideration in any particular part of the instrument, merely 
because the consideration is usually stated in some particular part: 
ut res magis valeat, we may look to any part. In this instrument, 
in the part where it is usual to state the consideration, nothing cer- 
tainly is expresserl but a wish to fulfil the intentions of the testator; 
but in another part we find an express agreement to pay an annual 
sum for a particular purpose, and also a distinct agreement to re- 
pair. If these had occurred in the first part of the instrument, it 


could hardly have been argued that the declaration was not well 
drawn, and supported by the evidence. As to the suggestion of this 
being a voluntary conveyance, my impression is that this payment 
of 11. annually is more than a good consideration: it is a valuable 
consideration : it is clearly a thing newly created, and not part of 
the old ground-rent. Rule discharged.^ 


Minnesota Supreme Court, January 14, 1896 
[Reported in 63 Minnesota, 405] 

Collins, J.^ From the resolution which was incorporated bodily 
into the instrument executed by both parties as their contract it 
appears that it was resolved to employ plaintiff as an assistant 
manager of the corporate business at a fixed salary per year, pay- 
able in monthly instalments. The term of employoment was de- 
termined upon as the period of time during which the corporate 
business might be carried on; not to exceed, of course, the life of 
the corporation as fixed by law. Two provisos were appended to 
the paragraph relating to the term of employment, — one that plain- 
tiff should properly and efficiently discharge his duties as such as- 
sistant; the other, that his term of employment should continue 
only so long as he owned and held, in his own name, fifty shares, fully 
paid up, of the defendant's capital stock. A recital that plaintiff 
had accepted the employment followed, and then the agreement where- 
by defendant employed plaintiff and the latter entered into the em- 
ployment, each party being subject to the terms and conditions 
mentioned and prescribed by the resolution. 

Counsel for defendant urges several objections to the validity of 
the contract, but they are all disposed of by considering the claim 
that it is and was void for lack of mutuality of consideration, the 
point being that, while the character of the services to be rendered 
and the compensation were fixed, no definite period of time was 
agreed upon during which the plaintiff should work or defendant 
employ and pay. The language used, independent of the provisos, 
was : "Said employment is to continue during the time the business 
of said corporation shall be continued, not exceeding the term and 
existence of the corporation." The only conditions mentioned and 
imposed being that, while in defendant's employ, the plaintiff should 
render proper and efficient service, and should own and hold in his 
own name certain shares of corporate stock. 

As we construe the expressions used, the duration of the term of 

^ Montpelier Seminary v. Smith's Estate, 69 Vt. 382, contra. 
* Part of the case is omitted. 


employment was sufficiently defined, for the law does not require 
that the precise number of days or months or years shall be stated; 
and there was mutuality of consideration. The term fixed, depend- 
ent only upon the condition as to plaintiff's ownership of the stock 
shares, was for such period of time as defendant corporation might 
continue to transact business. It might cease to do business volun- 
tarily, or there might be an involuntary termination of its business 
transactions; for instance by proceedings in insolvency instituted by 
its creditors, or the business might terminate by operation of law at 
the end of not to exceed thirty years from the date of its organiza- 
tion, — that being the life term of corporations of this character 
under the statutes. The defendant agreed to keep plaintiff in its 
employ so long as he retained as the owner, and held in his own 
name, the shares, and it continued in business; and plaintiff, in 
consideration of defendant's agreement, stipulated that, so long as 
he remained in such employment, he would own and hold the stock, 
and would perform proper and efficient service. The requirement 
that plaintiff should own and continue to hold the stock as a con- 
dition to his retention by defendant was, presumptively, for the bene- 
fit of the latter, and a detriment to the former. It was in defendant's 
interest to have its stock shares permanently held by its employes, 
for such holding would serve to stimulate them in the performance 
of their duties. It was an injury to plaintiff to hold the stock as 
a condition for his employment, especially when we consider that 
the business of the concern could be closed out at any time, leaving 
him out of employment, with the stock upon his hands. Had the 
plaintiff disposed of his shares, the defendant would have suffered 
a loss; and, had the latter ceased business, the former would have 
been injured. Had the relation of employer and employe terminated 
between these parties through the happening of either of these two 
contingencies, neither party would have been in staiu quo. The con- 
sideration for the agreement was ample and mutual, although the 
term of service might be terminated by defendant's cessation of 
business or plaintiff's selling his stock in the corporation. See Bolles 
V. Sachs, 37 Minn. 315, 33 N. W. 862. The expressions of a con- 
tingency whereby the contract might be terminated by the act of 
either party expressly excluded the idea that each was at liberty 
to terminate it at any time without regard to the happening of 
either contingency.^ 

' "When a man actfl in conRidcration of a conditional promise, if he gets the prom- 
ise he ({"ts .'ill that he is entitled to by his act, ant! if as events turn out, the condition 
is not satiHficfl, and the promise calls for nf> performance, there is no failure of con- 
BideratioQ." Holmes, J., in Gutlon v. Marcus, 1G5 Mass. 335, 336. 


ET AL., Respondent 

New Yoek Court of Appeals, October 13-December 1, 1891 

[Reported in 130 New York, 642] 

Parker, J.^ December 31, 1887, the plaintiff addressed the fol- 
lowing communication to the defendants : — 

"Messrs. F. Alexandre & Sons, New York: 

"Gents, — We propose to furnish your steamers, 'City of Alexandria,' 'City of 
Washington' and 'Manhattan,' with strictly free burning pea, delivered alongside 
Pier 3, North River, for the year 1888, commencing Jan. 1st to Dec. 31st, for the 
sum of three dollars and five cents per ton. We also agree to furnish any other steamers 
of your line with same coal and at same price at any time you wish. If, through any 
cause, we are unable to deliver pea coal, we will deUver you other sizes at an equi- 
table adjustment of price. 

"Yours, very respectfully, 

"Jos. K. Wells, Agt." 

To which the defendants on January 4, 1888, replied as follows: — 

"Mr. Jos. K. Wells: 

"Dear Sir, — We beg to accept your offer of 31st ult., to furnish our steamers, 
'City of Alexandria' 'City of Washington' and 'Manhattan,' with strictly free burn- 
ing pea coal, delivered along side Pier 3, North River, for the year 1888, commencing 
January 1st, for the sum of $3.05 per ton of 2,240 lbs.; also to furnish any other 
steamer of our line with same coal at same price, if we wish it. If, through any cause, 
you are unable to deliver pea coal, you will deliver us other sizes at an equitable 
adjustment of price. 

"Yours truly, 

"F. Alexandre & Sons." 

Thereafter, and until the twenty-fifth day of June following, the 
plaintiff furnished to the defendants such quantities of coal as were 
required for the use of the steamships named. On that day the 
defendants sold to the New York and Cuba Steamship Company 
all their steamship property, charters, and business, including the 
steamers mentioned in the correspondence, and ceased to operate 
them. The steamers under the control and management of the pur- 
chaser of June twenty-fifth continued to make regular trips at stated 
intervals between the same ports as before, and during the remain- 
ing portion of the year required and used large quantities of coal. 
The plaintiff insists that the correspondence created a valid contract 
by which she became bound to deliver, and the defendants to receive, 
at the price named, all coal which would be required for the opera- 
tion of the steamers during 1888, and as the coal required for their 
use was not received by the defendants after June twenty-fifth, that 
she is entitled to recover the damages sustained because of the de- 
fault of the defendants. 

The defendants, on the other hand, contend that the correspond- 
ence did not created a contract; that if it did, it was a contract 
for successive deliveries of coal, to be made only when the defendants 

* A small portion of the opinion is omitted. 


should give the plaintiff notice that a delivery was required, and as 
notice had not been given, the defendants are not in default. 

If in plaintiff's offer the words "one thousand tons" had been 
employed instead of "your steamers 'City of Alexandria,' 'City of 
Washington' and 'Manhattan,' " it would not be questioned that the 
written acceptance of the defendants created a valid contract. The 
offer and acceptance were unqualified; the price fixed; the duration 
of the contract limited to a period commencing January first, and 
ending December thirty-first of the same year; and the quantity 
would have been certain. 

As it was not possible to determine the precise amount of coal 
that would be required to operate the steamers during the year, the 
plaintiff seems to have made his proposition as to amount as definite 
and certain as the situation permitted. Three of defendants' 
steamers made regular trips at stated intervals between certain ports 
and necessarily required and used in so doing large quantities of 
coal, and in view of that condition the plaintiff offered to "furnish 
your steamers 'City of Alexandria,' 'City of Washington' and 'Man- 
hattan,' " with coal for a period of about a year. It is very clear 
that the language employed by plaintiff in the light of surrounding 
circumstances was intended to make as definite as possible the quan- 
tity of coal which the defendants would be required to take. The 
quantity to be measured by the requirements of the three steamers 
for the year ensuing in an employment about which they had been 
long engaged. So, while at the date of the agreement the quantity 
was indefinite, it was, nevertheless, determinable by its terms and, 
therefore, certain, within the maxim, cerium est quod certum reddi- 

Defendants urged that if it be conceded that the proposition ac- 
cepted was to furnish the steamers with coal for the year, at three 
dollars and five cents per ton, still the undertaking was to furnish 
coal from time to time when defendants should notify her that de- 
liveries were required, and as no such notice has been given since 
the last delivery for which payment has been made, the defendants 
are not in default and no recovery can be had. 

The argument made in support of this proposition briefly stated 
is, that it is apparent that it could not have been in the contempla- 
tion of the parties that the coal should be furnished in one lot, but 
rather at different times as the steamers required it for their several 
voyages; nor could the plaintiff know the amount which each steamer 
woulfl rfqnire at the successive loadings. Tlierefore, the defendants 
were to determine the time and quantity for eacli delivery, and as 
the contract contained no promise to give the plaintiff notice, the 
dffendanta were bound to take only such coal as they notified the 
plaintiff to furnish. 

It may be rloubtod whether there is any thing in the record to 
warrant a determination that the plaintiff would not know the several 



amounts and times when coal would be needed, but if it were other- 
*wise, we do not deem it controlling. As we have already said, the 
evident intention of the parties was that the plaintiff should furnish 
'to the defendants all the coal which the steamers named should 
require in the work in which they were employed for the year en- 
suing, and that the parties should perform all needful acts to give 
effect to the agreement; therefore, if a notice was requisite to its 
proper execution, a covenant to give such notice will be inferred, for 
any other construction would make the contract unreasonable and 
place one of the parties entirely at the mercy of the other. Jugla 
V. Trouttet, 120 N. Y. 21-28; New Eng. Iron Co. v. Gilbert E. 
E. E. Co., 91 id. 153; Booth v. C. E. M. Co., 74 id. 15. 

The fact that the defendants deemed it best to sell the steamers, 
cannot be permitted to operate to relieve them from the obligation 
to take the coal which the ordinary and accustomed use of the 
steamers required, for the provisions of the agreement do not admit 
of a construction that it was to terminate in the event of a sale or 
other disposition of them by the defendants. 

The judgment should he reversed. 


In the Court of Appeal — July 24, 25, 1919 

[Reported in [1919] 2 King's Bench, 571] V^^-^-*-^ h^ 

The plaintiff sued the defendant (her husband) for money which 
she claimed to be due in respect of an agreed allowance of 30/. a 
month. The alleged agreement was entered into under the following 
circumstances. The parties were married in August, 1900. The 
husband, a civil engineer, had a post under the Government of Cey- 
lon as Director of Irrigation, and after the marriage he and his 
wife went to Ceylon, and lived there together until the year 1915, 
except that in 1906 they paid a short visit to this country, and in 
1908 the wife came to England in order to undergo an operation, 
after which she returned to Ceylon. In November, 1915, she came 
to this country with her husband, who was on leave. They remained 
in England until August, 1916, when the husband's leave was up 
and he had to return. The wife, however, on the doctor's advice re- 
mained in England. On August 8, 1916, the husband being about to 
sail, the alleged parol agreement sued upon was made. The plain- 
tiff, as appeared from the judge's note, gave the following evidence 
of what took place: "In August, 1916, defendant's leave was up. 
I was suffering from rheumatic arthritis. The doctor advised my 
staying in England for some months, not to go out till November 
4. On August 8 my husband sailed. He gave me a cheque from 
8th to 31st for 24L, and promised to give me 30Z. per month till 


I returned." Later on she said: "My husband and I wrote the fig- 
ures together on August 8; 34L shown. Afterwards he said 30/." 
In cross-examination she said that they had not agreed to live apart 
until subsequent differences arose between them, and that the agree- 
ment of August, 1916, was one which might be made by a couple 
in amity. Her husband in consultation with her assessed her needs, 
and said he would send 30/. per month for her maintenance. She 
further said that she then understood that the defendant would be 
returning to England in a few months, but that he afterwards wrote 
to her suggesting that they had better remain apart. In March, 
1918, she commenced proceedings for restitution of conjugal rights, 
and on July 30 she obtained a decree nisi. On December 16, 1918, 
she obtained an order for alimony. 

Saegant, J., held that the husband was under an obligation to 
support his wife, and the parties had contracted that the extent of 
that obligation should be defined in terms of so much a month. The 
consent of the wife to that arrangement was a sufficient consideration 
to constitute a contract which could be sued upon. 

He accordingly gave judgment for the plaintiff. 

The husband appealed. 

Warrington, L. J. (after stating the facts). Those being the 
facts we have to say whether there is a legal contract between the 
parties, in other words, whether what took place between them was 
in the domain of a contract or whether it was merely a domestic 
arrangement such as may be made every day between a husband 
and wife who are living together in friendly intercourse. It may 
be, and I do not for a moment say that it is not, possible for such 
a contract as is alleged in the present case to be made between hus- 
band and wife. The question is whether such a contract was made. 
That can only be determined either by proving that it was made 
in express terms, or that there is a necessary implication from the 
circumstances of the parties, and the transaction generally, that 
such a contract was made. It is quite plain that no such contract 
was made in express terms, and there was no bargain on the part 
of the wife at all. All that took place was this: The husband and 
wife met in a friendly way and discussed what would be necessary 
for her support while she was detained in England, the husband 
being in Ceylon, and they came to the conclusion that 30Z. a month 
woiilr] be about right, but there is no evidence of any e x press bar- 
g ain by tbo wife that s!ie w onhl in all the circumstances treat that 
as in satisfflftion of the obligation of the husband to maintain her. 
Can we tind a contract from the position of the parties? It seems 
to me it is quite impossible. If we were to imply such a contract 
in this case we should be Implying on the part of the wife that 
whatever happened and whatever might be the change of circum- 
stances while the hiisljfuul was away she should be content with this 
30/. a month, and bind herself by an obligation in law not to re- 


quire him to pay anything more; and on the other hand we should 
be implying on the part of the husband a bargain to pay 30Z. a 
month for some indefinite period whatever might be his circum- 
stances. Then again it seems to me that it would be impossible to 
make any such implication. The matter really reduces itself to 
an absurdity when one considers it, because if we were to hold that 
there was a contract in this case we should have to hold that with 
regard to all the more or less trivial concerns of life where a wife, 
at the request of her husband, makes a promise to him, that is a 
promise which can be enforced in law. All I can say is that there 
is no such contract here. These two people never intended to m ake 
a barga in which could be enforced in law. The husband expressed 
kis intention to make this payment, and Hie promised to make it, 
and was bound in honour to continue it so long as he was in a po- 
sition to do so. The wife, on the other hand, so far as I can see, 
made no bargain at all. That is in my opinion sufficient to dispose 
■of the case. 

It is unnecessary to consider whether if the husband failed to 
make the payments the wife could pledge his credit or whether if 
he failed to make the payments she could have made some other 
arrangements. The only question we have to consider is whether 
the wife has made out a contract which she has set out to do. In 
my opinion she has not. 

I think the judgment of Sargant J. cannot stand, the appeal ought 
to be allowed and judgment ought to be entered for the defendant.^ 

CHEISTIAN DEVKIES, Executors of John S. Combs 

Maryland Court of Appeals, April Term, 1888 

[Reported in 69 Maryland, 199] 

Bryan, J., delivered the opinion of the court : — 
John Semmes Devecmon brought suit against the executors of 
John S. Combs, deceased. He declared in the common counts, and 
also filed a bill of particulars. After judgment by default, a jury 
was sworn to assess the damages sustained by the plaintiff. The 
evidence consisted of certain accounts taken from the books of the 
deceased, and testimony that the plaintiff was a nephew of the de- 
ceased, and lived for several years in his family, and was in his 
service as clerk for several years. The plaintiff then made an offer 
of testimony, which is thus stated in the bill of exceptions : "that 
the plaintiff took a trip to Europe in 1878, and that said trip was 
taken by said plaintiff, and the money spent on said trip was spent 
by the said plaintiff at the instance and request of said Combs, 

* Duke, L. J. and Atkin, L. J. delivered concurring opinions. 


and upon a promise from him tliat he would reimburse and repay 
to the plaintiif all money expended by him in said trip; and that 
the trip was so taken and the money so expended by the said plain- 
tiff, but that the said trip had no connection with the business of 
said Combs ; and that said Combs spoke to the witness of his conduct 
in being thus willing to pay his nephew's expenses as liberal and 
generous on his part." On objection, the court refused to permit 
the evidence to be given, and the plaintiff excepted. 

It might very well be, and probably was the case, that the plain- 
tiff would not have taken a trip to Europe at his own expense. But 
whether this be so or not, the testimony would have tended to show 
that the plaintiff incurred expense at the instance an d request of 
the deceased, and upon an express promise by him th"at h^ would 
repay t he money spent . It was a burden incurred at the request 
of the otner party, and was certainly a sufficient consideration for 
a promise to pay. Great injury might be done by inducing persons 
to make expenditures beyond their means, on express promise of 
repayment, if the law were otherwise. It is an entirely different 
case from a promise to make another a present; or render him a 
gratuitous servace. It is nothing to the purpose that the plaintiff 
was benefited by the expenditure of his own money. He was in- 
duced by this promise to spend it in this way, instead of some other 
mode. If it is not fulfilled, the expenditure will have been procured 
by a false pretence. 

As the plaintiff, on the theory of this evidence, had fulfilled his 
part of the contract, and nothing remained to be done but the pay- 
ment of the money by the defendant, there could be a recovery in 
indebitatus assumpsit ; and it was not necessary to declare on the 
special contract. The fifth count in the declaration is for "money 
paid by the plaintiff for the defendants' testator in his lifetime, at 
his request." In the bill of particulars, we find this item: "To cash 
contributed by me, J. Semmes Devecmon, out of my own money, 
to defray my expenses to Europe and return, the said John S. Combs, 
now deceased, having promised me in 1878 'that if I would con- 
tribute part of my own money towards the trip, he would give me 
a part of his, and would make up to me my part,' and the amount 
below named is my contribution, as follows," etc. It seems to us that 
this statement is a sufficient description of a cause of action covered 
by the general terms of the fifth count. The evidence ought to have 
been admitted. 

Tbe defendants offered the following prayer, which the court 
graiitf-d : 

"Tlif. flcfendants, by their attorneys, pray the court to instruct 
the jury tbat there is no sufficient evidence in this case to entitle 
the yd.'iintiff to recover tlie interest claimed in the bill of particulars, 
markfd, 'Kxbibit No. 1, Bill of Particulars.'" 

The only evidence bearing. on this question is the account taken 


from the books of the deceased, which was offered in evidence by 
the plaintiff. This account showed on its face a final settlement of 
all matters embraced in it. In the absence of proof showing errors 
of some kind, the parties must be concluded by it in all respects. 
We think the prayer was properly granted. 

Judgment reversed, and new trial ordered. 


Alabama Supreme Court, January Term, 1845 

{^Reported in 8 Alabama, 131] 

Error to the Circuit Court of Talladega. 

Assumpsit by the defendant, against the plaintiff in error. The 
question is presented in this Court, upon a case agreed, which shows 
the following facts : — 

The plaintiff was the wife of defendant's brother, but had for 
some time been a widow, and had several children. In 1840, the 
plaintiff resided on public land, under a contract of lease, she had 
held over, and was comfortably settled, and would have attempted 
to secure the land she lived on. The defendant resided in Talladega 
County, some sixty or seventy miles off. On the 10th October, 1840, 
he wrote to her the following letter : — 

"Dear Sister Antillico, — Much to my mortification, I heard that brother 
Henry was dead, and one of his children. I know that your situation is one of grief 
and difficulty. You had a bad chance before, but a great deal worse now. I should 
like to come and see you, but cannot with convenience at present. ... I do not know 
whether you have a preference on the place you live on or not. If you had, I would 
advise you to obtain your preference, and sell the land and quit the country, as 1 
understand it is very unhealthy, and I know society is very bad. If you will come 
down and see me, I will let you have a place to raise your family, and i nave more 
open land than 1 can tend; and on the account of your situation, and that of your 
family, I feel like I want you and the children to do well." 

Within a month or two after the receipt of this letter, the plaintiff 
abandoned her possession, without disposing of it, and removed with 
her family, to the residence of the defendant, who put her in com- 
fortable houses, and gave her land to cultivate for two years, at the 
end of which time he notified her to remove, and put her in a house, 
not comfortable, in the woods, which he afterwards required her to 

A verdict being found for the plaintiff, for two hundred dollars, 
the above facts were agreed, and if they will sustain the action, the 
judgment is to be affirmed, otherwise it is to be reversed. 

Ormond, J. The inclination of my mind is, that the loss and 
inconvenience, which the plaintiff sustained in breaking up, and 
moving to the defendant's, a distance of sixty miles, is a sufficient 
consideration to support the promise, to furnish her with a house, 
and land to cultivate, until she could raise her family. My brothers, 


however, think that the promise on the part of the defendant was 
a mere gratuity, and that an action will not lie for its breach. The 
judgment of the Court below must therefore be reversed, pursuant 
to the agreement of the parties.^ 

THOMAS C. COOPER et al, as Administkatoes, etc.. Re- 

New Yoke Court of Appeals, January 25-March 5, 1889 

{^Reported in 112 New York, 517] 

Appeal from order of the General Term of the Supreme Court 
in the third judicial department, made the first Tuesday of May, 
1887, which reversed a judgment in favor of plaintiff, entered upon 
the report of a referee, and ordered a new trial. (Reported below,, 
45 Hun, 453.) 

This was a reference under the statute of a disputed claim against 
the estate of Thomas P. Crook, defendants' intestate. The claim 
arose under a subscription paper, of which the following is a copy : — 

"We, the undersigned, hereby severally promise and agree to and 
with the trustees of the First Presbyterian Church in this city of 
Albany, in consideration of one dollar to each of us in hand paid 
and the agreements of each other in this contract contained, to pay 
on or before three years from the date hereof to said trustees the 
sum set opposite to our respective names, but upon the express con- 
dition, and not otherwise, that the sum of $45,000 in the aggregate 
shall be subscribed and paid in for the purpose hereinafter stated; 
and if within one year from this date said sum shall not be sub- 
scribed or paid in for such purpose, then this agreement to be null 
and of no effect. The purpose of this subscription is to pay off 
the mortgage debt of $45,000, now a lien upon the church edifice 
of said church, and the subscription or contribution for that purpose 

1 The decision was followed in Forward v. Armstead, 12 Ala. 124; Bibb. v. Freeman, 
59 Ala. G12. In the latter case the Court said: "It is often a matter of great diffi- 
culty to discern the line which separates promises creating legal obligations from 
mere gratuitous agreements. Each case depends so much on its own peculiar facts 
and circumstances that it affords but little aid in determining other cases of differing 
facts. The promise or agnjement, the relation of the parties, the circumstances sur- 
rounding thc;m, anrl their intent, as it may be deduced from these, must determine the 
inquiry. If the purpose is to confer on the j>romisee a benefit from affection and 
generosity, the agreement is gratuitous. If the purpose is to obtain a quid pro quo — 
if there is something to be received, in exrbniige for which the promise is given, the 
promise is not grat\iitous, but of legal ol)ligatif)n." 

See also in accord, Br)ord v. Boord, Pelham (So., .58. But see contra, Shirley 
V. Ifarris, ."^ McLean, ^.'iO; Berry v. CJraddy, 1 Met. (Ky.) 5.53; Bigelow v. Bigelow, 95 
Me. 17; Steele v. Stefle, 75 Md. 477; Adams v. Honness, 62 Barb. 326; Richardson 
V. Goaser, 20 Pa. .335. 

In regarrl to the enforcement of promises relating to land, unenforceable at law, by 
courts fff eriuity in orrUr to prevent a fraud, see Pomeroy on Eq. Jur. § 1294; Ames, 
Gas. on Eq. Jur. 300-.309. 


must equal that sum in the aggregate to make this agreement binding. 

"Dated May 18, 1884." 

The defendants' intestate made two subscriptions to this paper, — 
one of $5,000 and another of $500. He paid upon the subscription 
$2,000. The claim was for the balance. 

Matthew Hale, for appellant. 

Walter E. Ward, for respondent. 

Andrews, J. It is, we think, an inseparable objection to the 
maintenance of this action that there was no valid consideration to 
uphold the subscription of the defendants' intestate. It is, of course, 
unquestionable that no action can be maintained to enforce a gratui- 
tous promise, however worthy the object intended to be promoted. 
The performance of such a promise rests wholly on the will of the 
person making it. He can refuse to perform, and his legal right 
to do so cannot be disputed, although his refusal may disappoint 
reasonable expectations or may not be justified in the forum of con- 
science. By the terms of the subscription paper the subscribers 
promise and agree to and with the trustees of the First Presbyterian 
Church of Albany, to pay to said trustees, within three years from 
its date, the sums severally subscribed by them, for the purpose of 
paying off "the mortgage-debt of $45,000 on the church edifice," 
upon the condition that the whole sum shall be subscribed or paid 
in within one year. It recites a consideration, viz, "in considera- 
tion of one dollar to each of us (subscribers) in hand paid and the 
agreement of each other in this contract contained." It was shown 
that the one dollar recited to have been paid was not in fact paid, 
and the fact that the promise of each subscriber was made by rea- 
son of and in reliance upon similar promises by the others constitutes 
no consideration as between the corporation for whose benefit the 
promise was m ade and tbp prnTr^isnrs^ The recital of a consideration 
paid does not preclude the promisor from disputing the fact in a 
case like this, nor does the statement of a particular consideration 
which, on its face, is insufficient to support a promise, give it any 
validity, although the fact recited may be true. 

It has sometimes been supposed that when several persons promise 
to contribute to a common object, desired by all, the promise of 
each may be a good consideration for the promise of others, and 
this although the object in view is one in which the promisors have 
no pecuniary or legal interest, and the performance of the promise 
by one of the promisors would not in a legal sense be beneficial to 
the others. This seems to have been the view of the Chancellor as 
expressed in Hamilton College v. Stewart when it was before the 
Court of Errors (2 Den. 417), and dicta of judges will be found 
to the same effect in other cases. Trustees, etc., v. Stetson, 5 Pick. 
508 ; "Watkins v. Eames, 9 Cush. 537. But the doctrine of the Chan- 
cellor, as we understand, was overruled when the Hamilton College 
case came before this court, 1 N. Y. 581, as have been also the 


dicta in the Massachusetts cases, bj the court in that State, in the 
recent case of Cottage Street Methodist Episcopal Church v. Ken- 
dall, 121 Mass. 528. The doctrine seems to us unsound in principle. 
It proceeds on the assumption that a stranger both to the considera- 
tion and the promise, and whose only relation to the transaction is 
that of donee of an executory gift, may sue to enforce the payment 
of the gratuity for the reason that there has been a breach of con- 
tract between the several promisors and a failure to carry out as 
between themselves their mutual engagement. It is in no proper 
sense a case of mutual promises, as between the plaintiff and de- 

In the disposition of this case we must, therefore, reject the con- 
sideration recited in the subscription paper as ground for supporting 
the promise of the defendants' intestate, the money consideration, 
because it had no basis in fact, and the mutual promise between the 
subscribers, because there is no privity of contract between the plain- 
tiff and the promisors. Some consideration must, therefore, be found 
other than that expressly stated in the subscription paper in order 
to sustain the action. It is urged that a consideration may be found 
in the efforts of the trustees of the plaintiff during the year, and 
the time and labor expended by them during that time, to secure 
subscriptions in order to fulfil the condition upon which the liability 
of the subscribers depended. There is no doubt that labor and serv- 
ices, rendered by one party at the request of another, constitute a 
good consideration for a promise made by the latter to the former, 
based on the rendition of the service. But the plaintiff encounters 
the difficulty that there is no evidence, express or implied, on the 
face of the subscription paper, nor any evidence outside of it, that 
the corporation or its trustees, did, or undertook to do, anything upon 
the invitation or request of the subscribers. Nor is there any evi- 
dence that the trustees of the plaintiff, as representatives of the cor- 
poration, in fact did anything in their corporate capacity, or other- 
wise than as individuals interested in promoting the general object 
in view. 

Leaving out of the subscription paper the affirmative statement 
of the consideration (which, for reasons stated, may be rejected), 
it stands as a naked promise of the subscribers to pay the several 
amounts subscribed by them for the purpose of paying the mortgage 
on the church property, upon a condition precedent limiting their 
liability. Neither the church nor the trustees promise to do any- 
thiiit?, nor are they requested to do anything, nor can such a request 
be implied. It was held in Hamilton College v. Stewart, 1 N. Y. 
581, tli.'it no such request could l)e implied from the terms of the 
8ub.scrii)tioii in tliat case, in which the ground for such an implica- 
tion was, to say the least, as strong as in this case. It may bo as- 
sumed from the fact that the subscriptions were to be paid to the 
trustees of the church for the purpose of paying the mortgage, that 


it was uuderstood that the trustees were to make the payment out 
of the moneys received. But the duty to make such payment, in 
case they accepted the money, would arise out of their duty as trus- 
tees. This duty would arise upon the receipt of the money, although 
they had no antecedent knowledge of the subscription. They did 
not assume even this obligation by the terms of the subscription, 
and the fact that the trus tees applied money, paid on subscriptions, 
upon the mortgage; debt, did not constitute a consideration for the 
promi se of defendants' intestate . We are unable to distinguish this 
case m principle from Hamilton College v. Stewart, 1 IST. Y. 581. 
There is nothing that can be urged to sustain this subscription that 
could not, with equal force, have been urged to sustain the subscrip- 
tion in that case. In both the promise was to the trustees of the 
respective corporations. In each case the defendant had paid part 
of his subscription and resisted the balance. In both, part of the 
subscription had been collected and applied by the trustees to the 
purpose specified. In the Hamilton College case (which in that 
respect is unlike the present one) it appeared that the trustees had 
incurred expense in employing agents to procure subscriptions to 
make up the required amount, and it was shown, also, that professors 
had been employed upon the strength of the fund subscribed. That 
case has not been overruled, but has been frequently cited with ap- 
proval in the courts of this and other States. The cases of Barnes 
V. Ferine, 12 K Y. 18, and Eoberts v. Cobb, 103 id. 600, are not 
in conflict with that decision. There is, we suppose, no doubt that 
a subscription invalid at the time for want of consideration, may 
be made valid and binding by a consideration arising subsequently 
between the subscribers and the church or corporation for whose 
benefit it is made. Both of the cases cited, as we understand them, 
were supported on this principle. There was, as held by the court 
in each of these cases, a subsequent request by the subscriber to 
the promisee to go and render service or incur liabilities on the 
faith of the subscription, which request was complied with, and 
services were rendered or liabilities incurred pursuant thereto. It 
was as if the request was made at the very time of the subscription, 
followed by performance of the request by the promisee. Judge 
Allen, in his opinion in Barnes v. Ferine, said: "The request and 
promise were, to every legal effect, simultaneous," and he expressly 
disclaims any intention to interfere with the decision in the Hamilton 
College case. In the present case it was shown that individual trus- 
tees were active in procuring subscriptions. But, as has been said, 
they acted as individuals, and not in their official capacity. They 
were deeply interested, as was Mr. Crook, in the success of the effort 
to pay the debt on the church, and they acted in unison. But what 
the trustees did was not prompted by any request from Mr. Crook. 
They were co-laborers in promoting a common object. "We can but 
regret that the intention of the intestate in respect to a matter in 


which he was deeply interested, and whose interest was manifested 
lip to the very time of his death, is thwarted by the conclusion we 
have reached. But we think there is no alternative, and that the 
order should be affirmed. 

All concur. Order /iffirmed and judgment accordingly.^ 


AND Others 

Supreme Judicial Court of Massachusetts, March 20- 
May 23, 1901 

[Reported in 179 Massachusetts, 114] 

Holmes, C. J. This is an action to recover the contribution prom- 
ised by the following paper, which was signed by the defendants 
and others: "January 21, 1896, We, the undersigned, manufacturers 
of leather, promise to contribute the sum of five hundred (500) 
dollars each, and such additional sums as a committee appointed by 
the Massachusetts Morocco Manufacturers Association may require; 
in no case shall the committee demand from any manufacturer or 
firm a total of subscriptions to exceed the sum of two thousand 
(2,000) dollars, such sum to be employed for legal and other ex- 
penses under the direction of the committee, in defending and pro- 
tecting our interests against any demands or suits growing out of 
Letters Patent for Chrome Tanning, and in case of suit against 
any of us the committee shall take charge thereof and apply as much 
of the fund as may be needed to the expense of the same." 

* Charitable subscriptions have been held supported by sufficient consideration on 
various grounds: — 

1. If the work for which the subscription was made has been done, or liability in- 
curred in regard to such work, on the faith of the subscription, consideration is found 
in that fact. Young Men's Christian Assoc, v. Estill, 140 Ga. 291 ; Trustees v. Garvey, 
53 111. 401; Des Moines Univ. v. Livingston, 57 la. 307, 65 la. 202; First Church v. 
Donnell. 110 la. 5; Brokaw v. McElroy 162 la. 288: Gittings v. Mayhcw, 6 Md. 113; 
Cottage St. Church v. Kendall, 121 Mass. 528; Robinson v. Nutt, 185 Mass. 345; 
Albert Lea College v. Brown, 88 Minn. 524; Pitt v. Gentle, 49 Mo. 74; Irwin v. Lom- 
bard University, 56 Ohio St. 9. (Compare Johnson v. Otterbein University, 41 Ohio 
St. 527); in re Converse's Est. 240 Pa. 458; Hodges v. Nalty, 104 Wis. 464. See also 
Lasar v. Johnson, 125 Cal. 549; Gait's Ex. v. Swain, 9 Gratt, 633. 

In Bcatty v. Western College, 177 111. 280, the Court oiiforrod the promise, because 
liabilities had been incurred, but said (p. 292), "The gift will be enforced upon the 
ground of estoppel, and not by reason of any valid consideration in the original 

By th(! reasoning of these cases a subscription is treated as an offer. Therefore 
until work has bf!C'n done or liability incurred the subscription may be revoked. by 
death, insanity, or otherwise. Grand Lodge v. Farnham, 70 Cal. 158; Pratt v. Baptist 
Soc, 93 111. 475; Beach v. First f Church, 96 111. 177; Hclfonatein's Est., 77 Pa. 328; 
First Church v. Gillis, 17 Pa. Co. Ct. 614. See also /Jeimensnyder v. Cans, 110 Pa. 17. 
y' 2. It is held in other jurisdictions that the promise of each subscriber is supported 
by the promises of the others. Christian College v. Hendley, 49 Cal. 347; Hig(>rt v. 
Trustees, 53 Ind. 326; Petty v. Trustees, 95 Ind. 278; Allen v. Duffie, 43 Mich. 1; 


The plaintiffs are the committee referred to in the agreement, 
and subscribers to it. They were appointed and did some work be- 
fore the date of the agreement, and then prepared the agreement 
which was signed by nine members of the association mentioned, 
and by the defendants, who were not members. They went on with 
their work, undertook the defence of suits, and levied assessments 
which were paid, the defendants having paid $750. In November, 
1896, the defendants' firm was dissolved, and two members of it, 
Meles and Auerbach, ceased tanning leather. The defendants noti- 
fied the plaintiffs of the dissolution, and on June 23, 1897, upon 
demand for the rest of their subscription, refused to pay the same. 
The main questions insisted upon, raised by demurrer and by various 
exceptions, are whether the defendants' promise is to be regarded 
as entire and as supported by a sufficient consideration. 

It will be observed that this is not a subscription to a charity. 
It is a business agreement for purposes in which the parties had 
a common interest, and in which the defendants still had an in- 
terest after going out of business, as they still were liable to be sued. 
It contemplates the undertaking of active and more or less arduous 
duties by the committee, and the making of expenditures and incur- 
ring of liabilities on the faith of it. The committee by signing_the_ 
agreement p romised by implication not only to accept the sub- 
scribers' mon"ey but 16 perform those duties. It is a mistaken con- 
struction to say that their promise, or indeed their obligation, arose 
only as the promise of the subscribers was performed by payments 
of money. 

If then the committee's promise should be regarded as the con- 
sideration, as in Ladies' Collegiate Institute v. French, 16 Gray, 
196, 201 (see Maine Central Institute v. Haskell, 75 Maine, 140, 

Congregational Soc. v. Perry, 6 N. H. 164; Edinboro Academy v. Robinson, 37 Pa. 
210. See also First Church v. Pungs, 126 Mich. 670; Homan v. Steele, 18 Neb. 652. 

3. It has been held that the acceptance of the subscription by the beneficiary or 
its representatives imports a promise to apply the funds properly, and this promise 
supports the subscribers' promises. Barnett v. Franklin College, 10 Ind. App. 103; 
CoUier v. Baptist Soc, 8 B. Mon. 68; Trustees v. Fleming, 10 Bush, 234; Trustees v. 
Haskell, 73 Me. 140; Helfenstein's Est., 77 Pa. 328, 331; Trustees v. Nelson 24 Vt. 

4. The fact that other subscriptions have been induced has been held in some 
cases a good consideration. Hanson Trustees v. Stetson 5 Pick. 506; Watkins v. 
Eames, 9 Cuch. 537; Ives v. Sterling, 6 Met. 310 (but this theory was discredited in 
Cottage St. Church v. Kendall, 121 Mass. 528); Comstock v. Howd, 15 Mich. 237 
(but see Northern, &c. R. R. v. Eslow, 40 Mich. 222); Irwin v. Lombard University, 
66 Ohio St. 9. 

In England a charitable subscription is not binding. Re Hudson, 54 L. J. Ch. 811. 
See also Culver v. Banning, 19 Minn. 303; Twenty-third St. Church v. Cornell, 117 
N. Y. 601 (compare Keuka College v. Ray, 167 N. Y. 96) ; Montpelier Seminary v. 
Smith's Estate, 69 Vt. 382 (compare Grand Isle v. Kinney, 70 Vt. 381). 

In in re Hudson, Pearson, J., said: " If A. says, ' I will give you, B., lOOOL,' and B., 
in reliance on that promise, spends 1000/. in buying a house, B. cannot recover the 
lOOOL from A." 

In a few cases of charitable subscriptions the special facts show that the promise 
was made for clearly good consideration. Rogers v. Galloway College, 64 Ark. 627; 
Lasar v. Johnson, 125 Cal. 549; La Fayette Corporation v. Ryiand, 80 Wis. 29. 



144), its sufficiency hardly would be open to the objection which has 
been urged against the doctrine of that case, that the promise of 
trustees to apply the funds received for a mere benevolence to the 
purposes of the trust imposes no new burden upon them. Johnson 
V. Otterbein University, 41 Ohio St. 527, 531. See Presbyterian 
Church of Albany v. Cooper, 112 N. Y. 517. Neither would it raise 
the question whether the promise to receive a gift was a consideration 
for a promise to make one. The most serious doubt is whether the 
promise of the committee purports to be the consideration for the 
subscriptions by a true interpretation of the contract. 

In the later Massachusetts cases more weight has been laid on 
the incurring of other liabilities and making expenditures on the 
faith of the defendant's promise than on the counter-promise of the 
plaintiff. Cottage Street Church v. Kendall, 121 Mass. 528; Sher- 
win V. Fletcher, 168 Mass. 413. Of course the mere fact that a 

) promise! relies upon a promise made without other consideration 
does not impart validity to what befoi'e was void. Bragg v. Daniel- 
son, 141 Mass. 195, 196. There must be some ground for saying 
I that the acts done in reliance upon the promise were contemplated 
Ijby the form of the transaction either impliedly or in terms as the 
1 1 conventional inducement, motive, and equivalent for the promise. 
But courts have gone very great lengths in discovering the implica- 
tion of such an equivalence, sometimes perhaps even having found 
it in matters which would seem to be no more than conditions or 
natural consequences of the promise. There is the strongest reason 
for interpreting a business agreement in the sense which will give 
it a legal support, and such agreements have been so interpreted. 
Sherwin v. Fletcher, uhi supra. 

What we have said justifies, in our opinion, the finding of a con- 
sideration either in the promise or in the subsequent acts of the 
committee, and it may be questioned whether a nicer interpretation 
of the contract for the purpose of deciding which of the two was 
the true one is necessary. It is true that it is urged that the acts 
of the committee would have been done whether the defendants had 
promised or not, and therefore lose their competence as consideration 
because they cannot be said to have been done in reliance upon the 
promise. But that is a speculation upon which courts do not enter. 
When an act has been done, to the knowledge of another party, 
wbinh purports expressly to invite certain conduct on his part, and 
that conduct on his part follows, it is only under exceptional and 
peculiar circumstances that it will be inquired how far the act in 
truth was the motive for the conduct, whether in case of considera- 
tion fWilliams v. Carwardine, 4 B. & Ad. 621; see Maine Central 
Institute; v. Haskell, 75 Maine, 140, 145), or of fraud. Windram 
V. French, 151 Mass. 547, 553. In Cottage Street Church v. Ken- 
dall, 121 Mass. 528, the form of the finding in terms excluded sub- 
sequent acts as consideration, and therefore it did not appear whether 


the facts were such that reliance upon the promise would be pre- 
sumed. In Bridgewater Academy v. Gilbert, 2 Pick, 579, the point 
was that merely signing a subscription paper without more did not 
invite expenditure on the faith of it. See Amherst Academy v. 
Cowls, 6 Pick, 427, 438; Ives v. Sterling, 6 Met, 310, 316, In this 
case the paper indisputably invited the committee to proceed. 

A more serious difficulty if the acts are the consideration is that 
it seems to lead to the dilemma that either all acts to be done by 
the committee must be accomplished before the consideration is fur- 
nished, or else that the defendant's promise is to be taken distribu- 
tively and divided up into distinct promises to pay successive sums 
as successive steps of the committee may make further payments nec- 
essary and may furnish consideration for requiring them. The last 
view is artificial and may be laid on one side. In the most notice- 
able cases where a man has been held entitled to stop before he has 
finished his payments, the ground has not been the divisibility of 
his undertaking but the absence of consideration, which required 
the Court to leave things where it found them. In re Hudson, 54 
L. J. Ch. 811; Presbyterian Church of Albany v. Cooper, 112 N. 
Y. 517, As against the former view, if necessary, we should assume 
that the first substantial act done by the committee was all that 
was required in the way of acts to found the defendants' obligation. 
See Amherst Academy v. Cowls, 6 Pick, 427, 438, But if that were 
true, it would follow that as to the future conduct of the committee 
their promise, not their performance, was the consideration, and 
when we have got as far as that, it may be doubted whether it is 
not simpler and more reasonable to set the defendants' promise 
against the plaintiffs' promise alone. We are inclined to this view, 
but do not deem a more definitive decision necessary, as we are 
clearly of opinion that, one way or the other, the defendants must pay. 

What has been said pretty nearly disposes of a subordinate point 
raised by the defendants. It is argued that, by notice pending per- 
formance that they would not go on with the contract, the defend- 
ants, even if they incurred a liability to damages, put an end to the 
right of the plaintiffs to go on and to recover further assessments, 
as in the case where an order for work is countermanded at the 
moment when performance is about to begin under the contract 
(Davis V. Bronson, 2 ISTo. Dak. 300), or when at a later moment the 
plaintiff was directed to stop (Clark v. Marsiglia, 1 Den. 317), 
followed by many later cases in this country. See Collins v. Dela- 
porte, 115 Mass. 159, 162. We assume that these decisions are right 
in cases where the continuance of work by the plaintiff would be 
merely a useless enhancement of damages. But we are of opinion 
that they do not apply. In the first place it does not appear that 
such a notice was given. The first definite notice and the first breach 
was a refusal to pay on demand. At that time the liability was 
fixed, and the damages were the sum demanded. 


In the next place, if a definite notice had been given by the de- 
fendants in advance that they would not pay, whatever rights it 
might have given the plaintiffs at their election (Ballou v. Billings, 
136 Mass. 307), it would not have been a breach of the contract 
(Daniels v. Newton, 114 Mass. 530), and it would not have ended 
the right of the plaintiffs to go on under the contract in a case 
like the present, where there was a common interest in the perform- 
ance, and where what had been done and what remained to do prob- 
ably were to a large extent interdependent. Davis v. Campbell, 93 
Ta. 524; Gibbons v. Bente, 51 Minn. 499; Cravens v. Eagle Cotton 
Mills Co., 120 Ind. 6. See Frost v. Knight, L. E. 7 Ex. Ill, 112 ; 
Johnstone v. Milling, 16 Q. B. D. 460, 470, 473; Dalrymple v. 
Scott, 19 Ont. App. 477; John A. Eoebling's Sons' Co. v. Lock 
Stitch Fence Co., 130 111. 660, 666', Davis v. Bronson, 2 No. Dak. 
300, 303. 

Before leaving the case it is interesting to remark that the notion 
rightly exploded in Cottage Street Church v. Kendall, 121 Mass. 
528, 530, 531, that the subscription of others than the plaintiff may 
be a consideration, seems to have remained unquestioned with re- 
gard to agreements of creditors to accept a composition. Compare 
the remarks of Wells, J., in Perkins v: Lockwood, 100 Mass. 249, 
250 (Farrington v. Hodgdon, 119 Mass. 453, 457; Trecy v. Jefts, 
149 Mass, 211, 212; Emerson v. Gerber, 178 Mass, 130), with what 
he says in Athol Music Hall Co. v. Corey, 116 Mass. 471, 474. 

It is not argued that whatever contract was made was not made 
with the plaintiffs. Sherwin v. Fletcher, 168 Mass. 413. 

Demurrer overruled; exceptions overruled} 

SuPBEME Judicial Court of Massachusetts, October 4, 1876 
[^Reported in 121 Massachusetts, 106] 

CoNTKACT to recover $184 for work and labor. Writ dated April 
12, 1875. 

At the trial in the Superior Court, before Putnam, J., the de- 
fendant contended that the action was prematurely brought, and 
introduced evidence that, on or about March 17, 1875, being about 
two months after the plaintiff had left his employ, and after the 

' InstancfiH of HnbHcriptionH for businoH.s purpoaos arc Richcliou Hotel Co. ». Inter-, 
national Co., I'm Til. 24S; Fort Wayne Co. v. Miller, LSI Ind. 400; Bryant'.s Pond Co 
V. Felt, H7 Me. 234; TTtulson Co. v. Tower, 150 Mass. 82. 101 Mas.s. 10; Bohn Mfp;.- 
Co V. LfwiM, 45 Minn. 104: GibbonH ». Rente, 51 Minn. 500; Homan r). Steele, 18 Neb 
652; Ixieke'c. Taylor. 101 N. Y. App. D. 44; Aubnrn Work.s v. Phiiltz, 143 Pa. 256; 
C.erard v. Seattlf. 73 Wash. 510; C.ibbons v. C.rinsel, 70 Wis. 305; Superior Land Co. 
V. Bickford, 93 Win. 220; Badger Paper Co. v. Rose, 05 Wis. 145. 


time when the amount was due, the plaintiff called at his office and 
demanded the amount due him^ and said that, if the defendant would 
give him $25 on account, he would wait until May 1 for the bal- 
ance, and he thereupon paid him $25 on account, and the plaintiff 
then agreed to wait until May 1, 1875, for the balance due him. 

The plaintiff asked the judge to rule that an agreement on his 
part to wait until some future day for his pay (the same being due 
and payable) would be null and void unless there was some consid- 
eration for the promise; and that a payment of $25 by the defendant 
to him on account (the whole amount being then due) would not 
constitute a consideration for such an agreement, and that, notwith- 
standing such an agreement, he could maintain his action brought 
before the future day. But the judge declined so to rule, and in- 
structed the jury as follows: "If the jury find that the agreement 
was that, if the defendant would pay him $25 on the spot, he would 
wait for the balance of his pay till a day after the date of the writ, 
and the defendant made such payment and relied upon that agree- 
ment and neglected to pay the plaintiff in consequence, that, whether 
there was a consideration therefor or not, the action had been pre- 
maturely brought, and the plaintiff cannot recover." The jury re- 
turned a verdict for the defendant; and the plaintiff alleged ex- 

By the Court. It is too well settled to require discussion or 
reference to authorities, that an agreement to forbear to sue upon 
a debt already due and payable, for no other consideration than the 
payment of part of the debt, is without legal consideration, and 
cannot be availed of by the debtor, either by way of contract or of 

Of the cases cited for the defendant, Harris v. Brooks, 21 Pick. 
195, was a case of a surety, and Fleming v. Gilbert, 3 Johns. 528, 
a case of modification by agreement of the way of performing an 
obligation to discharge a mortgage. Exceptions sustained. 




ISTew Yoek Supreme Court, Appellate Division, 

March Term, 1903 ^ 

[Reported in 80 New YorJc Appellate Division, 566] 

Ingraham, J. : On May 15, 1896, the defendant recovered judgment ^ V 
against the plaintiff for $226.29. In July 1896, as an agreed settle- ^If 
ment of this judgment the plaintiff paid the defendant $50, and kA*"^ 
gave his indorsed note for $50, with interest at six per cent. A receipt ^ /^ 
was given by the defendanfs agent as part of the transaction which \^ 



provided tliat if the note was paid at maturity the judgment should 
thereby be satisfied. The note was duly paid and a receipt was 
then given by the defendant stating that he had received full settle- 
ment of his account. Nothing further was done until September 
1902, when the plaintiff, having become the owner of real estate 
upon which this judgment was a lien, asked the defendant to enter 
of record the satisfaction of the judgment. The defendant declined 
to do so; whereupon the plaintiff brought this proceeding to cancel 
the judgment. The court below dismissed the complaint. 

This precise question was presented in the case of Moss v. Shannon 
(1 Hilt. 175), where it was decided by the Court of Common Pleas 
that ''the payment of part of a debt, and giving the debtor's note for 
part of the balance, can never discharge the whole indebtedness with- 
out a release. The debtor's note amounted to nothing. He only 
agreed by it to pay at a future time what he was bound to pay at 
the present moment, and afforded no new consideration for any con- 
tract at the time." This case was founded upon several cases in the 
Supreme Court, which are all discussed by Judge Cowen in Waydell 
V. Luer (5 Hill, 448). That case was subsequently reversed by the 
Court of Errors in 3 Denio, 412. The question presented in this 
case was not, however, presented there, and the reversal does not 
appear to have doubted the correctness of the rule that the giving 
by a debtor to a creditor of his own promissory note was not a 
consideration for an agreement that it should be received in full 
satisfaction of the debt, or, on payment of the note, an accord and 
satisfaction. (See opinion of Davis^ P. J., in Parrot v. Colby, 
6 Hun. 55.) In Ludington v. Bell (77 'N. Y. 138) the question 
presented was whether the giving of his individual note by one of 
the members of a partnership after its dissolution for a copartner- 
ship debt was a good consideration for. an agreement on the part 
of the creditor to release and discharge the maker from liability 
for the debt; and it was held that giving and accepting such a note 
under such an agreement was an accord and satisfaction of the 
copartnership debt and released the other members of the co- 
partnership. The court, in that case, holds that the opinion of 
LoTT, Senator, in Waydell v. Luer (3 Denio, 410) was accepted by 
the court; that the acceptance of the individual note of one partner 
may be preferable and a better security than a demand against the 
firm. In Bliss v. Shwarts (65 ^. Y. 444), the defendant 
claimed that the case was taken out of the general rule 
"because the acceptance by Kopper (acting for the plaintiff) of 
the draft of Butler & Co. on Duncan & Sherman was sufficient 
evidence of a new consideration to uphold the transaction, even 
though the plaintiffs did not participate in the general plan of 
compromise." In relation to this point the court said : "The evi- 
dericf" is entirely clear that the payment to be made to the plain- 
tiffs was to be in cash. It was then shown in evidence that to 


'carry out this settlement' Mr. Butler gave his draft on Duncan & 
Sherman to Kopper, acting for the plaintiffs. . . . The draft 
must be regarded merely as a mode of paying the cash." I cannot 
find that these cases, or the principle established in them have ever 
been questioned. It is true that the principle that the payment of 
a lesser sum in satisfaction of a greater is no consideration for an 
agreement to discharge the balance of the indebtedness has been 
criticised, but it has been universally recognized to be the rule 
and uniformly enforced. The courts have been inclined to limit 
the application of this rule and to seize hold of any benefit, how- 
ever slight, to the creditor or any disadvantage to the debtor, 
and accept it as a consideration upon which an accord and satis- 
faction could be based. Judge Andrews in Allison v. Abendroth 
says (108 N. Y. 470) : ''But it is held that where there is an 
independent consideration, or the creditor receives any benefit or is 
put in a better position, or one from which there may be legal 
possibility of benefit to which he was not entitled except for the 
agreement, then the agreement is not nudum pactum, and the doc- 
trine of the common law to which we have adverted has no appli- 
cation." So in Jaffrey v. Davis (124 N". Y. 164) it was held that 
where one indebted on an open book account gave to his creditor his ^^-*-^ 
promissory notes for one-half of his debt, secured by a chattel mort- j^ 
gage under an agreement with the creditor that he would accept the 
same in full satisfaction and discharge of the debt, and the debtor 
paid the notes as they became due and the creditor satisfied the 
mortgage, the new agreement was valid and supported by a 
sufficient consideration. It may be that giving a creditor a 
promissory note for a portion of an amount resting in an open 
account, placing the creditor in a position which would enable 
him to more speedily obtain payment of the amount represented 
by the note, would be an advantage to the creditor, or disadvan- 
tage to the debtor, which would be a sufficient consideration to 
support the agreement to accept a lesser sum than claimed by 
the creditor, but in this case the defendant had obtained a judg- 
ment for his demand, and the amount due was then actually 
liquidated and determined. A receipt by him of the whole $100 
in cash would clearly not have been a sufficient consideration for 
an agreement to discharge the remainder of the judgment, and 
the receipt of the judgment debtor's own promissory note for $50 fto 
would put the judgment creditor in no better position than he was (r<^^ 
in at the time the note was accepted. ISTo possible advantage could j- /, 
accrue to him upon the receipt of this note which he did not have . ' 
at the time the note was given. He had a judgment which he '*''*-*^ 
could enforce by execution. If the note was not paid he 
could enforce it in no other way than by a new action against 
the plaintiff which would result in a new judgment which would 
be no better security for the defendant than the judgment he had 


already obtained. Nor was the giving of this note in any sense an 

*<-"" injury to the plaintiff. Whether or not there is a consideration 

to must appear from the facts of each particular case, and in this case 

AX- it is quite evident that there was no consideration for the 


It follows that judgment appealed from must be affirmed, with 

Van Brunt, P. J., O'Bkien, McLaughlin and Hatch, JJ., 

Judgment ajfirmed, with costs. 

ta:n'N"er v. meerill 

Michigan Supeeme Court, November 22-December 30, 1895 
[Reported in 108 Michigan, 58] 

Hooker, J. The defendants appeal from a judgment recovered 
against them at circuit. They are lumbermen, and the plaintiff 
worked for them at Georgian Bay, his transportation from Saginaw 
to that place having been paid by them. When he quit work, a 
question arose as to who should pay this, under the contract of em- 
ployment, and defendants' superintendent declined to pay any trans- 
portation. The plaintiff needed the money due him to get home, 
and showed a telegram announcing the illness or death of his mother, 
and said that he must go home, to which the superintendent replied 
that "he did not pay any man's fare"; whereupon a receipt in full 
was signed, and the money due, after deducting transportation, was 
paid. The plaintiff testified that they had no dispute, only he 
claimed the fare and the superintendent refused to allow it. 

The most important question arises over a request to charge upon 
the part of the defendants, which reads as follows : 

"The testimony of the plaintiff is that, at the time the receipt 
put in evidence in this case was signed by him, he claimed that his 
railroad fare should not be deducted from his wages; that this was 
denied by the agents and superintendent of defendants, and it was 
taken out of his wages; that he then signed the receipt with full 
knowledge of its contents, and of the fact that his railroad fare had 
been taken out of his wages. This being so, the receipt in this case, 
upon the plaintiff's own testimony, cannot be contradicted. While 
a receipt may be contradicted in certain cases, it must be in a case 
of mistake, ignorance of fact, fraud, or when some unconscionable 
advantage has been taken of one by the other party. Therefore, 
the receipt, in this case, shows a full settlement of all claims plaintiff 
had against fh(; flefcndants." 

The only theory u[)oii which it can be contended that this request 
^ The opinion has been ubbroviatcd. 


should have been given is that the plaintiff accepted less than he 
claimed, but no more than defendants' admitted, to be due, and 
gave a receipt in full when the defendants' superintendent refused 
to pay more. We do not discover any testimony tending to show 
an agreement to accept as payment, either in full or by way of 
compromise, except the receipt, and the question resolves itself into 
this: Whether a receipt in full is conclusive of the question of de- 
fendant's liability, when it is given upon payment of a portion of 
a claim admittedly due, accompanied by a refusal to pay more, in 
the absence of mistake, fraud, duress, or undue influence. 

It is urged upon behalf of the plaintiff that receipts are always 
open to explanation, and that there is no consideration to support 
the acceptance of a portion of a valid claim as full payment. The 
cases which counsel cite do not support the broad contention of 
plaintiff's counsel, which would seriously derange business affairs if 
it should be sustained. The doctrine that the receipt of part pay- 
ment must rest upon a valid consideration to be effective in discharge 
of the entire debt is carefully limited to cases where the debt is 
liquidated, by agreement of the parties or otherwise, which was 
not the case here. It was in dispute. In the case of St. Louis, etc., 
R. Co. V. Davis, 35 Kan. 464, the opinion says that "it is a well- 
settled principle of law that the payment of a part of an ascertained, 
overdue, and undisputed debt, although accepted as full satisfaction, 
and a receipt in full is given, does not estop the creditor from re- 
covering the balance. In such a case the agreement to accept a 
smaller sum is regarded to be without consideration." The case of 
Day V. Gardner, 42 IST. J. Eq. 199, was one where the agreement 
was to forgive a debt, implying its existence. In Hasted v. Dodge 
(Iowa), 35 N". W. 462, the opinion of Mr. Justice Rothrock shows 
the debt not to have been in dispute. Moreover, the doctrine was 
not applicable to the case for reasons shown. See also American 
Bridge Co. v. Murphy, 13 Kan. 35. In Bailey v. Day, 26 Me. 88, 
the claim was liquidated by judgment. In Hayes v. Insurance Co., 
125 111. 639, the court apply the doctrine relied upon, but expressly 
state that "this rule has no application where property other than 
money is taken in satisfaction, or where there is an honest com- 
promise of unliquidated or disputed demands." See also Bish. Cont. 
§ 50; 2 Pars. Cont. 618. In Marion v. Heimbach, 62 Minn. 215, 
the Court say : "But where the claim is unliquidated, it would seem 
to be true that if the creditor is tendered a sum less than his claim, 
upon the condition that, if it is acepted, it must be in full satisfac- 
tion of his whole claim, his acceptance is an accord and satisfaction." 
See also Fuller v. Kemp, 138 IST. Y. 231, where the same doctrine 
is held; Fire Ins. Ass'n v. Wickham, 141 U. S. 577. The important 
fact to ascertain is whether the plaintiff's claim was a liquidated 
claim or not. If it was, there was no consideration for the discharge. 
If not, the authorities are in substantial accord that part payment of 


the claim may discharge the debt, if it is so received. Upon the 
undisputed facts, the claim of the plaintiff, as made, was not liqui- 
dated. It was not even admitted, but, on the contrary, was denied, 
because the defendants claimed that it had been partially paid by 
a valid offset. While the controversy was over the offset, it is plain 
that the amount due the plaintiff" was in dispute. If so, it is difficult 
to understand how it could be treated as a liquidated claim, unless 
it is to be said that a claim may be liquidated piecemeal, and that, 
so far as the items are agreed upon, it is liquidated, and to that 
extent is not subject to adjustment on a basis of part payment. Cases 
are not numerous in which just this phase of the question appears. 
This would seem remarkable, unless we are to assume that, in calling 
a claim unliquidated, the courts have alluded to the whole claim, 
and have considered that, where the amount is not agreed upon, the 
claim as a whole is unliquidated, and therefore subject to adjustment. 
If this is not true, no man can pay an amount that he admits to 
be due without being subject to action whenever and so often as his 
creditor may choose to claim that he was not fully paid, no matter 
how solemn may have been his acknowledgment of satisfaction, so 
long as it is not a release under seal. 

The general rule is a technical one, and there are many exceptions. 
It has been said that it "often fosters bad faith," and that "the 
history of judicial decisions upon the subject has shown a constant 
effort to escape from its absurdity and injustice." Harper v. Graham, 
20 Ohio, 105; Kellogg v. Kichards, 14 Wend. 116; Brooks v. White, 
2 Mete. (Mass.) 283 (37 Am. Dec. 95). Again, it is said to be 
"rigid and unreasonable," and "a rule that defeats the expressed 
intentions of the parties, and, therefore, should not be extended to 
embrace cases not within the letter of it." Wescott v. Waller, 47 
Ala. 492; Johnston v. Brannan, 5 Johns. 268; Simmons v Almy, 
103 Mass. 35. See Milliken v. Brown, 1 Rawle, 391, where the rule 
is vigorously denounced. It has no application in cases of claims 
against the government. If one accepts the amount allowed, it is 
a discharge of the whole claim. TJ. S. v. Adams, 7 Wall. 463; U. S. 
r. Child, 12 Wall. 232. See also Wapello Co. v. Sinnaman, 1 G. 
Greene, 413; Brick v. County of Plymouth, 63 Iowa, 462; Perry v. 
Cheboygen, 55 Mich. 250; Calkins v. State, 13 Wis. 389. Again, 
it has been repeatedly held that part payment is a bar to a claim for 
intc-rfst. Another exception is found in composition with creditors. 

It is believed that we may safely treat this claim as one claim, 
not as two, and as unliquidated, inasmuch as it was not admitted. 
In McGlynn v. Billings, 16 Vt. 329, the defendant, after an examina- 
tion of acfounts, claimed that he owed the plaintiff $82, and drew 
a check for tbat sum, and tendered it as payment in full. It was 
refused, and it was delivered to a third person, with directions to 
deliver it whenever tbe plaintiff wouhl receive it as payment in full. 
This was done, and it was held to discharge the debt. In Hills v. 


Sommer, 53 Hun, 392, the plaintiffs shipped lemons to dealers in 
St. Joseph, Mo., and were notified that some were defective, with 
a claim of a specific rebate, which plaintiffs refused to allow. A 
draft was subsequently sent for the amount which the defendants 
had previously expressed their willingness to allow, with a letter 
stating that it was in payment of the invoice. The draft was cashed, 
and action brought for the remainder of the claim. Verdict was 
directed for the defendants. Pierce v. Pierce, 25 Barb. 243, seems 
to be a similar case. In Potter v. Douglass, 44 Conn. 541, plaintiff 
refused $45, which was tendered in full payment of a claim. He 
took it, however, on account, as he said, and wrote a receipt to that 
effect, which defendant refused, for the reason that it stated that 
the money was received on account. The plaintiff, however, kept 
the money. It does not appear that this amount of $45 was disputed. 
Apparently, it was not. Yet the court called the claim an unliqui- 
dated demand, and held it to have been discharged. In Perkins v. 
Headley, 49 Mo. App. 562, it is said : "But if there is a controversy 
between him [the creditor] and his debtor as to the amount which 
is due, and if the debtor tenders the amount which he claims to be 
due, but tenders it on the condition that the creditor accept it in 
discharge of his whole demand, and the creditor does accept it, that 
will be an accord and satisfaction as a conclusion of law." 

While no Michigan case decisive of this question is cited, and 
we recall none, it was held in Houghton v. Poss, 54 Mich. 335, 
that : — 

"A receipt which states its purpose to be for a complete settle- 
ment, and which covers the whole period of dealing, is equivalent 
to an account stated; and though it is open to explanation as to 
errors or omissions, it cannot be treated as if it had not been meant 
to cover everything." 

And in Pratt v. Castle, 91 Mich. 84, it was said that : — 

"1. Settlements are favored by the law, and will not be set aside, 
except for fraud, mistake, or duress. 

"2. A settlement evidenced by the execution of mutual receipts 
of 'one dollar, in full for all debts, dues, and demands to this date,' " 
except as to certain specified items, is conclusive, in the absence of 
fraud or mistake, as to all prior dealings between the parties not 
covered by the excepted items." 

See also Dowling v. Eggemann, 47 Mich. 171. 

It therefore appears that such settlements should have weight, 
and it seems reasonable to hold that the rule contended for does not 
apply, for the reason that this was an unliquidated demand, although 
a certain portion of it was not questioned. Clearly, the claim was 
disputed, and, so far as this record shows, the defendants' superin- 
tendent was given to understand that the money paid was accepted 
in full satisfaction, as plaintiff's own evidence shows that he gave 
the receipt without protest, and without stating to the defendants' 


superintendent what he said, aside, to his fellow laborers, that it 
would make no difference if they did give the receipts. To hold other- 
wise would be a recognition of the ''mental reservation" more effec- 
tive than just. Upon the plaintiff's own testimony, he accepted the 
money, with the knowledge that the defendants claimed that the 
amount paid was all that was his due, and gave a receipt in full. 
There is nothing in the case to negative the inference naturally to 
be drawn from this testimony, that there was an accord and satis- 
faction of an unliquidated demand. 

The judgment must he reversed. No new trial should he ordered} 


Texas Supreme Couet, March 4, 1895 
IRe^ported in 87 Texas, 578] 

Gaines, Chief Justice. The plaintiff was a surety for one Hosack, 
the principal maker upon a promissory note payable to the defend- 
ant in error. Some days after the note fell due, Hosack wrote de- 
fendant in error requesting an extension, to which request defendant 
replied by letter as follows : "I will extend the time of payment 
one year, and look with confidence for the accrued interest within 
sixty days, hoping it will not inconvenience you. After that, if it 
is your pleasure to make the interest on the extension payable semi- 
annually, it will help me." 

The defendant in error testified to having received the letter from 
Hosack requesting an extension, and that the foregoing was his 
reply, but the contents of Hosack's communication were not other- 
wise shown. He also testified, that he was paid nothing for the 
extension, and that Hosack never paid the accrued interest. 

Suit having been brought on the note by the payee against all 
the makers, the plaintiff in error pleaded his suretyship; and the 
facts as stated above having been proved, the trial court gave judg- 
ment for the plaintiff in that court. That judgment upon appeal 
was affirmed by the Court of Civil Appeals. 

It is the right of the surety at any time after the maturity of the 
debt to pay it and to proceed against the principal for indemnity. 
Tliis rigbt is impaired if the creditor enter into a valid contract 
with the principal for an extension of the time of payment. The 
obligation of the surety is strictly limited to the terms of his con- 
tract, and any valid agreement between the creditor and the prin- 
fij);il by which his position is changed for tlie worse, discharges his 
liability. For this reason it is universally held, that a contract be- 

» ChioiiKo, <^r, Ry. Co. v. Clark, 17S U. S. Sf^ri, 307; Ostrander ». iScott. IGl III, 
339, nr.c. Soo. hIho NaHsoiy ?;. Tomiirison, 148 N. Y. 3'2G; Jordan v. Great Northern 
Ry. Co. 80 Minn. 405. Millor v. Coates, 66 N. Y. 609, contra. 


tween the two, which is binding in law, by which the principal se- 
cures an extension of time, releases the surety, provided the surety 
has not become privy to the transaction by consenting thereto. If 
the creditor is not bound by his promise to extend, it is clear there 
is no release. In order to hold him bound by his promise, there 
must be a consideration. Whether a mere agreement for an exten- 
sion by the debtor is sufficient to support a promise to extend by 
the creditor, is a question upon which the authorities are not in 
accord. We are of opinion, however, that the question should be 
resolved in the affirmative, at least in cases in which it is contemp- 
lated by the contract that the debt should bear interest during the 
time for which it is extended. If the new agreement was that the 
debtor should pay at the end of the period agreed upon for the ex- 
tension precisely the same sum which was due at the time the agree- 
ment was entered into, the case might be different. But a promise 
to do what one is not bound to do, or to forbear what one is not 
bound to_Jorbear, is a good consideration for a contract . In case 
oT a debtwhich l)ears interest either by convention or by operation 
of law, when an extension for a definite period is agreed upon by 
the parties thereto, the contract is, that the creditor will forbear 
suit during the time of the extension, and the debtor forgoes his 
right to pay the debt before the end of that time. The latter se- 
cures the benefit of the forbearance; the former secures an interest- 
bearing investment for a definite period of time. One gives up his 
right to sue for a period in consideration of a promise to pay in - 
teres t dur ing the w hole of t he time ; the other relinquishes his right 
to pay during the same period, in consideration of the promise of 
forbearance. To the question, why this is not a contract, we think 
no satisfactory answer can be given. It seems to us it would be j^ 
a binding contract, even if the agreement was that the debt should 
be extended at a reduced rate of interest. That an agreement by 
the debtor and creditor for an extension for a definite time, the debt 
to bear interest at the same rate or at an increased but not usurious 
rate, is binding upon both, is held in many cases, some of which 
we here cite: Wood v. Newkirk, 15 Ohio St. 295; Fowler v. Erooks, 
33 K H. 240; Davis v. Lane, 10 N". H. 156; Stallings v. Johnson, 
27 Ga. 564; Robinson v. Miller, 2 Bush (Ky.), 179; Reynolds v. 
Barnard, 36 111. App. 218; Chute v. Pattee, 37 Me. 102; Rees v. 
Barrington, 2 Ves. 540; see also Grossman v. Wohlleben, 90 111. 
537; McComb v. Kittredge, 14 Ohio, 348.^ 

In many cases which seemingly support the contrary doctrine, 

^ Royal V. Lindsay, 15 Kan. 591; Shepherd n. Thompson, 2 Bush, 176; Alley v. 
Hopkins, 98 Ky. 668; Simpson v. Evans, 44 Minn. 419; Moore v. Redding, 69 Miss. 
841; Fawcett v. Freshwater, 31 Ohio St. 637, occ: Abel v. Alexander, 451 Ind. 523; 
Hume V. Mazelin, 84 Ind. 574; Holmes v. Boyd, 90 Ind. 332; Da\'is v. Stout, 126 Ind. 
12; Wilson v. Powers, 130 Mass. 127; Hale v. Forbes, 3 Mont. 395; Grover v. Hop- 
pock, 2 Dutch. 191; Kellogg v. Olmsted, 25 N. Y. 189; Parmelee ?'. Thompson, 45 
N. Y. 58; Olmstead v. Latimer, 158 N. Y. 313, contra. See also Toplitz v. Bauer, 161 
N. Y. 325. 


there was a mere promise by the creditor to forbear, without any 
corresponding promise on part of the debtor not to pay during the 
time of the promised forbearance. In such cases, it is clear that 
there is no consideration for the promise. In others, where there 
was a mutual agreement for the extension, it may be that interest 
during the period of extension was not allowed by law, and the 
agreement did not provide for the payment of interest. The case 
of McLemore v. Powell, 12 Wheaton, 554, may have been of that 

In this case, as we construe the correspondence between Hosack 
and the defendant in error, there was a request for an extension of 
the debt for twelve months on part of the former, and an uncon- 
ditional acceptance on the part of the latter. We infer, that Hosack 
must have written something about the payment of accrued interest 
— properly that he hoped to be able to pay it in sixty days. The 
presumption is, that the letter was in the possession of the defend- 
ant in error at the time of the trial. He did not produce it. In 
any event, he should have known its contents, and if Hosack made 
his request for an extension conditional upon his payment of the 
accrued interest, he should have testified to the fact. We conclude, 
therefore, that there was a binding promise for an extension, and 
that the plaintiff in error was therefore released.^ 

There is error in the judgment, for which it must be reversed; 
and since it may be shown upon another trial that Hosack's offer 
contained a condition that he would pay the interest in sixty days, 
the cause is remanded. Reversed and remanded.' 


Texas Supreme Court^ March 11, 1895 

[Reported in 87 Texas, 582] 

On motion for rehearing. 

Gaines, Chief Justice. This is a motion for a rehearing of an 
application, based upon the ground that our ruling in this case is 
in conflict with that made in the case of Benson v. Phipps, recently 
dr"'-idcd in this court. 

When the application now before us was filed, it was considered 
that it probably involved the same question which was raised in 
Benson V. Phipps, and upon which a writ of error had been granted. 

> An c-xamirmtion by thf court of scvrrjvl Texas decisions is omitted. 

» Compnrr: Hopkins v. Logan, 5 M. & W. 241; Voroyckcn v. Vandonbrooks, 102 
Mich. 110; Htrykfr v. Vanriorbilt, 3 Dutch. 68; McNish v. Reynolds, 05 Pa. 48.3; Gib- 
son V. Daniol. 17 Tex. 17.3; Mclntyre v. Ajax MininR ('o., 20 Utah, 323, .3.36; P'Janders 
V. Fay, 40 Vt. 316; Stickler v. Giles, 9 Wash. 147; Price v. Mitchell, 23 Wash. 742. 


Action upon the application was accordingly suspended until that 
case was decided; and then it was discovered, that although the 
question of the validity of a promise for an extension of a contract 
of indebtedness was involved in each case, the two were clearly dis- 
tinguishable. In this case, with reference to this question, the trial 
court found the facts as follows : "That a few days after the note 
sued on became due, and just before it was assigned to the plaintiff, 
JSr. E. Fain presented same to the defendant for payment, when said 
Stacy, as president of defendant company, requested that an exten- 
sion of one week from that date be given on said note, and that 
the same be not placed in the hands of attorney for collection until 
one week; and agreed, if this was done, that he would pay the note 
within that time^ etc. Here the creditor agrees to extend for one 
week, and the debtor agrees to pay within the week. He does not 
agree that he will not pay until the end of the week, or that in case 
he does pay, he will pay interest for the entire period of the exten- 
sion. Hence there was no consideration for the promise of the cred- 
itor. In Benson v. Phipps, the principal maker of the note and 
the payee agree upon an extension for twelve months; from which 
the promise was implied on part of the former not to sue, and upon 
the latter not to pay within the stipulated time. The promise of 
the debtor to forego his right to pay at any time after the note 
was originally due, secured to the creditor the absolute right to re- 
ceive the interest for the entire time of the extension, and constituted 
the consideration for the creditor's promise. 

In the case before us, it was the right of the company to pay at 
any time, notwithstanding Fain's promise, and hence there was no 
consideration to support that promise. 

The motion for a rehearing is overruled. Motion overruled.^ 

LATTIMOEE and Others v. HAKSEN" 

New York Supreme Court, August, 1817 

[Reported in 14 Johnson, 330] 

This was a motion to set aside the report of referees. It ap- 
peared from the affidavits which were read, that the plaintiffs en- 
tered into an agreement under seal, dated the 14th of November, 
1815, with Jacob Harsen, and the defendant, Cornelius Harsen, 
by which the former, in consideration of the sum of nine hundred 
dollars, agreed to open a cartway in Seventieth Street, in the city 
of New York, the dimensions and manner of which were stated in 
the agreement, and bound themselves under the penalty of two 
hundred and fifty dollars to a performance on their part. Some 

1 McManus v. Bark, L. R. 5 Ex. 65 ace. 


time after the plaintiffs entered upon the performance, they became 
dissatisfied with their agreement, and determined to leave off the 
work, when the defendant, by parol, released them from their cove- 
nant, and promised them that if they would go on and complete 
the work, and find materials, he would pay them for their labor by 
the day. The plaintiffs had received more than the sum stipulated 
to be paid to them by the original agreement. The action was 
brought for the work and labor, and materials found by the plain- 
tiffs, under the subsequent arrangement, and the referees reported 
the sum of four hundred dollars and five cents in favor of the plain- 

The case was submitted to the court without argument. 

Peb Curiam. The only question that can arise in the case is, 
whether there was evidence of a contract between the plaintiff and 
the present defendant to perform the services for which this suit 
is brought. From the evidence, it appears that a written contract 
had been entered into between the plaintiff and the defendant, to- 
gether with his father Jacob Harsen, for the performance of the 
same work; and that, after some part of it was done, the plaintiffs 
became dissatisfied with their contract, and determined to abandon 
it. The defendant then agreed, if they would go on and complete 
the work, he would pay them by the day for such service, and the 
materials found, without reference to the written contract. 

This is the allegation on the part of the plaintiffs, and which the 
evidence will very fairly support. If the contract is made out, there 
can be no reason why it should not be considered binding on the 
defendant. By the former contract, the plaintiffs subjected them- 
selves to a certain penalty for the non-fulfilment, and if they chose 
to incur this penalty they had a right to do so, and notice of such 
intention was given to the defendant, upon which he entered into 
the new arrangement. Here was a sufficient consideration for this 
promise; all payments ma^e on the former contract have been al- 
lowed, and perfect justice appears to have been done by the referees, 
and no rules or principles of law have been infringed. The motion 
to set aside the report, therefore, ought to be denied. 

Motion denied. 


SuPHEME Judicial Couet of Massachusetts, March Term, 1830 

\Reported in 9 Pickering, 298] 

Indebitatus assumpsit for work done, materials found, money 
paid, (S:f., l)rong]it iigainst tli(( defendant jointly with William Payne, 
who (lied aftfT \\u'. action was commenced. 

At th(! trial before the Chief Justice it appeared that in 1821 


the plaintiff was employed by Perkins and Payne to build a hotel 
at I^ahant, which was begun in that year and finished in 1823. 

The general defence was, that there was a special contract, and 
that the work had been paid for according to the terms of that con- 

For the purposes of this case it was admitted that the amount 
of expenditures made and incurred by the plaintiff in and about 
the work, exceeded the amount of the payment made to him. 

It appeared that in 1821 a number of persons associated them- 
selves for the purpose of erecting a hotel at ISTahant, and subscribed 
certain sums of money therefor; that Perkins and Payne were sub- 
scribers, and were the agents of the association, which was to be 
incorporated as soon as possible, and which was incorporated ac- 
cordingly in February, 1822. 

The defendant offered in evidence an agreement under seal, dated 
October 24, 1821, wherein the plaintiff engages to build the hotel 
according to a certain drawing and description, and the defendant 
and Payne, in behalf of their associates, agree to pay the plaintiff 
therefor $14,500 as the work advances. 

T. W. Sumner, a witness called by the defendant, testified that 
the work was executed upon the basis of the drawing and description 
referred to in the sealed contract; that there were some deviations, 
consisting of additional work; that this was considered as extra 
work, not included in the contract, and was paid for separately ac- 
cording to its full cost and value. 

To prove a waiver of the special contract, the plaintiff introduced 
several witnesses. J. Alley testified that in 1825 he said to the de- 
fendant, it was a pity Munroe had undertaken to build the hotel; 
to which the defendant replied, that Munroe would not lose any- 
thing by it, and that they had agreed to pay him for every minute's 
work and for all he had purchased. J. Mudge testified that in the 
spring of 1823 the plaintiff was indebted to the Lynn bank on a 
note for $1,100 which he wished to have renewed, but that the di- 
rectors were not satisfied of his solvency; that in April of that year 
the plaintiff came to the bank with Payne, who said he was the 
agent who attended to the business of the Nahant hotel in the ab- 
sence of Perkins, who had gone to Europe; that he wanted to get 
from the bank some indulgence towards the plaintiff; that the cor- 
poration would leave the plaintiff as good as they found him; they 
would pay Munroe for all he should lay out; that Munroe should 
not stop for want of funds; that he (Payne) knew Perkins's mind 
upon the subject; that the bills would be paid, and the plaintiff 
should not suffer. W. Johnson testified that on the strength of this 
representation of Payne, the bank renewed the plaintiff's paper. 
W. Babb testified that in May, 1822, the defendant asked the plain- 
tiff how he got on; that the plaintiff said, poorly enough; that the 
defendant told him he must persevere; the plaintiff said he could 


not without means; and the defendant repeated, "You must perse- 
vere," and added, "You shall not suffer, we shall leave you as we 
found you." 

The defendant objected to this evidence that it was insuiiicient 
in law to set aside the special contract; that it did not amount to 
a waiver of the original contract, but so far as it proved anything, 
it was evidence of a new express promise, which was without con- 
sideration and from which no implied assumpsit could be raised. 
Also, that the conversation with Perkins at one time and with Payne 
at another were not joint promises and created no joint cause of ac- 
tion, but that the liability, if there was any, was several. 

A verdict was taken by consent, subject to the opinion of the 

S. Hubbard and F. Dexter, for the defendant. 

Ward, contra. 

Per Curiam. The verdict of the jury has established the fact, 
if the evidence was legally sufficient, that the defendant together 
with Payne, made the promise declared on. The defence set up 
was that the work was done and the materials were furnished on 
a special contract under seal, made by the defendant and Payne on 
behalf of themselves and other subscribers to the hotel; and such a 
contract was produced in evidence. The main question is, whether, 
there being this contract under seal for a stipulated sum, an action 
lies on a general assumpsit for the amount which the building actu- 
ally cost; which is more than the sum specified in the contract. It 
is said on the part of the plaintiff that, having made a losing bar- 
gain and being unwilling and unable to go on with the work, Per- 
kins and Payne assured him that he should not suffer; and that the 
work was carried on and finished upon their engagement and prom- 
ise that he should have a reasonable compensation, without regard 
to the special contract. This engagement is to be considered as 
proved, if by law it was admissible to show a waiver of a special 

It is objected that, as the evidence was parol, it is insufficient in 
law to defeat or avoid the special contract; and many authorities 
have been cited to show that a sealed contract cannot be avoided or 
waived but by an instrument of a like nature; or generally, that 
a contract under seal cannot be avoided or altered or explained by 
parol evidence. That this is the general doctrine of the law cannot 
ho disputed. It seems to have emanated from the common maxim, 
Umimfjuodr/ue dissolvitur eo lif/amine quo ligatur. But, like other 
maxims, this has received qualifications, and indeed was never true 
to the letter, for at all times a bond, covenant, or other sealed in- 
strument might be defeated by parol evidence of payment, accord 
and satisfaction, &c. 

It is a general principle that where there is an agreement in writ- 
ing, it merges all previous conversations and parol agreements; but 


there are many cases in which a new parol contract has been admitted 
to be proved. And though when the suit is upon the written con- 
tract itself it has been held that parol evidence should not be re- 
ceived, yet when the suit has been brought on the ground of a new 
subsequent agreement not in writing, parol evidence has been ad- 

In Katcliff v. Pemberton, 1 Esp. R. 35, Lord Kenyon decided that, 
to an action of covenant on a charter-party for the demurrage which 
was stipulated in it, the defendant might plead that the covenantee, 
who was the master and owner of the ship, verbally permitted the 
delay, and agreed not to exact any demurrage, but waived all claim 
to it. He laid down a similar rule in Thresh v. Rake, ibid. 53 ; 
where, however, the contract does not appear to have been under 

In 2 T. R. 483, there were articles of partnership, containing a 
covenant to account at certain times; and upon a balance being 
struck, the defendant promised to pay the amount of the balance; 
and it was held that assumpsit would lie upon this promise. 

The case of Latimore et al. v. Harsen, 14 Johns. R. 330, comes 
nearer the case at bar. There the plaintiffs had agreed to perform 
certain work for a stipulated sum of money, under a penalty. After 
they had entered upon the performance of it, they determined to 
leave off, and the defendant, by parol, released them from their 
covenant, and promised them, if they would complete the work, 
that he would pay them by the day. The court held that if the 
plaintiffs chose to incur the penalty, they had a right to do so, and 
that the new contract was binding on the defendant. 

In Dearborn v. Cross, 7 Cowen, 48, it is held that a bond or other 
specialty may be discharged or released by a parol agreement be- 
tween the parties, especially where the parol agreement is executed; 
and the case of Lattimore v. Harsen is there cited and relied on. 

There are other decisions of like nature in the same court; as 
Fleming fv. Gilbert, 3 Johns. R. 528; Keating v. Price, 1 Johns. 
Cas. 22; Edwin v. Saunders, 1 Cowen, 250. In Ballard v. "Walker, 
8 Johns. Cas. 64, it w^as held that the lapse of time between the 
making of the contract and the attempt to enforce it was a waiver; 
which is going further than is necessary in the case before us, for 
here there is an express waiver. 

In Le Fevre v. Le Fevre, 4 Serg. & R. 241, parol evidence was 
admitted to prove an alteration of the course of an aqueduct estab- 
lished by deed. In regard to the objection that this evidence was 
in direct contradiction to the deed, Duncan, J. remarks that "the 
evidence was not offered for that purpose, but to show a substitu- 
tion of another spot. If this had not been carried into effect the 
evidence would not have been admissible; but where the situation 
of the parties is altered by acting upon the new agreement, the evi- 
dence is proper; for a party may be admitted to prove by parol 


evidence, that after signing a written agreement, the parties made 
a verbal agreement, varying the former, provided their variations 
have been acted upon, and the original agreement can no longer be 
enforced without a fraud on one party." 

The distinction taken in the argument, between contracts in writing 
merely and contracts under seal, appears by these authorities not to 
be important as it respects the point under consideration, and jus- 
tice required in the present case, that the parol evidence should be 

It was said that the promise of Payne cannot affect Perkins, and 
vice versa. But as they were joint actors, and as when one acted 
in the absence of the other, it was always with a joint view to the 
same object, they cannot be separated, but must be considered as 
joint promisors. 

The parol promise, it is contended, was without consideration. 
This depends entirely on the question whether the first contract 
was waived. The plaintiff having refused to perform that contract, 
as he might do, subjecting himself to such damages as the other 
parties might show they were entitled to recover, he afterwards went 
on upon the faith of the new promise and finished the work. This 
was a sufiicient consideration. If Payne and Perkins were willing 
to accept his relinquishment of the old contract and proceed on a 
new agreement, the law, we think, would not prevent it. 

Motion for new trial overruled.^ 

LI:N^GEN'FELDER et. al.. Executors, v. THE "WAIN'WRIGHT 

Missouri Supreme Court, October Term, 1890 

[Reported in 103 Missouri, 578.] 

Gantt, p. J.^ — The referee found that Jungenfeld, the plaintiffs' 
testator, was not entitled to the commission of five per cent on the 
cost of the refrigerator plant. He found that Jungenfeld's employ- 
ment as architect was to design plans and make drawings and speci- 
fications for certain brewery buildings for the Wainwright Brewery 
Company and superintend their construction to completion for a 

> Rtoudenmoicr v. Williamson, 20 Ala. 5.58; Bishop v. Busse, 69 111. 403; Cooke v. 
Murphy, 70 111. 00; Coyncr v. Lyndo, 10 Ind. 282; Holmes v. Doanc, 9 Cush, 135; 
Ilollins V. Marsh, 128 Mass. IIG; Rotors v. RoRors, 1.30 Mass. 440; Thomas v. Barnes, 
156 Mas.s. 581, 584; Brieham v. Herrick, 17.3 Mass. 460, 467. (But see Parrot v. 
Mexican Central R. Co. 207 Mass. 184); Moore v. Detroit Locomotive Works, 14 
Mich. 206; C,oc\,<\ v. Linn, 47 Mich. 480; ConklinR v. Tuttle, 52 Mich. 130; Scanlan 
V. Northwood, 147 Mich. 1.30; Osborne v. O'Reilly, 42 N. J. Eq. 467; Lattimore v. 
Harsen, 14 .Johns. .330; Stewart v. Keteltas, 36 N. Y. 388, ncc. See also Peck v. Rcqua, 
13 Gray, 407; Kinj? v. Dulnth Ry. Co. 61 Minn. 482; Hansen v. Gaar, 63 Minn. 94; 
Gaar v. Green. 6 N. Dak. 48; Dreifus v. Columbian Co., 104 Pa. 475; Evans v. Oregon 
Ac. R. Co. 58 Wash. 420. 

' The statement of the case and a portion of the opinion arc omitted. 


commission of five per cent on the cost of the buildings. He found 
further that Jungenfeld's contract did not include the refrigerator 
plant that was to be constructed in these buildings. He further 
found, and the evidence do6s not seem to admit of a doubt as to 
the propriety of his finding, that this refrigerator plant was ordered 
not only without Mr. Jungenfeld's assistance, but against his wishes. 
He was in no way connected with its erection. 

"Mr. Jungenfeld was president of the Empire Kefrigerating Com- 
pany and largely interested therein. . . . The De La Vergne Ice 
Machine Company was a competitor in business. . . . Against 
Mr. Jungenfeld's wishes Mr. Wainwright awarded the contract for 
the refrigerating plant to the De La Vergne Company. . . . The 
brewery was at that time in process of erection and most of the 
plans were made. When Mr. Jungenfeld heard that the contract 
was awarded he took his plans, called oflF his superintendent on the 
ground, and notified Mr. Wainwright that he would have nothing 
more to do with the brewery. The defendant was in great haste to 
have its new brewery completed for divers reasons. It would be 
hard to find an architect in Mr. Jungenfeld's place and the making 
of new plans and arrangements when another architect was found 
would involve much loss of time. Under these circumstances Mr. 
Wainwright promised to give Jungenfeld five per cent on the cost 
of the De La Vergne ice machine if he would resume work. Jungen- 
feld accepted and fulfilled the duties of superintending architect till 
the completion of the brewery. 

"As I understand the facts and as I accordingly formally find, 
defendant promised Jungenfeld a bonus to resume work and com- 
plete the original contract under the original terms. 

"I accordingly submit that in my view defendant's promise to 
pay Jungenfeld five per cent on the cost of the refrigerating plant 
was without consideration, and recommend that tlie claim be not 

The referee also find "that Mr. Jungenfeld never claimed that de- 
fendant had broken the contract or intended to do so, or that any 
of his legal rights had been violated." 

The learned circuit judge, upon this state of facts, held that the 
defendant was liable on this promise of Wainwright to pay the ad- 
ditional five per cent on the refrigerator plant. The point was duly 
saved, and from the decision this appeal is taken. 

Was there any consideration for the promise of Wainwright to 
pay Jungenfeld five per cent on the refrigerator plant ? If there was 
not, plaintiff cannot recover the $3,449.75, the amount of that com- 
mission. The report of the referee, and the evidence upon which 
it is based, alike show that Jungenfeld's claim to this extra compen- 
sation is based upon Wainwright's promise to pay him this sum 
to induce him, Jungenfeld, to complete his original contract under 
its original terms. 


It is urged upon us by respondents that this was a new contract. 

JSTew in what? Jungenfeld was bound by his contract to design 
and supervise this building. Under the new promise he was not 
to do anything more or anything different. What benefit was to 
accrue to Wainwright? He was to receive the same service from 
Jungenfeld under the new that Jungenfeld was bound to tender* 
under the original contract. What loss, trouble, or inconvenience 
could result to Jungenfeld that he had not already assumed? ISTo 
amount of metaphysical reasoning can change the plain fact that 
Jungenfeld took advantage of Wainwright's necessities, and extorted 
the promise of five per cent on the refrigerator plant, as the condi- 
tion of his complying with his contract already entered into. !Nor 
had he even the flimsy pretext that Wainwright had violated any 
of the conditions of the contract on his part. 

Jungenfeld himself put it upon the simple proposition that, "if 
he, as an architect, put up the brewery, and another company put 
up the refrigerating machinery, it would be a detriment to the 
Empire Refrigerating Company" of which Jungenfeld was presi- 
dent. To permit plaintiff to recover under such circumstances would 
be to offer a premium upon bad faith, and invite men to violate their 
most sacred contracts that they may profit by their own wrong. 

''That a promise to pay a man for doing that which he is already 
under contract to do is without consideration," is conceded by re- 
spondents. The rule has been so long imbedded in the common 
law and decisions of the highest courts of the various States that 
nothing but the most cogent reasons ought to shake it. Harris v. 
Carter, 3 E. & B. 559; Silk v. Myrick, 2 Camp. 317; 1 Chitty on 
Contracts [11 Amer. Ed.] 60; Bartlett v. Wyman, 14 Johns. 260; 
Reynolds v. Nugent, 25 Ind. 328; Ayres v. Railroad, 52 Iowa, 478; 
Festerman v. Parker, 10 Ind. 474; Eblin v. Miller, 78 Ky. 371; 
Sherwin & Co. v. Brigham, 39 Ohio St. 137; Overdeer v. Wiley, 
30 Ala. 709; Jones v. Miller, 12 Mo. 408; Kick v. Merry, 23 Mo. 
72; Laidlou v. Hatch, 75 111. 11; Wimer v. Overseers of Poor, 104 
Penn. St. 317; Cobb v. Cowdery, 40 Yt. 25; Vanderbilt v. Schreyer, 
91 N. Y. 392. 

But "it is carrying coals to Newcastle" to add authorities on a 
proposition so universally accepted and so inherently just and right 
in itself. The learned counsel for respondents do not controvert the 
general proposition. Their contention is, and the circuit court 
agreed with them, that, when Jungenfeld declined to go further on 
his contract, the defendant then bad the right to su^ for damages, 
and not baving elected to sue Jungenfeld, but having acceded to his 
demand for the additional compensation, defendant cannot now be 
hoard to say his promise is without consideration. While it is true 
Jungenfeld became linble in damages for the obvions breach of his 
contract, we do not tbink it follows that defendant is estopped from 
showing its promise was made without consideration. 


It is true that as eminent a jurist as Judge Cooley, in Goebel v. 
Linn, 47 Michigan, 489, held that an ice company which had agreed 
to furnish a brewery with all the ice they might need for their busi- 
ness from ISTovember 8, 1879, until January 1, 1881, at $1.75 per 
ton, and afterwards in May, 1880, declined to deliver any more ice 
unless the brewery would give it $3 per ton, could recover on a 
promissory note given for the increased price. Profound as is our 
respect for the distinguished judge who delivered that opinion, we 
are still of the opinion that his decision is not in accord with the 
almost universally accepted doctrine and is not convincing, and cer- 
tainly so much of the opinion as holds that the payment by a debtor 
of a part of his debt then due would constitute a defence to a suit 
for the remainder is not the law of this State, nor do we think of 
any other where the common law prevails. 

The case of Bishop v. Busse, 69 111. 403, is readily distinguishable 
from the case at bar. The price of brick increased very considerably, 
and the owner changed the plan of the building, so as to require 
nearly double the number; owing to the increased price and change 
in the plans, the contractor notified the party for whom he was 
building, that he could not complete the house at the original prices, 
and, thereupon, a new arrangement was made, and it is expressly 
upheld by the court on the ground that the change in the buildings 
was such a modification as necessitated a new contract. Nothing 
we have said is intended as denying parties the right to modify their 
contracts, or make new contracts, upon new or different considera- 
tions and bindinsT themselves thereby. 

"Wliat we hold is that, when a party merely does wbat he has al- 
ready obligated himself to do, he cannot demand an additional com- 
pensation therefor, and, although by taking advantage of the ne- 
cessities of his adversary, he obtains a promise for more, the law 
will regard it as nudum pactum, and will not lend its process to aid 
in the wrong.^ 

» Harris v. Watson, Peake, 72; Stilk v. Mvrick, 2 Camp. 317; Fraser v. Hatton, 
2 C. B. N. s. 218; Jackson v. Cobbin, 8 M. & W. 790; Mallalieu v. Hodgson, 16 Q. B. 
689; Harris v. Carter, 3 E. & B. 559; Alaska Packers' Assoc, v. Domenico, 117 Fed. 
Rep. 99 (C. C. A.): In re Riff, 205 Fed. Rep. 406; National Elec. Signalling Co. v. 
Fessenden, 207 Fed. Rep. 915 (C. C. A.); Frankfurt-Barnett Co. v. William Prym 
Co. 237 Fed. Rep. 21 (C. C. A.) Shriner v. Craft, 166 Ala. 146: Feldman v. Fox, 112 
Ark. 223; Main Street Co. v. Los Angeles Co., 129 Cal. 301; Poland Paper Co. v. 
Foote, 118 Ga. 458: Nelson v. Pickwick Associated Co., 30 111. App. 333; Golds, 
borough V. Gable, 140 HI. 269; Moran v. Peace, 72 HI. App. 135, 139; Allen v. Rouse- 
78 II. App. 69; Mader v. Cool 14 Ind. App. 299; Ayres v. Chicago, &c. R. R. Co., 
52 la. 478; McCartv v. Hampton Building Assoc, 61 la. 287: Awe v. Gadd, 179 la. 
520; Westcott v. Mitchell, 95 Me. 377: Bell v. Gates 97 Miss. 790: Storck v. Mesker, 
55 Mo. App. 26; Smith v. Sickenger, (Mo. App.) 202 S. W. 262; Easteriy v. Jackson, 
29 Mont. 496; Esterly Co. v. Pringle, 41 Neb. 265; Voorhees v. Combs, 33 N. J. L. 
494; Natalizzio v. Valentino, 71 N. J. L. 500; Bartlett v. Wyman, 14 Johns. 260; 
Vanderbilt v. Schreyer, 91 N. Y. 392; Carpenter v. Taylor, 164 N. Y. 171; Weed v. 
Spears, 193 N. Y. 289; Schneider v. Henschenheimer, 55 N. Y. Supp. 630; Festerman 
t. Parker, 10 Ired. 474; Gaar v. Green, 6 N. Dak. 48; Muir v. Morris, 80 Greg. 378; 
Erb. V. Brown, 69 Pa. 216; Jones v. Risley, 91 Tex. 1; Tolmie v. Deaa, 1 Wash. Ter. 
46; Magoon v. Marks, 11 Hawaii, 764, ace. See also Hartley v. Ponsonby, 7 E. & B. 


SHAD WELL v. SHADWELL and Another, Executors, &c. 

In the Common Pleas, November 26, 1860 

l^Beported in 30 Law Journal Reports, C. P. 145] 

The declaration stated that the testator in his lifetime, in con- 
sideration that the plaintiff would marry Ellen Nicholl, agreed with 
and promised the plaintiff, who was then unmarried, in the terms 
contained in a writing in the form of a letter addressed by the said 
testator to the plaintiff, which writing was and is in the words, 
letters, and figures following, that is to say : — 

11th August, 1838, Geay's Inn. 
My dear Lancey, — I am glad to hear of your intended marriage with Ellen 
Nicholl; and, as I promised to assist you at starting, I am happy to tell you that I 
will pay to you one hundred and fifty pounds yearly during my life, and until your 
annual income derived from your profession of a chancery barrister shall amount to 
six hundred guineas, of which your own admission will be the only evidence that I 
shall receive or require. 

Your ever affectionate uncle, 

Charles Shadwell. 

Averment: That the plaintiff did all things necessary, and all 
things necessary happened, to entitle him to have the said testator 
pay to him eighteen of the said yearly sums of 150Z. each respec- 
tively, and that the time for the payment of each of the said eigh- 
teen yearly sums elapsed after he married the said Ellen Nicholl, 
and in the lifetime of the said testator; and that the plaintiff's an- 
nual income derived from his profession of a chancery barrister 
never amounted to six hundred guineas, which he was always ready 
and willing to admit and state to the said testator; and the said 
testator paid to the plaintiff twelve of the said eighteen yearly sums 
which first became payable, and part, to wit, 12/.^, of the thirteenth; 
yet the said testator made default in paying the residue of the said 
thirteenth yearly sum, which residue is still in arrear and unpaid, 
and in paying the five of the said eighteen yearly sums which last 
became payable, and the said five sums are still in arrear and unpaid. 

Fourth plea: That before and at the time of the making of the 
supposed agreement and promise in the declaration mentioned, the 
said marriage had been and was, without any request by or on the 
part of the testator touching the said intended marriage, but at the 
request of the plaintiff, intended and agreed upon between the plain- 
tiff and the said Ellen Nicholl, of which the testator, before and at 
the time of making the supposed agreement and promise, also had 
notice; and the said marriage was, after tho making of the supposed 
agreement and promise, duly Imd ;nid solcinnizcd as in the dcclara- 

S72; Eastman v. Miller, 11.3 la. 404; Proctor v. Keith, 12 B. Mon. 252; Eblin v. 
Miller's Exec. 78 Ky. .171; Endriss v. Belle Isle Ico Co., 49 Mich. 279; Conover v. 
Stilwell, 34 N. J. L. 64, 57. 


tion mentioned, at the request of the plaintiff and without the request 
of the testator. And the defendants further say that, save and ex- 
cept as expressed and contained in the writing set forth in the dec- 
laration, there never was any consideration for the supposed 
agreement and promise in the declaration mentioned, or for the 
performance thereof. 

Fifth plea : To part of the claim of the plaintiff, to wit, so much 
thereof as accrued due in and after the year 1855, the defendants 
say that, although the supposed agreement and promise in the dec- 
laration mentioned were made upon the terms then agreed on by 
the plaintiff and the testator, that the plaintiff should continue in 
practice and carry on the profession of such chancery barrister as 
aforesaid, and should not abandon the same; yet that, after the 
making of the said agreement and promise, and before the accruing 
of the supposed causes by this plea pleaded to and in the declaration 
mentioned, or any part thereof, the plaintiff voluntarily, and with- 
out the leave or license of the testator, relinquished and gave up 
and abandoned the practice of the said profession of a chancery 
barrister, which before and at the time of the said making of the 
said supposed agreement and promise he had so carried on as afore- 
said; and although the plaintiff could and might, during the time 
in this plea and in the declaration mentioned, have continued to 
practise and carry on that profession as aforesaid, yet the plaintiff, 
after such abandonment thereof, never was ready and willing to prac- 
tise the same as aforesaid, but practised only as a revising barrister, 
that is to say, as a barrister appointed yearly to revise the list of 
voters for the year for the county of Middlesex, according to the 
provisions of the statutes in that behalf, by holding open courts for 
such revision at the times and places in that behalf provided by the 
said statutes. 

Second replication to the fourth plea : That the said agreement 
declared on was made in writing, signed by the said testator, and 
was and is in the words, letters, and figures following, and in none 
other, that is to say (setting out the letter as in the declaration 
above). Averment: That the plaintiff afterwards married the said 
Ellen ISTicholl, relying on the said promise of the said testator, which 
at the time of the said marriage was in full force, not in any way 
vacated or revoked; and that he so married while his annual in- 
come derived from his profession of a chancery barrister did not 
amount, and was not by him admitted to amount, to six hundred 

Second replication to the fifth plea: That the said agreement de- 
clared on was in writing, signed by the said testator, and was and 
is in the words, letters, and figures set out in the next preceding 
replication, and in none other; and that the terms upon which it 
is in the fifth plea alleged that the said agreement and promise were 
made, were no part of the agreement and promise declared on, and 


the performance of them by the plaintiff was not a condition prece- 
dent to the plaintiff's right to be paid the said annuity. 

Demurrers to the replications to the fourth and fifth pleas. Joinder 
in demurrer. 

Bullar, in support of the demurrers. 

V. Harcourt, in support of the replications. 

Ekle, C. J., now delivered the judgment of himself and Keat- 
ing, J. The question raised by the demurrer to the replication to 
the fourth plea is, whether there was a consideration to support the 
action on the promise to pay an annuity of 150L per annum. If 
there be such a consideration, it is a marriage ; therefore the promise 
is within the Statute of Frauds, and the consideration must appear 
in the writing containing the promise, that is, in the letter of the 
11th of August, 1838, and in the surrounding circumstances to be 
gathered therefrom, together with the averments on the record. The 
circumstances are, that the plaintiff had made an engagement to marry 
Ellen ISTicholl, his uncle promising him to assist him at starting, by 
which, as I understand the words, he meant on commencing his 
married life. Then the letter containing the promise declared on 
is said to specify what the assistance would be, namely, 150/. per 
annum during the uncle's life, and until the plaintiff's professional 
income should be acknowledged by him to exceed six hundred guineas ; 
and a further averment, that the plaintiff, relying upon his promise, 
without any revocation on the part of the uncle, did marry Ellen 
T^icholl. Then, do these facts show that the promise was in consid- 
eration either of the loss to be sustained by the plaintiff, or the 
benefit to be derived from the plaintiff to the uncle, at his, the 
uncle's, request? My answer is in the affirmative. First, do these 
facts show a loss sustained by the plaintiff at the uncle's request? 
When I answer this in the affirmative, I am aware that a man's 
marriage with the woman of his choice is in one sense a boon, and 
in that sense the reverse of a loss; yet, as between the plaintiff and 
the party promising an income to support the marriage, it may be 
a loss. The plaintiff may have made the most material changes in 
his position, and have induced the object of his affections to do the 
same, and have incurred pecuniary liabilities resulting in embarrass- 
ment, which would be in every sense a loss, if the income which had 
been promised should be withheld ; and if the promise was made in 
order to induce the parties to marry, the promise so made would be, 
in legal effect, a request to marry. Secondly, do these facts show 
a benefit derived from the plaintiff to the uncle, at his request? In 
answering again in the affirmative, I am at liberty to consider the 
relation in vvliicli the parties stood, and the interest in the status 
of the nephew which the uncle declares. The marriage primarily 
affects the parties thereto : but in the second degree it may be an 
object of interest with a near relative, and in that sense a benefit to 
him. The benefit is also derived from the plaintiff at the uncle's 


request, if the promise of the annuity was intended as an induce- 
ment to the marriage; and the averment that the plaintiff, relying 
on the promise, married, is an averment that the promise was one 
inducement to the marriage. This is a consideration averred in 
the declaration, and it appears to me to be expressed in the letter, 
construed with the surrounding circumstances. No case bearing a 
strong analogy to the present was cited; but the importance of en- 
forcing promises which have been made to induce parties to marry 
has been often recognized, and the cases of Montefiori v. Montefiori 
and Bold v. Hutchinson are examples. I do not feel it necessary 
to add any thing about the numerous authorities referred to in the 
learned arguments addressed to us, because the decision turns on 
a question of fact, whether the consideration for the promise is 
proved as pleaded. I think it is, and therefore my judgment on the 
first demurrer is for the plaintiff. The second demurrer raises the 
question, whether the plaintiff's continuing at the bar was made a 
condition precedent to the right to the annuity. I think not. The 
uncle promises to continue the annuity until the professional income 
exceeds the sum mentioned, and I find no stipulation that the an- 
nuity shall cease if the professional diligence ceases. My judgment 
on this demurrer is also for the plaintiff; and I should state that 
this is the judgment of my brother Keating and myself, my brother 
Byles differing with us. 

Byles, J. I am of opinion that the defendant is entitled to the 
judgment of the court on the demurrer to the second replication to 
the fourth plea. It is alleged by the fourth plea, that the defendant's 
testator never requested the plaintiff to enter into the engagement 
to marry, or to marry, and that there never was any consideration 
for the testator's promise, except what may be collected from the 
letter itself set out in the declaration. The inquiry, therefore, nar- 
rows itself to this question : Does the letter itself disclose any con- 
sideration for the promise? The consideration relied on by the 
plaintiff's counsel being the subsequent marriage of the plaintiff, 
I think the letter discloses no consideration. It is in these words: 
[His Lordship read it.] It is by no means clear that the words "at 
starting" mean "on marriage with Ellen l^icholl," or with any one 
else. The more natural meaning seems to me to be "at starting in 
the profession;" for it will be observed that these words are used 
by the testator in reciting a prior promise, made when the testator 
had not heard of the proposed marriage with Ellen Nicholl, or. so 
far as appears, heard of any proposed marriage. This construction 
is fortified by the consideration, that the annuity is not in terms 
made to begin from the marriage, but, as it should seem, from the 
date of the letter. Neither is it in terms made defeasible if Ellen 
Nicholl should die before marriage. But even on the assumption 
that the words "at starting" mean "on marriage," I still think that 
no consideration appears sufficient to sustain the promise. The 


promise is one which by law must be in writing; and the fourth 
plea shows that no consideration or request, dehors the letter, ex- 
isted, and therefore that no such consideration or request can be 
alluded to by the letter. Marriage of the plaintiff at the testator's 
express request would be, no doubt, an ample consideration; but 
marriage of the plaintiff without the testator's request is no con- 
sideration to the testator. It is true that marriage is, or may be, 
a detriment to the plaintiff, but detriment to the plaintiff is not 
enough, unless it either be a benefit to the testator, or be treated by 
the testator as such, by having been suffered at his request. Suppose 
a defendant to promise a plaintiff, "I will give you 500Z. if you 
break your leg;" would that detriment to the plaintiff, should it 
happen, be any consideration? If it be said that such an accident 
is an involuntary mischief, would it have been a binding promise, 
if the testator had said, "I will give you 100?. a year while you 
continue in your present chambers?" I conceive that the promise 
would not be binding for want of a previous request by the testator. 
Now, the testator in the case before the court derived, so far as ap- 
pears, no personal benefit from the marriage. The question, there- 
fore, is still further narrowed to this point: Was the marriage at 
the testator's request? Express request there was none. Can any 
request be impled ? The only words from which it can be contended 
that it is to be implied are the words, "I am glad to hear of your 
intended marriage with Ellen ISTicholl." But it appears from the 
fourth plea, that that marriage had already been agreed on, and 
that the testator knew it. These words, therefore, seem to me to 
import no more than the satisfaction of the testator at the engage- 
ment as an accomplished fact. No request can, as it seems to me, 
be inferred from them. And further, how does it appear tliat the 
testator's implied request, if it could be implied, or his promise, if 
that promise alone would sufiice, or both together, were intended to 
cause the marriage, or did cause it, so that the marriage can be said 
to have taken place at the testator's request, or, in other words, in 
consequence of that request? It seems to me. not only that this does 
not appear, but that the contrary appears; for the plaintiff, before 
the letter, had already bound himself to marry, by placing himself 
not only under a moral, but under a legal oblicration to marry, and 
the testator knew it. The well-known cases which have been cited 
at thf bar in support of the position, that a promise, based on the 
consideration of doing that which a man is already bound to do, is 
invalid, anply to this case; and it is not necessary, in order to in- 
validate the considoration. tlint the plaintiff's prior obligation to 
afford that consideration should have been an obligation to the de- 
fendant. It may have been an obligation to a third person: see 
Herring v. Dorell and Atkinson v. Settree. The reason why the 
doing what a man is already bound to do is no consideration, is 
not only because such a consideration is in judgment of law of no 


value, but oecause a man cau iiardly be allowed to say that the prior 
legal obligation was not his uetui-mining motive. But, whether he 
can be allowed to say so or not, the plaintiff does not say so here. 
He does, indeed, make an attempt to meet this difficulty by alleging, 
in the replication to the fourth plea, that he married relying on the 
testator's promise; but he shrinks from alleging that, though he had 
promised to marry before the testator's promise to him, neverthe- 
less he would have broken his engagement, and would not have 
married without the testator's promise. A man may rely on encour- 
agements to the performance of his duty, who yet is prepared to 
do his duty without those encouragements. At the utmost, the alle- 
gation that he relied on the testator's promise seems to me to import 
no more than that he believed the testator would be as good as his 
word. It appears to me, for these reasons, that this letter is no more 
than a letter of kindness, creating no legal obligation. In their judg- 
ment on the other portions of the record, I agree with the rest of the 
Court. Judgment for the plaintiff} 



New Yokk Court of Appeals, October 15 — November 13, 1917 
[Reported in 221 New York, 431] 

Cakdozo, J. On January 16, 1902, " articles of agreement " were 
executed by the defendant Joseph Schweizer, his wife Ernestine, 
and Count Oberto Gulinelli. The agreement is in Italian. We 
quote from a translation the part essential to the declaration of this 
controversy : " Whereas, Miss Blanche Josephine Schweizer, daughter 
of said Mr. Joseph Schweizer and of said Mrs. Ernestine Teresa 
Schweizer, is now affianced to and is to be married to the above said 
Count Oberto Giacomo Giovanni Francesco Maria Gulinelli, JSTow, in 
consideration of all that is herein set forth the said Mr. Joseph 
Schweizer promises and expressly agrees by the present contract to 
pay annually to his said daughter Blanche, during his own life and 
to send her, during her lifetime, the sum of Two Thousand Five 
Hundred dollars, or the equivalent of said sum in Francs, the first 
payment of said amount to be made on the 20th day of January, 
1902." Later articles provide that " for the same reason heretofore 
set forth," Mr. Schweizer will not change the provision made in his 
will for the benefit of his daughter and her issue, if any- The 
yearly payments in the event of his death are to be continued by 
his wife. 

1 Chichester r. Cobb, 14 L. T. Rep. 433: Skeete v. Silberbprp:, 11 Times L. R. 491, 
ace. Compare Wright v. Wright, 114 la. 748; Boord v. Boord. Pelham (So. Aust.) 
58, 64; Usher's Ex. v. Flood, 83 Ky. 552; Caborne v. Godfrey, 3 Desaus. 51 


On January 20, 1902, the marriage occurred. On the same day, 
the defendant made the first payment to his daughter. He con- 
tinued the payments annually till 1912. This action is brought to 
recover the installment of that year. The plaintiff holds an assign- 
ment executed by the daughter, in which her husband joined. The 
question is whether there is any consideration for the promised 

That marriage may be a sufiicient consideration is not disputed. 
The argument for the defendant is, however, that Count Gulinelli 
was already affianced to Miss Schweizer, and that the marriage was 
merely the fulfilment of an existing legal duty. For this reason, it 
is insisted, consideration was lacking. The argument leads us to 
the discussion of a vexed problem of law which has been debated 
by courts and writers with much subtlety of reasoning and little 
harmony of results. There is general acceptance of the proposition 
that where A is under a contract with B, a promise made by one 
to the other to induce performance is void. The trouble comes when 
the promise to induce performance is made by C, a stranger. Dis- 
tinctions are then drawn between bilateral and unilateral contracts; 
between a promise by C in return for a new promise by A, and a 
promise by C in return for performance by A. Some jurists hold 
that there is consideration in both classes of cases (Ames, Two 
Theories of Consideration, 12 Harvard Law Eeview, 515; 13 id. 29, 
35; Langdell, Mutual Promises as a Consideration, 14 id. 496; Leake, 
Contracts, p. 622). Others hold that there is consideration where 
the promise is made for a new promise, but not where it is made 
for performance (Beale, N^otes on Consideration, 17 Harvard Law 
Review, 71; 2 Street, Foundations of Legal Liability, pp. 114, 116; 
Pollock, Contracts (8th ed.), 199; Pollock, Afterthoughts on Con- 
sideration, 17 Law Quarterly Review, 415; 7 Halsbury, Laws of 
England, Contracts, p. 385 ; Abbott v. Doane, 163 Mass. 433). Others 
hold that there is no consideration in either class of cases (Willis- 
ton, Successive Promises of the Same Performance, 8 Harvard Law 
Review, 27, 34; Consideration in Bilateral Contracts, 27 id. 503, 
521; Anson on Contracts [11th ed.], p. 92). 

The storm-centre about which this controversy has raged is the 
case of Shadwell v. Shadwell (9 C. B. [N. S.] 159; 99 E. C. L. 
158) which arose out of a situation similar in many features to the 
one before us. Nearly everything that has been written on the sub- 
ject has been a commentary on that decision. There an uncle prom- 
ised to pay his nephew after marriage an annuity of £150. At the 
time of the promise the nephew was already engaged. The case was 
heard before Erle, Ch. J., and Kkatino and Byles, JJ. The 
first two judges held the promise to be enforeible. Byles, J., dis- 
sented. His view was that the nephew, being already affianced, had 
incurred no detrimf-nt upon the faith of tbe promise, and hence that 
consideration was lacking. Neither of the two opinions in Shad- 


well V. Shadwell can rule the case at bar. There are elements of 
difference in the two cases which raise new problems. But the 
earlier case, with the literature which it has engendered, gives us 
a point of departure and a method of approach. 

The courts of this state are committed to the view that a promise 
by A to B to induce him not to break his contract with C is void 
(Arend v. Smith, 151 N. Y. 502; Vanderbilt v. Schreyer, 91 N. Y. 
392 ; Seybolt v. N. Y., L. E. & W. E. K. Co., 95 N. Y. 562 ; Eobin- 
son V. Jewett, 116 N. Y. 40). If that is the true nature of this 
promise, there was no consideration. We have never held, however, 
that a like infirmity attaches to a promise by A, not merely to B, 
but to B and C jointly, to induce them not to rescind or modify a 
contract which they are free to abandon. To determine whether that 
is in substance the promise before us, there is need of closer analysis. 

The defendant's contract, if it be one, is not bilateral. It is uni- 
lateral (Miller v. McKenzie, 95 JST. Y. 575). The consideration 
exacted is not a promise, but an act. The Count did not promise 
anything. In effect the defendant said to him: If you and my 
daughter marry, 1 will pay her an annuity for life. Until marriage 
occurred, the defendant was not bound. It would not have been 
enough that the Count remained willing to marry. The plain im- 
port of the contract is that his bride also should be willing, and that 
marriage should follow. The promise was intended to affect the 
conduct, not of one only, but of both. This becomes the more evident 
when we recall that though the promise ran to the Count, it was 
intended for the benefit of the daughter (Durnherr v. Bau. 135 N. 
Y. 219). When it came to her knowledge, she had the right to 
adopt and enforce it (Gifford v. Corrigan, 117 N". Y. 257; Buchanan 
V. Tilden, 158 N. Y. 109; Lawrence v. Fox, 20 N. Y. 268). In 
doing so, she made herself a party to the contract (Gifford v. Cor- 
rigan, supra). If the contract had been bilateral, her position might 
have been different. Since, however, it was unilateral, the considera- 
tion being performance (Miller v. McKenzie, supra), action on the 
faith of it put her in the same position as if she had been in form 
the promisee. That she learned of the promise before the marriage 
is a legitimate inference from the relation of the parties and from 
other attendant circumstances. The writing was signed by her par- 
ents; it was delivered to her intended husband; it was made four 
days before the marriage; it called for a payment on the day of 
the marriage; and on that day payment was made, and made to 
her. From all these circumstances, we may infer that at the time 
of the marriage the promise was known to the bride as well as the 
husband, and that both acted upon the faith of it. 

The situation, therefore, is the same in substance as if the prom- 
ise had run to husband and wife alike, and had been intended to 
induce performance by both. They were free by common consent 
to terminate their engagement or to postpone the marriage. If they 


forbore from exercising that right and assumed the responsibilities 
of marriage in reliance on the defendant's promise, he may not 
now retract it. The distinction between a promise by A to B to 
induce him not to break his contract with C, and a like promise to 
induce him not to join with C in a voluntary rescission, is not a 
new one. It has been suggested in cases where the new promise ran 
to B solely, and not to B and C jointly (Pollock, Contracts [8th 
ed.], p. 199; Williston, 8 Harv. L. Rev. 36). The criticism has been 
made that in such circumstances there ought to be some evidence that 
C was ready to withdraw (Williston, supra, at pp. 36, 37). Whether 
that is true of contracts to marry is not certain. Many elements 
foreign to the ordinary business contract enter into such engage- 
ments. It does not seem a far-fetched assumption in such cases 
that one will release where the other has repented. We shall assume, 
•however, that the criticism is valid where the promise is intended 
as an inducement to only one of the two parties to the contract. 
It may then be sheer speculation to say that the other party could 
have been persuaded to rescind. But where the promise is held out 
as an inducement to both parties alike, there are new and different 
implications. One does not commonly apply pressure to coerce the 
will and action of those who are anxious to proceed. The attempt 
to sway their conduct by new inducements is an implied admission 
that both may waiver; that one equally with the other must be 
strengthened and persuaded; and that recission or at least delay is 
something to be averted, and something, therefore, within the range 
of not unreasonable expectation. If pressure, applied to both, and 
holding both to their course, is not the purpose of the promise, it 
is at least the natural tendency and the probable result. 

The defendant knew that a man and a woman were assuming the 
responsibilities of wedlock in the belief that adequate provision had 
been made for the woman and for future offspring. He offered this 
inducement to both while they were free to retract or to delay. That 
they neither retracted nor delayed is certain. It is not to be expected 
that they should lay bare all the motives and promptings, some 
avowed and conscious, others perhaps half-conscious and inarticulate, 
which swayed their conduct. It is enough that the natural conse- 
quence of the defendant's promise was to induce them to put the 
thought of rescission or delay aside. From that moment, there was 
no longer a real alternative. There was no longer what philosophers 
call a "living" option. This in itself permits the inference of detri- 
ment (Smith V. Chadwick, 9 App. Cas. 187, 196; Smith v. Land 
S: House Corp. 28 Ch. D. 7, 16; Voorhis v. Olmstead, 66 N. Y. 113, 
118; Fottler v. Moseley, 179 Mass. 295). "If it is proved that the 
defendants witli a view to induce the plaintiff to enter into a contract 
made a statement to the plaintiff of sucli a nature as would be likely 
to induce a person to enter into the contract, it is a fair inference 
of fact that he was induced to do so by the statement" (Blackburn, 


L. J., in Smith v. Cliadwick, supra). The same inference follows, 
not so inevitably, but still legitimately, where the statement is made 
to induce the preservation of a contract. It will not do to divert the 
minds of others from a given line of conduct, and then to urge that 
because of the diversion the opportunity has gone by to say how 
their minds would otherwise have acted. If the tendency of the 
promise is to induce them to persevere, reliance and detriment may 
be inferred from the mere fact of performance. The springs of con- 
duct are subtle and varied. One who meddles with them must not 
insist upon too nice a measure of proof that the spring which he 
released was effective to the exclusion of all others. 

One other line of argument must be considered. The suggestion 
is made that the defendant's promise was not made animo contra- 
hendi. It was not designed, we are told, to sway the conduct of 
any one; it was merely the oifer of a gift which found its motive in 
the engagement of the daughter to the Count. Undoubtedly, the 
prospective marriage is not to be deemed a consideration for the 
promise "unless the parties have dealt with it on that footing." 
(Holmes, Common Law, p. 292; Fire Ins. Assn. v. Wickham, 141 
U. S. 564, 579). "Nothing is consideration that is not regarded as 
such by both parties" (Philpot v. Gruninger, 14 Wall. 570, 577; 
Pire Ins. Assn. v. Wickham, supra). But here the very formality 
of the agreement suggests a purpose to aifect the legal relations of 
the signers. One does not commonly pledge one's self to generosity 
in the language of a covenant. That the parties believed there was 
a consideration is certain. The document recites the engagement and 
the coming marriage. It states that these are the "consideration" 
for the promise. The failure to marry would have made the promise 
ineffective. In these circumstances we cannot say that the promise 
was not intended to control the conduct of those whom it was de- 
signed to benefit. Certainly we cannot draw that inference as one 
of law. Both sides moved for the direction of a verdict, and the 
trial judge became by consent the trier of the facts. If conflicting 
inferences were possible, he chose those favorable to the plaintiffs. 

The conclusion to which we are thus led is reinforced by those 
considerations of public policy which cluster about contracts that 
touch the marriage relation. The law favors marriage settlements; 
and seeks to uphold them. It puts them for many purposes in a 
class by themselves (Phalen v. U. S. Trust Co., 186 N. Y. 178, 181). 
It has enforced them at times where consideration, if present at all, 
has been dependent upon doubtful inference (MclSTutt v. MclSTutt, 
116 Ind. 545; Appleby v. Appleby, 100 Minn. 408). It strains, if 
need be, to the uttermost the interpretation of equivocal words and 
conduct in the effort to hold men to the honorable fulfilment of 
engagements designed to influence in their deepest relations the lives 
of others. 

The judgment should be affirmed with costs. 



In the Queen's Bench, May 5, 1840 
[Reported in 11 Adolphus & Ellis, 856] 

Assumpsit. The declaration stated that heretofore, to wit, &c., 
the defendant caused to be published a certain hand-bill, placard, 
or advertisement, headed 'Tifty pounds reward;" whereby, after 
reciting that, late on the night of, &c,, the mansion-house of defend- 
ant, at, &c., was feloniously entered by three men, who effected their 
escajje; that two men had been taken into custody on suspicion of 
having been concerned in the felony; and that a third, supposed to 
belong to the gang, had been traced to Carlisle, and was of the fol- 
lowing description, &c., the defendant did promise and undertake 
that whoever would give such information as should lead to the con- 
viction of the offender or offenders should receive the above reward : 
that plaintiff, confiding, &c., did afterwards, to wit, on, &c., give 
such information as led to the conviction of one of the said offenders, 
to wit, one David Robson ; and that afterwards, to wit, at the Assizes 
for Northumberland, ,D. R., who was guilty of the said offence, to 
wit, the feloniously entering, &c., was in due course of law convicted 
of the said offence of feloniously entering, &-c., in consequence of 
such information so given by plaintiff; of all which said several 
premises defendant afterwards, to wit, on, &c., had notice, and was 
then requested by plaintiff to pay him the said sum of SOL ; and de- 
fendant afterwards, to wit, on, &c., in consideration of the premises, 
then promised plaintiff to pay him the sum of 507. Breach : that, 
although defendant, in part performance of his said promise and 
undertaking, to wit, on, &c., did pay to plaintiff the sum of 5?. 55., 
in part payment of the said sum of 507., yet, &c. (breach : non-pay- 
ment of the residue). 

Third plea : That heretofore, and long before and at the time when 
the house of defendant was so feloniously entered, and continually 
from thence hitherto, plaintiff was, and now is, a constable and po- 
lice officer of the district where the said house of defendant is situ- 
ate, and the said offence was committed; and it then was the duty 
of plaintiff, as such constable and police officer, to have given and to 
give every information which might lead to the conviction of the 
said offender, and to apprehend and prosecute him to conviction, 
if guilty, without any payment or reward to him made in that be- 
half : that, by the said advertisement partly set out in the declara- 
tion, defendant gave notice and promised that whoever would give 
8uch information to plaintiff, therein described as police officer 
Hexhnm, as shouh] lead to the conviction of the offender or offenders, 
shonld rfff'ivf tlic siiid reward in the said advertisement mentioned, 
niid in no otiirr nuitnicr whatever: and that, by reason of the premises, 
the said jtroinise was and is void in law. Verification. 


Demurrer : assigning for causes that the plea amounts to the gen- 
eral issue, and does not deny, or confess and avoid, and is multifari- 
ous, and tenders an immaterial issue. Joinder. 

Ingham now appeared for the plaintiii; but the Court called on 

Martin, for the defendant, JSTo consideration is shown on this 
record for the defendant's promise; the plaintiff was bound to do 
that, the doing of which is stated as the consideration. The duty 
of a constable is to do his utmost to discover, pursue, and appre- 
hend felons. Com. Dig., Leet (M. 9), (M. 10) ; Justices of Peace 
(B. 79). It has been laid down that a sailor cannot recover on a 
promise by the master to pay him for extra work in navigating the 
ship, the sailor being bound to do his utmost, independently of any 
fresh contract. Harris v. Watson,^ explained by Lord Ellenbor- 
ough in Stilk v. Myrick.^ The principle was recognized in New- 
man V. Walters,^ where the case of a passenger was distinguished. 
[Coleridge, J. Those cases turn merely on the nature of the con- 
tract made by the sailor.] If the duty here incumbent on the plain- 
tiff was to do all that the declaration lays as the consideration, the 
case is the same as if he had been under a previous contract to do 
all. The cases on the subject of consideration are collected in note 
(b) to Barber v. Fox. {^Ingham. The constable was not bound to 
procure evidence.] The contract here declared upon is against public 

LoKD Denman", C, J. I think there maj be services which the 
constable is not bound to render, and which he may therefore make 
the ground of a contract. We should not hold a contract to be against 
the policy of the law, unless the grounds for so deciding were very 

LiTTLEDALE, Patteson, and Coleridge, JJ., concurred. 

Judgment for the plaintiff ^ 


Supreme Judicial Court of Massachusetts, 

November Term, 1849 

{^Reported in 5 Cushing, 219] 

This was an action of assumpsit brought in this court to recover 
the sum of $2000, as a reward to which the plaintiff alleged he was 
entitled, and was submitted to the court upon an agreed statement 
of facts, from which it appeared as follows : — 

The city government of Boston having authorized the mayor to 
offer a reward "for the detection and conviction of any incendiary 

1 Peake, N. P. C. 72. 3 2 Campb. 317; s. c. 6 Esp. 129. 

« 3 B. & P. 612. * See Bent v. Wakefield Bank. 4 C. P. D. 1. 


or incendiaries" who had set fire to any building in the city, or 
might do so, within a given period, the mayor accordingly offered 
the reward above mentioned "for the detection and conviction of 
said incendiary or incendiaries" within the time specified. 

The plaintiff was a watchman of the city, duly appointed, and 
while in the performance of his duty as such watchman, discovered 
one Edmund Hollihan setting fire to a certain outhouse of one Chase, 
in the night of the 20th of September, 1845. The plaintiff thereupon 
made a complaint in the police court against Hollihan for burning 
a dwelling-house in the night time, upon which complaint he was 
committed for trial. He was afterwards indicted at the December 
term of the municipal court, 1845, for setting fire to the outhouse 
of Chase, in the night time following the 20th of September, 1845, 
and at the February term, 1846, was tried, found guilty, and sentenced 
to six months' imprisonment in the house of correction. 

The plaintiff, thereupon, claimed the above reward of $2000, and 
brought this action to recover the same. 

M. S. Clarhe for the plaintiff. 

P. W. Chandler, city solicitor, for the defendants. 

Wilde, J. The defence to this action is, that the plaintiff has 
done no more than it was his duty as a watchman to do, and that 
a promise of a reward to a man for doing his duty is illegal, or void 
for want of consideration. The leading case in support of the de- 
fence is that of Stotesbury v. Smith, 2 Bur. 924, in which it was 
held, that it was illegal for the officer, in that case, to take money 
for doing his duty. He was a bailiff, and the defendant promised to 
pay him a sum of money, in case he would accept the defendant and 
another to be bail for a third person. It was decided, that no action 
could be maintained on such a promise. See also England v. David- 
son, 3 P. & D. 594. 

The same principle has been applied to promises made to persons 
not being public officers; such as promises to seamen to pay them 
extra wages for the performance of their duty. 

"Every seaman," says Chancellor Kent, in his Commentaries (3 
Kent, 185), "is bound, from the nature and terms of his contract, to 
do his duty in the service to the utmost of his ability, and, therefore, 
a promise made by the master when the ship is in distress to pay 
extra wages as an inducement to extraordinary exertion, is illegal 
and void." vSo it was held by Lord Kenyon, in the case of Harris 
V. Watson, Peake, 72. But it was held by Lord Ellenborough, that 
sucli a promise was not void on the ground of illegality, but on the 
groiiii(l of a want of consideration, whicli, as it seems to us, is better 
founded on general principles. Stilk v. Myrick, 2 Camp. 317; Bridge 
V. <^^age, Cro. Jac. 103. But however tliis may be, it is well settled 
that such a promise is void. 

So it has been decided, that a i)romise of extra compensation to 
a witness, in case he would attend court, and give testimony, at con- 


siderable expense and inconvenience to himself, was void, and that 
he could only recover his fees allowed by law, he having done no 
more than he was in duty bound to do. 

These decisions, and the principles on which they are founded, 
are decisive against the plaintiff's claim in the present case; it was 
his duty, when on the watch he discovered Hollihan setting fire to 
the outhouse, to make complaint, and cause him to be arrested, or 
to give notice to the mayor, or some other city officer, that they might 
prosecute him. He preferred himself to prosecute rather than to 
give notice to the city authorities; doubtless with the hope of en- 
titling himself thereby to the large reward offered. But this will 
not help him. The principal object of the reward offered was to 
obtain the detection of the offender; the conviction was required 
to ascertain who was the offender. But to entitle the plaintiff to 
the reward, he must show that he is so entitled, as well for the de- 
tection as for the conviction of the offender. The reward cannot 
be apportioned. But the plaintiff is not entitled thereto for either 
service. He discovered the offender while he was on duty as a watch- 
man, and was bound to give notice, or to cause him to be arrested; 
and he preferred the latter course; but he could not thereby subject 
the defendants to a liability, to which they would not be subject, if 
he had given notice to some one of the city officers. 

For these reasons, briefly stated, and on principles well settled by 
the authorities, we are of opinion that this action cannot be main- 
tained; and the plaintiff must become nonsuit.^ 

Mississippi Supreme Court, October Term, 1860 
{^Reported in 39 Mississippi 442] 
Error to the Probate Court of Panola County. Hon. J. T. M. 

BURBRIDGE, judge. 

H. A. Barr, for plaintiffs in error. 

1 Witty V. Southern Pacific Co., 76 Fed. Rep. 217; Union Pacific R. v. Belek, 211 
Fed. 699; Morrell v. Quarles, .35 Ala. 544, 548; Grafton v. St. Louis, &c. Ry. Co., 51 
Ark. 504; Lees v. Colgan, 120 Cal. 262; Matter of Russell's Application, 51 Conn. 
577; Hogan v. Stophlet, 179 111. 150; Hayden v. Souger, 56 Ind. 42, 48; Taft v. Hyatt, 
105 Kas. 35, 42; Marking v. Needy, 8 Bush, 22; Da vies v. Burns, 5 .\llen, 349; Studley 
V. Ballard, 169 Mass. 295; Hartley v. Granville, 214 Mass. 38; Foley v. Piatt, 105 
Mich. 635; Day v. Putnam, Ins. Co., 16 Minn. 408; Ex parte Gore, 57 Miss. 251; 
Kick V. Merry, 23 Mo. 72; Thornton v. Missouri, &c. Ry. Co., 42 Mo. App. 58; Ward 
V. Adams, 95 Neb. 781; Temple v. Brooks, 165 N. Y. App. D. 661; Gilmore v. Lewis, 
12 Ohio, 281; Smith v. Whildin, 10 Pa. 39; Stamper v. Temple, 6 Humph. 113; Brown 
X. Godfrey, 33 Vt. 120, ace. If more is done than the legal duty requires there is; 
sufficient consideration. Morrell v. Quarles, 35 Ala. 544; Chambers v. Ogle, 117 Ark. 
242; Hayden v. Souger, 56 Ind. 42; Smith x. Fenner, 102 Kan. 830; Trundle v. Riley, 
17 B. Mon. 396; Pilie v. New Orleans, 19 La. Ann. 274; Forsythe v. Murnane, 113 
Minn. 181; McCandless v. Alleghany, &c. Co., 152 Pa. 139; Texas Cotton-Press Co. 
V. Mechanics' Co., 54 Tex. 319; Davis v. Munson, 43 Vt. 576; Reif v. Page, 55 Wis. 
496. See also Bent v. Wakefield Bank, 4 C. P. D. 1 ; Long v. Neville, 36 Cal. 455. 


The item in tlie account for board ought to have been allowed. 
The guardian had a right to command the ward to board with him, 
and the ward was under obligation to obey him. There was there- 
fore no consideration for the promise of the guardian to board him 
without charge. 

If the master of a ship promise his crew an addition to their fixed 
wages in consideration of extraordinary exertions during a storm, 
this promise is nudum pactum — the performance of an act which 
it was before legally incumbent on the party to perform, being in 
law an insufficient consideration. Chitty on Con. 54. 

And so it would be in any case where the only consideration of the 
defendant's promise was the promise of the plaintiff to do, or his 
actually doing, something which he was previously bound to do. 
€hitty on Con. 54. 

JSTo counsel offered for defendant in error. 
Harris, J., delivered the opinion of the court: 
The defendant in error, when about ten or twelve years old, left 
the house of his guardian, Alexander Miles, plaintiffs' intestate, 
and went to the house of his uncle by marriage, "and there in the 
neighborhood remained until his guardian persuaded him to go and 
live with him, making him the following promises: that he, the 
guardian, would not charge him, the said defendant, any board; 
that he would send him to school and make no charge for the same." 
The defendant went to live with plaintiff's intestate, his said 
guardian, and remained there about twelve months. 

On final settlement of the guardianship account, plaintiffs in error 
claimed allowance of sixty dollars for the board of defendant, and 
also amounts paid for tuition. 

Exceptions were filed to these items in the court below, and sus- 
tained by the court. This writ of error is now prosecuted here to 
revise that judgment. 

It appears in this record that the defendant paid no board at his 
uncle's house during his stay there; and upon this ground, we sup- 
pose, it was thought, in the court below, a sufficient consideration 
arose to sustain the promise of the guardian to board and school the 
defendant without charge. 

Between adults, or where no duty of obedience existed, a promise 
made under these circumstances would doubtless be obligatory, upon 
the ground that injury and loss would otherwise be occasioned to 
dcfoTidaut by his abandonment of his uncle's house, where he paid 
no board. But a different rule is held in cases where it is the legal 
duty of the promisee to do, without reward, the act induced by the 
promise sought to be enforced. 

No action will lie to enforce a promise for doing that which it 
was thf! y>urty's legal duty to do, without such promise or reward, 
"for this would bo extortion and illegal." 2 Tucker's Lect. 137; 
2 Burr. 1{. 924; 2 Black. K. 204; Chitty on Con. 54. 


The ward in this case, being under the legal control of his guar- 
dian, had no right to rebel against his authority, leave his house, or 
refuse obedience to his lawful directions. It was his legal duty, 
as well as his highest interest, to submit himself cheerfully to the 
directions of his guardian; and he cannot be permitted to exact 
a reward for the performance of a duty so obviously incumbent on 
him. The law will not presume that injury or loss could arise to 
him in the discharge of that duty, and hence no consideration for 
the promise to board and school him could arise to support it, against 
his guardian. 

The promise relied on to avoid the items of board and tuition 
claimed in the account of plaintiff's intestate being without consid- 
eration is void. The court therefore erred in rejecting these items 
on that ground. 

Let the judgment and decree of the court below be reversed, and 
cause remanded for further proceedings in accordance with this 


Pennsylvania Supreme Court, May 22-July 18, 1895 

l^Reported in 170 Pennsylvania, 124] 

Dean, J. Smith, the defendant, at a sheriff's sale of the per- 
sonal property of one Sarah Hyde, wife of George Hyde, purchased 
a mare; then, as a mere act of kindness towards Mrs. Hyde, he left 
the animal temporarily with her; some months afterwards, George 
Hyde, the husband, sold the mare to Fink, the plaintiff, who took 
her into his possession; Smith, the owner, hearing of this, went to 
Fink and demanded his property, but he refused to surrender pos- 
session; then Smith informed Gallatin, the sheriff, who had sold 
her to him, of the wrong and threatened to replevy her; Gallatin 
replied that was not necessary as he would get her for him; Gallatin 
went to Fink, and obtained a promise from him to restore the mare 
to Smith without a replevin ; then Smith again went to Fink, and 
the mare was delivered to him on the condition that, if on an indict- 
ment for larceny of the mare then pending against George Hyde 
there should be an acquittal, the mare should be returned, but if 
Hyde were convicted. Smith was to keep her. Hyde was acquitted 
of larceny. Thereupon, Fink replevied the mare. When the case 
came to trial, the facts turned out as we have stated them from the 
admissions of the parties and the findings ofthe jury. The verdict 
was for Fink, plaintiff, in damages to the value of the mare. Hence 
this appeal by Smith, defendant. 

The controlling assignment of error and which in substance em- 
braces all the error alleged is raised by the following excerpt from 
* See also Orr v. Panford, 74 Mo. App. 187. 


the charge of the learned judge of the court below: "The only ques- 
tion remaining in this case is whether the mare was, under this 
agreement, to be returned to Fink, if Hyde was acquitted of the 
charge in court of the larceny of the mare. If so, then we instruct 
you that there was sufficient consideration for that agreement at 
the time of the lawsuit in order to recover her, and at the time this 
mare was involved in the threatened lawsuit; and the only way that 
he could get her without a lawsuit was by making this agreement that 
it is alleged on the part of plaintiff was made between Fink and 
Smith, If you believe such an agreement was made then your 
verdict should be for the plaintiff for the value of the mare with 
interest from that time," 

Was this correct instruction, as to the law applicable to the evi- 
dence? There was no dispute as to the ownership of the property; 
the mare, it was conceded, belonged to Smith ; and although he testi- 
fied no such conditional bargain was made, it was just as positively 
testified to, on the other side, that it was made, and the jury have 
found the fact against him. So, we have the unquestioned owner 
of the mare bargaining with one in wrongful possession for her 
surrender; the possession thereafter to be determined by the verdict 
in a criminal prosecution then pending. Was his possession, thus 
obtained, wrongful as against Fink, when the event of the prosecu- 
tion was the acquittal of Hyde? That depends on the validity of 
the contract between them, 

1, The contract was void, because based on a fact which did not 
exist, though both parties assumed it to be a fact. Fink purchased 
from George Hyde; both assumed that Hyde's title would neces- 
sarily be determined by his acquittal or conviction of larceny; but 
the event of the prosecution in no wise determined that ; it determined 
only that the evidence did not show, beyond a reasonable doubt, a 
felonious intent; what the weight of it showed, we do not know; but 
the admitted facts here, that the mare is Smith's, and that Hyde sold 
her, also show conclusively that Hyde was guilty of either larceny 
or trespass. So their assumption, that the criminal prosecution 
would determine Hyde's title, and necessarily theirs, was a mutual 
mistake of fact, "Where certain facts assumed by both parties are 
the basis of a contract, and it subsequently appears such facts do 
not exist, the contract is inoperative," Horbach v. Gray, 8 W. 497; 
Miles V. Stevens, 3 Pa. 21; Willings v. Peters, 7 Pa. 287; Prevail 
V. Fitch, 5 Whart, 325. 

2, There was no consideration to support Smith's promise. A 
promise made by the owner to obtain possession of his goods, which 
at the time are wrongfully withheld from him, is without consid- 
eration : Cliitfy on Contracts, p. 51 ; Addison on Contracts, 13. This 
pririfiy)le is conceded ])y the learned judge of the court below, and 
the undoubted wrongful possession by Fink of Smith's property is 
also conceded. But he assumes, there is no evidence that Fink knew 


this at the time he delivered it to Smith, and therefore the contract 
should be treated as a compromise of doubtful litigation, which is 
a good consideration to support a contract. But the error in this 
view is, that Fink's wrongful possession did not depend on what he 
knew, but on the fact. Was it Smith's property? Had he demanded 
it from him who wrongfully detained it? If these were the facts,, 
and they are not denied, then there was no consideration for Smith's 
promise, for no benefit passed to Smith, and Fink sustained no loss 
by the contract; to hold that the abandonment of a wholly wrongful 
detention of another's property can form the basis of a compromise 
contract with the owner is direct encouragement to the commission 
of wrong for profit, and for this very reason the law holds the con- 
tract to be without consideration. If Fink had been indicted for the 
larceny of the mare, his knowledge of the ownership would have 
been material in determining his guilt, but it is of no moment in 
determining the fact of ownership. 

3. While we think it is of doubtful public policy to enforce a 
contract, where the right to property is made to turn on a verdict 
in a criminal prosecution, in which both parties to the contract are 
witnesses, we do not decide the case on that point. 

We are of opinion, however, the contract was based on a mutual 
mistake of a fact, which had no existence, and further, was without 
consideration. Therefore the judgment is reversed.^ 

Executor, Respondent 

New York Court of Appeals, February 24-April 14, 1891 

[Reported in 124 New York, 538] 

Parker, J.^ The question which provoked the most discussion 
by counsel on this appeal, and which lies at the foundation of plain- 
tiff's asserted right of recovery, is whether by virtue of a contract 
defendant's testator William E. Story became indebted to his nephew 
William E. Story, 2d, on his twenty-first birthday, in the sum of 
five thousand dollars. The trial court found as a fact that "on the 
20th day of March, 1869, . . . William E. Story agreed to and 
with William E. Story, 2d, that if he would refrain from drinking 
liquor, using tobacco, swearing, and playing cards or billiards for 
money until he should become 21 years of age, then he, the said 
William E. Story, would at that time pay him, the said William 

^ Cowper V. Green, 7 M. & W. 633; Wendover v. Baker, 121 Mo. 273; Conover v 
Stilwell, 34 N. J. L. 54; Crosby v. Wood, 6 N. Y. 369; Tolhiirst v. Powers, 133 N. Y. 
460; Erny v. Sauer, 234 Pa. 330; Martin v. Armstrong, 62 S. W. Rep. 83 (Tex. Civ. 
App.), ace. Compare Rogers Development Co. v. Southern Calif. Ins. Co., 159 Cal.. 

* A portion of the opinion is omitted. 


E. Story, 2d, the sum of $5,000 for such refraining, to which the 
said William E. Story, 2d, agreed," and that he "in all things fully 
performed his part of said agreement." 

The defendant contends that the contract was without considera- 
tion to support it, and, therefore, invalid. He asserts that the 
promisee by refraining from the use of liquor and tobacco was not 
harmed but benefited; that that which he did was best for him to 
do independently of his uncle's promise, and insists that it follows 
that unless the promisor was benefited, the contract was without 
consideration. A contention, which if well founded, would seem to 
leave open for controversy in many cases whether that which the 
promisee did or omitted to do was, in fact, of such benefit to him as 
to leave no consideration to support the enforcement of the prom- 
isor's agreement. Such a rule could not be tolerated, and is without 
foundation in the law. The Exchequer Chamber, in 1875, defined 
consideration as follows : "A valuable consideration in the sense of 
the law may consist either in some right, interest, profit, or benefit 
accruing to the one party, or some forbearance, detriment, loss, or 
responsibility given, suffered, or undertaken by the other." Courts 
*'will not ask whether the thing which forms the consideration does 
in fact benefit the promisee or a third party, or is of any substantial 
value to any one. It is enough that something is promised, done, 
forborne, or suffered by the party to whom the promise is made as 
consideration for the promise made to him. Anson's Prin. of Con. 

"In general a waiver of any legal right at the request of another 
party is a sufficient consideration for a promise." Parsons on Con- 
tracts, 444. 

"Any damage, or suspension, or forbearance of a right will be 
sufficient to sustain a promise." (Kent, vol. 2, 465, 12th ed.) 

Pollock, in his work on contracts, page 166, after citing the defi- 
nition given by the Exchequer Chamber already quoted, says : "The 
second branch of this judicial description is really the most impor- 
tant one. Consideration means not so much that one party is profit- 
ing as that the other abandons some legal right in the present or 
limits his legal freedom of action in the future as an inducement 
for the promise of the first." 

Now, applying this rule to the facts before us, the promisee used 
tobacco, occasionally drank liquor, and he had a legal right to do so. 
Tliat right lie abandoned for a period of years upon the strength 
of the promise of the testator that for such forbearance he would 
give him five thousand dollars. "We need not speculate on the effort 
which may have been required to give up the use of those stimulants. 
It is suffi(;i(!nt that lie restricted his lawful freedom of action within 
certain pr(;3cribed limits upon the faith of his uncle's agreement, 
and now having fully performed the conditions imposed, it is of no 
moment whether such performance actually proved a benefit to the 


promisor, and the court will not inquire into it ; but were it a proper 
subject of inquiry, we see nothing in this record that would pernait 
a determination that the uncle was not benefited in a legal sense» 
Few cases have been found which may be said to be precisely in 
point, but such as have been support the position we have taken.^ 


lowA Supreme Couet, December 13, 1887 

[Reported in 78 Iowa, 177] 

Adams, C. J. The contract sued upon is in these words: "This 
agreement, made this fifth day of August, 1885, between the under- 
signed, husband and wife, in the interest of peace and for the best 
interests of each other and of their family, is signed in good faith 
by each party, with the promise, each to the other, and to their 
children, that they will each honestly promise to help each other 
to observe a^d keep the same, which is as follows, to-wit: All past 
causes and subjects of dispute, disagreement and complaint of what- 
ever character or kind shall be absolutely ignored and buried, and 
no allusion thereto by word or talk to each other or any one else 
shall ever be made. Each party agrees to refrain from scolding, 
fault-finding and anger in so far as relates to the future, and to use 
every means within their power to promote peace and harmony, 
and that each shall behave respectfully, and fairly treat each other; 
that Mrs. Miller shall keep her home and family in a comfortable 
and reasonably good condition, and Mr. Miller shall provide for 
the necessary expenses of the family, and shall, in addition thereto, 
pay Mrs. Miller for her individual use two hundred dollars per year, 
payable, sixteen and two-thirds dollars per month, in advance, so 
long as Mrs. Miller shall faithfully observe the terms and conditions 
of their contract. They agree to live together as husband and wife 
and observe faithfully the marriage relation, and each to live vir- 
tuously with the other." 

The petition demurred to is quite long. "We cannot set it out. 
The defendant demurred upon the ground that it showed the con- 
tract to be without consideration and against public policy. His 
position is that the plaintiff merely agreed to do what by law she 
was bound to do. The majority think that the defendant's position 
must be sustained. The writer of this opinion is not able to concur 
in that view. The petition sets out several reasons, and inducements 
for making the contract. Among other things, it avers, in substance, 
that the defendant, while improperly spending money upon other 
women, refused to furnish the plaintiff necessary clothing, and 

* Talbott V. Stemmons' Ex., 89 Ky. 222, ace. See also Lindell v. Rokes, 60 Mo. 249:. 


she had been compelled to furnish it herself by her personal earnings. 
This the demurrer admits. It appears to the writer, then, that the 
plaintiff had the right to separate from the defendant, and go where 
she could best provide for her wants. This right she waived in con- 
sideration of the defendant's contract sued upon. The waiver of 
the right, it seems to the writer, constituted a consideration for the 
contract; but, as the majority think otherwise, the judgment must 
be Affirmed. 

Seevers, J., dissents from the majority, and concurs with the 
writer of the opinion.^ 


Tennessee Supreme Court, April Term, 1860 

^Reported in 1 Coldwell, 87] 

This cause was tried at the November Term, 1859, before Judge 
"Williams. Verdict and judgment for plaintiff. Defendant appealed. 

T. J. Freeman, for plaintiffs in error. 

M. R. Hill, for defendant in error. 

Caruthers, J., delivered the opinion of the court : — 

On the 16th Oct., 1856, Mitchell sold to Seward & Scales, for the 
consideration of $8,596.50, a tract of land in the county of Gibson, 
described in a deed of that date, by metes and bounds, "containing 
521 acres, being a part of a 5,000 acre tract granted to George 
Dougherty, and bounded as follows," &c. 

The title is warranted with the usual covenants, but nothing more 
said about the grants than what is above recited. 

Some time after the deed was made, the parties, differing as to 
the quantity of land embraced in the tract, made an agreement that 
it should be surveyed by Gillespie, and if there were more than five 
hundred and twenty-one acres, the vendees should pay for the excess 
at the rate of $16.50 per acre, that being the price at which the sale 
was made, and if less, then the vendor should pay for the deficiency, 
at the same rate. It turned out that there was an excess of fifty- 
seven acres, and the tract embraced in the deed was five hundred and 
seventy-eight acres, instead of five hundred and twenty-one, as esti- 
mated in the sale. For this excess, the present suit was brought, and 
recovery had, for $1,079. 

It is objootod here that the court below erred in refusing to charge, 
as requested, that the agreement sued upon was void for want of a 
writing, and because there was no consideration for the promise. 

' On rnbffiririK tlu; rlociHion was affirmed on iho ground that tho apropmcnt was 
opposr-d to piililic policy. Tliis Ix'inK ho, the court hcM it was unnocossnry to con- 
Hi(l<r tho qucHtion of consideration. 


1. The contract, or promise sued upon, is not for the sale of land, 
so as to require a writing, under the Statute of Frauds. 

The sale had already been reduced to writing. This was a sub- 
sequent collateral agreement in relation to the price, which was 
binding by parol, and to which the Statute can have no application 
whatever. This is too plain for argument. 

2. There is more plausibility in the second objection, that there 
was no sufficient consideration for the promise. But this is also un- 
tenable. The argument is, that the deed embraced the whole tract, 
and passed a perfect title to the extent of the boundaries, and con- 
sequently there was nothing passing as a consideration for the new 
promise, that the party did not own before by a perfect legal right. 

It is true, if the sale was by the tract and not by the acre, as 
appears from the deed, and no stipulations as to quantity, that the 
title was good for the whole and covered the excess. But if the sale 
was not in gross, but by the acre, and the recitation in the deed 
would not be conclusive in a court of equity on that point if the 
fact could be shown to be otherwise, then there would be mutual 
remedies for an excess or deficiency in proper cases, as we held 
in Miller v. Bents, 4 Sneed, and a more recent case; but independent 
of that, and taking it to have been purely a sale in gross, and both 
parties desiring to act justly, and being of different opinions as to 
the quantity, mutually agreed to abide by an accurate survey to 
ascertain which was bound to pay, and recover from the other, and 
what amount, we see no good reason in law or morals why such an 
agreement should not be binding upon them. The case of Howe v. 
O'Malley, 1 Murphey's L. and Eq. K., 287, is precisely in point. The 
court there held that a promise to refund in case of deficiency is a 
good consideration for a purpose to pay for any excess over what 
is called for in the deed, — that such mutual promises are sufficient 
considerations for each other. 

The case of Smith v. Ware, 13 Johns. Rep. 259, which is sup- 
posed to conflict with this, is entirely different; "there was no mu- 
tuality" because the promise sued upon was to pay for the deficiency, 
without any obligation on the other party to pay for an excess, if 
any there had been. 

The principle of the ISTorth Carolina case commends itself to our 
approbation, because of its equity and justice. 

Without further citation of authorities we are satisfied to hold 
that the promise in this case was binding upon the defendant, as 
his Honor charged, and therefore affirm the judgment.^ 

1 March D. Pigott, 5 Burr. 2802; Barnum u. Barnum, 8 Conn. 469; Howe». O'Mally, 
1 Murphey, 287; Supreme Assembly v. Campbell, 17 R. I. 402, ace. See also Beckley 
V. Newland, 2 P. Wms. 182; McElvain i'. Mudd, 44 Ala. 48; Curry v. Davis, 44 Ala. 
171; Pool V. Docker, 92 111. 601. But see c(ynira Smith v. Knight, 88 la. 257. 



Weit of Error at Serjeants' Inn, Michaelmas Term, 1616 

[Reported in 1 Rollers Abridgment, 26, placitum 39] 

If a. makes a void assumpsit to B., and afterwards a stranger 
comes to B., and, in consideration that B. will relinquish the assump- 
sit made to him by A., he promises to pay him 101., that is not a 
good consideration to charge him, because the first assumpsit was 


Hilary Term, 1618 
[Reported in Hohart, 216] 

BiDWELL, an attorney, brought an action of the case against Catton^ 
executor of Reve, and counted that, whereas he had in Michaelmas 
Term, 14 Jac, prosecuted an attachment of privilege against Beve 
the testator, returnable in Hil. Term, the testator knowing of it, in 
consideration that, at his request, the plaintiff would forbear to 
prosecute the said writ any further against the said testator, the 
testator did promise to pay him 50/., and then avers, &c. And after 
a verdict it was excepted in arrest of judgment: 

First, that it was not alleged that the plaintiff had any just cause 
of action. 

Secondly, that this action still remains. . . . 

But the Court nevertheless gave judgment : For first, suits are 
not presumed careless, and the promise argues cause, in that he 
desired to stay off the suit. Quaere, if the defendant had averred 
that there was no cause of suit. 

Secondly, though this did not require a discharge of the action, 
yet it requires a loss of the writ, and a delay of the suit, which was 
both benefit to the one, and loss to the other. . . . 


Before Pratt, C. J., at Nisi Prttts, 1718 

[Reported in 1 Strange, 94] 

A married woman gives a promissory note as a feme sole; and 
after her husband's death, in consideration of forbearance, promises 
to pay it. And now, in an action against her, it was insisted that, 

' Famham v. O'Rripn, 22 Mo. 475; Silvnrnail v. Cole, 12 Barb. 685; Hooker i». 
D«; PaloH., 28 Ohio St. 257; Shudor v. Ncwby, 85 Tenn. 348, ace. 


thougli, she being under coverture at the time of giving the note, it 
was voidable for that reason, yet by her subsequent promise, v^hen 
she was of ability to make a promise, she had made herself liable, 
and the forbearance was a new consideration. But the C. J. held 
the contrary, and that the note was not barely voidable, but absolutely 
void; and forbearance, where originally there is no cause of action, 
is no consideration to raise an assumpsit. But he said it might be 
otherwise, where the contract was but voidable. And so the plaintiff 
was called.^ 

LONGEIDGE AND Others v. DORVILLE and Another 
In the King's Bench, October 29, 1821 
[Reported in 5 Barnewall & Alderson, 117] 

Declaration alleged, "that before the making of the promise, &c., 
a certain ship called the Carolina Matilda had then lately in a cer- 
tain place, to wit, in the river Thanif's, to wit, at, &c., run foul of a 
certain other ship called the Zenobia, whereby the said last- 
mentioned ship had received great damage. And the said last-men- 
tioned ship having received such damage in consequence of being 
so run foul of as aforesaid, the plaintiffs being the agents in that 
behalf of one Symonds, the owner of the Zenobia, and the defend- 
ants being the agents in that behalf of the owners of the Carolina 
Matilda, the former, as such agents, detained the Carolina Matilda 
till the owners of the said last-mentioned ship should have made 
good to them the damage so done to the Zenobia." It then stated, 
"that in consequence of such detention, the defendants undertook 
that they would, on the plaintiffs' renouncing all claims on the Caro- 
lina Matilda, and on proving the amount of the damages sustained 
by the Zenobia, indemnify the plaintiffs for any sum not exceeding 
180/., the exact amount to be ascertained when the said latter ship 
should have been repaired;" and then alleged that, in consequence 
of such undertaking, the plaintiffs did renounce all claim on the 
Carolina Matilda, and did permit and allow her to proceed on her 
voyage, and that the Zenobia had been repaired, and that the amount 
of such repairs was ascertained. There were also the common counts, 
and the defendants pleaded the general issue. The cause was tried 
before Abbott, C. J., at the Sittings after Easter Term, 1820, when 
a verdict was found for the plaintiffs, subject to the opinion of this 
Court upon the following case : — 

The ISTorwegian ship, called the Carolina Matilda, on her voyage 
to Norway, in sailing down the river Thames in November last, ran 

^ Other early English decisions holding forbearance of a groundless claim insuflS- 
cient consideration are collected in 12 Harv. L. Rev. 517, n. 2. 


foul of tlie ship called the Zenobia, then lying at anchor, and in con- 
sequence of which the latter ship sustained considerable damage. 
The plaintiffs, acting as the agents of Mr. E. Symonds, the owner 
of the Zenobia, instituted a proceeding in the High Court of Ad- 
miralty against the ship Carolina Matilda, to compel her owners to 
make good the damages sustained by the Zenobia in consequence of 
being so run foul of. Process was issued against the Carolina Ma- 
tilda, under which she was arrested at Gravesend on the 22d ]^o- 
vember last, and on the twenty-fourth day of the same month the 
defendants wrote a letter to the plaintiffs, of which the following is 
a copy: — 

Me88bs. Longkidge, Bahnett, and Hodgson. 

Gentlemen, — In consequence of your having detained the Norway ship Carolina 
Matilda till the owners make good to you the damage done to the Zenobia, bound to 
Smyrna, we hereby engage, on your renouncing all claims on the said ship CaroUna 
Matilda, and on pro\ang the amount of damages sustained by the Zenobia, to indemnify 
you for any sum not exceeding 1801., the exact amount to be ascertained when the 
Zenobia is repaired. 

The defendants were the agents of the owners of the Carolina 
Matilda; and upon the receipt of this letter the plaintiffs withdrew 
proceedings in the Admiralty Court, and the officer, then in posses- 
sion of the Carolina Matilda, was then also withdrawn, and such 
possession delivered up to the defendants, acting on behalf of her 
owners. The Zenobia had been since repaired, and the amount of 
damages sustained by her had been ascertained. At the time the 
Carolina Matilda sailed, and while she was proceeding down the 
river and ran foul of the Zenobia, she had the regular Trinity House 
pilot aboard, who had been placed there by the defendants. 

Puller, for the plaintiff. It is not necessary to consider the ques- 
tion whether the owners of the Carolina are liable for the damage 
done to the Zenobia, under the circumstances of the case; for the 
defendants have made themselves liable by an express promise, 
founded upon a good consideration. The plaintiffs agree to release 
the ship, which they might otherwise have detained until bail was 
given; and the defendants agree to pay a stipulated sum by way 
of damage ; waiving all question as to the legal liability of the owners. 
That might be considered as doubtful, there having been contradic- 
tory decisions.^ The defendants, or their principals, therefore, have 
obtained a benefit by the immediate release of the ship; and that 
constitutes a good consideration for the promise laid in the declara- 

F. Pollock, contra. There is no sufficient consideration for the 
promise in the declaration, because the plaintiffs had no ground for 
instituting the suit in the Admiralty Court against the Carolina. 
The question whether tbe defendants are liable upon their under- 
taking must depend upon this, whether the owners were liable for 
the injury, the ship at the time having on board a pilot, as required 

^ Neptune the Second, 1 Dobson, Adm. R. 467; Ritchie v. Bowsfield, 7 Taunt. 309. 


by the act of Parliament. If they were not liable, the plaintiff had 
no right to institute the suit in the Admiralty Court; and the for- 
bearance of a suit, where a party is not liable, is not a good con- 
sideration. Tooley ik Windham^ and King v. Hobbs^ are authorities 
in point. 

Abbott, C. J. I am of opinion that there is a sufficient consid- 
eration in this case to sustain the promise, without inquiring whether 
the owners of the ship are liable under the circumstances of the 
case. It appears that a suit had been instituted by the plaintiffs in 
the Court of Admiralty against the Carolina Matilda, to compel 
her owners to make good the damage done by her running foul of 
another vessel. The ship might have been redeemed from that suit 
by the defendants' giving bail that proper care should be taken of 
the ship, and that those on board her should not leave the kingdom 
until means were taken to secure that evidence which would enable 
the judge to decide the suit, and the plaintiffs might have insisted 
on such bail. The defendants, as agents for the foreign owners of 
the ship, write a letter, in which they engage, on the plaintiffs' re- 
nouncing all claims on the ship, and on proving the amount of dam- 
ages sustained by the Zenobia, to indemnify them for any sum not 
exceeding 1801., the exact amount to be ascertained when the Zenobia 
is repaired. Now the plain meaning of that engagement appears 
to me to be this : Release the ship, and we will waive all questions 
of law and fact, except the amount of damage; we will pay you 
1807., if the damage done amounts to that sum. The plaintiffs, by 
not insisting upon the bail required, therefore relinquished a benefit 
which they might have had, if the law had been with them. The 
law might fairly be considered as doubtful, for there had been con- 
tradictory decisions on the subject; and the parties agree to put 
an end to all doubts on the law and the fact, on the defendants' en- 
gaging to pay a stipulated sum. I am of opinion that this case 
is distinguishable from those cited in argument, inasmuch as in this 
case the law was doubtful, and the parties agreed to waive all ques- 
tions of law and fact. I am therefore of opinion that the plaintiff 
is entitled to recover. 

Bayley, J. I am of the same opinion. Where a cause is de- 
pending, it is competent to a party to refer the questions of liability 
and damage jointly, or to acknowledge his liability, and refer the 
question of damage only; and in this case, I think, the effect of the 
agreement is, that they, the defendants, acknowledge the liability of 
the owners, and, in consideration of the plaintiffs releasing the ship, 
they agree to refer the question as to the amount of damage, and 
pay the same, provided it does not exceed 1807. If it had appeared 
in this case that the owners of the Carolina could not have been 
liable at all, I agree that the consideration for the promise would 
have failed. But the facts stated in the case by no means show 

» Cro. Eliz. 206. ^ Yelv. 25. 


that the owners would not have been liable; for by the pilot act the 
owners are only protected in those cases where the loss arises from 
the default, neglect, incapacity, or incompetency of the pilot. Now 
there is no fact in this case which shows that the misconduct of the 
pilot was the cause of the injury. 

HoLKOYD, J. I am of the same opinion. If a person is about to 
sue another for a debt, for which the latter is not answerable, the 
mere consideration of forbearance is not sufficient to render him 
liable for that debt. Any act of the plaintiff, however, from which 
the defendant derives a benefit or advantage, or any labor, detriment, 
or inconvenience sustained by the plaintiff, is a sufficient considera- 
tion to support a promise. Now the consideration of forbearance is 
a benefit to the defendant, if he be liable; but it is not any benefit 
to him, if he be not liable. The authorities cited proceed on that 
ground. This case differs materially from those; for here a suit 
actually commenced is given up, and a suit too the final success of 
which was involved in some doubt. The plaintiff might sustain a 
detriment by giving up all claim in respect of the expenses incurred, 
and the defendant might derive a benefit by having that suit put 
an end to, without further trouble or investigation. Now I am of 
opinion that the giving up of a suit instituted for the purpose of 
trying a doubtful question, and consenting to deliver up the ship, 
which might otherwise have been detained until the security re- 
quired was given, is a good consideration to support a promise to 
pay a stipulated sum by way of damage, in case the actual damage 
amount to that sum. In Com. Dig., tit. Action upon the Case upon 
Assumpsit (F. 8), it is laid down that an action does not lie if a 
party promise in consideration of a surrender of a lease at will, for 
the lessor might determine it; unless there was a doubt whether it 
was a lease at will or for years; and 1 Eol. 23, 1. 25, 35, and 1 
Brownlow, 6, are cited. That is an authority to show that the 
giving up of a questionable right is a sufficient consideration to 
support a promise. Here, therefore, the giving up of a suit, insti- 
tuted to try a question respecting which the law is doubtful, is a good 
consideration to support a promise. I think, therefore, that this 
action is sustainable. 

Best, J., concurred. 


In the Queen's Bench, Trinity Term, 1840 

[Reported in 8 Bowling's Practice Cases, 604] 

R. V. Richards showed cause against a rule nisi, obtained by 
V. Williams for arrest of judgment or a new trial in this case. 
The case had been tried before the sheriff of Brecon, and a verdict 
found in favor of the plaintiff for 21. lO.s. Id. The ground of seek- 


ing to arrest the judgment was, that no sufficient consideration for 
the promise by the defendant was disclosed on the face of the dec- 
laration. The substance of the declaration was, that a person named 
Watkins and a person named Voss were joint debtors to the plaintiff. 
The plaintiff proceeded against them, and ultimately took Watkins 
and Voss in execution. An arrangement was made between Watkins 
and the plaintiff, and accordingly the former was discharged out 
of custody. Voss remained in custody, and in consideration of the 
discharge of Voss, the declaration alleged that the defendant under- 
took to pay the sum of 21. 10s. Id. due from Voss to the plaintiff, 
and Voss was accordingly discharged. It was contended in support 
of the rule that, the plaintiff having discharged Watkins, who was 
jointly liable with Voss, that had the effect of entitling Voss to his 
discharge, Richards submitted that, even after the discharge of 
Watkins, some step being necessary in order to obtain the discharge 
of Voss, some portion of his imprisonment, until that step could be 
taken, must be considered as lawful. Suppose the prisoners had been 
confined in two different gaols, one in Cornwall and the other in 
JSTorthumberland, and one of them was discharged in Cornwall, some 
time must be allowed in order to discharge the other defendant from 
the gaol in ]!^orthumberland. The detention of the second defendant 
until his discharge must be considered as lawful. The smallest con- 
sideration was sufficient to support the promise alleged in the dec- 
laration, and here was some consideration for that purpose. If 
the proceeding could be considered as a nullity then the plaintiff 
would be liable to an action of trepass; but in Crozer v. Pilling, 
it appeared that an action on the case was the proper remedy, and 
not an action of trespass. There it was held that a plaintiff is 
bound to accept from a defendant in custody under a ca. sa. the 
debt and costs when tendered in satisfaction of the debt, and to 
sign an authority to the sheriff to discharge the defendant out of 
custody; and that an action on the case will lie against the plaintiff 
for maliciously refusing so to do. The case of Smith v. Eggington- 
was an authority to the same effect. The imprisonment was legal 
in its commencement, and therefore the sheriff could not be liable 
as a trespasser. It was not therefore a void imprisonment. The 
case of Atkinson v. Bayntun^ was an authority to show that suffi- 
cient consideration was disclosed on the face of this declaration to 
support the defendant's promise. The marginal note was: "M. 
being in custody on execution pursuant to a warrant of attorney, by 
which he had agreed that execution should issue from time to time 
for certain instalments of a mortgage debt, defendant, in considera- 
tion that plaintiff would discharge M. out of custody, undertook 
that he should, if necessary, be forthcoming for a second execution. 
Held, that defendant's was a valid contract." He cited Sturlyn v. 
Albany, and Pullin v. Stokes.* There, A. having recovered judg- 
1 4 B. & C. 26 » 6 Dowl. P. C. 38. ^ i b. N. C. 444. * 2 H. Bl. 312. 


ment against B., and a fi. fa. being delivered to the sheriff, in con- 
sideration that A. at the special request of C. had requested the 
sheriff not to execute the writ, C. promised to pay A. the debt and 
costs, together with the sheriff's poundage, bailiff's fees, and other 
charges. On a judgment by default and error brought, the promise 
was holden to be binding on C, though it was not averred that the 
sheriff did in fact desist from the execution, nor what the amount 
of the poundage, &c., was, nor that the defendant had notice of 
such amount. In the present case, Voss was not taken in execution 
after the discharge of Watkins, but both were legally in custody at 
the time of Watkins's discharge. The detention of one prisoner in 
such a case could not be considered as a trespass. But suppose it 
should be said that the plaintiff was bound to take steps to discharge 
Voss ; if he was, he was entitled to a reasonable time for that purpose. 
During the time that elapsed before his actual discharge, he was in 
legal custody. That custody furnished a sufficient consideration to 
support the defendant's promise. 

V. Williams, in support of the rule. 

CoLEBiDGE, J. The question in this case, whether this was a 
good consideration or not, depends upon the situation of Voss at the 
time of his discharge. Both he and Watkins had been taken under 
a joint execution. Watkins made certain terms with the plaintiff, 
and the latter voluntarily discharged him. No terms were made as 
to the situation of Voss; his rights were, therefore, to be considered 
according to the situation in which the law had placed him. Suppose 
Watkins alone had been in custody, it is clear that the voluntary 
discharge of him would have been a discharge of the debt, and no 
other proceedings could have been taken to recover it. It seems to 
me, in the same way, that the discharge of Watkins operated to 
release Voss, his co-debtor. I think therefore, both on principle 
and authority, that this rule ought to be made absolute. 

Rule absolute.^ 


In the Queen's Bench, June 6, 1870 

\Reported in Law Reports, 5 Queen's Bench, 449] 

Declaration that the plaintiff had alleged that certain moneys 
were due and owing to him, to wit, from the government of Hon- 
flurns, aiif] from Don Carlos Guttioroz and others, and had threat- 
ened and was about to take legal proceedings against the said 
government and persons to enforce payment of the same; and there- 
upon, in consifleration that the plaintiff would forbear from taking 

' r'ommonwcalth v. .Johnson, 3 Cush. 454, ace. See also Rood v. Jones, 1 Doug. 


such proceedings for an agreed time, the defendant promised to 
deliver to the plaintiff certain securities, to wit, bonds or debentures, 
called Honduras Kailway Loan Bonds, for sums to the amount of 
600?. immediately the bonds should be printed. Averment: that the 
plaintiff did not take any proceedings during the agreed period or 
at all; and that all conditions had been fulfilled necessary to en- 
title him to sue in respect of the matters before stated. Breach : 
that the defendant had not delivered to the plaintiff the bonds or 
any of them. 

Plea : That at the time of making the alleged agreement no moneys 
were due and owing to the plaintiff from the government and other 

Demurrer and joinder. 

James, Q. C. (Rose with him), in support of the demurrer. 

Pollock, Q. C. (Joyce with him) contra. 

CocKBUKN, C. J. Our judgment must be for the plaintiff. N"o 
doubt it must be taken that there was in fact no claim by the plain- 
tiff against the Honduras government which could be prosecuted by 
legal proceedings to a successful issue; but this does not vitiate the 
contract and destroy the validity of what is alleged as the consider- 
ation. The authorities clearly establish that, if an agreement is 
made to compromise a disputed claim, forbearance to sue in respect 
of that claim is a good consideration; and whether proceedings to 
enforce the disputed claim or have not been instituted makes 
no difference. If the defendant's contention were adopted, it would 
result that in no case of a doubtful claim could a compromise be 
enforced. Every day a compromise is effected on the ground that 
the party making it has a chance of succeeding in it; and if he 
bond fde believes he has a fair chance of success, he has a reason- 
able ground for suing, and his forbearance to sue will constitute a 
good consideration. When such a person forbears to sue he gives 
up what he believes to be a right of action, and the other party 
gets an advantage; and, instead of being annoyed with an action, 
he escapes from the vexations incident to it. The defendant's con- 
tention is unsupported by authority. 

It would be another matter if a person made a claim which he 
knew to be unfounded, and by a compromise derived an advantage 
under it : in that case his conduct would be fraudulent. If the plea 
had alleged that the plaintiff knew he had no real claim against the 
Honduras government, that would have been an answer to the action. 

Blackburn, J. I am of the same opinion. The declaration, as 
it stands, in effect states that the plaintiff, having alleged that cer- 
tain moneys were due to him from the Honduras government, was 
about to enforce payment, and the defendant suggested that the 
plaintiff's claim, whether good or bad, should stand over. So far, 
the agreement was a reasonable one. The plea, however, alleges 
that at the time of making the agreement no money was due. If 


we are to infer that the plaintiff believed that some money was due 
to him, his claim was honest, and the compromise of that claim 
would be binding, and would form a good consideration, although 
the plaintiff, if he had prosecuted his original claim, would have 
been defeated. This case is decided by Cook v. Wright, in that 
case it appeared from the evidence that the defendant knew tha]t the 
original claim of the plaintiff was invalid, yet he was held liable, 
as the plaintiff believed his claim to be good. The Court say that 
"the real consideration depends on the reality of the claim made, . 
and the bond -fides of the compromise." If the plaintiff's claim 
against the Honduras government was not hona -fide, this ought to 
have been alleged in the plea; but no such allegation appears. 

Mellor, J. I am of the same opinion. If the plaintiff's claim 
against the Honduras government was fraudulent, the defendant 
ought to have alleged it. 

Lush, J., concurred. Judgment for the plaintiff. 


In the Chancery Division, June 22-24, 1885, February 4-6, 

11, 1886 

[^Reported in 32 Chancery Division, 266] 

The plaintiff in 1882 accepted bills for £10,000 for the accommo- 
dation of Samuel Grant, one of the defendants in this suit, and to 
secure the plaintiff Grant had charged 125 shares which he owned 
in the defendant corporation with this sum. The plaintiff gave 
notice to the company of his interest in the shares. 

Grant, besides being a promoter of the company and the holder 
of the above-mentioned shares, was the vendor to the company of 
the property in New Zealand known as the Alford estate, the acqui- 
sition and working of which was the substantial object of the for- 
mation of the company. He was also the chairman of the board of 
directors, and at a general meeting of the company held on the 15th 
of March, 1883, an angry discussion took place, at the close of which 
he gave to the company q, written guarantee or warranty signed by 
himself in the following terms : — 

"0(uitlr;men, I hereby guarantee that a dividend (duly earned 
during the year) of not less than £3 per centum per annum be paid 
to the shareholders for the year ending the 30th of June, 1883, and 
afterwards that there shall be paid to them a yearly dividend of 
not less than £5 per centum per annum (duly earned during the 
year) for a period of ninety years; and I undertake within three 
calendar months after the end of any and every year to pay to you 
any sum requisite to pay the agreed minimum dividend if the com- 
pany has not earned it." 


No resolution was passed at the general meeting with reference 
to the giving of the guarantee. 

Grant was adjudicated a bankrupt on the 19th of Tebruary, 1884. 
In May, 1884, there being due to the plaintiff from Grant the sum 
of £7,885, he applied to the company to do and concur in all acts 
necessary for effecting a sale and transfer of the 125 shares. 

The company, however, claimed a lien on the shares under the 
guarantee given to them by Grant and their articles of association, 
in priority to the plaintiff's charge; and they refused to permit any 
sale or transfer of the shares until their claim was satisfied. The 
plaintiff then brought this action against the company and Grant 
and his trustee in bankruptcy, and claimed a declaration that under 
the deed of the 19th of October, 1882, he was entitled to a first charge 
on the 125 shares for the principal and interest secured thereby; 
and he pleaded that the guarantee given by Grant was not under 
seal, that no consideration had been given for it, and that even if 
consideration had been given, the document did not comply with the 
requirements of the Statute of Frauds. 

The evidence upon the question whether any consideration was 
in ,f act given for a guarantee was chiefly derived from an affidavit 
of Mr. J. Redmayne, the secretary of the company, the material 
paragraphs of which were as follows : — 

"1. . . . The defendant Grant made many representations to the 
persons who originally formed the company, and to persons who be- 
came shareholders thereof, to the effect that the Alford estate was 
of great value, and to the effect that the labor expenses in working 
the said estate did not exceed a stated sum, and other representations 
calculated to induce such persons to find moneys to form and become 
shareholders in the company. 

"3. It was subsequently and some time before the meeting herein- 
after mentioned discovered that the statements made by the de- 
fendant Samuel Grant as to the value of the estate were untrue, and 
that the labor expenses greatly exceeded the amount stated by him 
as aforesaid. 

"4. Claims were accordingly made on the defendant Samuel Grant 
by the defendant company and on behalf of the shareholders thereof, 
and it was intimated that proceedings would be taken to set aside 
the sale and recover the purchase-money from him. 

"5. At the general meeting of the defendant company on the 15th 
day of March, 1883, . . . the threatened proceedings against the 
defendant Samuel Grant were the main subject discussed by the 
shareholders. The defendant Samuel Grant was told that it was 
the intention of the defendant company to take immediate proceed- 
ings against him, and he thereupon made two or three offers with 
a view to the settlement of the matter and to compromise the claim 
and escape legal proceedings, and eventually he offered to sign the 
guarantee in the said affidavits mentioned in consideration of the de- 


fendant company and the said shareholders agreeing to abandon the 
contemplated proceedings against him and agreeing to give up their 
claims against him which were the subject of the intended pro- 

"6. The defendant company and the shareholders were advised 
that their claims w^ere substantially of such a nature that if not 
enforced at once they could not be enforced at all, and such claims 
were, in fact, claims for rescission of contract which could not be 
equitably enforced if proceedings were not immediately taken; and 
the defendant company, in pursuance of the said agreement under 
which the said guarantee was signed, and in consideration of the said 
guarantee, abandoned the intention of taking such proceedings and 
gave up such claims and did not commence any proceedings or assert 
any claim. 

At the trial jSTorth, J., held that the claim of the company was 
valid, the forbearance being a sufficient consideration under Cal- 
lisher v. Bischoffsheim, L .E. 5 Q. B. 449, and other recent decisions; 
but that the company could not by its by-law entitle itself to pri- 
ority over the plaintiff. 

From this judgment the company appealed. 
Barber, Q. C, and BlaJce Odgers, in support of the appeal. 
Davey, Q. C, and Stirling, for the plaintiff. 

Cotton, L. J. . . . But then comes the question, had the com- 
pany in fact any legal claim as against Grant? Their claim was 
under a letter signed by Grant which guarantees or undertakes that 
a certain yearly dividend shall be paid to the shareholders during 
a long period of years; and it is objected that no consideration ap- 
pears upon the face of the letter, and that no consideration was in 
fact given to Grant for that promise (I call it "promise," because 
to call it "contract" would be to assume there was consideration) 
given by the shareholders. 

Now there was much argument upon the question what is a good 
consideration for a compromise; and there are authorities which 
for a considerable time were considered as laying down the law upon 
the subject; but Lord Esher, the present Master of the Kolls, in 
Ex parte Banner, 17 Ch. D. 480, is supposed to have thrown doubts 
on these authorities; and what he said was in fact that if the ques- 
tion ever came before this court the authority of Callisher v. Bisch- 
offsheim, Law Bep. 5 Q. B. 449, Ockford v. Barelli, 20 W. R. 116, 
and Cook v. Wright, 1 B. & S. 559, would have to be considered. 

Now, what I understand to be the law is this, that if there is in 
fact a serious claim honestly made, the abandonment of the claim 
is a good "consideration" for a contract; and if that is the law, what 
we really have to now consider is whether in the present case there 
is any evidence on which the court ought to find that there was a 
serious claim in fact made, and whether a contract to abandon that 
claim was the consideration for this letter of guarantee. I am not 


going into the question at present as to how far the Statute of Frauds 
will raise any difficulty in the way. And I think also that the mere 
fact of an action being brought is not material except as evidence 
that the claim was in fact made. That, I think, was laid down by 
Lord Blackburn in Cook v. "Wright, and also in Callisher v. Bischoif- 
sheim, and, subject to the question whether these cases are over- 
ruled, or ought to be considered as unsound, that, I think, is a 
i^orrect statement of the law. Now, by "honest claim," I think is 
meant this, that a claim is honest if the claimant does not know 
that his claim is unsubstantial, or if he does not know facts, to his 
knowledge unknown to the other party, which show that his claim 
is a bad one. Of course, if both parties know all the facts, and 
with knowledge of those facts obtain a compromise, it cannot be 
said that that is dishonest. That is, I think, the correct law, and 
it is in accordance with what is laid down in Cook v. Wright, 1 
B. & S. 559 ; and Callisher v. Bischoffsheim, L. E. 5 Q. B. 449 ; and 
Ockford V. Barelli, 20 W. K. 116. What was stated in Cook v. 
Wright, 1 B. & S. 569, by Lord Blackburn is this : "We agree that 
unless there was a reasonable claim on the one side, which it was 
bond fide intended to pursue, there would be no ground for a com- 
promise; but we cannot agree that (except as a test of the reality 
of the claim in fact) the issuing of a writ is essential to the validity 
of the compromise." Again, what his Lordship says in the subse- 
quent case of Callisher v. Bischoffsheim, L. R. 5 Q. B. 452, is this : 
"If we are to infer that the plaintiff believed that some money was 
due to him, his claim was honest, and the compromise of that claim 
would be binding and would form a good consideration, although 
the plaintiff, if he had prosecuted his original claim, would have 
been defeated." The doubt of the Master of the Bolls seems to have 
been whether a compromise would not be bad, or a promise to 
abandon a claim would be a good consideration if, on the facts being 
elicited and brought out, and on the decision of the court being ob- 
tained, it was found that the claim which was considered the con- 
sideration for the compromise was a bad one. But if the validity 
of a compromise is to depend upon whether the claim was a good 
one or not, no compromise would be effectual, because if it was after- 
wards disputed, it would be necessary to go into the question whether 
the claim was in fact a good one or not; and I consider, notwith- 
standing the doubt expressed by the Master of the Rolls, that the 
doctrine laid down in Cook v. Wright and Callisher v. Bischoffsheim 
and Ockford ik Barelli is the law of this court. 

Now, was there here any claim in fact made on behalf of the 
company against Grant, and was there, in fact, anything which 
would bind the company to abandon that claim? The conclusion 
at which I have arrived is, that there is no evidence on which we 
ought to rely that there was in fact a claim intended to be made 
against Grant, and, in my opinion, on the evidence be fore us, we 


ought not to arrive at the conclusion that there was ever intended 
to be any contract by the company, much less that there was in fact 
any contract binding the company that that claim should not be 
prosecuted, and should be given up. [His Lordship alluded shortly 
to the facts of the case, and continued:] Now, undoubtedly, on the 
evidence, several of the shareholders present at the general meeting 
of the loth of March, 1883, expressed a very hostile feeling against 
Mr. Grant, who had sold the property to the company; that is ad- 
mitted by him, and is in my opinion clear. But then what was 
done? There is nothing at all on the face of this letter of guarantee, 
as I have already stated, which says that it was given by Grant in 
consequence of the company giving up any claim they might have 
against him, and there is nothing whatever in the minutes of the 
board which states in fact that this was so, nor is there anything 
after that time in the minutes of the board of directors which can be 
referred to as showing an agreement by them to give up any claim 
they otherwise intended to prosecute against him. What I should 
say was the state of the case was this : there was angry feeling, and 
Mr. Grant thought it might result in proceedings being taken against 
him; and, therefore, what he considered the wisest course was to 
make this oflFer in the hope and expectation that he would keep 
things quiet, and let things go on peaceably. 

I^ow, in my opinion a simple expectation, even though realized, 
would not be a good consideration for the promise which he gave. 
In order to make a good consideration for the promise there must 
be something binding done at the time by the other party, there 
must be something moving from the other party towards the person 
giving the promise. In my opinion to make a good consideration 
for this contract it must be shown that there was something which 
would bind the company not to institute proceedings, and shown 
also that in fact proceedings were intended on behalf of the company ; 
and, in my opinion, I cannot come to the conclusion as a matter of 
fact that these two things existed. It is true that directors were 
present at the meeting, and that their guarantee was entered on the 
minutes, but although this was the case, it cannot in my opinion 
be considered that the directors by being there entered into any con- 
tract as directors not to enforce the claim of the company. The 
proper mode of proving any agreement made by the directors would 
be the production of evidence of its having been made at a meeting 
held by them as the persons having the conduct of the business of 
the society. No doubt they might, if they had been so minded, at 
a meeting of the board agree that they should not make any claim 
against him in consideration of this having taken place, but I find 
nothing of that kind.^ 

' A portion of Hio oj)iiiions in which iho. Statute of Frniids was hold inapplicable 
anf! in which it wiih Ik^M that if the company harl a valid claim that claim was entitled 
to priority over the plaintid'H claim, in omitted. Some other abbreviations of the 


SHEFFIELD, Eespondent 

JSTew Yokk Court of Appeals, December 17, 1894- January 15, 1895 

[Reported in 144 New York, 392] 

Andrews, C. J. The contract between a maker or indorser of 
a promissory note and the payee forms no exception to the general 
rule that a promise, not supported by a consideration, is midum 
■pactum. The law governing commercial paper which precludes an 
inquiry into the consideration as against hond fide holders for value 
before maturity, has no application where the suit is betAveen the 
original parties to the instrument. It is undisputed that the demand 
note upon which the action was brought was made by the husband 
of the defendant and indorsed by her at his request and delivered 
to the plaintiff, the payee, as security for an antecedent debt owing 
by the husband to the plaintiff. The debt of the husband was past 
due at the time, and the only consideration for the wife's indorsement, 
which is or can be claimed, is that as part of the transaction there 
was an agreement by the plaintiff when the note was given to for- 
bear the collection of the debt, or a request for forbearance, which 
was followed by forbearance for a period of about two years subse- 
quent to the giving of the note. There is no doubt that an agree- 
ment by the creditor to forbear the collection of a debt presently due 

case have been made. Fry, L. J. delivered a concurring, and Bowen, L. J. a dissent- 
ing opinion. 

In America many courts have shown a disposition to follow the doctrine of the 
late English decisions. Union Bank v. Geary, 5 Pet. 99; Sheppey v. Stevens, 185 Fed. 
147; Kress v. Moscowitz, 105 Ark. 638; Baldwin v. Central Bank, 17 Col. App. 7; 
In re Thomas, 85 Conn. 50; Morris v. Munroe, 30 Ga. 630; Hayes v. Massachusetts 
Co., 125 111. 625, 639; Ostrander v. Scott, 161 111. 339; Melcher v. Insurance Co., 97 
Me. 512; Prout v. Pittsfield Fire District, 154 Mass. 450; Dunbar v. Dunbar, 180 
Mass. 170; Layer v. Layer, 184 Mich. 663; Hansen v. Gaar, 63 Minn. 94; Kelley v. 
Hopkins, 108 Minn. 155; Majors v. Majors, 92 Neb. 473; Latulippe v. N. E. Inv. bo. 
77 N. H. 31; Grandin v. Grandin, 49 N. J. L. 508; Post v. Thomas, 212 N. Y. 264; 
Di lorio v. Di Brasio, 21 R. I. 208; Bellows v. Sowles, 55 Vt. 391; Citizens' Bank v. 
Babbitt, 71 Vt. 182; Hewett v. Currier, 63 Wis. 386. 

The definition given in other cases seems to require the claim forborne to be at 
least reasonably doubtful in fact of law in order to make the forbearance or promise 
to forbear a good consideration. Stewart v. Bradford, 26 Ala. 410; Ware v. Morgan, 
67 Ala. 461; Richardson ». Comstock, 21 Ark. 69; Russell v. Daniels, 5 Col. App 
224; Mulholland v. Bartlett, 74 111. 58; Bates v. Sandy, 27 111. App. 552 (see later. 
Illinois cases sujyra); U. S. Mortgage Co. ». Henderson, 111 Ind. 24; Sweitzer i). 
Heasly, 13 Ind. App. 567 (compare Moon v. Martin, 122 Ind. 211); Tucker r. Ronk, 
42 la. 80; Peterson v. Breitag, 88 la. 418; (see Richardson Co. v. Hampton, 70 la. 
573); Price v. First Nat. Bank, 62 Kan. 743; Cline v. Templeton, 78 Ky. 550; Mills 
V. O'Daniel, 62 S. W. Rep. 1123 (Ky.); Schroeder v. Fink, 60 Md. 436; Emmittsburg 
V. Donoghue, 67 Md. 383; Palfrey v. Portland, &c. R. R. Co., 4 Allen, 55. (See later 
Massachusetts cases, supra) ; Taylor v. Weeks, 88 N. W. Rep. 466 (Mich.) ; Foster ». 
Metts, 55 Miss. 77; Gunning??. Royal, 59 Miss. 45; Longi'. Towl, 42 Mo. 545; Corbyn 
V. Brokmeyer, 84 Mo. App. 649; Kidder v. Blake, 45 N. H. 530; O. & C. R. R. Co. v. 
Potter, 5 Oreg. 228; Fleming v. Ramsey, 46 Pa. 252; Sutton v. Dudley, 193 Pa. 194; 
Warren v. Williamson, 8 Baxter, 427, McCloy v. Watkins, 88 Vt. 457; Nicholsons. 
Neary, 77 Wash. 294; Davisson v. Ford, 23 W. Va. 617. 


is a good consideration for an absolute or conditional promise of a 
third person to pay the debt, or for any obligation he may assume 
in respect thereto. Nor is it essential that the creditor should bind 
himself at the time to forbear collection or to give time. If he is 
requested by his debtor to extend the time, and a third person under- 
takes in consideration of forbearance being given to become liable 
as surety or otherwise, and the creditor does in fact forbear in re- 
liance upon the undertaking, although he enters into no enforceable 
agreement to do so, his acquiescence in the request, and an actual 
forbearance in consequence thereof for a reasonable time, furnishes 
a good consideration for the collateral undertaking. In other words, 
a request followed by performance is sufficient, and mutual promises 
at the time are not essential, unless it was the understanding that 
the promisor was not to be bound, except on condition that the other 
party entered into an immediate and reciprocal obligation to do the 
thing requested. Morton v. Burn, 7 A. &. E. 19; Wilby v. Elgee, 
L. E. 10 C. P. 497; King v. Upton, 4 Maine, 387; Leake on Con. 
p. 54; Am. Lead. Cas. vol. 2, p. 96 et seq. and cases cited. ^ The 
general rule is clearly, and in the main accurately, stated in the 
note to Forth v. Stanton (1 Sauud. 210, note h). The learned re- 
porter says : "And in all cases of forbearance to sue, such forbearance 
must be either absolute or for a definite time, or for a reasonable 
time; forbearance for a little, or for some time, is not sufficient." 
The only qualification to be made is that in the absence of a speci- 
fied time a reasonable time is held to be intended. Oldershaw v. 
King, 2 H. & N. 517; Calkins v. Chandler, 36 Mich. 320.- The 
note in question did not in law extend the payment of the debt. It 
was payable on demand, and although being payable with interest 
it was in form consistent with an intention that payment should not 
be immediately demanded, yet there was nothing on its face to pre- 
vent an immediate suit on the note against the maker or to recover 
the original debt. Merritt v. Todd, 23 N". Y. 28; Shutts v. Fingar, 
100 id. 539. 

In the present case the agreement made is not left to inference, 
nor was it a case of request to forbear, followed by forbearance, 
in pursuance of the request, without any promise on the part of the 
creditor at the time. The plaintiff testified that there was an ex- 
press agreement on his part to tlio effect that he would not pay the 
note away, nor put it in any bank for collection, but (using the words 
of the plaintiff) "I will hold it until such time as I want my money, 
I will niako a demand on you for it." And again: "!N"o, I will keep 

• Cilogg V. Bromloy, [1012] 3 K. B. 474; ErlKorton v. Weaver, 105 111. 43; Newton 
V. CarHon, SO Ky. 300; Home Inn. Co. v. Watson, 50 N. Y. 300, ncc; Mecorney ?i. 
Stanley, 8 K5; Manter v. Churchill, 127 Mass. 31; Rhupo v. Galbraith, 32 Pa. 
10, conlra. S<!e also Shaflhiirne v. Daly, 70 Tal. 35.'>; Ivanibort ?'. rioivloy, 80 Me. 480. 

' Moore r. McKenney, 83 Me. 80; Plaslcell v. Tiikeslmry, 02 Me. 551; Howe ?'. 
Tagicart. 133 M.ass. 284; rilasseoek v. Glasseoek. Ofi Mo. 027; Hockenhury v. Meyer, 
34 N. .h L. 430; VMiua. r. VanMorlyn 4 .Tf)hnH. 2.37; Traders' Nat. Bank v. Parker, 130 
N. Y. 415; Citizen.s' Bank v. Babbitt, 71 Vt. 182, ace. 


it until such time as I want it." Upon this alleged agreement the 
defendant indorsed the note. It would have been no violation of 
the plaiutili's promise if, immediately on receiving the note, he 
had commenced suit upon it. Such a suit would have been an 
assertion that he wanted the money and would have fulfilled the 
condition of forbearance. The debtor and the defendant, when they 
became parties to the note, may have had the hope or expectation 
that forbearance would follow, and there was forbearance in fact. 
But there was no agreement to forbear for a fixed time or for a 
reasonable time, but an agreement to forbear for such time as the 
plaintiff should elect. The consideration is to be tested by the agree- 
ment, and not by what was done under it. It was a case of mutual 
promises, and so intended. We think the evidence failed to dis- 
close any consideration for the defendant's indorsement, and that 
the trial court erred in refusing so to rule. 

The order of the general Term reversing the judgment should be 
affirmed, and judgment absolute directed for the defendant on the 
stipulation, with costs in all courts. 

All concur, except Gkay and Bartlett, JJ., not voting, and 
Haight, J., not sitting. Ordered accordingly. 

LYNN" AND Another v. BKUCE 

In the Common Pleas, July 1, 1794 

[Reported in 2 Henry Blackstone, 317] 

This was an action of assumpsit. The first count of the declara- 
tion was on a forbearance to sue on a bond given by the defendant 
to the plaintiffs for 200?. The second was as follows : "And whereas 
also, afterwards, &c., in consideration that the said Robert and 
Thomas (the plaintiffs), at the special instance and request of the 
said Charles (the defendant), had then and there consented and 
agreed to accept and receive of and from the said Charles a certain 
composition of fourteen shillings in the pound, and so in proportion 
for a lesser sum than a pound, upon a certain other sum of one 
hundred and five pounds five shillings and twopence, then due and 
owing from the said Charles to the said Robert and Thomas upon 
and by virtue of a certain other writing obligatory, bearing date, 
&c., made and executed by the said Charles to the said Robert and 
Thomas, whereby he became held and firmly bound to them in the 
sum of two hundred pounds, in full satisfaction and discharge of the 
said last-mentioned writing obligatory, and all moneys due thereon, 
he the said Charles undertook and then and there faithfully promised 
the said Robert and Thomas to pay them the said composition of 
fourteen shillings in the pound, and so in proportion for a lesser 
sum than a pound, upon the said last-mentioned sum of one hundred 


and five pounds five shillings and twopence, upon request; and the 
said Robert and Thomas in fact say that the said composition of 
fourteen shillings in the pound, and so in proj)ortion for a lesser 
sum than a pound, upon the said last-mentioned sum of one hundred 
and five pounds five shillings and twopence, amounted to a large 
sum of money, to wit, the sum of seventy-three pounds thirteen shil- 
lings and sixpence, to wit, at Westminster aforesaid, whereof the 
said Charles afterwards, to wit, on the same day and year last afore- 
said, at Westminster aforesaid, had notice and although the said 
Charles hath paid to the said Robert and Thomas a certain sum 
of money, to wit, the sum of seventy pounds and six shillings, part 
of the said last-mentioned sum of seventy-three pounds thirteen 
shillings and sixpence, the amount of the said last-mentioned com- 
position, yet the said Charles not regarding, &c., hath not yet paid 
the sum of three pounds seven shillings and sixpence, being the 
residue of the said sum of seventy-three pounds thirteen shillings 
and sixpence, the composition last aforesaid, or any part thereof," &c. 

A verdict having been found for the plaintiffs on the whole dec- 
laration, a motion was made in arrest of judgment on the ground of 
the insufficiency of the second count ; and after argument the opinion 
of the Court was thus delivered by 

Lord C. J. Eyre. This is a motion made in arrest of judgment, 
on an objection to the second count of the declaration. The sub- 
stance of that count is that, in consideration that the plaintiff at 
the defendant's request had consented and agreed to accept and 
receive from the defendant a composition of fourteen shillings in 
the pound, and so in proportion for a lesser sum than a pound, upon 
1051. 5s. 2d. due from the defendant to the plaintiff on a bond dated 
the 30th March, 1792, for 200?., in full satisfaction and discharge 
of the bond and all money due thereon, the defendant promised to 
pay the said composition. It is then averred that the composition 
amounted to 7Sl. 13s. 6d., and that the defendant had paid the plain- 
tiff 70L 6s., part thereof. The breach is, that he did not pay 3Z. 7s. 
f)d., the residue. This will be found to be a very clear case, when 
the nature of the objection is understood. The consideration of the 
promise is, as stated in this count, an agreement to accept a com- 
position in satisfaction of a debt. Tf this is an agreement which is 
binding, and can be enforced, it is a good consideration; if it is 
not binding, and cannot be enforced, it is not a good consideration. 
It was settled in the case of Allen v. Harris, 1 Lord Raym. 122, upon 
consideration of all the cases, that upon an accord, which this is, 
no rcmefly lies; it was said that tlie books are so numerous that an 
accord ought to be executed, that it was impossible to overturn all 
the aiitliorifies: the expression is, "overthrow all the books." It 
was added tbat, if it had been a new point, it might have been worthy 
of consideration. But we tbink it was rightly settled upon sound 
principles. Interest reipuhlicce ut sit finis litium: accord executed 


is satisfaction : accord executory is only substituting one cause of 
action in the room of another, which might go on to any extent. The 
cases in which the question has been raised, whether an accord execu- 
tory could be enforced, and in which it has been so often determined 
that it could not, have been cases in which it has been pleaded in bar 
of the original action. But the reason given in three of the cases 
in 1 Rol. Abr., tit. Accord, pi. 11, 12, 13, is because the plaintiff 
hath not any remedy for the whole, or where part has been per- 
formed, for that which is not performed, which goes directly to the 
gist of this action, as it is stated in the count objected to. This 
is an action brought to recover damages for that part of the accord 
which has not been performed. But an accord must be so com- 
pletely executed in all its parts before it can produce legal obligation 
or legal effect, that in Peytoe's Case, 9 Co. 79 h, it was holden that, 
where part of the accord had been executed, tender of the residue 
would not be sufficient to make it a bar to the action, but that there 
must be an acceptance in satisfaction. There are two cases in Cro. 
Eliz. 304, 305, to the same effect. It was argued according to the 
cases in Rol. Abr. that an accord executory in any part is no bar, 
because no remedy lies for it for the plaintiff. Perhaps it would 
be a better way of putting the argument, to say that no remedy lies 
for it for the plaintiff, because it is no bar; but put either way, it 
concludes in support of the objection to the second count in this 
declaration, and consequently the judgment must be arrested. 

Rule absolute to arrest the judgment. 

NASH, Administrator with the Will annexed of John Beatson, de- 

In the Common Pleas, May 11, 1861 

\Iie'ported in 10 Common Bench Reports, New Series, 259] 

The declaration stated that, by deed dated the 29th of February, 
1860, the said John Beatson let to the defendant certain rooms, part 
of a house of the said John Beatson, therein described, from the 
1st of March in that year to the 24th of June in that year, at rent 
to be ascertained by two valuers, one on the part of the said John 
Beatson, and one on the part of the defendant, or an umpire to be 
agreed on by the said two valuers, and afterwards the said valuers 
were respectively accordingly duly appointed, but did not, without 
any default of the said John Beatson or the plaintiff in that behalf, 
ascertain the rent so to be paid as aforesaid, or appoint any umpire; 
and the defendant nevertheless, at his request, occupied the said 
rooms under the said demise until the 1st of September, 1860, the 
said John Beatson having previously died; that afterwards, and 


whilst the amount of rent to be paid by the defendant for and in 
respect of his said occupation of the said rooms to the said 24th 
of June, and thence to the said 1st of September, was and remained 
unascertained, it was mutually agreed between the plaintiff as ad- 
ministrator as aforesaid and the defendant, that, if the plaintiff as 
administrator as aforesaid would not insist upon such valuation as 
aforesaid, the defendant would pay to the plaintiff as administrator 
for and in respect of his occupation of the said rooms under the 
said deed, and for and in respect of the said subsequent occupation 
thereof as tenant to the plaintiff as administrator as aforesaid, a 
reasonable sum in that behalf, to wit, the sum of 70Z.; and that 
neither the plaintiff as administrator as aforesaid, nor the defendant, 
should ever call upon the other of them to carry out or perform or 
fulfil the terms of the said deed. Averment : that the plaintiff did 
every thing, and every thing existed and had before suit happened 
to entitle the plaintiff, as administrator as aforesaid, to payment 
of the said sum of money last mentioned, to wit, 1^1. Breach : that 
no part thereof had been paid. 

To this count the defendant demurred, the ground of demurrer 
stated in the margin being, "that a contract under seal cannot be 
varied or discharged by a parol agreement." Joinder. 

R. G. Williams, in support of the demurrer.^ There is no valid 
consideration for the promise stated in the declaration, [Williams, 
J. Why is it not a good consideration in assumpsit that the plaintiff 
foregoes his rights under the deed?] It is varying by parol the terms 
of a deed. [Williams, J. That is not so.] By the parol agree- 
ment, the defendant is to pay the rent ascertained in a way different 
from that provided by the deed. [Williams, J. The plaintiff is 
seeking to enforce an agreement founded upon a consideration that 
the plaintiff will not put in force his rights under the deed.] A 
deed can only be varied by a deed. Would a recovery in this action 
be pleadable in bar to an action upon the deed? [Willes, J. I 
should have thought it a good answer by way of equitable plea. The 
payment of the 70/. under the agreement would surely be ground 
for an unconditional perpetual injunction against proceeding upon 

' The points marked for argument on the part of the defendant were as follows: — 

"1. Tliat th(; plaintiff by the first count is seeking to recover upon a deed as varied 
by a parol agreement, whereas a deed can only be varied by a deed; 

"2. That the alleged agreement could be carried out by deed only, and there is 
no allegalion of the execution of any such deed; 

".■J. That the mattf^rs alleged in the first count disclose a claim which can be en- 
forced only in efjuity, and not at law; 

"4. That there is no consideration for the alleged agreement, if it is to be consid- 
ered OH infleiK^ndent of th(! deed; 

"5. That the alleged agreement would afford no answer to an action upon the 
deed, or prevent the plaintiff from calling upon the valuers to appoint an umpire, or 
upon the defendant to carry out the terms of the deed, and the consideration for it 
is wholly nuKatory; 

"0. That the ulleKed agreement is in the nature of an accord only, and cannot be 
enforced or sued upon." 


the deed.] The declaration, it is submitted, must be treated as it 
would have been before equitable pleas were known. Most of the 
cases upon this subject are cases where the parol agreement is set 
up as an answer to an action on the deed; but the grounds of the 
decision in White v. Parkin, 12 East, 578, are strongly in favor of 
the proposition contended for here.^ ... In the present case, it 
cannot be contended that the parol agreement does not conflict with 
the deed. There is an utter repugnance between the two instruments. 
In the course of the argument in White v. Parkin, a case of Leslie 
V. De la Torre was cited, where Lord Kenyon ruled that, the agree- 
ment by charter-party being under seal, the plaintiff could not set 
up a parol agreement inconsistent with it, and which in effect was 
meant in a certain extent to alter it. [Williams, J. The diffi- 
culty in your way is, that there is here an undertaking on the plain- 
tiff's part to forbear from enforcing the payment of rent under the 
deed.] A rent would be payable under the deed, to which this agree- 
ment would be no answer. "White v. Parkin^ was cited and approved 
of in Thompson v. Brown, 7 Taunt, 656, 672.^ ... A deed cannot 
be varied in any way by parol; and no action can be maintained 
on a parol agreement which varies the deed. In the case of a con- 
tract for the sale of goods within the 17th section of the Statute 
of Frauds, where another day for payment has been by parol sub- 
stituted for that originally fixed by the contract, it has been held that 
the subsequent parol agreement cannot be made the foundation of 
an action. Marshall v. Lynn, 6 M. & W. 109; Mechlen v. Wallace, 
7 Ad. & E. 49, 2 K & P. 224; Stead v. Dawber, 10 Ad. & E. 57. 
In Chitty on Contracts, 6th edit. 55, it is said : "If there be an en- 
tire consideration for the defendant's promise, made up of several 
particulars, and one of these consist of an agreement by the defendant 
which the Statute of Frauds requires to be in writing, and which 
for want of such writing is void, the whole consideration is void, 
and the promise cannot be supported." Here, there would be nothing 
to prevent the plaintiff from bringing an action upon the deed, even 
after the money was paid under the agreement. To allow this dec- 
laration to be good would be promoting circuity of action. 
Raymond, for the plaintiff, was not called upon.* 

1 The learned counsel here stated that case. 

^ Leslie v. De la Torre? 

5 The learned counsel here stated the case of Gwynne v. Davy, 1 M. & G. 857, 
G. Scott, N. R. 29, 9 Dowl. P. C. 1. 

^ The points marked for argument on the part of the plaintiff were as follows: — 

"1. That the contract disclosed by the first count does not infringe upon the rule 
that a contract under seal cannot be varied by parol agreement; 

"2. That, although a contract under seal cannot be varied by parol, yet it is com- 
petent to the parties to enter into a fresh agreement by parol, and for a good con- 
sideration, not to put in force the original contract; 

"3. That the contract declared on is collateral to that entered into by the deed, 
and leaves the force of the deed itself intact, and amounts merely to an agreement 
not to enforce the performance of the original contract under seal; 

"4. That such new contract is founded upon a good consideration, and is there- 
fore valid." 


Williams, J. I am of opinion tliat there should be judgment for 
the plaintiif on this demurrer. I do not think it necessary to dis- 
pute the correctness of many of the doctrines contended for in the 
argument; for I do not consider that the conclusion we have arrived 
at in any degree conflicts with any of the rules of law adverted to. 
On the face of this declaration there is an admitted promise by the 
defendant to pay a certain sum of money at a stipulated time, and 
an admitted breach of that promise. That is a perfectly good promise 
if founded upon a sufficient legal consideration; and the simple 
question is, whether there is a sufficient legal consideration disclosed 
on the declaration. I am of opinion that there is. It appears upon 
the face of the declaration that the plaintiff, as the personal repre- 
sentative of the original contracting party, being in a condition to 
bring an action upon tTie original contract, or otherwise to put it 
in force, in consideration of his abstaining from enforcing the rights 
conferred on him by that contract, the defendant promised to pay 
in respect of the occupation of the premises under the deed referred 
to, and in respect of his subsequent occupation thereof as tenant to 
the plaintiff as administrator, a reasonable sum. It was not neces- 
sary, in order to make that a good consideration, that the mutual 
promises should amount to a release of the right of action flowing 
from the original contract. The plaintiff, having a right to en- 
force the benefits conferred on him by the contract, enters into an 
agreement not to do so, whereby he changes his situation to this ex- 
tent, that, whereas before he had a right to sue upon the deed, if he 
now exercises that right he renders himself liable to an action. He 
has therefore plainly given a good consideration for the defendant's 
promise, and there is a complete cause of action disclosed on the face 
of the declaration. Upon principle, this is in truth nothing more 
than the ordinary case to be found in the old books, of an action 
against an heir whose ancestor has made a bond binding himself 
and his heirs, and who has assets by descent; if he contracts with 
the obligee of the bond that, if the latter will forbear to put the 
bond in suit, he will pay the sum secured by a given day, — that 
is a good assumpsit, and the forbearance till the day named is a 
good consideration to support the promise. The bond is not re- 
leased by that. The only result is, "to subject the obligee to an ac- 
tion if he puts the bond in suit before the expiration of the time 
agreed on. To that extent the terms of the bond are varied, and 
yet the bond remains unreleased ; nevertheless, the consideration 
v/hich flows from the agreement of the obligee not to put the bond 
in suit is good, and furnishes a ground of action if it be broken. 
That principle is applicable here. 

WiLLKH, J. I am entirely of the same opinion. It appears to 
me that this declaration is neither open to the objection that it is 
an attempt fo vary by parol the terms of a deed, nor to the objection 
that it is an action upon an accord. 


Byles, J. I had at first some doubt whether the maxim unum- 
quodque dissolvitur eodem ligamine quo ligatur was not applicable 
here; for, till satisfaction, the plaintiff might always have an ac- 
tion upon the deed, and one cannot but see that this would lead to 
circuity of action. Further, whatever may be the value of the de- 
cision in Leslie v. De la Torre, the reported observations of Lord 
Kenyon are very much in favor of Mr. Williams's argument. But 
Gwynne v. Davy is not so. Three of the judges there intimate an 
opinion that an action might be maintained on the parol agreement. 
And no other authorities have been cited to show that the rule is 
applicable to a cross-action, and is not confined to an action on the 

Keating, J. I concur with the rest of the Court in thinking that 
the declaration discloses a promise founded on a good consideration, 
and that it is not open to the objection that the plaintiff is seeking 
by parol to vary the terms of an instrument under seal. 

Judgment for the plaintiff. 


Minnesota Supreme Court, July 3, 1882 

{^Reported in 29 Minnesota, 254] 

Beery, J. On September 27, 1881, defendant, as payee, holding 
plaintiff's promissory note, upon which there was an unpaid balance 
of $1,850, falling due November 10, 1882, with interest to accrue, 
they agreed as follows : Defendant agreed to accept $1,750 in full 
satisfaction of the balance of principal and interest called for by 
the note; $150 to be paid by plaintiff within one week, and $1,600 
within two weeks from said September 27 ; the note to be thereupon 
delivered up, and a mortgage securing the same to be cancelled. 
Plaintiff agreed to raise the $1,750 and pay the same to defendant 
as above specified. It was subsequently mutually agreed that de- 
fendant should call upon plaintiff at his residence, within a week 
from September 27, to receive the $150 payment, plaintiff to have 
the same there in readiness. Plaintiff had and kept the $150 in 
readiness during the week; but defendant failed to call for it at 
any time, and plaintiff was unable to find him during the week 
mentioned. Within two weeks from September 27, plaintiff, after 
much expense and trouble, procured the sum of $1,600, and on 
October 10, 1881, duly tendered the sum of $1,750 to the defendant 
in fulfilment of his (plaintiff's) agreement, and requested defendant 
to fulfil on his part. Defendant refused to receive the money or to 
perform his part of the agreement, having on October 1, without 
plaintiff's knowledge, sold and transferred the note and mortgage 


to a third party, to whom plaintiff became thereby bound to pay 
the full unpaid amount called for by the note. Plaintiff brings this 
action for damages for defendant's breach of contract. 

The agreement between the parties was not for the sale of the 
note and mortgage, but one by which the maker of these instru- 
mnts was to be discharged from liability thereon by the payee. The 
agreement is, therefore, not within the statute of frauds, so as to 
be required to be in writing. The agreement is what is known as 
an accord executory; that is to say, it is an agreement upon the 
sum to be paid and received at a future day in satisfaction of the 
note. If the accord had been executed, there would have been a 
satisfaction extinguishing the note, the case being taken out of the 
rule by which payment of a part is held insufficient to satisfy the 
whole of a liquidated indebtedness by the fact that the payment was 
to be made before the indebtedness fell due. Sonnenberg v. Riedel, 
16 Minn. 83; Brooks v. White, 2 Met. 283. 

The case is, then, one of a promise on the part of the plaintiff to 
do something of advantage in law to the defendant, and on the part 
of the defendant to do something of advantage in law to the plain- 
tiff — a case of mutual promises, one of which is the consideration 
of the other. The agreement was valid and binding upon both 
parties. The plaintiff has duly offered to perform on his part. The 
defendant has refused to accept the proffered performance, as also 
to perform on his part at plaintiff's request, and has moreover dis- 
abled himself from performing by disposing of the note. The plain- 
tiff is, therefore, in accordance with the general rule which gives 
damages for breach of contract, entitled to recover the damages which 
have resulted to him from this breach by defendant. Billings v. 
Vanderbeck, 23 Barb. 546; Scott v. Frink, 53 Barb. 533; Very v. 
Levy, 13 How. 345. Order affirmed. 

C. — Executed Consideration and Moeal Consideration 


In the Queen's Bench, Michaelmas Term, 1599 

[Reported in Crohe Elizaheth, 715] 

Assumpsit. Whereas he was seised in fee of the advowson of 
Beckiiigham, in the county of Lincoln; in consideration that he at 
the defendant's request, by his deed, dedissct ct concessisset to the 
defendant the first and next avoidance of the said church, the de- 
fendant, 22 August, 37 Eliz., assumed to pay to the plaintiff lOOZ., 


&c. Upon non assumpsit pleaded, it was found for the plaintiff, and 
damages assessed to an 1001. xind after verdict it was moved in 
arrest of judgment that this consideration is past, and therefore not 
sufficient to ground an assumpsit; for there is not any time of the 
grant alleged ; and it might have been divers years before the assump- 
sit made; and being a thing executed and past, no assumpsit after- 
wards can be good : and in proof thereof Dyer, 272, Hunt v. Bate 
was cited. But all the Court resolved to the contrary; for the grant 
being made at his request, it is a sufficient consideration, although 
it were divers years before; especially being to the defendant him- 
self, the consideration shall, be ,\to continue. But if the grant had 
been to a stranger, and not at 'the defendant's request, it had per- 
adventure been otherwise. . . . Wherefore it was adjudged for the 


In the King's Bench, Michaelmas Term, 1603 

[Reported in Yelverton, 40] 

The plaintiff declared, quod cum ad specialem, instantiam of the 
defendant, he had procured credit for one Mud for two pipes of 
wine amounting to 517., and Flud, super credentiam and per medium. 
of the plaintiff at the request of the defendant, emisset of one 
Roberts two pipes of wine for 51L, and superinde the plaintiff with 
riud entered into bond of 1007. to Roberts for payment of the said 
517, at a day to come, which was not paid at the day; and there- 
V upon Roberts sued the plaintiff upon the bond, and recovered, and 
Imd a capias against him, whereby he fuit coactus to pay Roberts 
6717., de solutione of which 677. causa prceallegata he notified to 
the defendant, who in consideratione prcemissorum promised to 
pay the plaintiff the 677. at Michaelmas; and showed the failure 
of payment of the 677. at the day, &c. And upon non assumpsit 
pleaded, it was found against the defendant. And Yelverton moved 
in arrest of judgment, that the action upon the matter shown does 
not lie, because the consideration was past and executed before the 
promise, and the defendant had no profit by it, but all the benefit 
was to Flud, a stranger; like the case 10 Eliz., Dy. 272, where 
J. S. was bail for the servant upon an arrest, and signified all to 
the master after the bail entered into, who promised to save him 
harmless; and although the bail was condemned, yet no assumpsit 
lay against the master, because the consideration was past before 
the promise : and it seems that upon the first request only to give 
credit to Flud for two pipes of wine, no assumpsit lies; for a bare 
request does not imply any promise; as if I say to a merchant, I 
pray trust J. S. with 1007., and he does so, this is of his own head, 


and he shall not charge me, unless I say I will see you paid or the 
like. And it seems likewise that the promise shall not have re- 
lation to the first request of giving credit to Flud, because the en- 
treaty for the credit was but for two pipes of wine amounting to 
oil., and the promise is for 67^.^ and so they differ in the sums; 
as if I request J. S. to enter into bond for J. D. for lOL, and I 
will see him paid; now if J. S. enters into bond of 20Z. for the 
payment of 10/. for J. D,, which 20Z. is recovered against him, he 
shall not charge me on my promise but lOZ, But non allocatur 
per Fennee, Gawdy, and Popham; for although upon the first re- 
quest only assumpsit does not lie, yet the promise coming after 
shall have reference to the first request; and although the request 
was but for two pipes of wine amounting to 51L, that Flud might 
have credit for that; yet when Roberts, who sold the wine, would 
not take (as appears) security but by bond of 100/. for payment 
of 51/., and all this matter is signified afterwards to the defendant, 
who agrees to it, and promises to pay the 67/., this shall charge 
him; because it has its essence and commencement from the first 
request made by the defendant. As {per Gawdy) if I request one 
to marry my cousin, who does so, and afterwards tells me of it, 
and thereupon I promise him 100/., this is a good promise to charge 
me, although the marriage was past, which is the consideration; 
because now the promise shall have reference to the request, which 
was before the marriage. Vide this case, Dy. 272 h. The same 
law (by him) if I entreat one to be bail for my servant, and he 
thereupon becomes bail, and is condemned, and afterwards tells 
me of it, and I promise him to save him harmless, it is good, and 
he shall recover his damage in toto. Wherefore judgment was 
given for the plaintiff. But Yelverton, J., was contra clearly.^ 


In the Queen's Bench, May 30, 1842 

{^Reported in 3 Queen's Bench Reports, 234] 

Assumpsit. The declaration stated that, whereas heretofore, to 
wit, (fee, in consideration that plaintiff at the request of defendant 
had bought of defcMidant a certain horse, at and for a certain price, 
&c., to wit, &c., defendant promised plaintiff that the horse did not 
exceed five years old, and was sound, &c., and free from vice; never- 
theless defendant did not perform or regard his said promise, but 
thereby deceived and defraud(xl plaintiff in this, to wit, that the 
saifl liorse at the; time of tlu^ mnkiTig of tlie said promise was not 

' Lfimplfifrli v. P.r.-illiwnit, Hobart, 105, uud other decisions, ace. See Langdell, 
Summary of TIontractH, §§92-94. 


free from vice; but, on the contrary thereof, was then very vicious, 
restive, ungovernable, and ferocious; whereby, &c. 

Pleas. 1. Non assumpsit. Issue thereon. 

2. That the horse, at the time of the supposed promise, was 
free from vice, and was not vicious, restive, ungovernable, or fero- 
cious, in manner, &c. ; conclusion to the country. Issue thereon. 

On the trial, before Wightman, J., at the Cornwall Spring As- 
sizes, 1841, a verdict was found for the plaintiff on both the above 
issues. In Easter Term, 1841, Bompas, Serjt., obtained a rule nisi 
for arresting the judgment on the first count. In last Term 

Erie and Butt shewed cause. The objection is, that the first 
count states only a nudum pactum. But there is an executed con- 
sideration, which with a request will support a promise. Now the 
request need not be express; wherever the law will raise a promise, 
a request by the party promising will be implied; note (c) to Os- 
borne V. Rogers.^ Payne v. Wilson was the converse of the present 
case : there a consideration, which in its form was executed, was 
declared on as executory; and this was held to be no variance, be- 
cause in reality the consideration was continuing. Here the dec- 
laration states an executed consideration in form; but it is practi- 
cally executory because the sale and warranty would be coincident. 
In Thornton v. Jenyns ^ the declaration charged that, in considera- 
tion that plaintiff had promised to defendant, defendant then prom- 
ised plaintiff. It was objected that this was an executed considera- 
tion without a request, which was insufficient where the law would 
not raise a promise ; and Brown v. Crump ^ was cited ; but the 
Court held that the two promises might be considered as simul- 
taneous, and that the objection therefore could not be sustained.* 

Bompas, Serjt., and Slade, contra. The warranty ought to be 
given at the time of the sale : if made after, it is without considera- 
tion. 3 Blackst. Com. 166; Com. Dig., Action upon the Case for 
a Deceipt (A. 11); Roswel v. Vaughan,^ Pope v. Lewyns.^ Thorn- 
ton V. Jenyns was a case of mutual promises, which can never 
literally be made at the same moment : here the declaration defi- 
nitely lays the perfect sale as antecedent to and distinct from the 
warranty. And the warranty is a matter not implied by the law 
upon a sale. Parkinson v. Lee.'^ Even an express promise without 
a legal consideration is invalid. Collins v. Godfroy.^ In Hopkins 
V. Logan there was an executed consideration from which a promise 
to pay on request would have arisen; and it was holden tliat this 
did not support a promise to pay on a future day named. [Pat- 
TESON, J., referred to Hunt v. Bate, as cited in Eastwood v. Ken- 
yon, and to Lampleigh v. Brathwait.] Cur. adv. vuU. 

1 1 Wms. Saund. 264 a. 2 1 Man. & G. 166. 3 1 Marsh. 567 

^ It was also argued that the warranty might here, after verdict, be taken to be 

coincident with the sale: to which it was answered that if it were so, the evidence 

negatived the declaration. 

6 Cro. Jac. 196. « Cro. Jac. 630. ' 2 East. 314. » 1 B. & Ad. 950. 


Lord Denman, C. J., in this Term (May 30) delivered the judg- 
ment of the Court. 

This was an action of assumpsit for breach of warranty of the 
soundness of a horse. The first count of the declaration, upon 
which alone the question arises, stated that, in consideration that 
the plaintiff at the request of the defendant had bought of the 
defendant a horse for the sum of SOl.^ the defendant promised that 
it was sound and free from vice. And it was objected, in arrest 
of judgment, that the precedent executed consideration was insuffi- 
cient to support the subsequent promise. And we are of opinion 
that the objection must prevail. 

It may be taken as a general rule, subject to exceptions not ap- 
plicable to this case, that the promise must be coextensive with the 
consideration. In the present case, the only promise that would 
result from the consideration as stated, and be coextensive with it, 
would be to deliver the horse upon request. The precedent sale 
without a warranty, though at the request of the defendant, im- 
poses no other duty or obligation upon him. It is clear therefore 
that the consideration stated would not raise an implied promise 
by the defendant that the horse was sound or free from vice. 

But the promise in the present case must be taken to be, as in 
fact it was, express and the question is, whether that fact will 
warrant the extension of the promise beyond that which would be 
implied by law; and whether the consideration, though insufficient 
to raise an implied promise, will nevertheless support an express 
one. And we think that it will not. 

The cases in which it has been held that, under certain circum- 
stances, a consideration insufficient to raise an implied promise 
will nevertheless support an express one, will be found collected 
and reviewed in the note (a) to Wennall v. Adney,^ and in the 
case of Eastwood v. Kenyon. They are cases of voidable contracts 
subsequently ratified, of debts barred by operation of law subse- 
quently revived, and of equitable and moral obligations which, but 
for some rule of law, would of themselves have been sufficient to 
raise an implied promise. All these cases are distinguishable from, 
and indeed inapplicable to, the present, which appears to us to 
fall within the general rule, that a consideration past and executed 
will support no other promise than such as would be implied by 

The rule for arresting the judgment upon the first count must 
therefore be made absolute. Rule absolute.^ 

> 3 Boh. .t PmI. 240. 

' "In LamrilciKli ?). Brathwait, it was assumed that the journeys which tho plain- 
tiff pf-rformfd at thf; roquost of tho (Icfcndant, and tho other sorvicoa he rendered, 
would have l)eon sufhoiont to make any promis(> hindinp; if it had been connected 
thorowitli in one contract; th(! peculiarity of tlio dccimon lies in connectinR a subse- 
q\u:ui r)romim! with a prior conHideration after it had boon executed. Probably at the 
present day, such Bervice on such rcqucat would have; rai.sod a promise by implication 


Another, Administratoks 

Supreme Judicial Court of Massachusetts, September 24- 
October 18, 1901 

[Reported in 180 Massachusetts, 15] 

Bill of Equity by the owner of certain land subject to a 
mortgage assumed by her, to restrain the administrators of Willard 
Elmer, the holders of the mortgage, from foreclosing it, or dis- 
posing of it and the note secured thereby, and for an order to the 
defendants to discharge the mortgage and cancel the note, filed July 
7, 1900. 

The bill alleged that the plaintiff was the owner of a tract of 
land to which she derived title by a deed of one Herman E. Bo- 
gardus, by which deed she assumed and agreed to pay a certain 
mortgage of the premises given by Bogardus, which mortgage and 
the note for $1,300 thereby secured had been assigned to Willard 
Elmer, the defendants' intestate, that the defendants' intestate on 
or about January 11, 1898, executed and delivered to the plaintiff 
the following agreement: "Springfield, Mass., Jan. 11, 1898. In 
Consideration of Business and Test Sittings Reseived from Mme. 
Sesemore, the Clairvoyant, otherwise known as Mrs. Josephene L. 
Moore on Numerous occasions I the undersigned do hear by agree 
to give the above named Josephene or her heirs, if she is not alive, 
the Balance of her Mortgage note whitch is the Herman E. Bo- 
gardus Mortgage note of Jan. 5, 1893, and the Interest on same 
on or after the last day of Jan. 1900, if my Death occurs before 
then whitch she has this day Predicted and Claims to be the truth, 
and whitch I the undersighned Strongly doubt. Wherein if she 
is right I am willing to make a Recompense to her as above stated, 
but not payable unless death Occurs before 1900. Willard Elmer." 

The bill alleged, that by the foregoing instrument the premises 
were released and discharged from the operation of the mortgage 
deed, and the note secured thereby was paid in full and became null 
and void, upon the death of Willard Elmer, which occurred before 
the year 1900, to wit, on September 15, 1899. 

The bill also alleged, that before the execution of the above agree- 
ment, at the request of Willard Elmer, the plaintiff gave to Elmer 
the business and test sittings referred to in the agreement as the 
consideration for the agreement, and at his request devoted much 
time and labor thereto. 

The defendants demurred, and among the causes of demurrer 
alleged, that the above agreement annexed to the bill was a wager- 
to pay what it was worth; and the subsequent promise of a sum certain would have 
been evidence for the jury to fix the amount." — Erie, C. J., Kennedy v. Broun, 13 
C. B. N. s. 677, 740. See also Stewart v. Casey, [1892] 1 Ch. 104, 115. 


ing contract and against public policy and void, and that it was 
without consideration. 

In the Superior Court the case was heard by Lawton, J., who 
made a decree sustaining the demurrer and dismissing the bill. 
The plaintiff appealed and, at the request of the plaintiff, the judge 
reported the case for the determination of this court. If the de- 
murrer was sustained rightly, the bill was to be dismissed; other- 
wise, the demurrer was to be overruled and the defendants were to 
answer to the plaintiff's bill. 

W. E. McClintoch {J. B. Carroll with him) for the plaintiff. 

C. W. Bosivorth, for the defendants. 

Holmes, C. J. It is hard to take any view of the supposed con- 
tract in which, if it were made upon consideration, it would not 
be a wager. But there was no consideration. The bill alleges no 
debt of Elmer to the plaintiff prior to the making of the writing. 
It alleges only that the plaintiff gave him sittings at his request. 
This may or may not have been upon an understanding or impli- 
cation that he was to pay for them. If there was such an under- 
standing it should have been alleged or the liability of Elmer in 
some way shown. If, as we must assume and as the writing seems 
to imply, there was no such understanding, the consideration was 
executed and would not support a promise made at a later time. 
The modern authorities which speak of services rendered upon 
request as supporting a promise must be confined to cases where 
the request implies an undertaking to pay, and do not mean that 
what was done as a mere favor can be turned into a consideration 
at a later time by the fact that it was asked for. See Langdell, 
Contracts, §§ 92 et seq.; Chamberlin v. Whitford, 102 Mass. 448, 
450; Dearborn v. Bowman, 3 Met. 155, 158; Johnson v. Kimball, 
172 Mass. 398, 400. 

It may be added that even if Elmer was under a previous lia- 
bility to the plaintiff it is not alleged that the agreement sued upon 
was received in satisfaction of it, either absolutely or conditionally, 
and this again cannot be implied in favor of the plaintiff's bill. 
It is not necessary to consider what further difficulties there might 
be in the way of granting relief. Bill dismissed.^ 

* In the following cases a subsequent promise was held ineffectual. Walker v. 
Brown, 104 Ga. 357; MUm v. Bryson, 67 la. 591; Walker v. Irwin, 04 la. 448; Hollo- 
way V. Rudy, 00 S. W. Rep. 650 (Ky.); Cleaver v. Lenhart, 182 Pa. 285; Valentine 
t. Bell, 66 Vt. 280; Stonoburner v. Motley, 95 Va. 784, ace. See also Bailey v. Bussing, 
29 f>nin. 1; Marsh v. Chown, 104 la. 556; Beaty v. Carr, 109 la. 183; Stout v. Hum- 
phrey, 69 N. J. L. 532; Shepard v. Rhodes, 7 R. I. 470. 

The new promise was enforccid in Bradford v. Roulston, 8 Ir. C. L. 468; Lonsdale 
v. Brown, 4 Wash. C. C 148, \r>0; Friedman v. Suttle, 10 Ariz. 57; Winefield v. Fedcr, 
169 111. Ai)p. 480; Daily v. Minniek, 117 la. .563; Viley v. Pettit, 96 Ky. 578; Pool 
r. Horner, 64 Md. 131; Stuht v. Sweesy, 48 Neb. 767; Wilson v. Edmonds, 24 N. H. 
502; Hicks v. Burlians, 10 .Johns. 243; Oatfield v. Waring, 14 Johns. 188; Greaves 
V. M'Allister. 2 Binn. .'',92; Landis v. Royer, 59 Pa. 95; Rutch's Estate, 201 Pa. 305; 
Bilvorthorn v. Wylie, 96 Wis. 09; Raifo v. Gorrell, 105 Wis. 636. Sec also Carson 
V. r;iark, 2 111. 113; Montgomery v. Downey, 88 N. W. Rep. 810 (la.); Freeman v. 
Robinson, 38 N. J. L. 383; f-haffee v. Thomas, 7 f'ow. 358; Comstock v. Smith, 7 Johns. 
87; Boothc v. Fitzpatrick, 30 Vt. 081; Sc;ymour v. Marlboro, 40 Vt. 171. 



In the Common Pleas, Michaelmas Term, 1586 

[Reported in 3 Leonard, 164] 

In an action upon the case against Edmonds, the case was, that 
the defendant, being within age, requested the plaintiff to be 
bounden for him to another for the payment of 30Z.^ which he was 
to borrow for his own use to which the plaintiff agreed, and was 
bounden, ut supra. Afterwards the plaintiff was sued for the said 
debt, and paid it. And afterwards, when the defendant came of 
full age, the plaintiff put him in mind of the matter aforesaid, 
and prayed that he might not be damnified so to pay 30Z., it being 
the defendant's debt : whereupon the defendant promised to pay 
the debt again to the plaintiff : upon which promise the action was 
brought. And it was holden by the Court that, although here was 
no present consideration upon which the assumpsit could arise, yet 
the court was clear that upon the whole matter the action did lie; 
and judgment was given for the plaintiff.^ 


In the Exchequer, Trinity Term, 1767 

[Reported in Butler's Nisi Prius, 129] 

An action was brought by an apothecary against the overseers 
of a parish for the cure of a pauper, who boarded with her son 
out of the parish, under an agreement made with him by the de- 
fendant Turner, who was the only acting overseer of the parish. 
The pauper was suddenly taken ill, and her son called in the plain- 
tiff, who had attended her for four months, and cured her. After 
the cure Turner was applied to, and promised to pay the plain- 
tiff's bill. It was held, that though there was no precedent request 
from the overseers, yet the promise was good, notwithstanding the 
Statute of Frauds; for overseers are under a moral obligation to 
provide for the poor. Secondly, that as Turner was the only acting 
overseer, the other was bound by his promise.^ 

* In the report of the same case in Godb. 138, nom. Barton and Edmonds' Case, it 
is said: "But if a feme covert and another at her request had been bounden in such a 
bond, and after the death of her husband she had assumed to have saved the other 
harmless against such bond, such assumpsit should not have bound the wife." For 
cases in accord with Edmonds' Case see 1 Williston, Contracts, § 239. 

2 See Paynter v. Williams, 1 Cr. & M. 810. 



In the King's Bench, Eastee Term, 1775 

{Reported in Cowper, 284] 

In assumpsit the plaintiffs declared against Charles Hill, being 
in the custody, &e. : For that whereas James Clarke, &c., by his last 
will, &., did give and bequeath to the plaintiff's wife the sum of 
60Z., &c., and of his last will and testament made the said Charles 
Hill sole executor, &c., and the said Charles Hill took upon himself 
the burthen and execution of the said will : And the said N. and A. 
further say that divers goods and chattels, &c., afterwards, &c., came 
to the hands of the said Charles Hill as executor of the said J. C, 
which said goods and chattels were more than sufficient to satisfy 
and pay all the just debts and legacies of the said J. C, &c., of 
which the said C. H. then and there had notice : By reason of which 
said premises, the said Charles Hill became liable to pay to the said 
]Sr. and A. the said sum of 601.; and, being so liable, he, the said C, 
in consideration thereof, afterwards, &c., undertook and faithfully 
promised to pay to them the said sum of 601., whenever, &c. 

To this declaration the defendant demurred generally. 

Mr. Le Blanc, in support of the demurrer.^ 

Mr. BuUer, contra, for the plaintiff. The question is, whether the 
facts stated in this declaration, namely, that the defendant was execu- 
tor and had assets, &c., are a sufficient consideration for a promise. 
As to that question, it is a settled point that, wherever an express 
promise is made upon a good consideration, an action lies. And the 
slightest ground is sufficient to maintain a promise. 1 Vent. 40, 41, 
Wells V. Wells; 1 Lev. 273, s. c; Stone v. Withipool, Latch, 21, in 
which latter case it is laid down, "that it is an usual allegation for 
a rule, that any thing which is a ground for equity is a sufficient 

But here an express promise is made, and by the demurrer ad- 
mitted. It is objected, however, that there is no averment that the 
funeral expenses are paid. The answer is, it is averred that he had 
assets to pay, which is alone sufficient, and so it was expressly held 
by Lord King, in the case of Camden v. Turner, Sittings after Tr., 
5 Geo. T., C. B.; Select Cases of Evidence by Sir John Strange. 

Lord Mansfield. This is a case in which the declaration particu- 
larly states that assets have been received by the defendant, the ex- 
ecutor, more than sufficient to pay all the testator's debts and legacies. 
If HO, it most UTi(lou])tofny must b(^ taken upon the pleadings that 
tbcre was sufficient to discharge the funeral expenses, because they 
are payablf; first; consequently, if there was less than the amount 
of tlicm, t,h(Te could not be; sufficient to discharge the debts and leg- 

' Only 80 miioli of ihc arKumcnte and decision is here given as relates to the ques- 
tion <>{ "ConHidcrutiou." 


acies. The declaration then goes on to state that, in consideration 
of there being full sufficient assets as aforesaid, the defendant under- 
took and promised to pay the plaintiff his legacy. No doubt then 
but, at any time after an executor has assented, the property vests; 
and if it be a pecuniary legacy, an action at law will lie for the 
recovery of it. Formerly, upon a bill being filed in chancery against 
an executor, one part of the prayer of it was, that he should assent 
to the bequests in his testator's will. If he had assets, he was bound 
to assent. And when he had assented, the legacy became a demand 
which in law and conscience he was liable to pay. But, in the present 
case, there is not only an assent to the legacy, but an actual promise 
and undertaking to pay it; and that promise founded on a good 
consideration in law, as appears from the cases cited by Mr. Buller, 
particularly the case of Camden v. Turner,^ where acknowledgment 
by an executor, "that he had enough to pay," was held a sufficient 
ground to support an assumpsit. Here the defendant, by his de- 
murrer, admits he had sufficient to pay; therefore this is not the 
case that Mr. Le Blanc has been arguing upon; but it is the case of 
a promise made upon a good and valuable consideration, which, in 
all cases, is a sufficient ground to support an action. It is so in 
cases of obligations which would otherwise only bind a man's con- 
science, and which, without such promise, he could not be compelled 
to pay. For instance, where an infant contracts debts during his 
minority; if after he comes of age he consents to pay them, an ac- 
tion lies. So a conveyance executed by an infant, which he was 
compellable to do by equity, is a good conveyance at law. Co. Lit., 
Attornment, 315 a. In this case the promise is grounded upon a 
reasonable and conscientious consideration; namely, that the defend- 
ant had assets to discharge the legacy. If so, he was compellable 
in a court of equity, or in the ecclesiastical court, to pay it. I 
give my opinion upon this case as it stands ; that is, that it is an ex- 
press promise made upon a good and sufficient consideration. 
The three other judges concurred. 

Per Cur. Judgment for the plaintiff.^ 

Mr. Le Blanc then moved for liberty to withdraw the demurrer, 
and plead the general issue; but the Court refused it. 

1 Sittings after Trinity Term, 6 Geo. I., C. B., coram. King, C. J. 

2 Hawkes v. Saunders, Cowp. 289, ace. But see Smith v. Carroll, 112 Pa. 390; 
Dunham v. Elford, 13 Rich. Eq. 190. 



In the King's Bench, January 28, 1777 

[Reported 'in Cowper, 544] 

This was an action on a promissory note, bearing date the 11th 
Eebruary, 1775, payable to one Joseph Trueman (the plaintiff's 
brother), three months after date, for 67^., and indorsed by him to 
the plaintiff. 

The declaration contained other counts for goods sold, money had 
and received, and on an account stated. The defendant pleaded, 
first, non assumpsit; secondly, "that on the 19th January, 1775, he 
became bankrupt, and that the debt for which the said note was 
given was due to the plaintiff before such time as he, the defendant, 
became bankrupt, and that the note was given to Joseph Trueman 
for the use of, and for securing, the said plaintiff his debt so due." 
The cause was tried before Lord Mansfield at the Sittings after 
Michaelmas Term, 1776, when the jury found a verdict for the plain- 
tiff, damages 72?. 125., costs 405., subject to the opinion of the Court 
upon a special case, stating the answer of the plaintiff in this action 
to a bill filed against him in the Exchequer by the present defendant 
for a discovery of the consideration of the note; the substance of 
which was as follows: "That on the 15th of December, 1774, the 
defendant, Eenton, purchased a quantity of linen of the plaintiff, 
Trueman; and it being usual to abate 51. per cent to persons of the 
defendant's trade, the price, after such abatement made, amounted 
to 126?. 18s. That at the time of the sale it was agreed that one- 
half of the purchase-money should be paid at the end of six weeks, 
and the other half at the end of two months : And in consideration 
thereof, the plaintiff, Trueman, drew two notes on the defendant 
for 63?. 95. each, payable to his own order, at six weeks and two 
months respectively. That the defendant accepted the notes, and 
thereupon the plaintiff gave him a discharge for the sum. He then 
denied that he had proved or claimed any debt or sum of money 
under the commission ; but set forth that he acquainted the defendant 
he was surprised at his ungenerous behavior in purchasing so large 
a quantity of linen of him at the eve of his bankruptcy, and in- 
formed him he had paid away the above two notes: upon which the 
defendant pressed him to take up the two notes, and proposed to 
give him a security for part of the debt. That afterwards, on the 
nth February, 1775, the defendant called upon the plaintiff, and 
voluntarily proposed to secure to him the payment of 67?. in satis- 
faction of his debt, if he would take up the two notes and cancel 
or deliver them up to the defendant. That the plaintiff agreed to 
accept this proposal with the approbation of his attorney, and de- 
si re*! the note to be made payable to his brother, Joseph Trueman, 
or order, three months after date. That he took up the two ac- 


ceptances and delivered them to the defendant to be cancelled, and 
accepted the above note for 671. in satisfaction and discharge thereof. 
That a commission of bankruptcy issued against the defendant on 
the 19th of January, 1775, and that the bankrupt obtained his cer- 
tificate on the 17th of April following." The question reserved was, 
Whether the facts above stated supported the merits of the defendant's 
plea ? If they did not, then a verdict was to be entered for the plain- 
tiff on the general issue; but if the merits of the second plea sup- 
ported the defendant's case, then a verdict was to be entered for the 
defendant on that plea. 

Mr. Buller, for the plaintiff. 

Mr. Davenport, contra. 

LoKD Mansfield. The plea put in, in this case, is that the debt 
was due at the time of the act of bankruptcy committed; and on 
that plea, in point of form, there was a strong objection made at 
the trial that the allegation was not strictly true; because at the 
time of the sale, credit was given to a future day; which day, as it 
appeared in evidence, was subsequent to the act of bankruptcy com- 
mitted. To be sure, on the form of the plea, the defendant must 
fail. But I never like to entangle justice in matters of form, and 
to turn parties round upon frivolous objections where I can avoid 
it. It only tends to the ruin and destruction of both. I put it there- 
fore to the counsel on the part of the plaintiff to give up the objec- 
tion in point of form, and to take the opinion of the Court, whether, 
according to the facts and truth of the case, the defendant could 
have pleaded his certificate in bar of the debt in question; and in 
case they had refused to do so, I should have left it to the jury upon 
the merits. The counsel for the plaintiff very properly gave up the 
point of form. The question, therefore, upon the case reserved, is 
worded thus : "Whether the facts support the merits of the defendant's 
plea ? That is. Whether, on the merits of the case, properly pleaded, 
the certificate of the defendant would have been a bar to the plain- 
tiff's action? Wow, in this case there is no fraud, no oppression, 
no scheme whatsoever on the part of the plaintiff to deceive or im- 
pose on the defendant; and as to collusion with respect to the cer- 
tificate, where a creditor exacts terms of his debtor as the considera- 
tion for signing his certificate, and obtains money or a part of his 
debt for so doing, the assignees may recover it back in an action. 
But that is not the case here. So far from it, the transaction itself 
excluded the plaintiff from having any thing to do with the certifi- 
cate. ISTo man can vote for or against the certificate till he has proved 
his debt. Here the plaintiff delivers up the two drafts bearing 
date prior to the act of bankruptcy, and by agreement accepts one 
for little more than half their amount, bearing date after the com- 
mission of bankruptcy sued out. Most clearly, therefore, he could 
not have proved that note under the commissions; and if not, he 
could have nothing to do with the certificate. That brings it to the 


general question, Whether a bankrupt, after a commission of bank- 
ruptcy sued out, may not, in consideration of a debt due before the 
bankruptcy, and for which the creditor agrees to accept no dividend 
or benefit under the commission, make such creditor a satisfaction 
in part or for the whole of his debt, by a new undertaking and agree- 
ment? A bankrupt may undoubtedly contract new debts; there- 
fore, if there is an objection to his reviving an old debt by a new 
promise, it must be founded upon the ground of its being nudum 
pactum. As to that, all the debts of a bankrupt are due in con- 
science, notwithstanding he has obtained his certificate; and there 
is no honest man who does not discharge them, if he afterwards has 
it in his power to do so. Though all legal remedy may be gone, 
the debts are clearly not extinguished in conscience. How far have 
the courts of equity gone upon these principles? Where a man 
devises his estate for payment of his debts, a court of equity says 
(and a court of law in a case properly before them would say the 
same) : All debts barred by the Statute of Limitations shall come 
in and share the benefit of the devise, because they are due in con- 
science. Therefore, though barred by law, they shall be held to be 
revived and charged by the bequest. What was said in the argument 
relative to the reviving a promise at law, so as to take it out of the 
Statute of Limitations, is very true. The slightest acknowledgment 
has been held sufficient; as saying, "Prove your debt, and I will 
pay you," — "I am ready to account, but nothing is due to you." 
And much slighter acknowledgments than these will take a debt out 
of the statute. So in the case of a man, who after he comes of age 
promises to pay for goods or other things, which during his minority 
one cannot say he has contracted for, because the law disables him 
from making any such contract, but which he has been fairly and 
honestly supplied with, and which were not merely to feed his ex- 
travagance, but reasonable for him (under his circumstances) to 
have; such promise shall be binding upon him, and make his former 
undertaking good. Let us see then what the transaction is in the 
present case. The bankrupt appears to me to have defrauded the 
plaintiff by drawing him in, on the eve of a bankruptcy, to sell him 
such a quantity of goods on credit. It was grossly dishonest in him 
to contract such a debt, at a time when he must have known of his 
own insolvency, and which it is clear the plaintiff had not the 
smallest suspicion of, or he would not have given credit and a day 
of payment in futuro. On the other hand, what is the conduct of 
the plaintiff? He relinquishes all hope or chance of benefit from 
a dividend under the commission, by forbearing to prove his debt; 
gives up the securities he had received from the bankrupt, and ac- 
cepts of a note, amounting to little more than half the real debt, in 
full satisfaction of bis whole demand. Ls that against conscience? 
Is it not on the contrary a fair consideration for the note in question? 
He might foresee prospects from the way of life the bankrupt was 


in, which might enable him to recover this part of his debt, and he 
takes his chance; for till then he could get nothing by the mere im- 
prisonment of his person. He uses no threats, no menace, no op- 
pression, no undue influence; but the proposal first moves from, 
and is the bankrupt's own voluntary request. The single question 
then is. Whether it is possible for the bankrupt, in part or for the 
whole, to revive the old debt? As to that, Mr. Justice Aston has 
suggested to me the authority of Bailey v. Dillon, where the Court 
would not hold to special bail, but thought reviving the old debt 
was a good consideration. The two cases cited by Mr. Buller are 
very material. Lewis v. Chase, 1 P. Wms. 620, is much stronger 
than this ; for that smelt of the certificate ; and the Lord Chancellor's 
reasoning goes fully to the present question. Then the case of Bar- 
nardiston v. Coupland, in C. B., is in point. Lord Chief Justice 
Willes there says, "that the revival of an old debt is a sufficient con- 
sideration." That determines the whole case. Therefore I am of 
opinion that, if the plea put in had been formally pleaded, the merits 
of the case would not have been sufficient to bar the plaintiff's de- 

AsTON, J. As a case of conscience, I am clearly of opinion that 
the plaintiff is entitled. Wherever a party waives his right to come 
in under the commission, it is a benefit to the rest of the creditors. 
In the case of Bailey v. Dillon, the Court on the last day of the Term 
were of opinion, "that the defendant could not be held to special 
bail, yet they would not say that he might [not?] revive the old 
debt which was clearly due in conscience." A bankrupt may be and 
is held to be discharged by his certificate from all debts due at the 
time of the commission; but still he may make himself liable by a 
new promise. If he could not, the provision in the Stat. 5 Geo. IL, 
c. 30, sect. 11, by which every security for the payment of any debt 
due before the party became bankrupt, as a consideration to a credi- 
tor to sign his certificate, is made void, would be totally nugatory. — 
LoKD Mansfield added that this observation was extremely forcible 
and strong. Per Cur. Judgment for the plaintiffs 


ISTew Hampshire Supreme Court^ June, 1884 

[Reported in 63 New Hampshire, 229] 

Allen, J. The plaintiff and the other creditors of Porter Brothers 
(of which firm the defendant is sued as surviving partner) each ac- 
cepted an offer of forty-five per centum of his claim in full settle- 

' The cases on promises to pay debts discharged by bankruptcy are collected in 
1 Williston, Contracts, § 158. 


ment, and Hodgdon, who received all the debtors' property for the 
purpose of paying the amount agreed upon as a compromise and 
obtaining from the creditors a discharge of the indebtedness, gave 
each creditor a note or forty-five per centum of his claim, and at 
the same time took an assignment from each, under seal, of his de- 
mand and of the right to prosecute it to final judgment. These 
notes, including the plaintiff's, were subsequently paid by Hodgdon, 
and Porter Brothers gave the plaintiff the note in suit for the balance 
of his demand. 

Ordinarily, payment and acceptance of a smaller sum for a larger 
one due is no discharge of the larger. Blanchard v. ISToyes, 3 N. H. 
519; Mathewson v. Bank, 45 I^. H. 104, 107. But payment by a 
third person at the request of the debtor, either in money or by 
a note, accepted by the creditor in full satisfaction and discharge of 
the debt, is an exception to the rule, and extinguishes the debt. 
Brooks V. White, 2 Met. 283. The assignee of the defendant's firm 
received their property for the express purpose and on the express 
consideration of obtaining a discharge of their indebtedness by the 
payment of forty-five per centum of the same; and when the plain- 
tiff accepted from the assignee that sum in full satisfaction, his de- 
mand against the defendant was extinguished. His debt being 
satisfied and extinguished, there was no consideration for the note 
in suit. It is not the case of a debt discharged by the order of a 
court in bankruptcy proceedings. In a case of that kind a new prom- 
ise to pay the debt, made after discharge, revives the debt which 
is not extinguished by the discharge, and the consideration for the 
original demand is a good consideration for a new promise. Bank 
V. Wood, 59 K H. 407 ; Wiggin v. Hodgdon, 63 IN". H. 39. 

The assignment of the plaintiff's demand to the assignee was in 
writing, under seal; and if, as the plaintiff claims, this was only 
formal and intended as a receipt to the defendant and a voucher for 
the assignee, it was certainly a valid as well as formal transfer of 
the claim, with all rights of action upon it, to the assignee. The 
plaintiff, having parted with all interest in the claim and all right 
of action upon it, nothing remained to him which could be treated 
as a consideration for the note in suit, and there can be no recovery 
upon it. Judgment for the defendant. 

Carpenter, J., did not sit: the others concurred.^ 

1 Ex parte Hall, 1 Deacon, 171; Samuel v. Fairgrieve, 21 Ont. App. 418; Ras- 
musHf'ii V. State Bank, 11 Col. 301; Lewis v. Simons, 1 Handy, 82; Callahan v. Ackley 
9 Phila. 90, ncc. Similarly in case of a voluntary release or accord and satisfaction. 
Warrr^n v Whitney, 24 Mo. 501; Phelps ?). Dennett, 57 Me. 491; Ingcrsoll v. Martin, 
68 Md. 07; Hall v. Rice, 124 Mass. 292; Manson v. Campbell, 27 Minn. 64; Zoebisch 
V. Von Minden, 47 Hun, 21.3 (see .s. c. 120 N. Y. 400); Snevily v. Read, 9 Watts, 396; 
Shfi)arfl V. Rhodes, 7 R. I. 470; Taylor v. Skilea, 113 Tenn. 288. But see Jamison v. 
Ludlow, 3 La. Ann. 492; WillinR v. Peters, 12 S. & R. 177, contra. Compare Re 
Merriman, 44 Conn. 687; Higgius v. Dale, 28 Minn. 126. 


BAKNES, DowDiNG, and Baetley, v. HEDLEY and Conway 

In the Common Pleas, November 24, 1809. 

[Beported in 2 Taunton, 184] 

This was an issue between the plaintiifs, who were the executors 
of William Webb, deceased, and the defendants, who were assignees 
under a commission of bankruptcy which issued against William 
Harre and Henry Suthmier, directed by order of the Lord Chan- 
cellor, in order to try whether the bankrupts on the 13th of August, 
1802, were indebted to Webb in any and what sum of money. The 
trial came on at the Sittings in London, Mich. Term, 1808, before 
Mansfield, C. J., when a verdict was found for the plaintiffs for the 
sum of 11,672?. 4s. 2d. subject to the opinion of the Court on the 
following case: By a written agreement made on the 15th of May, 
1800, between Webb and the bankrupts, the former agreed to advance 
money from time to time upon interest at 5 per cent, to Harre and 
Suthmier, who carried on the business of sugar bakers in copartner- 
ship, in order to enable them to purchase raw sugars; and in con- 
sideration of such advances the bankrupts were also to pay to Webb 
a commission of 5 per cent, for all sugars which were to be bought 
of him, or provided for Messrs. Harre and Suthmier; and in order 
to secure to Webb the balance which might become due to him on 
these transactions, Harre and Suthmier executed and gave to him 
certain deeds and securities. Webb made out four several successive 
half-yearly accounts between him and Harre and Suthmier, on the 
footing of this agreement, and various sums of money were paid 
to Webb on these accounts from time to time by the bankrupts ; these 
accounts closed on the 10th of August, 1802, when a considerable 
balance was due from the bankrupts to Webb. These accounts com- 
prised the principal moneys actually advanced, and interest at 5 
per cent.; and also 5 per cent, on all sugars purchased by the bank- 
rupts. Webb never purchased or procured any sugars for the bank- 
rupts; but the same were always purchased by the bankrupts 
themselves in their own names. It was admitted on the trial that 
the original agreement of the 15th of May, 1800, was illegal and 
usurious, and that no part of the balance could have been recovered 
by Webb from Harre and Suthmier, if they had set up the usury; 
and Webb was informed by the attorney of Harre and Suthmier 
in July, 1802, that these transactions were usurious, and that his 
whole debt was in danger of being lost, and a writ of latitat was 
actually sued out by the bankrupts' attorneys upon the Statute of 
Usury; but this fact was unknown to Webb. In consequence of this 
intimation, it was agreed between Harr^ and Suthmier and Webb, 
that Webb should make out fresh accounts, leaving out all the charges 
for commission; and should only charge them with the principal 


money, together with legal interest; and that the original deeds and 
articles in the possession of Webb should be given up by him and 
cancelled accordingly. Webb accordingly made out such fresh ac- 
count, in which he omitted the whole charge for commission; and 
the balance due to him amounted to the sum of 11,672/. 45. 2d., 
which balance was composed of principal moneys actually advanced 
under the agreement of 15th May, 1800, and of interest at 5 per 
cent, fairly and legally calculated; the whole commission and every 
objectionable charge being omitted. This account, so corrected, 
was, on the 12th of August, 1802, delivered to the agent of Harre 
and Suthmier, and on the following day they acknowledged this 
balance to be due to Webb, and promised to pay the same; where- 
upon the deeds and securities executed to Webb by Harre and Suth- 
mier, when the original agreement was entered into, were produced 
by Webb or his agent, in the presence of Harre and Suthmier, and 
were then cancelled and burnt. The question for the opinion of the 
Court was, whether, under the circumstances of this case, the plain- 
tiffs were entitled to recover the above balance of 11,672?. 4s. 2d. 
If the Court should be of that opinion, a verdict for such sum was 
to be entered for the plaintiffs; if otherwise, the verdict to be en- 
tered for the defendants. 

This cause was twice argued: first, in Easter Term, 1809, by Best, 
Serjt., for the plaintiffs, and Vaughan, Serjt., for the defendants; 
and again in Trinity Term, 1809, by Shepherd, Serjt., for the plain- 
tiffs, and Lens, Serjt., for the defendants. 

In the course of the present Term the judges of the court sent to 
the Lord Chancellor the following certificate of their opinion: — 

"This case has been argued before us by counsel, and we are of 
opinion that under the circumstances the plaintiffs are entitled to 
recover the above balance of 11,672L 4s. 2d." ^ 

LEE V. MUGGERIDGE and Another, Executors of Mary 
MuGGERiDQE, deceased 

In the Common Pleas, Trinity Term, June 29, 1813 

[Reported in 5 Taunton, 36] 

This was an action of assumpsit, brought under the following cir- 
cumstances: In 1799, Joseph Hillor, the son of Mrs. Muggeridge, 
the defendants' testatrix, by a former husband, falling into embar- 
rassed circumstances, she, in order to induce the plaintiff, his father- 
in-law, to relieve him, proposed by letter to become security to the 
extent of 2000Z. by a bond payable at her death. The plaintiff ac- 

> FliRht V. "Rfiffl. 1 IT. & C. 703; G,ir\nn v. Linton, 62 Ark. 370; Kilboiirn v. Brad- 
Icy, 3 Day, .3.'i0; KawsiriK "• Ordway, 100 la. fill; Vcrnifnilo v. Vormo\ilo, 05 Mo. 138; 
Shflflon V. Haxtuii, 01 N. Y. 124, (icc. Son also Tucker v. West, 20 Ark. 386; Gwinn 
V. Simcs, 61 Mo. 335; Mclchoir v. McCarty, 31 Wis. 252. 


cordingly advanced the money to Joseph Hiller; and Mrs. Mug- 
geridge by her bond, dated the 4th of August, 1799, became bound 
to the plaintiff in the penal sum of 4000^^ with condition that the 
heirs, executors, or administrators of Mrs. Muggeridge should, within 
six months after her decease, pay to the plaintiff 1999L 19s., with 
such part of the interest as Joseph Hiller should omit to pay; it 
being agreed that he should pay the interest half yearly. Joseph 
Hiller having neglected to pay the interest, the plaintiff in the year 
1804 wrote to Mrs. Muggeridge, requesting payment of the arrears; 
to which she, after her husband's death, returned an answer by 
letter, stating "that it was not in her power to pay the bond off, 
her time here was but short, and that would be settled by her exec- 

It appeared that Mrs. Muggeridge had a considerable separate 
estate when the bond was given, which she acquired from the father 
of Joseph Hiller, and the bulk of which she gave by her will to 
the defendant, JSTathaniel Muggeridge. After an ineffectual attempt 
to establish that the bond constituted an equitable lien or charge 
upon the separate estate of Mrs. Muggeridge (see 1 V. & B. 118), 
the plaintiff brought the present action, founded upon the promise 
contained in the letter above referred to. The declaration stated 
(inter alia) that the testatrix, after the death of her husband, and 
whilst she was sole, to wit, on the 11th of July, 1804, "in considera- 
tion of the premises undertook to the plaintiff that the bond, that 
is to say, the principal money and interest secured by the bond, 
should be settled, that is to say, paid, by her executors." The de- 
fendants pleaded the general issue; and upon the trial of the cause 
at the Sittings after Hilary Term, 1813, at Guildhall, before Gibbs, 
J., the jury found a verdict for the plaintiff.^ 

Shepherd, Serjt., in Easter Term last, moved in arrest of judg- 
ment, on the ground that no sufficient consideration was shewn for 
the promise of the deceased. The Court granted a rule nisi. 

Lens and Best, Serjts., in this term shewed cause. 

Shepherd and Vaughan, Serjts., contra. 

Mansfield, C. J. The counsel for the plaintiffs need not trouble 
themselves to reply to these cases : it has been long established, that 
where a person is bound morally and conscientiously to pay a debt, 
though not legally bound, a subsequent promise to pay will give a 
right of action. The only question therefore is. Whether upon this 
declaration there appears a good moral obligation ! Now I cannot 
conceive that there can be a stronger moral obligation than is stated 
upon this record. Here is this debt of 2,000?. created at the desire 
of the testatrix, lent in fact to her, though paid to Hiller. After 

^ In the original report the declaration is set forth with much fulness; but as it is 
exceedingly prolix, and most of it is wholly irrelevant to the one question argued and 
decided in the case, it is here omitted, and a statement of the material facts is substi- 
tuted in its place. Some of the facts stated have been obtained from the report in 
1 V. & B. 118. 


her husband's death, she, knowing that this bond had been given, 
that her son-in-law had received the money, and had not repaid it, 
knowing all this, she promises that her executors shall pay; if, then, 
it has been repeatedly decided that a moral consideration is a good 
consideration for a promise to pay, this declaration is clearly good. 
This case is not distinguishable in principle from Barnes v. Hedley; 
there, not only the securities were void, but the contract was void; 
but the money had been lent, and, therefore, when the parties bad 
stripped the transaction of its usury, and reduced the debt to mere 
principal and interest, the promise made to pay that debt was bind- 
ing. Lord Mansfield's judgment in the case of Doe on the demise 
of Carter v. Straphan is extremely applicable. Here, in like manner, 
the wife would have been grossly dishonest, if she had scrupled to 
give a security for the money advanced at her request. 

Bule discharged.'^ 


In the King's Bench, June 29, 1821 

[Reported in 4 Barnewall & Alderson, 650] 

Declaration stated that, before the making of the promise and 
undertaking, the plaintiff had cohabited with the defendant as his 
mistress, and an immoral connection and intercourse had existed be- 
tween them for a long space of itme, to wit, for the space of twelve 
years; and the plaintiff had thereby been greatly injured in her 
character and reputation, and deprived of the means of honestly 
procuring a livelihood; and that, before the time of the making of 
the promise, to wit, on the 1st of January, 1816, at, &c., the plaintiff 
wholly ceased to cohabit with the said defendant as his mistress, 
and to have any immoral intercourse with him; and thereupon it 
was determined and agreed between them that no immoral inter- 
course or connection should ever again take place between them; 
and that the defendant, as a compensation for the injury so sustained 
by the plaintiff, should pay and allow to the plaintiff the quarterly 
sum of 10?., while she should be and continue of good and virtuous 

' Walker V. Arkansas Nat. Bank, 25G Fot). 1; Brownson v. Weeks, 47 La. Ann. 
1042; Wilson v. Burr, 25 Wend, 38G; GouUlinR v. Da\adson, 26 N. Y. 604; Hemphill 
V. McClimans, 24 Pa. 367; Leonard v. Duflin, 04 Pa. 218; Brooks v. Merchants' Bank, 
— 125 Pa. .394; Rathfon v. Locker, 215 Pa. 571, ace; Dixie v. Worthy. 11 U. C. Q. B. 
32H; Watson v. Dunlap, 2 Cranch C. C. 14; Thompson v. Hudgins, 116 Ala. 93; 
Waters v. Bean, 15 Cn. 358; Thomp.son v. Minnich, 227 111. 430; Maher v. Martin, 
43 Ind. 314; Lonp; n. Brown, 60 Ind. 160; Au.stin v. Davis, 128 Ind. 472; HoUoway's 
AssiKnee v. Rtidy, 60 S. W. Rep. 650 (Ky.); Lyell v. Walbach, 113 Md. 574; Porter- 
field V. Buthr, 47 MI.h.h. 165; Mii.sick v. Dodson, 76 Mo. 624; BraRK v. Israel, 86 Mo. 
App. 3.38; Kent v. Raud, 64 N. H. 45; Condon v. Barr, 49 N. .1. L. 53; Long v. Rankin, 
108 N. C. 333; Wilcox v. Arnold, 116 N. C. 708; Hayward v. Barker, 52 Vt. 429: 
Valentine v. Bell, 06 Vt. 280, contra. See also Parker v. C'owan, 1 Heisk, 618. 


life, conversation, and demeanor; and thereupon, in consideration 
of the premises, and that the plaintiff at the request of the defendant 
would resign and give up the said quarterly sum, he undertook to 
pay her so much money as the said quarterly sum was reasonably 
worth, in order to enable her to continue to live in a virtuous and 
decorous manner. The declaration then averred that the plaintiff 
did resign and give up the said quarterly sum, and the same from 
thence wholly ceased and determined ; and that she had always, from 
the time of the cessation of the immoral connection, lived in a vir- 
tuous and decorous manner, and been of virtuous life, conversation, 
and demeanor. It then averred that the quarterly sum was reason- 
ably worth 400L; and then alleged as a breach non-payment by the 
defendant. The other counts omitted any mention of the quarterly 
allowance, and in other respects were similar to this. To this dec- 
laration there was a general demurrer. 

ParJce, in support of the demurrer. 

Holt, contra. 

Per Cukiam. The declaration is insufficient. It is not averred 
that the defendant was the seducer, and there is no authority to show 
that past cohabitation alone, or the ceasing to cohabit in future, is 
a good consideration for a promise of this nature. The cases cited^ 
are distinguishable from this, because they are all cases of deeds; 
and it is a very different question whether a consideration be suffi- 
ciently good to sustain a promise, and whether it be so illegal as 
to make the deed which required no consideration void. There must 
therefore be judgment for the defendant. 

Judgment for defendant.^ 

LITTLEFIELD, Executrix of John Littlefield v. 

In the King's Bench, November 4, 1831 

[Reported in 2 Barnewall & Adolphus, 811] 

Assumpsit for goods sold and delivered. The fourth count stated 
that John Littlefield in his lifetime, at the special instance and re- 
quest of the defendant, had supplied and delivered to her divers 
goods and chattels for the sum of 16L; and thereupon, in considera- 
tion of the premises, and of the said sum of money being due and 
unpaid, the defendant, after the death of the said John Littlefield, 
undertook and promised the plaintiff as executrix of J. L. to pay 

1 Annandale v. Harris, 2 Peere W. 433; Turner v. Vaughan, 2 Wils. 339. See also 
Nye V. Moseley, 6 B. & C. 133; Massey v. Wallace. 32 S. C. 149. 

^ In Beaumont v. Reeve, 8 Q. B. 483, it was held that even though the defendant 
was the seducer, a subsequent promise was not binding. Wallace v. Rappleye, 103 El. 
229, 250, ace. See also Wiggins v. Keizer, 6 Ind. 252. Shenk v. Mingle, 13 Serg & 
R. 29, contra. See also Jennings v. Brown, 9 M. & W. 496; Wyant v. Lesher, 23 Pa. 338. 


her the said sum of money as soou as it was in her (the defendant's) 
power so to do. And although afterwards, to wit, on, &c., at, &c., 
it was in her power to pay the said sum, yet she did not do so. Plea : 
the general issue. At the trial before Gaselee, J., at the last As- 
sizes for Sussex, it appeared that the action was brought to recover 
151. for butcher's meat supplied by the testator to the defendant, for 
her own use, between September, 1825, and March, 1826. During 
that time the defendant was a married woman, but her husband was 
abroad. After his death she promised to pay the debt when it should 
be in her power, and her ability to pay was proved at the trial. The 
learned judge held that, the defendant having been a feme covert 
at the time when the goods were supplied, her husband was originally 
liable, and consequently there was no consideration for the promise 
declared upon. The plaintiff was therefore nonsuited. Hutchin- 
son, on a former day in this Term, moved to set aside the nonsuit, 
and to enter a verdict for the plaintiff on the fourth count; on the 
ground that, the goods having been supplied to the defendant while 
she was living separate from her husband, she was under a moral 
obligation to pay for them, and such obligation was a sufficient con- 
sideration for a subsequent promise. It was not necessary that there 
should have been an antecedent legal obligation. Barnes v. Hedley, 
Lee V. Muggeridge. Cur. adv. vult. 

Lord Tenterden, C. J., now delivered the judgment of the Court. 
The fourth count of the declaration states that the testator had at 
the request of the defendant supplied her with goods, and that in 
consideration of the premises, and of the price of the goods being 
due and impaid, the defendant promised. Now, that is in substance 
an allegation that those sums were due from her, and the plaintiff 
failed in proof of that allegation, because it appeared that the goods 
were supplied to her whilst her husband was living, so that the price 
constituted a debt due from him. We are therefore of opinion that 
the declaration was not supported by the proof, and that the nonsuit 
was right. In Lee v. Muggeridge all the circumstances which showed 
that the money was in conscience due from the defendant were cor- 
rectly set forth in the declaration. It there appeared upon the record 
that the money was lent to her, though paid to her son-in-law, while 
she was a married woman; and that after her husband's death, she, 
knowing all the circumstances, promised that her executor should 
pay the sum duo on the bond. I must also observe that the doctrine 
that a moral obligation is a sufficient consideration for a subsequent 
promise is one which should be received with some limitation. 

Rule refused.'^ 

• Meyer v. Haworth, 8 A. & E. 407, presented similar facts except that the defend- 
ant w.i« HvinK in op<',n adultery (which pxcmptod her husband from liability for her 
necfHHary cxpfinHcs) and the plaintiff was ignorant when he furnished the goods of 
both the defendant's marriage and her adultery. The court held the plaintiff could 
not recover. 



Supreme Judicial Court of Massachusetts, October Term, 1825 
[Reported in 3 Pickering, 207] 

This was an action of assumpsit brought to recover a compensa- 
tion for the board, nursing, &c., of Levi Wyman, sou of the defendant, 
from the 5th to the 20th of February, 1821. The plaintiff then lived 
at Hartford, in Connecticut; the defendant, at Shrewsbury, in this 
State. Levi Wyman, at the time when the services were rendered, 
was about twenty-five years of age, and had long ceased to be a 
member of his father's family. He was on his return from a voyage 
at sea, and being suddenly taken sick at Hartford, and being poor 
and in distress, was relieved by the plaintiff in the manner and to 
the extent above stated. On the 24th of February, after all the ex- 
penses had been incurred, the defendant wrote a letter to the plain- 
tiff, promising to pay him such expenses. There was no consideration 
for this promise, except what grew out of the relation which sub- 
sisted between Levi Wyman and the defendant; and Howe, J., be- 
fore whom the cause was tried in the Court of Common Pleas, 
thinking this not sufficient to support the action, directed a non- 
suit. To this direction the plaintiff filed exceptions. 

/. Davis and Allen, in support of the exceptions. 

Brigham for the defendant. 

Parker, C. J. General rules of law established for the protection 
and security of honest and fair-minded men, who may inconsider- 
ately make promises without any equivalent, will sometimes screen 
men of a different character from engagements which they are bound 
in foro conscientice to perform. This is a defect inherent in all 
human systems of legislation. The rule that a mere verbal promise, 
without any consideration, cannot be enforced by action, is uni- 
versal in its application, and cannot be departed from to suit par- 
ticular cases in which a refusal to perform such a promise may be 

The promise declared on in this case appears to have been made 
without any legal consideration. The kindness and services towards 
the sick son of the defendant were not bestowed at his request. The 
son was in no respect under the care of the defendant. He was 
twenty-five years old, and had long left his father's family. On his 
return from a foreign country, he fell sick among strangers, and 
the plaintiff acted the part of the good Samaritan, giving him 
shelter and comfort until he died. The defendant, his father, on 
being informed of this event, influenced by a transient feeling of 
gratitude, promised in writing to pay the plaintiff for the expenses 
he had incurred. But he has determined to break this promise, and 
is willing to have his case appear on record as a strong example of 
particular injustice sometimes necessarily resulting from the opera- 
tion of general rules. 


It is said a moral obligation is a sufficient consideration to sup- 
port an express promise; and some authorities lay down the rule 
thus broadly; but upon examination of the cases we are satisfied 
that the universality of the rule cannot be supported, and that there 
must have been some pre-existing obligation, which has become in- 
operative by positive law, to form a basis for an effective promise. 
The cases of debts barred by the Statute of Limitations, of debts in- 
curred by infants, of debts of bankrupts, are generally put for il- 
lustration of the rule. Express promises founded on such pre-ex- 
isting equitable obligations may be enforced; there is a good 
consideration for them; they merely remove an impediment created 
by law to the recovery of debts honestly due, but which public policy 
protects the debtors from being compelled to pay. In all these cases 
there was originally a quid pro quo, and according to the principles 
of natural justice the party receiving ought to pay; but the legisla- 
ture has said he shall not be coerced; then comes the promise to pay 
the debt that is barred, the promise of the man to pay the debt of 
the infant, of the discharged bankrupt to restore to his creditor what 
by the law he had lost. In all these cases there is a moral obligation 
founded upon an antecedent valuable consideration. These promises, 
therefore, have a sound legal basis. They are not promises to pay 
something for nothing; not naked pacts, but the voluntary revival 
or creation of obligations which before existed in natural law, but 
which had been dispensed with, not for the benefit of the party 
obliged solely, but principally for the public convenience. If 
moral obligation, in its fullest sense, is a good substratum for 
an express promise, it is not easy to perceive why it is 
not equally good to support an implied promise. What a man 
ought to do, generally he ought to be made to do, whether he 
promise or refuse. But the law of society has left most of 
such obligations to the interior forum, as the tribunal of con- 
science has been aptly called. Is there not a moral obligation upon 
every son who has become affluent by means of the education and 
advantages bestowed upon him by his father, to relieve that father 
from pecuniary embarrassment, to promote his comfort and happi- 
ness, and even to share with him his riches, if thereby he will be 
made happy? And yet such a son may, with impunity, leave such 
a father in any degree of penury above that which will expose the 
community in which he dwells to the danger of being obliged to 
preserve him from absolute want. Is not a wealthy father under 
strong moral obligation to advance the interest of an obedient, well- 
disposed son, to furnish him with the means of acquiring and main- 
taining a becoming rank in life, to rescue him from the horrors of 
debt incurred by misfortune? Yet the law will uphold him in any 
degree of parsimony, short of that Avhich would reduce his son to 
the necessity of seeking public charity. 

"Without doubt there are great interests of society which justify 


withholding the coercive arm of the law from these duties of im- 
perfect obligation, as they are called; imperfect, not because they 
are less binding upon the conscience than those which are called 
perfect, but because the wisdom of the social law does not impose 
sanctions upon them. 

A deliberate promise in writing, made freely and without any 
mistake, one which may lead the party to whom it is made into con- 
tracts and expenses, cannot be broken without a violation of moral 
duty. But if there was nothing paid or promised for it, the law, 
perhaps wisely, leaves the execution of it to the conscience of him 
who makes it. It is only when the party making the promise gains 
something, or he to whom it is made loses something, that the law 
gives the promise validity. And in the case of the promise of the 
adult to pay the debt of the infant, of the debtor discharged by the 
Statute of Limitations or bankruptcy, the principle is preserved by 
looking back to the origin of the transaction, where an equivalent 
is to be found. An exact equivalent is not required by the law; for 
there being a consideration, the parties are left to estimate its value : 
though here the courts of equity will step in to relieve from gross 
inadequacy between the consideration and the promise. 

These principles are deduced from the general current of decided 
cases upon the subject, as well as from the known maxims of the 
common law. The general position, that moral obligation is a suffi- 
cient consideration for an express promise, is to be limited in its 
application to cases where at some time or other a good or valuable 
consideration has existed. 

A legal obligation is always a sufficient consideration to support 
either an express or an implied promise; such as an infant's debt 
for necessaries, or a father's promise to pay for the support and 
education of his minor children. But when the child shall have at- 
tained to manhood, and shall have become his own agent in the 
world's business, the debts he incurs, whatever may be their nature, 
create no obligation upon the father; and it seems to follow, that 
his promise founded upon such a debt has no legally binding force. 

The cases of instruments under seal and certain mercantile con- 
tracts, in which considerations need not be proved, do not contradict 
the principles above suggested. The first import a consideration 
in themselves, and the second belong to a branch of the mercantile 
law, which has found it necessary to disregard the point of con- 
sideration in respect to instruments negotiable in their nature and 
essential to the interests of commerce. 

Instead of citing a multiplicity of cases to support the positions 
T have taken, I will only refer to a very able review of all the cases 
in the note in 3 Bos. & Pul. 249. The opinions of the judges had 
been variant for a long course of years upon this subject, but there 
seems to be no case in which it was nakedly decided, that a promise 
to pay the debt of a son of full age, not living with his father, though 


the debt were incurred by sickness which ended in the death of the 
sou, without a previous request by the father proved or presumed, 
could be enforced by action. 

It has been attempted to show a legal obligation on the part of 
the defendant by virtue of our statute, which compels lineal kindred 
in the ascending or descending line to support such of their poor 
relations as are likely to become chargeable to the town where they 
have their settlement. But it is a sufficient answer to this position, 
that such legal obligation does not exist except in the very cases pro- 
vided for in the statute, and never until the party charged has been 
adjudged to be of sufficient ability thereto. We do not know from 
the report any of the facts which are necessary to create such an 
obligation. Whether the deceased had a legal settlement in this 
Commonwealth at the time of his death, whether he was likely to 
become chargeable had he lived, whether the defendant was of suffi- 
cient ability, are essential facts to be adjudicated by the court to 
which is given jurisdiction on this subject. The legal liability does 
not arise until these facts have all been ascertained by judgment, 
after hearing the party intended to be charged. 

For the foregoing reasons we are all of opinion that the nonsuit 
directed by the Court of Common Pleas was right, and that judg- 
ment be entered thereon for costs for the defendant.^ 

1 Loomis V. Newhall, 15 Pick, 159; Dodge v. Adams, 19 Pick. 429; Kelley v. Davis 
49 N. H. 187; Freeman v. Robinson, 38 N. J. L. 383; Nine v. Starr, 8 Org. 49; Val- 
entine V. Bell, 66 Vt. 280, ace. Similarly, the promise of a child to pay for past sup- 
port of an indigent parent has been held invalid. Cook v. Bradley, 7 Conn. 57; Parker 
V. Carter, 4 Munf. 273; Davis v. Anderson, 99 Va. 625. See also Ellicott v. Turner, 
4 Md. 476; Hook v. Pratt, 78 N. Y. 371. 

In a reporter's note to Wennall v. Adney, 3 B. & P. 249, published in 1804, the 
reporter thus summarised the result of the decisions: 

"An express promise, therefore, as it should seem, can only revive a precedent good 
consideration, which might have been enforced at law through the medium of an 
implied promise, had it not been suspended by some positive rule of law, but can 
give no original right of action, if the obligation on which it is founded never could 
have been enforced at law, though not barred by any legal maxim or statute provision." 

In most jurisdictions a moral obligation is now held insufficient consideration, and 
the distinction suggested in the note to Wennall v. Adney is invoked to support only 
such promises as the ratification of an infant's promise or a promise to pay a debt 
barred by bankruptcy or the Statute of Ijimitations. See 53 L. R. A. 353 n. In a 
few jurisdictions, however, the doctrine that moral obligation may support a promise 
is still in force. Ga. Code, § 2741 ; McElven v. Sloan, 56 Ga. 208, 209; Gray v. Hamil, 
82 Ga. .375; Brown v. Latham, 92 Ga. 280; Spear r. Griffith, 86 111. 552; Lawrence 
V. Ogle.sby, 178 III. 122 (but see Hobbs v. Greifenhagen, 91 111. App. 400); Pierce v. 
Walton, 20 Ind. App. 66; Robinson v. Hurst, 78 Md. 59; Edwards v. Nelson, 51 
Mich, 121; Hemphill v. McClimans, 24 Pa. 307; Landis «. Royer, 59 Pa. 95; Stcbbina 
V. Crawford, 92 Pa. 289; Holden v. Banes, 140 Pa. 63; Sutch's Appeal, 201 Pa. 305; 
State r. Butler. 11 Lea, 418. See also Ferguson v Harris, 39 S. C. 323. 



ISTew Jersey, July 5, 1912-ISrovember 11, 1912 

[Reported in 83 New Jersey Law, 430] 

Kalisch, J. The plaintiffs obtained a judgment against the de- 
fendant for $500 in the Second District Court of Jersey City, the 
court sitting without a jury. 

The trial judge found the facts following: 

"I find that on the 23d day of May, 1911, the defendant, David 
Gross, executed and delivered the following guarantee at the plain- 
tiffs' request, namely: 

" 'Hoboken, N. J., May 23d, 1911. 

" 'I hereby agree to pay to I. Grob & Co. for any amount of flour 
delivered to Mrs. Rose Bier of No. 114 Willow avenue, Hoboken, 
N. J., to any amount to $500.00 (five hundred 00/100). 

"'D. Gross, 

"'421 N'ewark Street, 
" 'Hoboken, N. J.' 

"And that immediately after its execution plaintiffs furnished 
flour to Rose Bier to the value of $99, and that the defendant then 
told the plaintiffs to advance no further credit on his said guarantee 
to Rose Bier. That in August, 1911, defendant promised to pay and 
said he would live up to his guarantee. Thereafter, disregarding 
such request, plaintiffs continued to advance credit to Rose Bier 
from time to time, until the 29th day of July, 1911. Between the 
time of the signing of the guarantee and the 29 th day of July, 1911, 
plaintiffs sold and delivered to Rose Bier flour as set forth in the 
bill of particulars annexed to the plaintiffs' state of demand, amount- 
ing to $2,168.11, whereon she made payments aggregating $1,669.95, 
on the days and in the amounts set forth in the credits annexed to 
the plaintiffs' state of demand, so that at the time action was brought 
there was due from Rose Bier to the plaintiffs $502.16, and that 
the excess over $500 was waived by plaintiffs; that by virtue of said 
guarantee above set forth I find that the defendant, David Gross, is 
indebted to the plaintiffs in the sum of $500." 

It is to be observed that when the defendant made the promise to 
pay and said he would live up to the agreement the goods had al- 
ready to be furnished to Mrs. Bier, the last bill sold being July 29th. 

At the time the plaintfffs were notified by the defendant not to 
advance any further credit to Rose Bier on the guarantee, her in- 
debtedness to the plaintiffs was $99 for goods furnished her by them, 
and which was subsequently paid by her. 

The limit of $500 in the guarantee has reference to the amount of 
the guarantor's liability, and not to the amount of dealing between 


the purchaser and the one giving credit. The guarantee in question 
did not contemplate a single transaction. 

Under the adjudicated cases of this state the guarantee was a 
continuing one. Columhia Electrical Co. v. Kemmet, 38 Vroom 18; 
ISTewcomb v. Kloeblen, 48 Id. 791. 

It is equally clear that the guarantee was revocable. 

Speaking of this class of guarantees, Lush, L. J., in Lloyds v. 
Harper, 16 Ch. Div. 319, says : "Instances of the second class are more 
familiar. They are where a guarantee is given to secure the bal- 
ance of a running account at a banker's, or a balance of a running 
account for goods supplied. There the consideration is supplied 
from time to time ; and it is reasonable to hold, unless the guarantee 
stipulates to the contrary, that the guarantor may at any time termi- 
nate the guarantee. He remains answerable for all the advances 
made, or all the goods supplied upon his guarantee, before the no- 
tice to determine it is given; but at any time he may say, 'I put 
a stop to this; I do not intend to be answerable any further; there- 
fore do not make any more advances, or supply any more goods, 
upon my guarantee.' As at present advised, I think it is quite com- 
petent for a person to do that where, as I have said, the guarantee 
is for advances to be made or goods to be supplied, and where noth- 
ing is said in the guarantee about how long it is to endure." 20 
Cyc. 1479, and cases there cited. 

The guarantee having been revoked by the defendant, the plain- 
tiffs after notice of such revocation continued to furnish goods to 
Mrs. Bier, and now seek to hold the defendant liable because sub- 
sequently to the incurred indebtedness it appears that the defendant 
made a verbal promise to pay and said he would live up to his guar- 

This promise made, as it was, after the goods had been furnished 
to Mrs. Bier, was the promise to pay the debt of another and was 
without any consideration. 

The judgment of the District Court will he reversed. 


SuPEEME Judicial Court of Massachusetts, March 6, 1878 
[Reported in 124 Massachusetts, 209] 

Contract upon a promissory note for $500, payable to the order 
of tlio defendant, and indorsed by him to the plaintiff. 

At the trial in the Superior Court, before Pitman, J., without a 
jury, it ap]>f!irc(] tliat no demand had been made on the note or no- 
tice of non-payment given to the defendant; but it was admitted that 
the defendant wrote on the back of the note the words, "Waive de- 


mand and notice." The evidence was conflicting upon the question 
whether these words were written before or after the note was due. 

The defendant testified that he wrote these words upon the note 
intelligently and intentionally, with a full knowledge of all the mate- 
rial facts. The judge ruled that such a waiver of demand and notice 
was as effectual after as before the maturity of the note, and ordered 
judgment for the plaintiil. The defendant alleged exceptions. 

R. Lund, for the defendant. 

/. Cutler, for the j^laintiff, was not called upon. 

By the Court. This point has been repeatedly determined by 
recent decisions of this court, and should not have been brought up 
again. Matthews v. Allen, 16 Gray, 594; Harrison v. Bailey, 99 
Mass. 620; Third National Bank v. Ashworth, 105 Mass. 503. 

Exceptions overruled.^ 


New Yoke Court of Appeals, September 29-October 7, 1873 
[Reported in 53 New York, 521] 

Appeal from a judgment of the General Term of the Superior 
Court of the city of New York, affirming a judgment in favor of de- 
fendant entered upon a verdict, and affirming order denying motion 
for a new trial. (Eeported below, 45 How. Pr. 147.) 

The action was upon a promissory note. The defendant pleaded 
his discharge in bankruptcy. Upon the trial, after proof of the dis- 
charge, plaintiff offered to prove a subsequent promise of the de- 
fendant to pay the note. Defendant objected upon the ground that 
the action was upon the note, not upon the new promise. The Court 
sustained the objection, and directed a verdict for defendant, which 
was rendered accordingly. 

D. M. Porter, for the appellant. 

Cephas Brainerd, for the respondent. 

Andrews, J. The 34th section of the bankrupt law declares that 
a discharge in bankruptcy releases the bankrupt from all debts prov- 
able under the act, and that it may be pleaded as a full and complete 
bar to all suits brought thereon. 

The legal obligation of the bankrupt is by force of positive law 
discharged, and the remedy of the creditor existing at the time the 
discharge was granted to recover his debt by suit is barred. But 
the debt is not paid by the discharge. The moral obligation of the 
bankrupt to pay it remains. It is due in conscience, although dis- 
charged in law, and this moral obligation, uniting with a subse- 

* The numerous decisions in accord are collected in 1 Williston, Contracts, § 157. 
Decisions in which a surety, who had been discharged by lack of notice of acceptance 
or dishonor, was held bound by a promise to pay, are collected in Ames's Cases on 
Suretyship, 227, n. ; and in 1 Williston, Contracts, § 157. 


quent promise by the bankrupt to pay the debt, gives a right of 
action. It was held in Shippey v. Henderson (14 Johns. 178), that 
it was proper for the plaintiff, when the bankrupt had promised to 
pay the debt after his discharge, to bring his action upon the original 
demand-, and to reply the new promise in avoidance of the discharge 
set out in the plea. The Court, following the English authorities, 
said that the replication of the new promise was not a departure 
from the declaration, but supported it by removing the bar inter- 
posed by the plea, and that in point of pleading it was like the cases 
where the defence of infancy or the Statute of Limitations^ was re- 
lied upon. The case of Shippey v. Henderson was followed in sub- 
sequent cases, and the doctrine declared in it became, prior to the 
Code, the settled law. MclSTair v. Gilbert, 3 Wend. 344; Wait v. 
Morris, 6 id. 394; Fitzgerald v. Alexander, 19 id. 402. 

The question whether the new promise is the real cause of action, 
and the discharged debt the consideration which supports it, or 
whether the new promise operates as a waiver by the bankrupt of 
the defence which the discharge gives him against the original de- 
mand, has occasioned much diversity of judicial opinion. The former 
view was held by Marct, J., in Depuy v. Swart (3 Wend. 139), 
and is probably the one best supported by authority. But, after as 
before the decision in that case, the Court held that the original de- 
mand might be treated as the cause of action, and, for the purpose 
of the remedy, the decree in bankruptcy was regarded as a discharge 
of the debt sub modo only, and the new promise as a waiver of the 
bar to the recovery of the debt created by the discharge. We are 
of opinion that the rule of pleading so well settled and so long es- 
tablished, should be adhered to. The original debt may still be con- 
sidered the cause of action for the purpose of the remedy. The 
objection that, as no replication is now required the pleadings will 
not disclose the new promise, is equally applicable where a new 
promise is relied upon to avoid the defence of infancy or the Statute 
of Limitations, and in these cases the plaintiff may now, as before 
the Code, declare upon the original demand. (Esselstyn v. Weeks, 
12 N. Y. 635.) 

The offer of the plaintiff to prove an unconditional promise by 
the defendant, after his discharge, to pay the debt, was improperly 
overruled, and the judgment should, for this reason, be reversed, 
and a new trial ordered, with costs to abide the event. 

All concur, except Folger, J., not voting. Judgment reversed.'^ 

' See Encyc. of Pleading and Practice, vol. 13, p. 247. 

* See Lowell on Bankruptcy, § 248; 1 Williston, Contracts, § 168. 



SuPEEME Judicial Court of Massachusetts, ISTovembee Term, 1841 

{Reported in 3 Metcalf, 439] 

This was an action of debt on a bond for the liberty of the prison 
limits, and was submitted to the Court on the following facts agreed 
bj the parties : — 

In 1814, the plaintiff paid money as surety for John Jewett, one 
of the defendants, and in 1840 brought a suit against him to recover 
back the money so paid. Said Jewett, among other defences, relied 
on the Statute of Limitations. The plaintiff, to meet this part of 
the defence, proved a part payment by the defendant, in 1839, and 
by reason thereof recovered judgment against him at November Term, 
1840, as stated and shown in the report of the case of Ilsley v. Jewett, 
2 Met. 168, which is to be considered as part of this case. Said 
judgment was for the sum of $349.89 damages, and $44,95 costs of 
suit, and the plaintiff took out execution thereon, and caused the 
defendant to be committed, on said execution, to the jail in Ipswich. 
Said defendant, and his co-defendants in this suit, as his sureties, 
thereupon gave bond for the liberty of the prison limits, conditioned 
(as is required by the Eev. Stats., c. 97, § 63), that he would not 
go without the exterior limits of the prison until he should be law- 
fully discharged, &c. But after the giving of said bond, and be- 
fore the commencement of this suit, and also before he was dis- 
charged, he went, several times, without the boundaries of the town 
of Ipswich, 

Defendants to be defaulted, if such going without the boundaries 
of the town of Ipswich was a breach of the condition of said bond; 
if not, the plaintiff to become nonsuit. 

0. P. Lord, for the plaintiff. By the Eev. Stats,, c. 14, § 14, a 
debtor, committed on execution issuing upon a judgment recovered 
on a contract made before the 2d of April, 1834, is entitled only 
to the limits of the jail yard as established by Stat, 1834, c. 201 ; viz,, 
the boundaries of the city or town in which the jail to which he is 
committed is situated. The single question presented by the facts 
agreed is, therefore, this. Was the judgment recovered by the plain- 
tiff against John Jewett, in 1840, recovered on a contract made in 
1814 or in 1839? on the old contract, which arose upon the plain- 
tiff's paying money for him, as his surety, or on the new promise 
made by him, in 1839, by his making part payment? 

The Statute of Limitations bars only the remedy on a contract, 
and does not discharge the contract itself. Unless a new promise 
or acknowledgment is made, the remedy is barred from considerations 
of public policy, laying out of the question any consideration whether 
the debt be or be not paid. Per Sedgwick, J,, 7 Mass, 517; S. P, 
13 Mass. 203. But when a new promise or acknowledgment is made, 


"the contract is not within the intent of the statute." Baxter v. 
Penniman, 8 Mass, 134; Fiske v. Needham, 11 Mass. 453. See also 
Newlin v. Duncan, 1 Harring. 204. 

A judgment on a demand which is taken out of the operation of 
the Statute of Limitations by a new promise is recovered on the 
original contract, and not on the new promise. This appears from 
various considerations. Thus : In Cogswell v. Dolliver, 2 Mass. 223, 
it was said by Sedgwick, J., that if any articles charged in an ac- 
count were sold and delivered within six years next before action 
brought, "they will draw after them the articles beyond six years, 
and exempt them from the operation of the statute." 

An acknowledgment made after action brought will support the 
action on the original contract. Yea ik Fouraker, 2 Bur. 1099. So 
an acknowledgment by an executor, administrator, or guardian, will 
bind the estate of the deceased or the ward. Brown v. Anderson, 
13 Mass. 203; Emerson v. Thompson, 16 Mass. 429; Manson v. 
Felton, 16 Pick. 206. So an acknowledgment made to a stranger 
will prevent the operation of the statute. Pichardson v. Pen, Lofft, 
86; Mountstephen v. Brooke, 3 Barn. & Aid. 141; Peters v. Brown, 
4 Esp. 46; Harvey v. Tobey, 15 Pick. 99. And a parol acknowledg- 
ment of a contract, required by the Statute of Frauds to be in writ- 
ing, has the same effect. Gibbons v. M'Casland, 1 Barn. & Aid. 
690. So an acknowledgment by one joint debtor will bind the others. 
Whitcomb v. Whiting, 2 Doug. 652; Perham v. Raynal, 2 Bing. 
306; Johnson v. Beardslee, 15 Johns. 3; White v. Hale, 3 Pick. 291. 
Even by one partner after a dissolution of the partnership. Wood v. 
Braddick, 1 Taunt, 104; Simpson v. Geddes, 2 Bay, 533. 

In addition to all these proofs that the original contract has always 
been regarded as the cause of action, is the universal practice of 
declaring on the original contract, and the established doctrine that 
proof of a new promise supports such declaration. Leaper v. Tatton, 
16 East, 423; Upton v. Else, 12 Moore, 304. 

Perkins (Ward was with him), for the defendants. John Jewett, 
by giving the plaintiff a negotiable note in part payment (2 Met, 
169), entered into a new contract, and gave the plaintiff a new 
remedy. "The reason," say Lord Ellenborough and Parke, J., "why 
a part payment takes a case out of the statute is, that it is evidence 
of a fresh promise." 1 Barn. & Aid. 93; 3 Barn. & Adolph. 511; 
S. P, Sigourney v. Drury, 14 Pick. 390, 391; Clark v. Hooper, 10 
Bing. 481, A new promise subjects a defendant to the remedy ap- 
plicable to a new contract. In Presbrey v. Williams, 15 Mass. 194, 
where part payment had been made on a note, Jackson, J., said, 
the plaintiff "might have brought his action" on the day of such 
payment, "as upon the new promise then made." In Little v. Blunt, 
9 Pick. 494, Wilde, J., says: "the new promise actually gives the 
remedy, and is substantially the cause of action." And Richardson, 
C. J., in Exeter Bank v. Sullivan, 6 N. H. 136, says, "the new 


promise is not deemed to be a continuance of the original promise, 
but a new contract supported by the original consideration." S. P. 
3 Bing. 643, per Gaselee, J., Pittam v. Foster, 1 Barn. & Ores. ^50; 
Tanner v. Smart, 6 Barn. & Ores. 606 ; Jones v. Moore, 5 Binn. 
577; 4 Phil. Ev. (4th Amer. ed.) 138; Bell v. Morrison, 1 Pet. 371. 
Acknowledgment of a promise by a party, and that he has not per- 
formed it, "creates a debt," says Bayley, J., 16 East, 423. These 
authorities show that a new promise does not operate by way of re- 
viving the old promise or waiving the statute bar, but by creating 
a fresh contract. There is, at the present day, no difference between 
promises to pay debts barred by the Statute of Limitations and debts 
discharged under a bankrupt or insolvent act, or debts contracted 
during infancy. An express promise is necessary to remove either 
of these bars. Eobarts v. Eobarts, 3 Car. & P. 296; Oakes v. Mit- 
chell, 3 Shepley, 360; Moore v. Bank of Columbia, 6 Pet. 86; Sands 
V. Gelston, 15 Johns. 519. As it regards the Statute of Limitations, 
there must be a cause of action within six years; and that cause 
accrues upon the making of a new express promise. The old promise 
— as in case of a bankrupt or infant — is merely a basis or con- 
sideration for the new one. Lonsdale v. Brown, 4 Wash. C. C. 150; 
Searight v. Craighead, 1 Pennsyl. 138; Mills v. Wyman, 3 Pick. 
209, 210. The new promise may be declared on (1 Selw. N. Prius, 
4th Amer. ed., 49), which shows that it is a new cause of action. 
It is, indeed, the common practice, as Lord Ellenborough says, 16 
East, 423, to declare on the original contract. "Probably," says 
Best, C. J., 12 Moore, 304, "the new promise ought in strictness to 
be declared on specially, but the practice is inveterate the other way." 
In 3 Bing. 332, he expressed a still stronger opinion. But this 
practice is anomalous, and is not allowed in suits by executors or 
administrators. In England, and perhaps in all the States of the 
Union except Massachusetts and New Hampshire, if an executor or 
administrator sues for a debt of the deceased, and relies on a new 
promise to himself to take it out of the Statute of Limitations, he 
must declare specially on the new promise, or the evidence of such 
promise will not support the declaration. Stephen PI. 405, 406; 
Gould PI. 453, 454; 2 Stark. Ev. 552, and American cases cited in 
the notes; 1 Chitty PI. (6th Amer. ed.) 234, 392. See also Pittam 
V. Foster, 1 Barn. & Cres. 248; Lawes PI. in Assump. 730-732. In 
Baxter v. Penniman, 8 Mass. 133, and in Buswell v. Roby, 3 N. H. 
467, it was held, however, that an administrator need not declare on 
the new promise; and thus the anomaly has been extended further, 
in this Commonwealth and in ISTew Hampshire, than is known to 
have been done elsewhere. But whether the one or the other form 
of declaring is adopted, yet, as said by "Wilde, J., "the new promise 
gives the remedy, and is substantially the cause of action; for with- 
out it there was no cause of action." 9 Pick. 492, 494. The statute 
bar is removed by a new promise, either because the presumption 


of payment is thereby removed; or because the defendant thereby 
waives the benefit of the statute ; or because a new contract is thereby 
made, which is supported by the old consideration. The cases that 
have been cited show that the latter is the only reason which courts 
now recognize; and therefore, as the new contract gives the remedy, 
and is the contract on which in effect the judgment is recovered, the 
defendant, if committed in execution on the judgment, is entitled to 
the enlarged jail limits; viz., the whole county. Eev. Stats., c. 
14, § 13. 

Shaw, C. J. In debt on a prison bond given July 14, 1841, the 
question is, whether the bond was broken by the escape of the pris- 
oner ; and this again depends upon the question, what were the prison 
limits of Ipswich jail, for this prisoner, in 1841 ? This depends 
upon Rev. Stats., c. 14, §§ 13, 14, prescribing different limits in 
different cases. "On executions issuing upon judgments, recovered 
upon contracts made before the 2d of April, 1834, the limits of each 
jail shall remain as the same were established previously to that 
day." § 14, It is conceded that, prior to 1834, the jail limits in- 
cluded a space much less than the bounds of the town of Ipswich. If, 
then, the contract on which the plaintiff recovered his former judg- 
ment, in pursuance of which the defendant was committed, was 
made prior to the 2d of April, 1834, so that the limits for him were 
those which existed in 1834, then the defendant made an escape, and 
the bond was forfeited. 

It appears that Adams and Ilsley were sureties for John Jewett 
on a promissory note; that Adams paid the whole in the first in- 
stance; that afterwards Adams demanded of the plaintiff one-half, 
by way of contribution, as he had a right to do; and the plaintiff 
paid the same, as he was bound to do. On that payment, the de- 
fendant, John Jewett, as principal promisor, became indebted to 
the plaintiff, and liable to pay him the same amount on demand. 
This liability arose from the implied promise of the principal, made 
at the time of the plaintiff's becoming his surety, that, in case the 
plaintiff should be called on to pay any thing in consequence of 
such suretyship, the principal would repay the same on demand. 
[See Appleton v. Bascom, 3 Met. 171.] 

Afterwards, in 1839, the transaction took place, as stated in 2 
Met. 188, which was hold by the Court sufficient evidence of part 
payment to take the case out of the Statute of Limitations, and the 
plaintiff had judgment; and the question is, whether this is a judg- 
ment recovered on a contract made before April, 1834. The case 
has been very well argued on both sides, and all the authorities, we 
believe, fully cited. The Court are of opinion that the judgment 
must be corisidered as renflored on the old contract; that a payment, 
or new prorriiHc,, or an admission from which a new promise may be 
infcrr(!d, is considered as removing out of the way a bar arising 
from the Statute of Limitations, so as to enable the creditor to re- 


cover notwithstanding tlie limitation; and not as the creation of a 
new substantive contract, which is to be the basis of the judgment. 
We are therefore of opinion that the facts show a breach of this 
bond, and that the plaintiff is entitled to recover. 

Defendants defaulted} 


Supreme Judicial Court of Massachusetts, October Term, 1850 

[Reported in 6 Gushing, 238] 

This was an action of assumpsit, commenced on the 12th of July, 
1848, to recover the amount of three promissory notes, signed by the 
defendant, and indorsed by the several payees thereof to the plaintiff 
on the day of the commencement of the action. These notes were 
described in the plaintiff's bill of particulars, as follows : "One dated 
February 23, 1836, for $18, payable to Ebenezer Watson, or order, 
in one year, with interest; one dated March 2, 1838, for $7.36, pay- 
able to Ebenezer Watson and one Flanders, or order, on demand, 
with interest; and one dated March 14, 1839, for $18.30, payable 
to Ebenezer Watson, or order, on demand, with interest." 

The defendant pleaded the general issue, and in defence relied on 
the Statute of Limitations, and a discharge in bankruptcy, dated 
January 9, 1843, which was duly proved, and by its terms embraced 
the note in question. 

At the trial in the Court of Common Pleas, before Mellen, J., 
it was in evidence, that the defendant, in May, 1843, left Columbia, 
in the State of New Hampshire, where the notes were dated, and 
became an inhabitant of Lowell. 

It was also testified by Watson, the payee of the notes, that the 
defendant, in the year 1845, being then at Claremont, in ISTew Hamp- 
shire, said he would pay Watson the notes as soon as he possibly 
could; that he was not then in a situation to pay them, but that 
Watson need not give himself any uneasiness, the notes should be 
paid as soon as possible; that in January, 1846, he again saw the 
defendant in Lowell, who said, that he was then engaged upon a 
job of stone-work, and should have the money in April, and that 
if Watson would come or send down then, he would pay one half 
of the notes ; but the defendant declined taking up the notes and giv- 
ing a new one for them. 

There was also evidence that the defendant was of ability to pay 
the notes, but no evidence of any new consideration for his promises 
to pay them. 

The defendant, upon this evidence, contended, that the first de- 

^ Cases involving the effect of new promises upon the Statute of Limitations are 
so numerous that reference must be made to the treatises on the subject. 


scribed note was barred by the Statute of Limitations; that no ac- 
tion could be maintained on the notes, or on the defendant's new 
promises, without showing a consideration for the latter; that the 
promise of the defendant to pay the notes, made subsequently to his 
discharge in bankruptcy, if available at all, could only support an 
action in favor of the promisee, and did not revive the negotiable 
quality of the notes, so as to entitle a subsequent indorsee to main- 
tain an action, either upon the notes or upon the new promise. 

But the presiding judge was of opinion, that the action could be 
maintained upon the evidence, and directed the jury accordingly, 
who returned a verdict for the plaintiff, whereupon the defendant 

T. Wentworth, for the defendant. 

/. O. Ahhott, for the plaintiff. 

The opinion of the Court was delivered at the October Term, 1851. 

Metcalf, J. The case of Bulger v. Roche, 11 Pick. 36, is a de- 
cisive answer to the defence set up by the defendant, under the 
Statute of Limitations, against the first note specified in the plaintiff's 
bill of particulars; and the only other point to be decided is, whether 
the defendant's discharge in bankruptcy is a defence to that and the 
two other notes in suit. 

The plaintiff relies on a promise made to the payee of the notes, 
by the defendant, since his discharge. And it is well settled, that 
a distinct and unequivocal promise to pay a debt so discharged, or 
a promise to pay it on a condition which is afterwards fulfilled, is 
binding on the promisor, and may be enforced by action. Upon these 
exceptions, it must be taken that a binding promise by the defendant 
was proved at the trial. No new consideration was necessary to 
the validity of the promise; Chit. Con. (5th Amer. ed.) 190; Penn 
V. Bennett, 4 Campb. 205 ; and no statute requires it to be in writing. 

But the defendant contends that if he is bound at all by his prom- 
ise, he is bound only to the payee of the notes, to whom he made it, 
and that it did not revive or restore the negotiability of the notes. 
And his counsel cited Dupuy v. Swart, 3 Wend. 135 ; Moore v. 
Viele, 4 Wend. 420, and Walbridge v. Harroon, 18 Verm. 448, where 
it was so decided. Since the argument, a similar decision of the 
court of Maine has been published. White v. Cushing, 17 Shepley, 
267. The grounds of these decisions, as stated in the report of the 
first of them, were, that "the new promise is the contract upon which 
the action must rest;" that "the now promise does not renew the old 
contract, and renovate the note given on that contract;" that "the 
existence of the note is destroyed by the discharge, and cannot be 
revived and restored to all its former properties by the maker's en- 
tering into a now contract, by which ho becomes liable to pay what 
was duo on the old contract;" and that "the defendant's liability, 
therefore, is on the new contract, and that the suit should be in the 
name of him witb whom such contract is made." 


We are not satisfied with these grounds of decision. For we take 
it to be well established that, in actions brought on promises made by 
infants, and ratified after they come of age; on promises which 
have been renewed after the Statute of Limitations has furnished 
a bar ; and on unconditional promises by discharged insolvent debtors 
and bankrupts, to pay debts from which they have been discharged, 
the plaintiff may declare on the original promise; and that when in- 
fancy, the Statute of Limitations, or a discharge in insolvency or 
bankruptcy, is pleaded or given in evidence, as a defence, the new 
promise may be replied or given in evidence, in support of the prom- 
ise declared on; that a replication, alleging such new promise, is 
not a departure, and that evidence thereof is not irrelevant. And 
we do not hold that a note, promise, or debt, is "destroyed" by a 
discharge in bankruptcy. If it were, it not only could not be re- 
newed or revived, but it could not be a consideration for a new 
promise. Yet nothing is clearer, on authority, than that the old 
debt is a sufficient consideration for such promise. In all the cases 
above mentioned, the new promise operates as a waiver, by the 
promisor, of a defence with which the law has furnished him against 
an action on the old promise or demand. Maxim v. Morse, 8 Mass. 
127 ; Foster v. Valentine, 1 Met. 522, 523. 

We cannot perceive any legal difference, as to the point now in 
question, between the case of a debt that has been discharged by 
a process in bankruptcy, and a claim voidable on the ground of 
infancy, or barred by the Statute of Limitations. In the latter case, 
it has been decided that a new promise removes the statute bar, but 
does not create a new and substantive cause of action which is the 
basis of a judgment; and that the judgment must be considered as 
rendered on the old contract. Ilsley v. Jewett, 3 Met. 439. And 
where an infant gave a negotiable note, which he ratified by a new 
promise after he was of age, it was decided that he was liable on it 
to an indorsee to whom the payee negotiated it after the ratification. 
The Court said the ratification gave the contract "the same effect 
as if the promisor had been of legal capacity to make the note when 
he made it. This made it a good negotiable note from that time, 
according to its tenor; of course, when transferred to the plaintiff, 
he took it as a negotiable note, and may maintain an action on it." 
Reed v. Batchelder, 1 Met. 559. And the indorsement of a note, 
after a new promise to the payee has taken it out of the Statute of 
Limitations, enables the indorsee to sue the maker. Little v. Blunt, 
9 Pick. 488, and 16 Pick. 359. The same rule is applicable to the 
case at bar. A new promise made to the payee of a negotiable note 
is a promise to pay him or order, or bearer, according to its tenor. 

Exceptions overruled.^ 

' Bird V. Adams, 7 Ga. 505; Soulden v. Van Rensselaer, 9 Wend. 293; Clark v 
Atkinson 2 E. D. Smith, 112, ace.; Thompson v. Gilreath, 3 Jones L. 493, contra. 


Vermont Supreme Court, October Term, 1895 

{Reported in 68 Vermont, 259] 

Thompson, J. As a part of the promises and undertaking in the 
declaration mentioned, and at the time of making the same, the de- 
fendants agreed in writing to waive the Statute of Limitations in 
respect to such promises and undertaking. Relying upon this agree- 
ment the plaintiff did not bring its action until more than six years 
from the time that it accrued. The question presented by the plead- 
ings is whether the defendants are estopped by the agreement from 
pleading the Statute of Limitations in bar of plaintiff's action. 

It is urged that the agreement to waive the statute is void because 
by private agreement it seeks to avoid a statute, and is against public 

The general rule is, that no contract or agreement can modify a 
law, but the exception is, that where no principle or public policy 
is violated, parties are at liberty to forego the protection of the law. 
Statutory provisions designed for the benefit of individuals may be 
waived, but where the enactment is to secure general objects of 
policy or morals, no consent will render a non-compliance with the 
statute effectual. The statute limiting the time within which actions 
shall be brought is for the benefit and repose of individuals and not 
to secure general objects of policy or morals. Its protection may, 
therefore, be waived in legal form by those who are entitled to it, 
and such waiver, when acted upon, becomes an estoppel to plead 
the statute. Sedgw. Stat, and Const. Law (2d ed.), 86-87; Quick 
V. Corliss, 39 N. J. L. 11; Burton v. Stevens, 24 Vt. 131; Gay v. 
Hassom, 64 Yt. 495; Eandom v. Tobey, 11 How. (U. S. 493). 
When such waiver is made it is continuous, unless by its terms it is 
limited to a specified time. There was no such limitation in the 
waiver of the defendants. We, therefore, hold that they are estopped 
from the pleading the statute of limitations in bar of plaintiff's 
Judgment ajjfirmed and cause remanded for assessment of damages.^ 


Pennsylvania Supreme Court, March 2, 1885 
[Reported in 109 Pennsylvania, 177] 

Mr. Justice Paxon delivered the opinion of the court, October 5, 


The defendant below was sued for breach of official duty as pro- 

* Ab to tho timo when a new promise must be made to be efifectual, see 1 Willis- 
ton, ContractH, §§ ](V.i, 1H3. 


thonotary in not properly entering a judgment, by means whereof 
its lien was postponed and the plaintiff suffered a loss. 

The defendant pleaded the general issue and the Statute of Limi- 
tations. To meet the plea of the statute the plaintiff called a witness, 
who testified as follows : "After I discovered that there was no 
judgment in favor of Hannah Levan against Enoch Rohrbach, but 
there was one against Enoch Rothenberger, which I knew from the 
number to be meant as the one against Rohrbach, I went to see Mr. 
Armstrong in reference to the matter. I said to him that he had 
made this mistake, or if not he, his clerk, and that unless this matter 
was fixed up, I would be obliged to sue. He then made the remark 
that he would have to see his lawyer first, Mr. Reber. On the after- 
noon of the same day, I think it was, he came to my office, alone 
that time, and he said that I should see Mr. Reber; and I said to 
him again what I said in the morning in reference to suing. He 
said that I should not sue; that if Mrs Levan suffered any loss by 
reason of this mistake, he would make it good to her ; that she should 
not lose anything through his mistake. That was in the spring of 
1879, I think during the first days of April." 

The court below held that this evidence, if believed by the jury, 
was sufficient to bar the running of the statute; and that the six 
years would only commence to run from the date of such promise. 

The plaintiff in error has given us an elaborate argument to show 
that a promise to pay after the statute has run will not revive a 
tort, and has cited numerous authorities in support of this propo- 
sition. We concede his law to be sound ; his authorities fully sustain 
his point.^ The difficulty in his way is they do not meet his case. 
It was not the question of the revival of a tort by a promise to pay 
made after six years. The conversation referred to occurred before 
the statute had run, and it was a distinct promise to pay in considera- 
tion that the plaintiff below would not sue. If, therefore, she re- 
lied upon this promise; if she was thereby lulled into security, and 
thus allowed the six years to go by before she commenced her suit, 
with what grace can the defendant now set up the statute? The 
promise operated not to revive a dead tort, but as by way of estoppel. 
It has all the elements of an estoppel. The plaintiff r-elied and 
acted upon it ; she has been misled to her injury ; but for the defend- 
ant's promise she would have commenced her action before the six 
years had expired. "We think the learned judge below was right 
in holding that the six years would only commence to run from 
the date of the promise. 

The defendant's fourth point called upon the court to instruct the 
jury that under the pleadings and the evidence in this case the 

1 See 1 Williston, Contracts §186. A new promise can revive from the bar of the 
Statute of Limitations only a right of action in assumpsit, id. § § 187, 188. Indeed, 
according to the English authorities only a right of action in general or indebitatus 
assumpsit. Darley & Bosanquet's Statutes of Limitations (2d ed.), 105. See WetzeU 
». Bussard, 11 Wheat, 309, 316. 


verdict should be for the defendant. This the court declined to do. 
It was urged in support of this point that the record testimony 
established the fact that the plaintiff's judgment was properly en- 
tered in the judgment docket although erroneously indexed in the 
judgment index; and that the subsequent Singmaster judgment, 
therefore, acquired no prior lien, notwithstanding the finding and 
decision of the auditor. 

This is to ask us to overrule the auditor and court below upon 
the question of distribution, arising in another and distinct pro- 
ceeding. We find no trace in this record that any such question was 
made in the court below. The learned judge makes no reference to 
it, and no such specific point was put to the court. That question 
has been settled by a court of competent jurisdiction, and it shows 
that the plaintiil has lost a portion of her money by reason of the 
defendant's mistake. This is sufficient to entitle her to recover. 

Judgment affirmed. 

Mercur, C. J., and Gordon, J., dissented.^ 


Supreme Judicial Court of Massachusetts, November 14, 1900- 

April 3, 1901 

[Reported in 178 Massachusetts, 417] 

Hammond, J. This is an action upon a demand note dated Octo- 
ber 22, 1872. At the trial, the plaintiff, in order to meet the de- 
fence of the Statute of Limitations, proved that the defendant de- 
livered to the agent of the plaintiff in April, 1898, $5; and the chief 
question was whether this money was delivered in part payment of 
the note, and, if so, whether under the circumstances it had the 
effect of making the defendant liable to pay the remainder of the 
note at once, or only by instalments. 

The plaintiff's evidence tended to show that in February, 1898, 
the defendant orally agreed to pay the note in monthly instalments 
of $10 each, the first instalment to be paid on the first of the fol- 
lowing month; that, the defendant failing to pay as promised, the 
plaintiff's sister as his agent called upon the defendant and de- 
manded payment "of the ten dollars," or a payment "on account of 
the note"; that the defendant said he could not pay $10, but would 
pay her $.5, and did so, and the payment was indorsed on the note. 

The defendant admitted giving the agent the $5, but testified that 
"it was an act of charity" and that it was done "to get rid of her," 
and tbat in giving it he stated that it was not on account of the 

' Ronackowsky v. Board of Water Conimissioucrs, 122 Mich. 613, ace. See further 
1 WilliBtoii, Contractfl, § 139. 


note; and he denied tliat he ever agreed to pay in monthly instal- 

In this state of the evidence the defendant asked the court to rule 
that if the jury should find that the defendant agreed to pay the 
note only in instalments of $10 j)er month, and that the payment of 
the $5 was given and taken in pursuance thereof, the plaintiff could 
only recover the instalments due to the date of the writ. The court 
declined so to rule, and instructed the jury in substance that if the 
defendant made this payment on account of the note their verdict 
should be for the plaintiff for the amount of the note and interest 
from the date of demand, after deducting the payments indorsed on 
the note. To the refusal to rule as above requested and to the ruling 
given the defendant excepted. The jury found for the plaintiff in 
the sum of $1,049.40. 

The verdict shows that the jury found that the $5 was paid by 
the defendant on account of the note and not as an act of charity 
as he contended. But it does not settle the question whether it was 
paid in pursuance of an agreement to pay on instalments, or upon 
the note generally without reference to that agreement; and, since 
the evidence would warrant a finding either way on that question, 
it is plain that if it was material it should have been submitted to 
the jury. 

The St. 21 Jac. I. c. 16, in which first appears a limitation as to 
the time of bringing personal actions, and upon which are modelled 
the various Statutes of Limitation in the United States, expressly 
provides that all such actions should be brought within the times 
therein prescribed; and it makes no mention of the effect of a new 
promise, acknowledgment or part payment. In every form of action 
but that of assumpsit, the construction has been in unison with the 
express words of the statute, but, as to that action, the statute has 
had a varied experience in running the gauntlet of judicial exposi- 
tion. There was early read into it a provision that in an action 
of assumpsit a promise of payment within six years prior to the 
action would avoid the statute, but that a confession, or simple ac- 
knowledgment by the debtor that he owed the debt would not be 
sufficient. Dickson v. Thomson, 2 Show. 126. At a later period, 
however, it was held that an acknowledgment was evidence from 
which a jury might properly find a new promise to pay. Heyling 
V. Hastings, 1 Ld. Eaym. 421 ; S. C. Comyns, 54. Still later, Lord 
Mansfield said in Quantock v. England, Burr. 2628, that the statute 
did not destroy the debt, but only took away the remedy; and that 
if the debt be older than the time limited for bringing the action the 
debtor may waive this advantage, and in honesty he ought not to 
defend by such a plea, "and the slightest word of acknowledgment 
will take it out of the statute." In Tanner v. Smart, 6 B. & C. 603, 
however, the pendulum swung the other way, and Lord Tenterden, 
C. J., after saying that there were undoubtedly authorities to the 


effect that the statute is founded on a presumption of payment, that 
whatever repels that presumption is an answer to the statute, that 
any acknowledgment which repels that presumption is in legal effect 
a promise to pay the debt, and that, though such acknowledgment 
is accompanied with only a conditional promise or even a refusal 
to pay, the law considers the condition or refusal void, and the ac- 
knowledgment itself an unconditional answer to the statute, pro- 
ceeds in an able opinion to say in substance that these cases are 
unsatisfactory and in conflict with some others, and that the true 
doctrine is that an acknowledgment can be an answer to the statute 
only upon the ground that it is an evidence of a new promise, and 
that, while, upon a general acknowledgment, where nothing is said 
to prevent it, a general promise to pay may and ought to be implied, 
yet, where a debtor guards his acknowledgment and accompanies it 
with a declaration to prevent any such implication, a promise to 
pay could not be raised by implication. This is a leading case in 
England on this subject. 

In this country, it has very generally been held that the Statute 
of Limitations is a wise and beneficial law, not designed merely 
to raise a presumption of payment of a just debt from lapse of time, 
but to afford security against stale demands after the true state of 
things may have been forgotten, or may be incapable of explanation 
by reason of the loss of evidence, that if a new express promise be 
set up in answer to the statute, its terms ought to be clearly proved, 
and that, if there be no express promise, but a promise is to be 
raised in law from the acknowledgment of the debtor, such an ac- 
knowledgment ought to contain an unqualified admission of a previ- 
ous subsisting debt for which the party is liable and which he is 
willing to pay. It follows that if the acknowledgment be accom- 
panied by circumstances, or words, which repel the idea of an in- 
tention to pay, no promise can be implied. Bell v. Morrison, 1 
Pet. 351; Jones v. Moore, 5 Binn. 573; Berghaus v. Calhoun, 6 
"Watts, 219; Sands v. Gelston, 15 Johns. 511; Danforth v. Culver, 
11 Johns. 146; Purdy v. Austin, 3 Wend. 187. In this last case 
the court say that the statute is one of repose and should be main- 
tained as such; that, while the unqualified and unconditional ac- 
knowledgment of a debt is adjudged in law to imply a promise to 
pay, the acknowledgment of the original justice of the claim with- 
out recognizing its present existence is not sufficient; and that any- 
thing going to negative a promise or intention to pay must be re- 
garded as qualifying the language used. 

This doctrine was approved by thia court in the leading case of 
Bangs /'. Hall, 2 Pick. 368, in which Putnam, J., after a review of the 
authorities, says; "On the whole, we are satisfied that there must be 
an unqualified acknowledgment, not only that the debt was just orig- 
inally, but that it continues to be so, . . . or that there has been a 
conditional promise which has been performed, as is before explained." 


To answer the statute there must be a promise express or implied 
from an acknowledgment of the debt as a present existing debt. If 
the promise whether express or implied be conditional, it must be 
shown that the conditions have been fulfilled. Cambridge v. Hobart, 
10 Pick. 232; Sigourney v. Drury, 14 Pick. 387; Krebs v. 01m- 
stead, 137 Mass. 504. 

While the original debt is the cause of action, Ilsley v. Jewett, 
3 Met. 439, the liability of the debtor is determined not by the terms 
of the old but by those of the new promise. As stated by Vice Chan- 
cellor Wigran in Phillips v. Phillips, 3 Hare, 281, 300, 'The new 
promise, and not the old debt, is the measure of the creditor's right. 
... If the debtor promises to pay the old debt when he is able, 
or by instalments, or in two years, or out of a particular fund, the 
creditor can claim nothing more than the promise gives him." Custy 
V. Donlan, 159 Mass. 245; Boynton v. Moulton, 159 Mass. 248. 

Pub. Sts. c. 197, § 15, provides that no acknowledgment or promise 
shall be evidence of a new or continuing contract to take the case 
out of the operation of the statute, unless contained in some writing 
signed by the debtor, and in § 16,^ that nothing in this provision 
shall be taken to alter, take away or lessen the effect of a part pay- 
ment of principal or interest; and it may be contended that the 
effect of these two sections is to exclude all parol evidence whatever 
bearing upon an acknowledgment or new promise by part payment 
or otherwise, whether the creditor be attempting to avail himself 
of it for attack, or the debtor for defence. But that does not seem 
to us to be the result. The language is that the provision of the 
fifteenth section shall not be taken to alter, take away or lessen 
the effect of part payment. But what was the effect of part pay- 
ment before this statute requiring the promise or acknowledgment 
to be in writing? Its effect depended upon the circumstances. If 
a debtor made a part payment as such, it was considered as an ac- 
knowledgment that the whole debt was due, otherwise it could not 
be a part payment; and so it stood upon the same footing as any 
other unconditional acknowledgment, and from it the law, in the 
absence of anything to the contrary, implied a promise to pay the 
whole. It had no validity to answer the statute except as an acknowl- 
edgment of the debt. In the language of Tindal, C. J. in Clark v. 
Hooper, 10 Bing. 480, in the mind of the party paying such a pay- 
ment must be "a direct acknowledgment and admission of the debt, 
and is the same thing in effect as if he had written in a letter to 
a third person that he still owed the sum in question." 

But suppose a debtor says to his creditor "I acknowledge the 
debt to be just, that it never has been paid, and that I have no de- 
fence except the Statute of Limitations. I am willing to pay and I 
do hereby pay to you one-half of the debt, but I do not intend to 

^ As to the statutes requiring a writing to make valid a new promise to pay a debt 
barred by the Statute of Limitations, see 1 Williston Contracts, § 164. 


waive the statute as to the rest. On the contrary I insist on my 
defence as to that, and I never will pay any more." Can it be said 
that from such a part payment, accompanied by such a distinct affirm- 
ation of the debtor's intention not to pay more but to insist upon his 
defence under the statute, the law would have implied a promise 
to pay the remaining half? 

Again, suppose a debtor says to his- creditor, "Your claim against 
me is just, it never has been paid, and my only defence to it is the 
Statute of Limitations. I am not able to pay it now, but I will 
pay it when and as fast as I am able, but I will not pay in any 
other way, and I insist upon my defence under the statute except 
so far as I now waive it. I am able to pay and I do now pay you 
ten dollars with this understanding." Can it be said that from such 
a part payment the law would have implied a promise to pay the 
debt according to its original terms? 

To come a little more closely to what the jury might have found 
the facts to be in this case, suppose the debtor agrees to pay in in- 
stalments and in no other way, and clearly declares his intention 
to pay in no other way, and then makes a payment in compliance 
with the new promise. Can it be said that from such a part pay- 
ment the law would have implied a promise to pay the debt in any 
other way? Such an interpretation of the words and act of the 
debtor would be inconsistent with the understanding of both parties, 
and would be unreasonable and unjust. 

Such a partial payment as that named in either of the three 
cases above supposed must be construed as a conditional and not an 
absolute waiver. The waiver must be taken as it is, absolute if ab- 
solute, conditional if conditional. And on principle that must be 
so, whether it be found in a verbal promise or in a payment. There 
is no ground for a satisfactory distinction between a waiver by word 
and a waiver by an act. Each is evidence of a new promise and 
operative only as such; and while the cause of action is the old 
promise, the measure of the liability is determined by the new one. 

Now it is expressly declared in Pub. Sts. c. 197, § 16, that the 
provisions of the preceding section shall not be taken to alter, take 
away or lessen the effect of a part payment. There can be no doubt 
that prior to the passage of the law contained in § 15 a partial pay- 
ment made in pursuance of an agreement to pay by instalments did 
not have the effect of making the debtor liable in any other way. 
To say that the provisions of § 15 do have that effect is to alter the 
effect of such a part payment, and so is inconsistent with § 16. The 
law with respect to part payment is to remain as before, and the 
language accompanying the payment is admissible to show the in- 
tent with which the payment is made, just as it was admissible be- 
fore, and that is so whether or not it contains a promise to pay 
upon which the creditor could have maintained an action prior to 
the requirement that it should be in writing. 

SECT. II] BIG DIAMOND CO. V. C, M. & ST. P. RY. CO. 303 

In the case at bar there was evidence tending to show that the 
defendant had orally agreed to pay in monthly instalments of $10 
each, and if such an agreement had been in writing it could have 
been enforced according to its terms, but the right of the creditor 
as against a plea of the statute would have been measured by this 
new promise; and, even if the debtor had failed to pay, the creditor 
could recover only the instalment due under the terms of the agree- 
ment; and that would be so even if the defendant had made several 
of the payments. The creditor could take the money under the 
terms which the debtor had prescribed, and upon no other. 

And by the reason of the thing the same principle must apply 
where the payment is made upon an agreement which, not being in 
writing, could not be enforced. If this $5 was paid in part per- 
formance of his agreement to pay by instalments, then it cannot be 
inferred that he intended to recognize the existence of the old debt 
as an actual subsisting obligation in any other way. The nature 
of the act is to be determined by the intention of the debtor as shown 
by the act, his words, and the circumstances accompanying and ex- 
plaining it. Taylor v. Foster, 132 Mass. 30; Eoscoe v. Hale, 7 
Gray, 274. See also 13 Am. & Eng. Encyc. of Law, 750 et seq., 
for a good collection of the cases. 

While in this case the evidence is conflicting, we think it would 
warrant a finding that the only express promise made by the de- 
fendant was to pay in monthly instalments of $10 each, and that 
he paid the $5 solely under that agreement. If that was so, then no 
other promise can be inferred from this payment, and the instruction 
requested should have been given. Exceptions sustained.^ 


Minnesota Supeeme Court, April 11, 1919 

[Reported in 171 Northwestern Reporter, 799] 

Hallam, J.^ This is an action to recover excessive freight 
charges demanded by the defendant and paid by the plaintiff. 
The validity of the charges depended on certain questions then 
pending before the United States Supreme Court. Under the 
decision of that court the plaintiff became entitled to recover the 
charges if its action was seasonably brought. 

The action was not begun until after the statutory period had 
erpired since the freight in question was paid; but within the 

* See also Strong v. Andros, 34 App. D. C. 278; Galvin v. O'Gorman, 40 Mont. 
391; Equitable Trust Co. v. MacLaire, 77 N. Y. Misc. 116. 

* The statement of facts is abbreviated and a portion of the opinion omitted. 

304 BIG DIAMOND CO. V. C, M. & ST. P. RY. CO. [CHAP. I 

statutory period the defendant had issued a statement "to the 
public" which was signed by the Minnesota railroad commission, 
and by all the railroads interested, including the defendant. In 
this statement it was said that "properly supported claims" would 
be paid by the railroad companies. 

The question is, does this constitute a new promise sufficient 
to remove the bar of the Statute of Limitations? The trial court 
held not. In our opinion this was an error. 

One reason urged in support of the court's ruling is that the 
writing does not identify the plaintiff's claims and promise to pay 
them. It must, of course, do so in order to constitute a "new 
promise." Eussell & Co. v. Davis, 51 Minn. 482, 53 N. W. 766; 
Anderson v. Nystrom, 103 Minn. 168, 114 N. W. 742, 13 L. E. A. 
(K S.) 1141, 123 Am. St. Eep. 320, 14 Ann. Cas. 54. But specific 
reference to a particular claim is not necessary. If the language 
would be sufficiently specific in a bond to pay claims, surely it 
is sufficient in a new promise by the debtor. A general admission 
of unsettled matters of account between the parties is not sufficient. 
Conway's Ex'r v. Eeyburn's Ex'r, 22 Ark. 290, 292. But if the 
general language refers, with certainty, to the debt, that is suffi- 
cient. A promise to pay "every cent he owed him," it is held, 
sufficiently identifies the debt sued on. O'Hara v. Murphy, 196 
111. 599, 63 ]Sr. E. 1081. It is not necessary that the new prom- 
ise should state the amount of the debt. Conway's Ex'r v. Eey- 
burn's Ex'rs, 22 Ark. 290; First Nat. Bank v. Woodman, 93 
Iowa, 668, 62 N. W. 28, 57 Am. St. Eep. 287; Wetz v. Greffe, 
71 111. App. 313; Kincaid v. Archbald, 73 K Y. 189, 192; 
Abrahams v. Swann, 18 W. Va. 274, 280, 41 Am. Eep. 692. 
!N"or even that the amount should have been fixed. "We owe you 
for three years' salary" is held sufficient though the salary had 
never been fixed. Schmidt v. Pfau, 114 111. 494, 502, 2 N". E. 
522, 527. An admission of some balance due, the amount to be 
ascertained by arbitration, is held sufficient. Cheslyn v. Dalby, 
10 L. J. Exch. 4. A promise to pay if the debt is established is 
held a good new promise. Stanton v. Stanton, 2 N. H. 425; 
Shay V. Lambert, 14 App. Div 265, 43 K Y. Supp. 470; Eead v. 
Wilkinson, 20 Fed. Cas. 359, No. 11,611; Haplin v. Ilaftings, 
12 Mod. 223. So is a promise to pay if the debtor cannot prove 
payment. Eichmond v. Fugua, 33 N. C. 445; Sweet v. Hubbard, 
36 Yt. 294; Sothoron v. Hardy, 8 Gill. & J. (Md.) 133. And a 
prediction that nothing will be found due, it is held, does not 
vitiate thn promise. 25 Cyc. 1343; Bliss v. Allard, 49 Vt. 350; 
Eead v. Wilkinson, 20 Fed. Cas. 359, No. 11,611. 

A promise to pay all claims of a definite class is in our 
opinion Hnfficiently definite. The language of the letter "to the 
public" pronii.siiii^ to pay all claims of th(^ class to which plaintiff's 
claims belong sufficiently identified plaintiff's claims. This is in 


accordance with the decision of the Washington Supreme Court, 
in Belcher v. Tacoma Eastern K. Co., 99 Wash. 34 168 Pac. 
782, a case so similar to this one that, as to matter of identification 
of the claim, we cannot distinguish it. 


In the Court of Appeal, May 14, 15, 1908 

[Reported in (1908) 2 K. B. 584] 

The defendant, being indebted to his solicitor in respect of a bill 
of costs, handed him on May 10, 1900, a cheque in part payment 
of the bill; at the same interview it was verbally agreed between the 
parties that the cheque should not be presented for payment before 
June 20. On June 20 the cheque was presented for payment at the 
defendant's bankers, and was duly paid. On June 18, 1906, the 
executors of the solicitor, who had meanwhile died, issued the writ 
in the present action to recover the balance of the debt upon the bill 
of costs : — 

Fletcher Moulton, L. J. The facts of this case are curious, but 
I have no doubt that the decision of Bray J. was correct. It was 
very early recognized by the Courts that a clear acknowledgment of 
the existence of a debt was an act from which a fresh promise to 
pay the debt might be implied, the consideration being the then ex- 
isting liability to pay it. Such a promise might be proved in any 
way in which a promise is capable of being proved; it might be 
in writing, it might be oral; it might be inferred or implied from 
the conduct of the parties. This state of the law was found to lead 
to abuse, and Lord Tenterden's Act was passed, which provided that 
an acknowledgment or promise to pay, in order to take a case out 
of the Statute of Limitations, must be in writing, with the striking 
limitation, however, that nothing should affect the consequences 
arising from part payment of a debt. There is no doubt that this 
exception arose from the fact that the Courts had been in the habit 
of giving special recognition to payment of part of a debt on ac- 
count of the whole as being conduct which might well amount to 
a recognition of the debt and enable the Courts to infer a fresh 
promise to pay the remainder. Lord Tenterden's Act therefore left 
the existing decisions as to the effect of part payment of a debt 
untouched. These decisions make it clear that part payment by 
itself, and apart from the circumstances under which it is made, does 
not necessarily carry with it a promise to pay the remainder ; the part 
payment must be made under circumstances from which a promise 
to pay the remainder can be inferred. It is evident that the cir- 
cumstances surrounding a part payment may be such as to make 
it ineffectual as a new promise. If the debtor were to say "Take 


that, it's all you'll get," the language accompanying the payment 
would clearly negative any promise by him to pay the remainder of 
the debt. 

The Courts have loyally administered Lord Tenterden's Act, but 
in one respect they have enlarged the effect of the proviso. They 
have held that the delivery of a negotiable instrument by a debtor 
to his creditor in part discharge of the debt is equivalent to part 
payment. Therefore where delivery of a negotiable instrument is 
made under circumstances from which there can be implied a promise 
to pay the remainder of the debt the case is taken out of the Statute 
of Limitations. 

The present case is an instance of this, and when we once realize 
that in such a case the principle of law still survives that there may 
be an effective acknowledgment of a debt by conduct, any apparent 
difficulties in this case disappear. When was the act done from 
which the promise to pay the remainder of the debt may be implied ? 
Beyond question, it was when the cheque for 20Z. was given in part 
payment of the original debt; and if in this case the six years from 
the original creation of the debt had expired the day after the 
cheque was given, the giving of the cheque would take the case out 
of the statute, and accordingly the debt might have been sued for 
at any time within six years from the date of the cheque. But in 
this case the period of six years from the date of the cheque had 
expired before this action was brought, and it is now urged by the 
plaintiffs that, because by arrangement between the parties the 
cheque was not presented for payment for several weeks after it was 
given to the creditor, it must be taken that when the cheque was in 
fact paid it operated on that date as a part payment of the debt. In 
one sense that is true, for the 201., when paid on June 20, went towards 
the extinction of the debt; but that payment was only the honoring 
of the cheque which had been given some weeks before. The only 
conclusion I can draw from the facts is that on June 20 the de- 
fendant fulfilled his obligation to pay the cheque — I cannot infer 
from that act any promise made by him on that day to pay the 
remainder of his debt. Suppose that on May 10 the defendant had 
given a promissory note payable three months after date, payment 
could clearly not be enforced for three months; — that would be 
a stronger case for the plaintiffs than the present one — there can 
be no doubt that payment of the note at the due date would be noth- 
ing more than a discharge of the obligation entered into when the 
note was actually made. There would not be in that case, and there 
is not in the present case, any fresh act or conduct from which we 
could infer that the debtor was promising to pay the remainder of 
the debt, or was doing anything more than carrying out his obliga- 
tion of honoring tlui negotia])lo instrument which he had given. 
The result is tliat there is only one net and one moment of time 
which can be looked at hero in dclermining whether there has been 


a renewal or a prolongation of the period within which this action 
could be brought, and that is the giving of the cheque on May 10; 
but that was more than six years before the commencement of this 
action, and it is therefore statute-barred.^ 


New York Supreme Court, Appellate Division 
December 31, 1913 

{Rejported in 160 New YorJc Appellate Division, 315] 

Laughlin, J. : This is an action on a promissory note made 
by the defendant on the 3d day of January, 1906, for $2,005.35, 
payable on demand to the order of the plaintiff under its former 
name, which was the Fourteenth Street Bank, with interest, to 
recover a balance of $375.67. The action was commenced on the 
19th day of February, 1912. It is alleged that there were pay- 
ments made to apply on the note as follows : January 8, 1906, 
$502.67; June 13, 1906, $751.34, and March 28, 1907, $375.67. 
The allegations with respect to these payments were put in issue 
by the answer in which the Statute of Limitations was also 
pleaded. The payments made, which were thus put in issue, were 
dividends received by the plaintiff from the receiver of the 
Cooper Exchange Bank, under an assignment, as collateral 
security for the note, of defendant's claim against said bank as 
a depositor. 

The defendant's note to the plaintiff authorized the payee to 
appropriate and apply on the defendant's indebtedness the 
collateral securing the note, if the defendant should make default; 
and the note contained further an express promise by the de- 
fendant to pay any deficiency. The question presented by the 
appeal is whether the last payments made on the note give rise 
by implication of law to promises then made by the defendant to 
pay the balance of his indebtedness. 

The effect, on the running of the Statute of Limitations, of 
the payment of principal or interest is declared by judicial de- 
cisions, but there is no statutory provision governing it. The only 
statutory reference to it is contained in section 395 of the Code of 
Civil Procedure, which is as follows : "An acknowledgment or 
promise contained in a writing, signed by the party to be charged 
thereby, is the only competent evidence of a new or continuing 
contract, whereby to take a case out of the operation of this title. 
But this section does not alter the effect of a payment of prin- 

^ The statement of facts is abbreviated. Sir Gorell Barnes, President, and Farwell, 
L. J. delivered concurring opinions. 


cipal or interest." By judicial decisions a rule, doubtless now as 
binding as a statutory enactment, has been declared to the effect 
that a payment of either principal or interest made by the debtor 
gives rise to an implied promise, or justifies an inference of a 
new promise, on his part made at that time, in the absence of 
evidence showing that he disclaimed the intent to have his act 
given that effect, to pay the balance of the indebtedness ; and that the 
Statute of Limitations from that time commences to run on the 
new promise renewing the contract. (Murdock v. "Waterman, 145 
N. Y. 55; Harper v. Fairley, 53 id. 442; Smith v. Eyan, Q6 
id. 352; Pickett v. Leonard, 34 id. 175.) 

So rigidly have the courts adhered to the underlying reason 
for this rule that it has been repeatedly held that a payment by 
one, jointly or otherwise liable with others on the same instru- 
ment, even with the knowledge of the others liable thereon and 
whose liability is thus reduced, suspends the running of the 
Statute of Limitations only as against himself. (Hoover v. 
Hubbard, 202 N. Y. 289; Murdock v. Waterman, supra; 
Gould V. Cayuga County Nat. Bank, 86 K Y. 75; McMullen 
V. Rafferty, 89 id. 456; Harper v. Fairley, supra.) The only 
exceptions to the rule that a payment, in order to prevent the 
running of the statute, must be made by the debtor, who pleads 
the statute, are, where the payment is made by his authorized 
agent clothed with sufficient authority to disclaim for him any 
intention to have the effect given the payment which by legal in- 
ference or presumption would otherwise attach thereto and he 
fails to so disclaim; or where he ratifies a payment made in his 
behalf. (Pickett v. Leonard, supra; Harper v. Fairley, supra; 
Smith V. Ryan, supra; Murdock v. Waterman, supra.) It is 
well settled that where the debtor assigns collateral as security 
for his note or other obligation, his debtor, in making a pay- 
ment to the assignee on the obligation thus assigned, is not his 
agent, and that such a payment does not give rise to a new 
promise on the part of the debtor (Harper v. Fairley, supra; 
Smith V. Ryan, supra; Acker v. Acker, 81 IST. Y. 143) ; and the 
same has been held with respect to payment by a general 
assignee for creditors. (Pickett v. Leonard, supra.) It has 
also been held that the creditor in selling and applying the pro- 
ceeds of collateral to the payment of the obligation is not the 
agent of the debtor for this purpose. (Brooklyn Bank v. Bar- 
naby, 197 'N. Y, 210.) In view of these authorities it requires 
no further argument to show that the receiver of the Cooper 
Exchange Bank in paying the dividends was not the agent of 
the defendant, and that there is no legal presumption or infer- 
ence to be drawn from snch payments that a new promise was 
then and there made by the debtor to pay the balance owing on 
the note. Nor can it be successfully contended that the plain- 


tiff itself was the defendant's agent in collecting and applying 
the dividends. The plaintiff in collecting the dividends acted 
for itself pursuant to the rights derived by it under the assign- 
ment. There was no act involved in the collection or applica- 
tion of the dividends to the payment of the note that it was 
necessary to perform in the name of the defendant. The 
money when received became the property of the bank so far 
as required in paying the note. Its application to the payment of 
the note was a mere mental operation or bookkeeping entries which 
the officers of the plaintiff performed in its behalf and for it. 

It cannot be said as matter of law that defendant ratified the pay- 
ments as made or applied on the note by the bank so that they are 
to be regarded the same as if he brought the money in and paid 
it over the counter. The question of ratification was submitted 
to the jury as a question of fact and was found by them adversely 
to the appellant. We would not be justified in disturbing the verdict 
on that point unless as matter of law the evidence shows a rati- 
fication. The defendant was not consulted with respect to the 
appropriation of the dividends to the payment of the note. He was 
merely informed that the dividends had been received and so 
applied. He had no voice in the matter and he had no standing 
to question the right of the plaintiff to make the application. He 
was not called upon to protest against the doing of that which 
plaintiff had a right to do; nor was he since the act was not his, 
required to disclaim its effect on the Statute of Limitations or 
with respect to a new promise. 

The only debatable point is whether the plaintiff is entitled 
to recover on the theory that the note itself or the assignment 
containsi a promise, separate and apart from the promise con- 
tained in the note proper, to pay any deficiency arising after the 
application of the moneys received under the assignment. In 
Brooklyn Bank v. Barnaby (supra) the Court of Appeals had 
this question under consideration in an action on a note in sub- 
stantially the same form as that in the case at bar, and the col- 
lateral was sold and the proceeds applied thereon. There the 
deficiency could not be ascertained until the sale of the collat- 
eral and on that ground three of the judges maintained that a 
cause of action on the promise to pay the deficiency did not arise 
until the deficiency was known; but the majority of the court 
decided otherwise, and that decision is controlling on this court 
on that proposition. 

I am also of opinion that the action cannot be main- 
tained on the theory of a promise contained in the assignment 
to pay the deficiency. The action is upon the note and not on 
the assignment. This provision of the assignment is not set 
forth in the complaint. It would now be too late, if the attempt 
were made — but it is not by counsel for appellant — to read 


it into it now, for the action evidently was not tried on that 
theory and the proof is not sufficient to show that no more could 
have been realized under the assignment, nor does it appear but that 
there might have been some other defense had the action been on 
the assignment. However, it would seem doubtful whether the 
action, if properly brought on the assignment, could be sustained 
on that theory. In Brooklyn Bank v. Barnaby (supra) it does not 
appear that there was a separate formal assignment such as 
in the case at bar. On the theory upon which that case was 
decided, however, I am of opinion that the separate assignment 
does not materially distinguish the case at bar from it. The 
court there held that there was but one promise and that was the 
promise in the note proper to pay the indebtedness, and that the 
promise to pay the deficiency had reference to the unconditional 
promise to pay the indebtedness and was to be so construed. These 
views require an affirmance. 

It follows that the determination should be affirmed, with costs. 

McLaughlin and Dowling, JJ,, concurred; Ingeaham, P. J.^ 
and HoTCHKiss, J., dissented. 

BUSH V. STOWELL, et al. 

Supreme Court of Pennsylvania, March 11, 1872 

[Reported in 71 Pennsylvania, 208] 

This was an action brought May 22, 1865, on a promissory note 
made jointly by the four defendants, payable in four instalments; 
the first of which was due June 1, 1865, and the others in three 
successive years on the first of June. Indorsements of partial 
payments were made on June 4, 1856, and on May 3, 1862. This last 
payment was made by one of the defendants, Hezekiah Stowell. 
D. A. Stowell, another of the defendants, according to the plain- 
tiff's evidence, had made a new promise in 1867 to pay the debt. 
The jury found a verdict for the full amount unpaid on the note 
against the defendant who had made the payment in 1862 and 
the defendant Avho had made the new promise. Against the 
other two defendants a verdict was given for the single instalment 
of the note on which the Statute of Limitations had not run at the 
time of bringing the action. 

On exception to the judge's charge, the plaintiff took out a writ 
of error. ^ 

SiiARHwooD, J. — Lord Coke announced the distinction between 

actions of debt and of covenant or assumpsit upon an agreement 

to pay a sum of money by instalments, which has been recognized 

and followed since: "If a man be bound in a bond or by contract 

' The statement of facts has been abbreviated. 


to another to pay a hundred pounds at five several days, he shall 
not have an action of debt before the last day be passed." "But 
if a man be bound in a recognizance to pay a hundred pounds at 
five several days, presently after the first day of payment he shall 
have execution upon recognizance for that sum, and shall not tarry 
till the last be past, for that it is in the nature of several judg- 
ments." "And so it is of a covenant or promise, after the first 
default an action of covenant or an action upon the case doth lie, 
for they are several in their nature." Co. Litt. 292 b. Lord 
Loughborough reviewed all the law on this subject in Rudder v. 
Price, 1 H. Bl. 547, in which it was held that an action of debt 
will not lie on a promissory note, payable by instalments, till the 
last day of payment be past. He shows that prior to the case of 
Cooke y. Whorwood, 2 Saund. 337, it was the uniform course 
where an action of assumpsit was brought before all the instal- 
ments were due, to allow a recovery in damages for those still to 
accrue and come due, upon the notion that after a judgment on 
the contract no further recovery could be had : Beckwith v. ISTott, 
Cro. Jac. 504; Peck v. Ambler, Dyer 113 and note; Milles v. 
Milles, Cro. Car. 241. But in Cooke v. Whorwood, which was 
assumpsit to perform an award to pay money in instalments, it was 
objected that all the days of payment were not past; but the Court 
of King's Bench, Sir Matthew Hale being then Chief Justice, was 
clear that the action might be brought for such money only as was 
due at the time of bringing the action, and the plaintiff could 
recover damages accordingly; and when another sum of the money 
awarded should become due, the plaintiff might commence a new 
action for that also, and so toties quoties. The law must be now 
considered as settled in conformity to this doctrine: Tucker v. 
Eandall, 2 Mass. 283 ; Greenleaf v. Kellogg, Id. 568 ; Cooley v. Rose, 
3 Id. 221. 

If then the plaintiff could have maintained a suit for the first 
instalment in this case immediately after it fell due, his cause of 
action then accrued, and the Statute of Limitations began to run. 
It is unnecessary to inquire what the law would have been if this 
had been an action of debt, and the plea actio non accrevit infra 
sex annos; for, as we have seen, an action of debt could not have 
been maintained on this promissory note until after all the instal- 
ments had fallen due. But being assumpsit, there would seem to 
be no question that, as to the first instalment, the action was 
barred: Burnham v. Brown, 23 Me. 400; 2 Pars, on Cont. 373. 

ISTor is it any longer open to question that a payment on account 
or an acknowledgment by one of two or more joint debtors will 
not take the case out of the statute as to the others : Coleman v. 
Pobes, 10 Harris 156; Levy v. Cadet, 17 S. & R. 126; Searight 
V. Craighead, 1 Penna. Rep. 135; Houser v. Irvine, 3 W. & S. 
345 ; Schoneman v. Fegley, 7 Barr 433. 


What, then, is the effect of this rule when applied in a joint 
action against several joint debtors? Certainly not that it shall 
sever the judgment, which in a joint action ex contractu would be 
an anomaly. In such a proceeding if evidence is offered of an 
acknowledgment or payment by one only of the defendants, it is 
strictly inadmissible, unless indeed offered to be followed by a 
similar acknowledgment or payment by the others, which would 
be sufficient to take the case out of the statute as to all. It fol- 
lows that in this case the jury should have been instructed to find 
for the plaintiff as against all the defendants only the amount of 
the second instalment and interest. Whether the plaintiff could 
maintain an action against those not affected by the bar of the 
statute in consequence of their acknowledgment or payment for 
the first instalment, need not now be discussed, nor on what prin- 
ciple contribution between the joint debtors is to be regulated. 
Sufficient for the day is the evil thereof. Upon a writ of error by 
the defendants, the verdict and general judgment entered on the 
verdict could not have been sustained. It is in effect several 
judgments in a joint action. We must assume that the defendants 
acquiesce, as they do not complain. But what injury has been 
done to the plaintiff in error? He has in his joint action, by the 
verdict and judgment below, all the benefits which he could possibly 
have attained had he brought several actions against each defendant. 
It would evidently be an injury to him to reverse his judgment, 
and send the case back for another trial, which must result in a 
verdict and judgment against all for the less sum, leaving the plain- 
tiff to pursue his separate remedies against those as to whom the bar 
of the statute is saved. Judqment ajfirmed. 

Thompson^ C. J. — As applicable to the case in hand, I dissent. 





In Chancery, 1820 

[Reported in 6 Maddock, 166] 

The bill was filed by tbe next of kin, against tbe defendant, as 
administrator of the intestate, for an account. 

The defendant pleaded a release. 

Mr. Phillimore objected to the plea of the release; first, because it 
was founded only on the receipts of the administrator, as they then 
stood; and, secondly, because the release was only said to be "sealed 
and delivered," without also saying "signed;" and cited Blackstone,^ 
who says a deed must be signed as well as sealed and delivered. 

Mr. Koe, contra. 

The Vice-Chancellor. The release states that the administrator 
had received all the property belonging to the intestate; I cannot 
therefore assume that he has received anything since. There is no 
authority for saying that a release, to be effectual, must be signed as 
well as sealed and delivered. The plea must he allowed.^ 


Common Pleas, 1693 

[Reported in 3 Levinz, 348] 

Debt on obligation, and declares, that March 20, 34 Car. 2, the 
defendant by obligation dated October 10, 33 Car. 2, sed primo de- 
liberaf 20 March, 34 Car. became bound, etc. The defendant pleads, 
that upon the said tenth of October, when the obligation bears date, 
there was no such person in rerum natura as the plaintiff. To 

1 Blackstone's Com. 305; Blackstone's words are: "It is requisite that the party 
whose deed it is should seal; and now, in -most cases, I apprehend, shonM. si^n it also." 

* Cromwell v. Grunsden, 2 Salk. 462; Jeffery r. Underwood, 1 Ark. 108, ace. See 
also Cooch V. Goodman, 2 Q. B. 597; Shepp. Touch. (Preston's ed.), 66 &. 


which the plaintiff demurs : and now upon argument it was adjudged 
by the whole court for the plaintiff : they agreed where the plaintiff 
declares on a date he cannot afterward reply that it was primo de- 
liberate at another day; for that would be a departure, and so are 
the books to be intended, Co, 2 Eep. 4 b, and 1 H. 6, 1 b, there 
cited; for prima facie every deed is supposed to be made the same 
day that it bears date. But where the date is mistaken, the party 
may declare, or in his first plea plead, that by a deed bearing date 
such a day, but prima deUherat' at another day, the party granted, 
or became bound, etc. For God forbid, when a deed is duly made 
that by negligence or mistake of the clerk in writing the date, the 
party should lose the whole benefit of the deed, and be without 
remedy; and so are Dy. 307 a, 315 a; Cro. Eliz. 773, 890; 5 H. 7, 
27 a, to be understood upon this difference. Levinz of the counsel 
with the plaintiff.^ 


New Yoek Supreme Court of Judicature, 1810 
[Reported in 5 Johnson, 239] 

Kent, C. J., delivered the opinion of the Court. The two ques- 
tions made upon this case are: 1. What is the legal import of the 
instrument upon which the suit is brought ? and, 2. Was the evidence 
sufficient to entitle the plaintiff to recover ? ^ 

I. The note was given in Virginia, and by the laws of that state 
it was a sealed instrument or deed. But it was made payable in 
New York, and according to a well-settled rule, it is to be tested 
and governed by the law of this state. 4 Johns. Rep. 285. Inde- 
pendent then of the written agreement of the parties (and on the 
operation of which some doubt might possibly arise), this paper 
must be taken to be a promissory note, without seal, as contradis- 
tinguished from a specialty. We have never adopted the usage pre- 
vailing in Virginia and in some other states, of submitting a scrawl 
for a seal; and what was said by Mr. Justice Livingston, in the case 
of Mcridith v. Hinsdale (2 Caines, 362), in favor of such a sub- 
stitute, was his own opinion, and not that of the Court. A seal, 

' OHbourn v. Ridor, Cro. Jac. 135; Cromwell v. Grunsden, 2 Salk. 462; Goddard's 
Casr;, 2 C'oki; 4 l>; Hall v. Cazenovc, 4 East, 477; Thompson v. Thompson, 9 Ind. 323; 
Lf!0 V. MasH. Ins. Co., 6 Mass. 208, 219; Banning v. Edes, 6 Minn. 402; Jackson v. 
Schoonmakor, 2 .Johns. 230; Gciss v. Odonhoimcr, 4 Yeates, 278; Swan v. Hodges, 
3 Hftad. 251; McMichacl v. Carlylc, 53 Wis. .504, ncc. 

But the f;x('cution is prrsumod in tho absonco of evidence to the contrary to have 
taken place fjn the day a rleed is dated. O.shey v. Hicks, Cro. .Tac. 264; Savery v. 
lirowiiiK, IH la. 246; Lyon v. Mcllvaine, 24 la. 9; McConnell v. Brown, Litt. Sel.Cas. 
4.'»9; Banning v. Edes, 6 Minn. 402; Colquhoun v. Atkinsons, 6 Munf. 550; Raines c. 
Walker. 77 Va. 92; Wheeler v. Single, 62 Wis. 380. See also Anderson v. Weston, 
6 Bing. N. C. 290. 

' Only BO much of the opinion as relates to the first question is reprinted. 


according to Lord Coke (3 Inst. 169), is wax with an impression. 
Sigillum est cera impressa, quia cera sine impressione non est sigil- 
lum. A scrawl with a pen is not a seal, and deserves no notice. The 
law has not indeed declared of what precise materials the wax shall 
consist; and whether it be a wafer or any other paste or matter 
sufficiently tenacious to adhere and receive an impression, is per- 
haps not material. But the scrawl has no one property of a seal. 
Multum ahludit imago. To adopt it as such would be at once to 
abolish the immemorial distinction between writings sealed and 
writings not sealed. Forms will frequently, and especially when 
they are consecrated by time and usage, become substance. The 
calling a paper a deed will not make it one, if it want the requisite 
formalities, "Notwithstanding," says Perkins (sect. 129), "that 
words obligatory are written on parchment or paper, and the ob- 
ligator delivereth the same as his deed, yet if it be not sealed, at 
the time of the delivery, it is but an escrowl, though the name of 
the obligator be subscribed." I am aware that ingenious criticism 
may be indulged at the expense of this and of many of our legal 
usages; but we ought to require evidence of some positive and serious 
public inconvenience, before we, at one stroke, annihilate so well 
established and venerable a practice as the use of seals in the authen- 
tication of deeds. The object in requiring seals, as I humbly pre- 
sume, was misapprehended both by President Pendleton, and by 
Mr. Justice Livingston. It was not, as they seem to suppose, be- 
cause the seal helped to designate the party who affixed it to his 
name. Ista ratio nullius pretii (says Vinnius, in Inst. 2, 10, 5) 
nam et alieno annullo signare licet. Seals were never introduced 
or tolerated in any code of law, because of any family impression, 
or image, or initials which they might contain. One person might 
always use another's seal, both in the English and in the Roman law. 
The policy of the rule consists in giving ceremony and solemnity 
to the execution of important instruments, by means of which the 
attention of the parties is more certainly and effectually fixed, and 
frauds less likely to be practised upon the unwary. President Pen- 
dleton, in the case of Jones and Temple v. Logwood (1 "Wash. Eep, 
42), which was cited upon the argument, said that he did not know 
of any adjudged case that determines that a seal must necessarily 
be something impressed on wax; and he seemed to think that there 
was nothing but Lord Coke's opinion to govern the question. He 
certainly could not have examined this point with his usual diligence. 
The ancient authorities are explicit, that a seal does, in legal con- 
templation, mean an impression upon wax. "It is not requisite," 
according to Perkins (sect. 134), "that there be for every grantor 
who is named in the deed a several piece of wax, for one piece of 
wax may serve for all the grantors, if every one put his seal upon 
the same piece of wax." And Brooke (tit. Faits, 30 and 17) uses 
the same language. In Lightfoot and Butler's case, which was in 


the Exchequer, 29 Eliz. (2 Leon, 21), the Barons were equally ex- 
plicit, as to the essence of a seal, though they did not all concur 
upon the point, as stated in Perkins. One of them said that twenty 
men may seal with one seal upon one piece of wax only, and that 
should serve for them all, if they all laid their hands upon the seal; 
but the other two Barons held that though they might all seal a 
deed with one seal, yet it must be upon several pieces of wax. In- 
deed this point, that the seal was an impression upon wax, seems to 
be necessarily assumed and taken for granted in several other pas- 
sages which might be cited from Perkins and Brooke, and also in 
Mr. Selden's "Notes to Fortescue" (De Land, p. 72) ; and the nature 
of a seal is no more a matter of doubt in the old English law than it 
is that a deed must be written upon paper or parchment, and not 
upon wood or stone. Nor has the common law ever been altered 
in Westminster Hall, upon this subject ; for in the late case of Adam 
V. Keer (1 Bos. and Puller, 360), it was made a question whether a 
bond executed in Jamaica, with a scrawl of the pen, according to 
the custom of that island, should operate as such in England, even 
upon the strength of that usage. 

The civil law understood the distinction and solemnity of seals 
as well as the common law of England. Testaments were required 
not only to be subscribed, but to be sealed by the witnesses. Suh- 
scriptione testium, et ex edicto prcetoris, signacula testamentis im- 
ponerentur (Inst. 2, 10, 3). The Romans generally used a ring, but 
the seal was valid in law, if made with one's own or another's ring; 
and, according to Heineccius (Elementa juris civilis secundum ord. 
Inst. 497), with any other instrument, which would make an im- 
pression, and this, he says, is the law to this day throughout Ger- 
many. And let me add, that we have the highest and purest clas- 
sical authority for Lord Coke's definition of a seal; Quid si in e jus- 
modi cera centum sigilla hoc annulo impressero? (Cicero, Academ. 
Quffist. Lucul. 4, 26). 1 

^ In National Provincial Bank v. Jackson, 33 Ch. D. 1, 11, Cotton, L. J., said: 
"Although these instruments are expressed to be signed, sealed, and delivered in the 
presence of the attesting wdtness, who was one of R. Jackson's clerks, there is no trace 
of any seal, but merely the piece of ribbon for the usual purpose of keeping the wax 
on the parchment. In my opinion the only conclusion we can come to is that these 
instniments were never in fact sealed at all. They were somehow or other prepared 
by R. Jackson, but never in fact executed by him in such a way as to rcconvey the 
legal estate. It is said, and said truly, that neither wax nor wafer is necessary in order 
to constitute a seal to a deed, and that frequently, as in the case of a corporation 
party to a floed, there is only an impression on the paper; and hi re Sandilands, Law. 
Rep. C. P. 411 was referred to, where an instnmient had been forwarded from 
the coloni<"H together with an official certificate of its ha\'ing been duly acknowledged, 
and this wa.s recognized by the Court as a deed, although there was no seal but only 
the ribbon on it. That case is not now tmder appeal, but it is evident tliat the ques- 
tion w!iH merely as to what was the true inference of fact, and altliough perhaps, 
having regard to thf; certificate, it was right there to hold that the deed had been 
sealed, here in my ojjinion it would be wrong to do .so. It is true that if the finger bo 
pressed upon 1-lie rib))oii that may amount to sealing, but no such inference can be drawn 
here wlieri' the ;it testing vvitiKSS who has given (■vi(Ienc<' recollects nothing of tlie sort, 
and when .Jackson had already committed one fraud in the matter and perhaps then 


LOEAH, Appellant, v. l^ISSLEY 

Pennsylvania Supreme Court, 1893 

\Reported in 156 Pennsylvania, 329] 

Rule to open judgment entered on note alleged to be under seal. 
The note was in the following form: 

"$200.00. "Mount Joy, Pa., August the 22, 1881. 

"Five months after date I promise to paj' to Jacob E. Lorah or order, at the First 
National Bank of Mount Joy, Two Hundred Dollars and without defalcation or stay 
of execution, value received. And I do hereby confess judgment for the said sum, 
costs of suit and release of all errors, waiving inquisition and confess condemnation 
of real estate. And I do further waive all exemption laws, and agree that the same 
may be levied by attachment upon wages for labor or otherwise. 

"Witness: Henry B. Nissley, Seal. 

George Shiers. Seal ." 

The word "seal" following the signature of the maker was printed. 
The Court held that the note was not under seal, and made absolute 
the rule to open the judgment, so as to permit defendant to plead 
the statute of limitations, in an opinion by McMullen, J., 1 Dist. 
R. 410. 

Error assigned was above order. 

A. S. Hershey and B. F. Davis, for appellant. 

/. Hay Brown, W. U. Hensel with him, for appellee. 

Mr. Justice Mitchell. The days of actual sealing of legal docu- 
.ments, in its original sense of the impression of an individual mark 
or device upon Avax or wafer, or even on the parchment or paper 
itself, have long gone by. It is immaterial what device the impres- 
sion bears, Alexander v. Jameson, 5 Bin. 238, and the same stamp 
may serve for several parties in the same deed, l^ot only so, but 
the use of wax has almost entirely and even of wafers very largely 
ceased. In short sealing has become constructive rather than ac- 
tual, and is in a great degree a matter of intention. It was said 
more than a century ago in McDill's Lessee v. McDill, 1 Dal. 63, 
that "the signing of a deed is now the material part of the execution ; 
the seal has become a mere form, and a written or ink seal, as it is 
called, is good;" and in Long v. Ramsay, 1 S. & R. 72, it was said 
by Tilghman, C. J., that a seal with a flourish of the pen "is not 
now to be questioned." Any kind of flourish or mark will be suffi- 
cient if it be intended as a seal. "The usual mode," said Tilghman, 
C. J., in Taylor v. Glaser, 2 S. & R. 502, "is to make a circular 
oval, or square mark, opposite to the name of the signer; but the 
shape is immaterial." Accordingly it was held in Hacker's Appeal, 

intended another. The question is merely one of fact, and upon the e^^dence it is 
impossible to conclude that these instruments were ever executed as deeds so as to 
reconvey the estate." Lindley, L. J., in the same case said: "In re Sandilands was, 
I think, a good-natured decision, in which I am not sure that I could have concurred." 
American decisions sustaining the common-law definition of a seal are: Woodbury 
V. U. S. Casualty Co., 284 111. 227; Manning v. Perkins, 86 Me. 419; Bates v. Boston 
&c. R. Co., 10 Allen, 251; Perrine v. Cheeseman, 6 Halst. 174. 


121 Pa. 192, that a single horizontal dash, less than an eighth of 
an inch long, was a sufficient seal, the context and the circumstances 
showing that it was so intended. On the other hand in Taylor v. 
Glaser, supra, a flourish was held not a seal, because it was put 
under and apparently intended merely as a part of the signature. 
So in Duncan v. Duncan, 1 Watts, 322, a ribbon inserted through 
slits in the parchment, and thus carefully prepared for sealing, was 
held not a seal, because the circumstances indicated the intent to use 
a well-known mode of sealing, by attaching the ribbon to the parch- 
ment with wax or wafer, and the intent had not been carried out. 

These decisions establish beyond question that any flourish or 
mark, however irregular or inconsiderable, will be a good seal, if 
so intended, and a fortiori the same result must be produced by 
writing the word "seal," or the letters "L. S.," meaning originally 
locus sigilli, but now having acquired the popular force of an ar- 
bitrary sign for a seal, just as the sign "&" is held and used to mean 
"and" by thousands who do not recognize it as the Middle Ages 
manuscript contraction for the Latin "et." 

If therefore the word "seal" on the note in suit had been written 
by ]!^issley after his name, there could have been no doubt about 
its efficacy to make a sealed instrument. Does it alter the case any 
that it was not written by him, but printed beforehand? "We can- 
not see any good reason why it should. Ratification is equivalent 
to antecedent authority, and the writing of his name to the left of 
the printed word, so as to bring the latter into the usual and proper 
place for a seal, is ample evidence that he adopted the act of the 
printer in putting it there for a seal. The note itself was a printed 
form with blank spaces for the particulars to be filled in, and the 
use of it raises a conclusive presumption that all parts of it were 
adopted by the signer, except such as were clearly struck out or in- 
tended to be cancelled before signing. The pressure of business life 
and the subdivision of labor in our day, have brought into use many 
things ready-made by wholesale which our ancestors made singly 
for each occasion, and among others the conveniences of printed 
blanks for the common forms of written instruments. But even in 
the early days of the century, the act of sealing was commonly 
done by adoption and ratification rather than as a personal act, as 
we are told by a very learned and experienced, though eccentric pre- 
decessor, in huiguage that is worth quoting for its quaintness: "lUi 
robur et aes triplex. He was a bold fellow who first in these colonies, 
and particularly in Pennsylvania, in time whereof the memory of 
man runneth not to the contrary, substituted the appearance of a 
seal by tlif firfumflcx of a pen, whicli has been sanctioned by usage 
and the adjudication of the courts, as equipollent with a stamp con- 
taining some effigies or inscription on stone or metal. . . . How 
could a jury distinguish the hieroglyphic or circumflex of a pen by 
one man from another? In fact the circumflex is usually made hy 


the scrivener drawing the instrument, and the word seal inscribed 
within it." Brackenridge, J., in Alexander v. Jameson, 5 Bin. 238, 

We are of opinion that the note in suit was duly sealed. 

We have not derived much light from the decisions in other states, 
but so far as we have found any analogous cases they are in har- 
mony with the views herein expressed. In Whitney v. Davis, 1 
Swan (Tenn.), 333, the word "seal" without any scroll, was held to 
be a good seal even to a public deed by the clerk of a court, he stat- 
ing in the certificate that no seal of office had been provided. And 
in Lewis v. Overby, 28 Gratt. (Va.) 627, the word "seal" without 
any scroll was held a good seal within a statute enacting that "any 
writing to which the person making it shall affix a scroll by way 
of seal shall be of the same force as if it were actually sealed." 

The learned Court below, and the counsel for appellee placed much 
reliance on the decision in Bennett v. Allen, 10 Pa. C. C. R. 256. 
In that case the signature was placed to the left but below the printed 
letters "L. S.," and it is said in the opinion that there v/as a space 
of half an inch between. The decision might possibly be sustained 
on the ground that the position and distance showed that the signer 
did not intend to adopt the letters "L. S." as part of his act, but 
unless distinguished on that special ground the decision is con- 
trary to the settled trend of our cases, and cannot be approved. 
Order opening judgment is reversed and judgment reinstated} 


Common Pleas, 1536 

[Reported in 1 Dyer, 19 a] 

An obligation was thus, "for the well and faithful payment of 
which I bind myself by these presents, dated, &c.," and not said 
"sealed with my seal," nor "in witness whereof:" wherefore it was 
asked of the Court, if such an obligation be good or not? And it 
seemed to Shelley and Fitzhekbert, that the obligation is well 
enough, if a seal be put to the deed, etc.^ 

^ Bertrand v. Byrd, 4 Ark. 195; Hastings v. Vaughan, 5 Cal. 315; Trasher v. 
Everhart, 3 G. & J. 234; Underwood v. DoUins, 47 Mo. 259; Groner v. Smith, 49 
Mo. 318; English v. Helms, 4 Tex. 228; Green v. Lake, 2 Mackey, 162, ace. 

In many other states statutes have enlarged the legal conception of what consti- 
tutes a seal, so include a scroll or other device. 

2 "For there are but three things of the essence and substance of a deed; that is 
to say writing in paper or parchment, sealing, and delivery, and if it hath these three, 
although it wanted, in cujvs rei testimoniuvi sigillum suum apposi/if, yet the deed is 
sufficient, for the delivery is as necessary to the essence of a deed, as the putting of 
the seal to it, and yet it need not be contained in the deed that it was delivered." 
Goddard's Case, 2 Coke, 4 h, 5 a. Bedow's Case, 1 Leon. 25; Peters v. Field, Hetly, 
75; Thompson v. Butcher, 3 Bulstr. 300, 302 (but see Clement v. Gunhouse, 5 Esp. 


AUSTIN'S Administratrix v. WHITLOCK'S Executors 

Supreme Court of Appeals of Virginia, 1810 

[Reported in 1 Munf. 487] 

To an action of covenant the defendants, without craving oyer, 
pleaded conditions performed, and issue was joined. At the trial 
the plaintiff produced a writing which concluded "As witness my 
hand this 22d day of February, 1791. D. Whitlock," with a written 
scroll annexed to the signature. The defendants moved the Court 
to exclude this evidence, but the Court overruled the motion and a 
verdict and judgment for the plaintiff followed. On appeal the 
judgment was reversed, whereupon the plaintiff appealed to this 

Peyton Randolph, for the defendant. 

WicTcham, contra. 

Judge Tucker, after stating the case. That a covenant is a deed, 
and that a seal is one of the essential parts of a deed, is evident from 
the authorities generally, and especially Co. Litt. 6 a, 35 b, 175 b, 
225 a and b, 229 b., and Litt. s. 371, 372. From several of which, 
and particularly the two last, it is apparent that the clause of in 
cujus rei testimonium ought to recite that the maker of the deed hath 
thereunto put his seal for, otherwise, a supposititious seal may be 
affixed to any instrument of writing, without proof of the acknowl- 
edgment thereof by the maker of the instrument, and a mere parol 
promise or agreement may be converted into a covenant, which is an 
instrument of a much higher nature; insomuch, that what might be 
considered as mere nudum pactum, as in the case of Hite, Ex'r of 
Smith V. Fielding Lewis's Ex'rs, in this Court, October 29, 1804 
(MS.), may, by the subsequent addition of a seal or scroll, be con- 
"v^erted into an obligation which should not only bind the maker and 
his executors, but his heirs also. For such would have been the 
effect of the writing signed by Fielding Lewis, in that case, "whereby 
he obliged himself, his heirs, executors, and administrators to in- 
demnify Mrs. Smith," as executrix of Charles Smith, for the latter 
having become security for his son, if there had been a seal, or scroll, 
added to that instrument, and acknowledged by the maker, in the 
clause of attestation. But if such mention be unnecessary in the 

R.3); Burton v. LcRoy, 5 Sawy, 510; Joffory v. Underwood, 1 Ark. lOS; Bertrand v. 
Byrrl, 4 Ark. V.)r>; Cuniniins v. Woodruff, 5 Ark. IKl; Conino v. Jiniction R. Co., 
3 IIouHt. 'ZHH; EamcH v. PrcHton, 20 111. 3S0; Hubbard i'. Bcckwith, 1 Bil)b, 492; Wing 
V. Ch.'iHf, :<.'> Mf. 2(10; Traslu-r v. Evcrhart, 8 C. & J. 234, 240; Mill Dam Foundry v. 
Hovey, 21 T'ick. 417, 42S. Sticknoth's Est., 7 Nov. 223, 2.34; Ingram v. Hall, 1 Hayw. 
193, 20!i; O.sborn v. Kistlfr, 35 Ohio St. 99; Taylor v. Glasor, 2 S. & R. 502; Frovall 
V. Fitcli, 5 Whart, 325; Biory v. Haines. 5 Whart. .563; Hopkins v. Cuml)orland R. 
Co., 3 W. A H. 410; Lorah v. Nissloy, 156 Pa. 320; Rolph v. Gist, 4 McCord, 267; 
McKain v. Miller, 1 McMull, 313; Rchikks v. lirackin, 4 Yorff. 528, ncc. See also 
McRavcn v. McCuirc, 17 Mias. 34; Hudson v. Poindcxtor, 42 Miss. 304. 


body of the instrument, how easily may any instrument of the same 
kind be converted into one very different from it ? ^ 


Illinois Supreme Court, 1858 

[Reported in 20 Illinois, 389] 

Caton, C. J. This was an action of assumpsit brought against 
Eames, Burlingame and Gray, upon a note thus executed, "Eames, 
Gray & Co. [ ]," and the only question is, whether assumpsit 
can be maintained on this note. If this be a sealed instrument, 
then assumpsit cannot be maintained upon it (1 Chit. PI., title As- 
sumpsit, p. 99), and this would seem to settle the question, for this 
is certainly an instrument under seal. If the member of the firm 
who executed the note had authority under seal to add the seals of 
all, then the seal attached is the seal of all; if he had not, then it 
is his seal only. In any event it is, as to him, a sealed instrument. 
If, as to the others, it is a simple instrument, that would not re- 
move his seal. If one party executes an instrument and attaches 
his seal, and others afterwards sign it silently without attaching 
seals, they are presumed to adopt the seal of the first, and, as to 
all, it is a sealed instrument.^ If, however, the first sign without 

1 The statement of the case has been abbreviated and a portion of the opinion, a 
well as concurimg opinions of Roane and Fleming, JJ., omitted. 

The doctrine of this case has been frequently followed in Virginia, and is applied 
where the seal attached to the instrument is an actual seal, as well as where it is a 
scroll. Bradley Salt Co. v. Norfolk Importing Co., 95 Va. 461 and cases cited. A 
similar nile prevails in a few other states. Lee v. Adkins, Minor, 187; Carter v. Penn. 
4 Ala. 140; Moore v. Leseur, 18 Ala. 606; Blackwell v. Hamilton, 47 Ala. 470; Mc- 
Donald V. Bear River Co., 13 Cal. 220; Bohannon t. Hough, 1 Miss. 461 (but see 
McRaven v. McGuire, 17 Miss. 34); Keller v. McHuffman, 15 W. Va. 64, 85. See 
also Buckingham v, Orr, 6 Col. 587. 

In several other states a recital is necessary to give a scroll the effect of a seal, but 
a real seal is effectual without recital: Alt v. Stoker, 127 Mo. 466, and cases cited; 
Newbold v. Lamb, 2 South. (N. J.) 616; Corliss v. Van Note, 1 Harr. (N. J.) 324; 
Flemming v. Powell, 2 Tex. 225 (compare English v. Helms, 4 Tex. 228; Muclderoy 
V. Bethany, 23 Tex. 163). See also Brown v. Jordhal, 32 Minn. 135; Merritt v. Cor- 
nell, 1 E. D. Smith, 335. 

2 Biery v. Haines, 5 "WTiart. 563; Hess's Estate, 150 Pa. 346, contra. Where the 
instrument recited that the parties had sealed it, the presumption was held appU- 
cable in Davis v. Burton, 4 111. 41; McLean v. Wilson, 4 111. 50; Trogdon v. Cleveland 
Stone Co., 53 lU. App. 206; Ryan v. Cooke, 152 lU. 302; Tasker v. Bartlett, 5 Cush. 
359; Lunsford v. La Motte Lead Co., 54 Mo. 426; Burnett v. McCluey, 78 Mo. 676, 
688; Pequawkett Bridge v. Mathes, 7 N. H. 230; Tenney v. East Warren Lumber 
Co., 43 N. H. 343; Bowman v. Robb, 6 Pa. 302. See also Yarborough v. Monday, 3 
Dev. 420; Hollis v. Pond, 7 Humph. 222; LamMen v. Sharp, 9 Humph. 224. But see 
Stabler v. Cowman, 7 G. & J. 284; State v. Humbird, 54 Md. 327, contra. In Cooch 
V. Goodman, 2 Q. B. 580, 598, Lord Denman, C. J., said: "It is true that one piece 
of wax may serve as a seal for several persons if each of them impresses it himself, or 
one for all, by proper authority, or in the presence of all, as was held in Ball v. Dun- 
sterville, 4 T. R. 313, following Lord Lovelace's case, 5 B. & C. 355, but then it must 
appear by the deed, and profess to be the seal of each." 



a seal, and the others add seals to their names, without the direc- 
tion or consent of the first, then he cannot be presumed to adopt their 
seals as his, and it continues as to him, a simple instrument, as it 
was when he first executed it.'^ Nor would this prevent it from being 
a sealed instrument as to those who deliberately attached their seals. 
As to one of the makers of this note, it was a sealed instrument, and 
assumpsit could not be maintained upon it. 

The judgment must be reversed. Judgment reversed. 


Supreme Judicial Court of Massachusetts, January 21, 1891- 

September 3, 1891 

[Reported in 154 Massachusetts, 337] 

Morton, J. This action is brought by the plaintiff upon an in- 
strument under seal to which she is not a party, and of which none 
of the consideration moved from her. The instrument is signed by 
Charles E. Saunders, the defendant, and is between him and George 
M. Saunders, who together, and the survivor of them, were entitled 
to the income of a trust fund. The consideration is one dollar paid 
by said George M. Saunders, and like covenants on the part of said 
George with said Charles to those contained in the instrument de- 
clared on. The covenants or agreements in the instrument relied 
on are as follows : "I, the said Charles F. Saunders, do hereby cove- 
nant and agree to and with the said George M. Saunders, and to 
and with such person as may be the wife of said George M. Saunders 
at the time of his decease, that if the said George M. shall die in 
my lifetime, leaving a widow living, I will, from and after the de- 
cease of said George M., and during my lifetime, pay over to such 
person as may be the widow of said George M., one third of the 
entire income aforesaid to which I may be entitled as such survivor." 
The plaintiff is the widow of George, and it is clear that, so far as 
she relies upon the covenant and agreements made between her hus- 
band and the defendant for her benefit, they will not support this ac- 
tion. It is well settled in this State, in regard to simple contracts, 
that "a person who is not a party to a simple contract, and from 
whom no consideration moves, cannot sue on the contract, and con- 
sequently that a promise made by one person to another, for the 
benefit of a third person who is a stranger to the consideration, will 
not support an action by the latter." Exchange Bank v. Rice, 107 
Mass. 37, and cases cited. Rogers v. Union Stone Co., 130 Mass. 
TjSI ; New England Dredging Co. v. Rockport Granite Co., 149 
Mass. 381; Marston v. Bigelow, 150 Mass. 45. In regard to con- 

' Rankin v. Rolcr, 8 Grutt. 03, ace. 


tracts under seal, the law has always been that only those who were 
parties to them could sue upon them. Saunders v. Filley, 12 Pick. 
554; Johnson v. Foster, 12 Met. 167; ISTorthampton v. Elwell, 4 
Gray, 81; Flynn v. North American Ins Co., 115 Mass. 449; Flynn 
V. Massachusetts Benefit Association, 152 Mass. 288. The case of 
Felton V. Dickinson, 10 Mass. 287, to which this case would seem 
to be somewhat analagous, is fully explained in Marston v. Bigelow, 
uhi supra, and is authority only to the extent there indicated. 

It is suggested, however, that, somewhat after the analogy fur- 
nished by letters of credit, the plaintiff may avail herself of so 
much of the covenants and agreements as purports to be made "to 
and with such person as may be the wife of said George M. Saunders 
at the time of his decease;" that is, that this covenant amounts to 
a promise on the part of the defendant to whomsoever may be the 
wife of George M. Saunders at his death, that he will pay her an- 
nually thereafter a certain sum so long as he shall live, and that 
the plaintiff, being the wife of said George, may therefore maintain 
an action upon it. But it is to be observed that the covenant did 
not purport to create a present agreement with the person who was 
the wife of George at the time the agreement between him and the 
defendant was executed; neither does it purport to be a continuing 
offer or promise on the part of the defendant, as in the case of a 
letter of credit or an offer of reward, that, if the person who shall 
be the wife of George at the time of his decease shall do certain 
things, then the defendant will pay her a certain sum. On the con- 
trary, it was an attempt to create a covenant to arise wholly in the 
future between the defendant and a party who at the time was un- 
ascertained, and from whom no consideration was to move, and who 
was not in any way privy to the contract between the defendant and 
said George. We do not think this can be done. 

The question whether the administrator or executor of the hus- 
band of the plaintiff may not maintain an action on the agreement 
for her benefit, or whether she may not herself bring suit in the 
name of the executor or administrator, has not been argued to us, 
and we have not therefore considered it. For these reasons, a ma- 
jority of the Court think that, according to the agreement, the entry 
must be, Judgment for the defendant. 


JAMES M. E. O'GEADY, As Executor, etc., of MARIA 

WHITELOCK, Deceased, Respondent, v. HOWE & ROGERS 


I^EW Yoke Supreme Court, Appellate Division, March 3, 1915 
{^Reported in 166 New York Appellate Division, 552] 

RoBsoN, J. This was a suit by a vendor against a corporation 
and its agent to obtain specific performance of a contract to convey 
real estate. A written option was signed and sealed by the plaintiff 
and by Thorns, who was acting as agent for the Howe & Rogers Co. 
(whose name, however, did not appear in the contract) purporting to 
give an option to Thoms. Within the time limited in the option, 
Thoms delivered to the plaintiff an acceptance thereof in writing, 
signed by him. 

The first objection raised by appellant Howe & Rogers Company 
is pointed to the initial proposition that the contract is under 
seal, and that, therefore, even though Thoms was in fact act- 
ing as the agent of Howe & Rogers Company, under the es- 
tablished law announced in many decisions no person, save 
the parties named in the contract and who actually signed it, 
can sue or be sued thereon. This statement of the law is unim- 
peachable, and was reasserted in the recent case entitled Case v. 
Case (203 IST. Y. 263). But it seems to me that the contract which 
plaintiff seeks to enforce in this action is not under seal. True, the 
preliminary option agreement is under seal. But that agreement 
standing by itself gave neither party a right to enforce it as a 
contract to sell the land. No obligation to accept the option rested on 
Thoms. Something more must be done by him before any contract 
of sale came into being. That was an acceptance of the option by 
Thoms within the period of the option. This he did by the written 
acceptance above adverted to; but this acceptance was not under 
seal. It would seem to follow that the rule of law above stated can- 
not apply to prevent proof of the fact for whom Thoms was acting 
in accepting the option. It is the acceptance, and not the sealed 
option, that must be considered in determining whether Thorn's 
agreement to purchase was a contract under seal.^ 

' Thf; statement of facts is abbreviated and a portion of the opinion omitted. 





King's Bench, 1591 

{^Reported in 3 Coke, 25 a, 26 &] 

If a makes an obligation to B and delivers it to C to the use of 
B, this is the deed of A presently; but if C offers it to B, there B 
may refuse it in pais, and thereby the obligation will lose its force 
(but perhaps in such case A in an action brought on this obligation 
cannot plead non est factum, because it was once his deed). 


Court of Appeal, 1896 
[Reported in [1897] 1 Q. B. Ill] 

Appeal by the defendants from the judgment of a Divisional 
Court (Grantham and "Wright, JJ.) affirming the decision of the 
judge of the Leeds County Court. 

The action was brought upon a policy of insurance against loss 
by burglary or housebreaking. 

The plaintiff on December 14, 1895, signed and sent to the defend- 
ants a proposal for an insurance to the amount of 167Z. upon furni- 
ture and other chattels in a dwelling-house against loss by burglary 
or housebreaking. The proposal, which was made upon a printed 
form, stated that the proposer agreed to acept a policy subject to 
the usual conditions prescribed by the company and indorsed on 
that policy. It was stated by the form that the policy was renew- 
able on the 1st of the month, and the premium for the odd time 
over twelve months was to be added to the first year's premium; 
and that no insurance would be considered in force until the premium 
had been paid. The proposal stated that the annual premium was 
to be 95. %d., and the first premium 95. lid., 2d. being the addition 
in respect of the odd time. 

On December 18 a document called a protection-note was signed 
by the defendants' agent in which it was stated that the plaintiff, 
having made a proposal to the company for insurance against loss 
arising from burglary or housebreaking for the sum of 167?. on 
property described in the proposal, and having paid to the agent 
the sum of £ (the blank not being filled up), was thereby de- 
clared to be provisionally protected against that risk (subject to the 


conditions contained iv- and indorsed on the form of policy used by 
the company) for seven days from the date thereof, or until the 
proposal should be in the meantime rejected. The i^rotection-note 
contained a note that, in the event of the proposal being declined, 
the deposit paid would be refunded less the proportion of the premium 
for the period covered. The protection-note was sent by the de- 
fendants' agent to the plaintiff in a letter stating that a policy would 
be sent in due course. ISTo sum of money ever was paid by way of 
premium. On the night of December 26, or early in the morning 
of December 27, a burglary was committed on the plaintiif's premises 
and a loss of some of the property alleged by the plaintiff to be 
insured was thereby occasioned. Upon December 27, at a meeting 
of directors of the defendants' company, who were then ignorant 
of the fact that the loss had taken place, the seal of the company 
was affixed to a policy of insurance in conformity with the pro- 
posal; and the policy was signed by two of the directors of the com- 
pany and their secretary. The policy recited that the plaintiff had 
made a proposal dated December 14, 1895, to the company for an 
assurance of the property thereinafter described for the sum therein- 
after appearing, and had paid to the company the sum called in 
the margin thereof the first premium, being the premium required 
by the company for the assurance of the said property from noon 
of December 14, 1895, to noon of January 1, 1897, and purpo