(4.) Mutual consent is requisite to the creation of the contract; and it becomes binding when a proposition is made on one side and accepted on the other; and on the other hand, it is no contract if there be an error or mistake of a fact, or in circumstances going to the essence of it. This is a clear principle of universal justice. Non videntur qui errant consentire. (b) In creating the contract the negotiation may be conducted by letter, as is very common in mercantile transactions; and the contract is complete when the answer containing the acceptance of a distinct proposition is despatched by mail or otherwise, provided it be done with due diligence, after the receipt of the letter containing the proposal, and before any intimation is received that the offer is withdrawn. Putting the answer by letter in the mail containing the acceptance, and thus placing it beyond the control of the party, is valid as a constructive notice of acceptance. An offer by letter, or by a special agent, is an authority revokable in itself, but not to be revoked without notice to the party receiving it, and never after it has been executed by an acceptance. There would be no certainty in making contracts through the medium of the mail, if the rule were otherwise. (c) 2 On the other hand, it has been

port the most onerous obligation. The consideration may be impeached only by showing fraud, mistake, or illegality in its concoction, or non-performance of the stipulations on the part of the promisee. Oakley v. Boorman, 21 Wendell, 588. See, also, Story's Com. on Eq. Jurisprudence, 248–254.

(b) Pothier on Oblig. p. 1, c. 1, No. 17, 18. Thornton v. Kempster, 5 Taunt. 786. Hammond v. Allen, 2 Sumner, 395, 399.

(c) Adams v. Lindsell, 1 B. & Ald. 681. Chiles v. Nelson, 7 Dana, 281. The distinctions on this subject are refined and subtle. In Mactier v. Frifth, 6 Wendell, 103,

1 Whether want of mutuality in a contract may be taken advantage of by third persons, see Hartley v. Cummings, 5 M., G. & S. 247. If a contract contains a stipulation for the benefit of a third person, though he be an entire stranger to the contract, it is not at the option of either party to object to it, without the consent of the other. Davenport v. Bishop, 2 Y. & Coll. Ch. 451. A contract for sale of lands, executed by vendor only, but delivered to and accepted by the purchaser, and acted upon by him, can be enforced against vendor, and want of mutuality is no defence. Worrall v. Munn, 1 Seld. 229.

2 The doctrine of the text is fully sustained by a late case in the Supreme Court of the United States, and Mactier v. Frith, and Adams v. Lindsell, supra, in notis, approved. Tayloe v. The Merch. Fire Ins. Co. 9 How. U. S. 390. The Palo Alto, Ware J., Davies, 357. Hamilton v. Lycoming Ins. Co. 5 Barr, 339. Levy v. Cohen, 4 Geo. 1. Dunlop v. Higgins, 1 House of Lords Cases, 381. S. C. N. Y. Legal Obs'r, Dec. 1848, (vi. 459.) This latter case, as well as some of those cited above, go the full length of the reasoning, and hold that the acceptance, though by delay or accident the letter of acceptance does not arrive at the usual time, and the goods have, in the meantime been sold to a third person, is still good

held, that if A. makes an offer to B. and gives him a specified time for an answer, A. may retract before the offer is accepted, on the ground that until both parties are agreed, it is no contract, and neither of them has a right to recede, and one party cannot be bound without the other. (d)

an offer to sell made by letter, was standing and held open for acceptance at the time it was accepted, and the contract was then consummated, though the knowledge of the concurrence of wills, when the acceptance was made, was not known to the party who wrote the letter, and though he died before notice of the acceptance, by answer to the letter, was received, but after the time of acceptance. The offer may be deemed to stand open for acceptance until it is expressly or by presumption withdrawn. So, also, in Brisban v. Boyd, 4 Paige, 17, where A. wrote to his factor, proposing to ship to him cotton on joint account; the agent, on receipt of the letter, gives notice of his assent, and it was held, that as soon as the agent so replied, and the letter was transmitted, the contract was complete, and mutually binding. Merlin states this case in the French courts. A. writes to B. and offers to buy articles on certain conditions. B. writes an answer in the morning, and accepts the offer. He writes a second letter in the evening of that day, that he cannot accede to the offer exactly, according to all the conditions. Both answers are received by A. at the same instant, and it was held that A. was not bound by the offer, as the second letter did away the force of the first. Répertoire, tit. Vente, sec. 1, art. 3, note 11. But in the case of M'Culloch v. The Eagle Insurance Co. 1 Pick. 278, A. wrote by mail to B. to inquire on what terms he would insure a vessel; B. wrote an answer on 1st January, that he would insure at a certain rate; on 2d January he wrote another letter, retracting; A., before he received the last letter, wrote by mail an answer to B.'s first letter, acceding to the terms, and it was held there was no contract, and that the treaty was open until B. had received the letter of A. If A., who makes the proposal, should die or become non compos before his letter is received and assented to, the assent is void, because there is no concurrence of wills at the time. Pothier, Traité du Cont. de Vente, No. 32. Vide infra, p. 646. The better opinion of the French jurists seems to be, that as soon as an offer by letter is accepted, the consent is given, and the contract complete, although the acceptance had not been communicated to the party by whom the offer was made, provided the party making the offer was alive when the offer was accepted. Pothier, Tr. de Vente, n. 32. Duvergier, Tr. de la Vente, 6, 1, 60; and though Merlin & Toullier are of a contrary opinion, yet against them may be cited Wolf, part 3, sec. 715, and the decisions supra. The case of M'Culloch v. The Eagle Ins. Co. 1 Pick. 283, has been questioned as a valid authority by Mr. Duer, the learned author on Marine Insurance, vol. i. pp. 67, 116–131. His criticisms appear to be just, and his reasoning conclusive. He vindicates the decision of the K. B. in Adams v. Lindsell with great force, and it has received a very strong support from the able opinion of Mr. Justice Marcy, in Mactier v. Frifth, in the New York Court of Errors, in 6 Wendell, 104.

(d) Payne v. Cave, 3 Term Rep. 148. Cooke v. Oxley, Ibid. 653. Rutledge v.

and binding. So if the acceptance be by letter, within a time limited, though the agent receiving the letter do not communicate until a long time after. Wright v. Bigg, 21 E. L. & Eq. 591. So, if the acceptance never arrives, the contract is still binding. Vassar v. Camp, 14 Barb. (N. Y.) 341. S. C. 1 Kernan, 441. An inquiry in the acceptance how remittances in payment shall be made, does not so qualify the acceptance as to leave the contract still open. Clark v. Dales, 20 Barb. (N. Y.) 42.

*V. Of implied warranty of the articles sold.

*478

In every sale of a chattel, if the possession be at the time in another, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril. (a) But if the seller has possession of the article,1 and he sells it as his own, and not as agent for another, and for a fair price, he is understood to warrant the title. (b) A fair price implies a warranty of title; and the purchaser may have a satis

Grant, 4 Bing. 653. Gravier v. Gravier, 15 Martin (Louis.) 206. But, see supra, p. 236, and infra, p. 510, for exceptions to the general rule that both parties must be bound, or neither can be. The good faith and justice of the case would lead to the conclusion that if A., who makes the offer, gives B. a specified time to accept, and he accepts within the time, it becomes a valid contract, and A. is bound by his offer, which left it optional in B. to accept or reject the offer within the time. The criticisms which have been made upon the case of Cooke v. Oxley, are sufficient to destroy its authority.8

The Roman law gave an action to one who did anything proper and beneficial to the estate of another, who was absent and ignorant of it; and it went on the ground of a positive benefit conferred, and of the equity of not permitting one man to profit by the labor of another without compensation. Dig. 3, 5, 2. The Supreme Court of Louisiana has followed this principle. Police Jury v. Hampton, 17 Martin (Louis.) 398. But there is no principle in the English law which would support such an action for compensation, on the footing of a contract. See infra, ad finem, as to the effect of death on the validity of a contract not already consummated.

(a) Tanfield C. Baron, Cro. Jac. 197. Holt C. J., Medina v. Stoughton, 1 Salk. 210. If, however, the seller affirms the chattel not in his possession to be his, Mr. Justice Buller thinks he is bound to answer for the title, for the vendee has nothing else to rely upon, if the property was out of possession. Buller J., in Pasley v. Freeman, 3 Term Rep. 57, 58. There is good sense and equity in the observation.

(b) Medina v. Stoughton, 1 Ld. Raym. 523. 1 Salk. 210. Adamson v. Jarvis, 12 J. B. Moore, 241. Crosse v. Gardner, Carth. 90. An affirmation by the vendor at the time of the sale, amounts to a warranty, if so intended. Medina v. Soughton, supra, Buller J., 3 Term Rep. 57. Swett v. Colgate, 20 Johns. 196. On a sale of goods, with warranty, the seller must make good to the letter of the warranty; but on a simple representation, if he had no reason to suspect his representation to be untrue, he is not responsible. The scienter is the gist of the action. Ormrod v. Huth, 14 Mees. & W. 651.

Taylor v. Rennie, 35 Barb. (N. Y.) 272. Andrews v. Garrett, 6 C. B. (N. S.) 262. Webster v. Cecil, 30 Beavan, 62. Hutcheson v. Blakeman, 3 Met. (Ky.) 80. 1 McCoy v. Artcher, 3 Barb. (N. Y.) 323. Where one bought an article at a sheriff's sale, and upon an offer sold his bargain, it was held there was no warranty of title. Chapman v. Speller, Law Journai, B. p. 239, July, 1850.

"But a fair price raises no implied warranty of quality. Moses v. Mead, 1 Denio, 378. Mixer v. Coburn, 11 Metcalf, 559. This is the general and long established rule of the common law; but the rule of the civil law, which is otherwise, prevails in South Carolina as well as in Louisiana. Timrod v. Shoolbred, 1 Bay, 324. 2 Idem, 19. Crawford v. Wilson, 2 S. C. Const. 353. Fuentes v. Caballero, 1 Louis. Ann. 27. Ibid. 122. On the sale of a landwarrant there is an implied warranty of its validity. Presbury v. Morris, 18 Mis. 165. Vide post, p. 480.

Y

faction from the seller, if he sells the goods as his own, and the title proves deficient. This was also the rule of the civil law in all cases, whether the title wholly or partially failed. (c) With regard to the quality or goodness of the article sold, the seller is not bound to answer, except under special circumstances, unless he expressly warranted the goods to be sound and good, or unless he hath made a fraudulent representation, or used some fraudulent concealment concerning them, and which amounts to a warranty in law. The common law very reasonably requires the purchaser to attend, when he makes his contract, to those qualities of the article he buys, which are supposed to be within the reach of his observation and judgment, and which it is equally his interest and his duty to exert. This distinction between the responsibility of the seller as to the title, and as to the quality of goods sold, is well established in the English and American law. (d)

(c) Dig. 21, 2, 1. By the civil law there was an implied warranty that the article sold was sound; and if not, and was unfit for the purpose intended, the vendee might return it, and rescind the sale and recover back the price, though the vendor might exempt himself from liability by stipulation in cases free from fraud. Pothier, Cont. de Vente, No. 184.

(d) 2 Blacks. Com. 451. Bacon's Abr. tit. Action on the Case, E. Comyn on Contracts, part 3, ch. 8. Doug. 20. Parkinson v. Lee, 2 East, 314. Defreeze v. Trumper, 1 Johns. 274. Johnston v. Cope, 3 Harr. & Johns. 89. Wilson v. Shackleford, 4 Rand. 5. Dean v. Mason, 4 Conn. 428. Boyd v. Bopst, 2 Dallas, 91. Emerson v. Brigham, 10 Mass. 197. Swett v. Colgate, 20 Johns. 196. Kimmel v. Lichty, 3 Yeates, 262. Ritchie v. Summers, Ibid. 534. Willings v. Consequa, 1 Peters C. C. 317. 12 Serg. & Rawle, 181, Tilghman C. J. Chism v. Woods, Hard. (Ken.) 531. Lanier v. Auld, 1 Murphey, 138. Erwin v. Maxwell, Idem, 241. Westmoreland v. Dixon, 4 Heyw. (Tenn.) 227. Barrett v. Hall, 1 Aiken, 269. McFarland v. Newman, 9 Watts,

In Morley v. Attenborough, 3 Wels., H. & Gor. 500, it was held, that where a pawnbroker sells goods as forfeited, there is no implied warranty of title, and the vendor is not liable, unless there be an express warranty or an equivalent by declaration or conduct. But a warranty may be inferred from a usage of trade, or from the nature of the trade, leading to the conclusion that the vendor engaged that the purchaser should enjoy what he purchased; as where articles are bought in a shop for the sale of goods. Baron Parke supposes that the English law is not exactly coincident with the American on the subject of implied warranty of title on the sale of personal property. See the note of the American editors as to the rule in this country, where the doctrine of the text (supra) is sustained. See further, Dresser v. Ainsworth, 9 Barb. (N. Y.) 619.

Although in judicial sales there is no warranty of title, (The Monte Allegre, 9 Wheaton, 644, Puckett v. U. S., 19 L. Reporter, 18,) yet, in a sale by government of goods captured in war, there is an implied warranty of title to the purchaser. Port v. U. S. (Court of Claims) 19 L. Reporter, 12.

An express warranty of soundness will not cover patent defects. Birdseye v. Frost, 34 Barb. (N. Y.) 367.

In Seixas v. * Wood, (a) the rule was examined and *479 declared to be, that if there was no express warranty by the seller, or fraud on his part, the buyer, who examines the article himself, must abide by all losses arising from latent defects, equally unknown to both parties; and the same rule was again declared in Swett v. Colgate. (b)+There. is no doubt of the existence of the general rule of law, as laid down in Seixas v. Wood; and the only doubt is, whether it was well applied in that case, where there was a description in writing of the article by the vendor which proved not to be correct, and from which a warranty might have been inferred. But the rule fitly applies to the case where the article was equally open to the inspection and examination of both parties, and the purchaser relied on his own information and judgment, without requiring any warranty of the quality;

55. Law Reporter, vol. ii. p. 301. Towell v. Gatewood, 2 Scam. 22. Maney v. Porter, 3 Humph. (Tenn.) 347. If one buys, says Heineccius, (Elem. Juris. Nat. et Gentium, b. 1, ch. 13, sec. 352, note,) anything at a certain price, which he hath not seen nor sufficiently examined, his error ought to fall on himself, if the seller used no guile to deceive him.

(a) 2 Caines, 48. Welsh v. Carter, 1 Wendell, 185. Chandelor v. Lopus, Cro. J. 4, S. P. This last case is condemned in Bradford v. Manley, 13 Mass. 139. The case of Chandelor v. Lopus was that A. sold to B. a stone, which he affirmed to be a Bezoar stone, and which was not one; and it was held that no action lay, unless A. knew it was not a Bezoar stone, or warranted it to be one. This doctrine is so far qualified at this day that the action will lie, if it appears that the affirmation at the time of the sale was intended to be warranty, or that A., from circumstances, was to be presumed cognizant of the falsehood of the representation. What circumstances or facts will support or imply the inference of an intention to warrant or deceive, has opened a wide field for discussion. In Henshaw v. Robins, 9 Metcalf, 86, the subject was learnedly discussed, and the celebrated case of Chandelor v. Lopus, and the New York decision in Seixas v. Wood, brought under the eye of criticism. It was declared in the Massachusetts case, to be well settled law there, that on a sale of goods, with a bill of parcels describing or clearly designating the goods sold, there is a warranty that the goods are as described or designated in the bill; and the cases of Bradford v. Manley, 13 Mass. 139, Hastings v. Lovering, 2 Pick. 214, Osgood v. Lewis, 2 Harr. & Gill, 495, Borrekins v. Bevan, 3 Rawle, 23, Batturs v. Sellers, 5 Harr. & Johns. 117, and 6 H. & J. 249, were referred to as containing that doctrine.

(b) 20 Johns. 196. A bare representation and no warranty as to goods sold, will not afford an action, if the vendor believes the representation to be true in fact. Stone v. Denney, 4 Metcalf, 151.1

1 But where the vendor, at the time of sale, affirms a fact as to the qualities of his goods, on the faith of which affirmation the purchaser buys, this is a warranty. Bryant v. Crosby, 40 Maine, 9. Sweet v. Bradley, 24 Barb. (N. Y.) 549. Randall v. Thornton, 43 Maine, 226. Bannerman v. White, 10 C. B. (N. S.) 844.