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is worth more; and I have a right to withdraw my offer, because you paid me nothing for the time of thirty days allowed you. But the court held that he was bound, because this was an offer continued through the thirty days, unless withdrawn. They said that the writing when made was without consideration, and did not therefore form a contract. It was then but an offer to contract, and the party making the offer most undoubtedly might have withdrawn it at any time before acceptance.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, and no withdrawal could then be made.
A BARGAIN BY CORRESPONDENCE. WHEN a contract is made by correspondence, the question occurs, At what time, or by what act, is the contract completed? The law as now settled in this country may be stated thus. If A writes to B proposing to him a contract, this is a continued proposition or offer of A until it reaches B, and for such time afterwards as would give B a reasonable opportunity of accept: ing it. It may be withdrawn by A at any time before acceptance; but is not withdrawn in law until a notice of withdrawal reaches B. This is the important point. Thus if A, in Boston, writes to B, in New Orleans, offering him a certain price for one hundred bales of cotton ; and the next day alters his mind, and writes to B, withdrawing his offer; if the first letter reaches B before the second reaches him, although after it was written and mailed, B has a right to accept the offer before he gets the letter withdrawing it, and by his acceptance he binds A. But if B delays his acceptance until the second letter reaches him, the offer is then effectually withdrawn. It is a sufficient acceptance if B writes to A declaring his acceptance, and puts his letter into the post-office. It seems now quite clear, that as soon as the letter leaves the post-office, or is beyond the reach of the writer, the acceptance is complete. That is, on the 5th of May, A in Boston writes to B, in New Orleans, offering to buy certain goods there at a certain price. On the 8th of May, A writes that he has altered his mind and cannot give so much, and
mails the letter. On the 14th of May, B in New Orleans receives the first letter, and the next day, the 15th, answers it, saying that he accepts the offer and mails his letter. On the 17th, he receives the second letter of A withdrawing the offer. Nevertheless the bargain is complete and the goods are sold. But if B had kept his letter of acceptance by him until he had received A's letter of withdrawal, he could not then have put his letter into the mail and bound A by his acceptance.
The party making the offer by letter is not bound to use the same means for withdrawing it which he uses for making it; because any withdrawal, however made, terminates the offer, if only it reaches the other party before his acceptance. Thus, if A in the case just supposed, a week after he has sent his offer by letter, telegraphs a withdrawal to B, and this withdrawal reaches him before he accepts the offer, this withdrawal would be effectual. So if he sent his offer by letter to England, in a sailing ship, and a fortnight after sent a revocation in a steamer, or by telegraph, if this last arrives before the first arrived and was accepted, it would be an effectual revocation.
WHAT EVIDENCE MAY BE RECEIVED IN REFERENCE TO A WRITTO
If an agreement upon which a party relies be oral only, it must be proved by evidence. But if the contract be reduced to writing, it proves itself; and now no evidence whatever is receivable for the purpose of varying the contract or affecting its obligations. The reasons are obvious. The law prefers written to oral evidence, from its greater precision and certainty, and because it is less open to fraud. And where parties have closed a negotiation and reduced the result to writing, it is presumed that they have written all they intended to agree to, ang therefore, that what is omitted was finally rejected by them.
But some evidence may always be necessary, and therefore admissible; as, evidence of the identity of the parties to the contract, or of the things which form its subject-matter. Quite often, neither the court nor the jury can know what person, or
what thing, or what land, a contract relates to, unless the parties agree in stating this, or evidence show's it. The rule on this subject is, that, while no evidence is receivable to contradict or vary a written contract, evidence may be received to explain its meaning, and show what the contract is in fact,
There are some obvious inferences from this rule. The first is, that, as evidence is admissible only to explain the con. tract, if the contract needs no explanation, that is, if it be by itself perfectly explicit and unambiguous, evidence is inadmissi ble, because it is wholly unnecessary unless it is offered to vary the meaning and force of the contract, and that is not permitted. Another, following from this, is, that if the evidence purports, under the name of explanation, to give to the contract a meaning which its words do not fairly bear, this is not permitted, because such evidence would in fact make a new contract.
A frequent use of oral evidence is to explain, by means of persons experienced in the particular subject of the contract, the meaning of technical or peculiar words and phrases; and such witnesses are called Experts, and are very freely admitted
It may be remarked, too, that a written receipt for money is not within the general rule as to written contracts, being aiways open, not only to explanation, but even to contradiction, by extrinsic evidence. And this is true of the receipt part of any instrument. If a written instrument not only recites or acknowledges the receiving of money or goods, but contains also a contract or grant, such instrument, as to the contract or grant, is no more to be affected by any evidence than if it contained no receipt; but as to the receipt itself, it may be varied or contradicted in the same manner as if the instrument con. tained nothing else. Thus, if a deed recites that it was made in “consideration of ten thousand dollars, the receipt whereof is hereby acknowledged," the grantor may sue for the money, or any part of it, and prove that the amount was not paid; for this affects only the receipt part of the deed. But he cannot say that the grant of the land was void because he never had his money, nor that any agreement the deed contained was void for such a reason; because, if he proved that the money was not paid for the purpose of thus annulling his grant or agree
ment, he would be offering evidence to affect the other pari of the deed; and that he cannot do.
A legal inference from a written promise can no more be rebutted by evidence than if it were written. Thus, if A, by his note, promises to pay B a sum of money in sixty days, he cannot when called upon resist the claim by proving that B, when the note was made, agreed to wait ninety days; and if A promise in writing to pay money, and no time is set, this is by force of law a promise to pay on demand, and evidence is not receivable to show that a distant period was agreed upon.
Generally speaking, all written instruments are construed and interpreted by the law according to the simple, customary, and natural meaning of the words used.
It should be added, that when a contract is so obscure or uncertain that it must be set wholly aside, and regarded as no contract whatever, it can have no force or effect upon the rights or obligations of the parties, but all of these are the same as if they had not made the contract.
CUSTOM, OR USAGE.
A CUSTOM, or usage, which may be regarded as appropriate to a contract, has often great weight in reference to it. This it may have, first, as to the construction or meaning of its words; and next, as to the intention or understanding of the parties.
The ground and reason for this influence of a custom is this. If it exists so widely and uniformly among such persons as make the contract, and for so long a time, that every one of them must be considered as knowing it, and acting with reference to it, then it ought to have the same force as if both parties expressly adopted it; because each party has a right to thirk that the other acted upon it.
Sometimes this is carried very far. In one English case, a man had agreed to leave in a certain rabbit warren ten thousand rabbits, and the other party was permitted to prove that, by the usage of that trade, a thousand meant one hundred dozen, or twels-e hundred. In an American case, a man agreed to pay a
carpenter twelve shillings a day for every man eriployed by him about a certain building; the carpenter was permitted to prove that, by the usage of that trade, “a day” meant ten hours' work; and as his men had worked twelve and a half, he was permitted to charge fifteen shillings, or for one and one-fourth days' work, for every day so spent."
In these cases the custom affected the meaning of the words. But it also has the effect of words; as if a merchant employed a broker to sell his ship, and nothing was said about terms, and the broker did something about it, and the ship was sold, if the broker could prove a universal and well-established custom of that place, that for doing what he did under the employment he was entitled to full commissions, he would have them, as much as if they were expressly promised.
Any custom will be regarded by the court, which comes within the reason of the rule that makes a custom a part of the contract. It comes within the reason only when it is so far established, and so well known to the parties, that it must be supposed that their contract was made with reference to it. For this purpose, the custom must be established and not casual, uniform and not varying, general and not personal, and known to all the parties. But the degree in which these characteristics must belong to the custom will depend in each case upon its peculiar circumstances. Let us suppose a contract for the making of an article which has not been made until within a dozen years, and only by a dozen persons. Words are used in this contract of which the meaning is to be ascertained; and it is proved that these words have been used and understood in reference to this article, always, by all who have ever made it, in one way. Then this custom will be permitted to explain and interpret the words of the parties. But if the article had been made a hundred years or more, in many countries and by multitudes of persons, the evidence of this use of these words by a dozen persons in a dozen years would not be sufficient to give to this practice the force of custom.
Other facts must be considered; as, how far the meaning sought to be put on the words by custom varies from their common meaning in the dictionary, or from general use; and