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existence and continuance of said trust; that said
shall, from time to time, lease and demise said real estate to the best profit and advantage, and, at such time as he shall see fit and think proper, sell and dispose of all or any part of said real estate, upon the most advantageous terms, for the interest of said
and shall invest the proceeds ; and, upon pay. ment of the stocks, notes, or bond aforesaid, invest the same in like manner; that he shall pay all the rents and profits of said real estate, and the interest and income of said funds, and also the interest and income of said personal property hereby assigned, and all the net profits arising and accruing therefrom, as well as such portion of the principal as he shall judge necessary for her convenience and support, unto her, the , or to such person or persons as she shall in writing, without the signature or interference of any husband, appoint, for and during the natural life of her, the said that is to say, for and during the term for which said
trust shall continue, according to the provisions and limitations hereinafter ex pressed; and, after the decease of the said
the remaining income und profit unpaid, to the child or children of the said
if she shall leave any; and, upon such decease, grant, convey, and transfer the same estate, both real and personal, and any investments in funds, unto such child or children, his and their heirs and assigns, forever ; and also grant and convey, in like manner, any real estate which may be purchased with the pro ceeds of said property; and in case the said
should die without issue, then to grant, convey, and transfer the same, in like manner, unto the heirs-at-law of her the said And the said
for himself, his heirs, executors, and adminis. trators, doth covenant, grant, and agree, to and with the said
her executors and administrators, that in case she, the said
should desire any real estate to be purchased with any part of said capital stock, funds, or interest, of the estate and property hereby conveyed, and it should be deemed advantageous and proper by the said
to comply there. with, then he will make a purchase thereof, and take deeds of conveyance of such estate in his name, as trustee, and will hold the same subject to the like trusts, limitations, powers, and agreements as are herein limited, declared, and expressed; and will pay over the rents and income thereof as is above provided, unless she, the said
shall choose to occupy and live on the same; and, in such case, no rents shall be exacted or required of any husband of the said
And upon the happening of the death of hiin, the said
he doth further covenant that his heirs or executors or administrators shall and will as soon as practicable thereafter, make good and sufficient instruments of conveyance to transfer and grant the aforesaid estate, both real and personal, or such parts thereof as shall then remain undisposed of, and such as may be purchased by him, said
in pursuance of the trusts and intent of this indenture, unto such person as shall be appointed the trustee of the said
for that purpose by the Judge of Probate for the District of for the time being, who is, in that event, authorized to make the appointment.
In Witness Whereof, The said parties have hereto interchangeably set their hands and seals, the day and year first above written.
(Signatures.) (Seals.) Signed, Sealed, and Delivered in Presence of (Witness.)
Ss. 30th September, A. D. 19 Then personally appeared the above-named
and and severally acknowledged this indenture to be their free act and deed.
(Signature.) Fustice of the Peace
AGREEMENT AND ASSENT.
THE LEGAL MEANING OF AGREEMENT.
No contact which the law will recognize and enforce exists, antil the parties to it have agreed upon the same thing, in the same sense. Thus, in a case where the defendants by letter offered to the plaintiffs a certain quantity of “good” barley, at a certain price. Plaintiffs replied: “We accept your offer, expecting you will give us fine barley and full weight.” The jury found that there was a distinction in the trade between the words "good" and "fine," and the court held that there was not a sufficient acceptance to sustain an action for non-delivery of the barley. So where a person sent an order to a merchant for a particular quantity of goods on certain terms of credit, and the merchant sent a less quantity of goods, and at a shorter credit, and the goods were lost by the way, it was held by the court that the merchant must bear the loss, for there was no sale or contract between the parties.
There is an apparent exception to this rule, when, for example, A declares that he was not understood by B, or did not understand B, in a certain transaction, and that there is there. fore no bargain between them; and B replies by showing that the language used on both sides was explicit and unequivoca.,
and constituted a distinct contract. Here, B would prevail The reason is, that the law presumes that every person means that which he distinctly says. If A had offered to sell B his horse for twenty dollars, and received the money, and then tendered to B his cow, on the ground that he was thinking only of his cow, and used the word horse by mistake, this would not avoid his obligation, unless he could show that the mistake was known to B; and then the bargain would be fraudulent on B's part. This would be an extreme case; but difficult questions of this sort often arise. If A had agreed to sell, and had actually delivered, a cargo of shingles at "3.25," supposing that he was to receive that price for a "bunch," which contains five hundred, and B supposed that he had bought them at that price for a "thousand,” which view should prevail ? The answer would be, first, that if there was, honestly and actually, a mutual mistake, there was no contract, and the shingles should be returned. But, secondly, if a jury should be satisfied, from the words used, from the usage prevailing where the bargain was made and known to the parties, or from other circumstances attending the bargain, that B knew that A was expecting that price for a bunch, B would have to pay it; and if they were satisfied that A knew that B supposed himself to be buying the shingles by the thousand, then Acould not reclaim the shingles, nor recover more than that price. There was such a case so decided.
In construing a contract, the actual and honest intention of the parties is always regarded as an important guide. But it must be their intention as expressed in the contract.
If the parties, or either of them, show that a ba gain was honestly but mistakenly made, which was materially different from that intended to be made, it would be a good ground for declaring that there was no contract.
Mistakes of fact in a contract can be corrected by the courts, but not mistakes of law; no man being permitted to take advantage of a mistake of the law, either to enforce a right, or avoid an obligation; for it would be obviously dangerous and unwise to encourage ignorance of the law by permitting a party to profit, or to escape, by his ignorance. But the law which
one is required at his peril to know, is the law of his own country. Ignorance of the law of a foreign state is ignorance of fact. In this respect the several States of the Union are foreign to each other. Hence, money paid through ignorance or mistake of the law of another State may be recovered back.
Fraud annuls all obligation and all contracts into which it enters, and the law relieves the party defrauded. If both of the parties act fraudulently, neither can take advantage of the fraud of the other; and if one acts fraudulently, he cannot set his own fraud aside for his own benefit. Thus, if one gives a fraudulent bill of sale of property, for the purpose of defrauding his creditors, he cannot set that bill aside and annul that sale, although those who are injured by it may.
WHAT IS AN ASSENT?
The most important application of the rule stated at the beginning of this chapter, is the requirement that an acceptance of a proposition must be a simple and direct affirmative, in order to constitute a contract. For if the party receiving the proposition or offer accepts it on any condition, or with any change of its terms or provisions which is not altogether immaterial, it is no contract until the party making the offer consents to those modifications.
Therefore, if a party offers to buy certain goods at a certain price, and directs how the goods shall be sent to him, and the owner accepts the offer and sends the goods as directed, and they are lost on the way, it is the buyer's loss, because the goods were his by the sale, which was completed when the offer was accepted. But if the owner accepts the offer, and in his acceptance makes any material modification of its terms, and then sends the goods, and they are lost, it is his loss now, because the contract of sale was not completed.
Nor will a voluntary compliance with the conditions and terms of a proposed contract always make it a contract obligatory on the other party, unless there have been an accession to, or an acceptance of, the proposition itself. In general, if A
says to B, if you will do this, I will do that; and B instantly does what was proposed to him, this doing so is an acceptance, and A is bound. But if the doing of the thing may be some. thing else than an acceptance of the offer, or if the thing may be done for some other reason than to signify an acceptance or assent, there must be express acceptance also, or there is no bargain.
OFFERS MADE ON TIME.
It sometimes happens that one party makes another a cer. tain offer, and gives him a certain time in which he may accept it. The law on this subject was once somewhat uncertain, but may now be considered as settled. It is this: If A makes an offer to B, which В at once accepts, there is a bargain. But it is not necessary that the acceptance should follow the offer instantaneously. B may take time to consider, and although A may expressly withdraw his offer at any time before acceptance, yet if he does not do so, B may accept within a reasonable time; and if this is done, A cannot say: "I have changed my mind." What is a reasonable time must depend upon the circumstances of each case. If A when he makes the offer says to B that he may have a certain time wherein to accept it, and is paid by B for thus giving him time, he cannot withdraw the offer; or if he withdraws it, for this breach of his contract, the other party, B, may have his action for damages. If A is not paid for giving the time, A may then withdraw the offer at once, or whenever he pleases, provided B has not previously accepted it. But if B has accepted the offer before the time which was given expired, and before the offer was withdrawn, then A is bound, although he gave the time voluntarily and without consideration. For his offer is to be regarded as a continuing offer during all the time given, unless it be withdrawn. A railroad company asked for the terms of certain land they thought they might wish to buy. The owner said in a letter, they might have it at a certain price, if they took it within thirty days. After some twenty-five days the railroad company wrote accepting the offer. The owner says, No, I have altered my mind; the land