the contract. These are law remedies. In equity he may demand the cancellation of an instrument or its re-formation.

4. Undue Influence. It sometimes happens that the relationship of the parties to a contract is such that undue influence may cause one of the parties to enter into an injurious contract. Undue influence is said to exist where a party to a contract has not acted of his own free agency, but where action in the matter has been controlled by the will of another. A good illustration is a contract between a guardian and his ward. Although the ward may be of age, yet the contract must be formed with the utmost good faith or it will be voidable.

5. Duress. If force is used to induce a party to enter into a contract, it is voidable. This force may consist in a threat to do bodily injury, or an unlawful arrest and imprisonment, and is commonly called duress. Such contract wherein duress is employed is voidable. As soon as a party is free from the force or threat, he must disaffirm the contract or it will be binding. The detention or threatened destruction of a person's goods may constitute duress.

ance.

56. RECAPITULATION

The minds of the contracting parties must meet.
There must be a distinct common intention.

Agreement may be either express or implied.

Agreement consists of offer and acceptance.

Offer may take the form of a proposition or of a question.
Acceptance is an assent or an affirmative answer.

The offer may be withdrawn at any time before there is an acceptance.
Acceptance made in apt time binds both parties.

A secret, unexpressed intention 'to accept will bind neither party. Acceptance must be absolute. A conditional acceptance is no accept

Acceptance in terms varying from an offer, or making a counterproposition, is a rejection of the offer.

There can be no binding contract where there is no real consent.
Contracts tainted with fraud are voidable.

57. QUESTIONS

Define agreement. Distinguish between express and implied agreement. Define offer and acceptance. Illustrate.

What is the effect of an acceptance that varies the original offer? When must an offer be accepted? May an offer made to A be accepted by B? Define and illustrate Mistake and Misrepresentation, Fraud, Undue Influence, Duress. State the effect of each of these where they enter into a contract.

58. DECISIONS BY THE COURTS

1. In I v. V, 46 N. Y. 467, it was decided that an acceptance acted upon but not communicated to the other party does not make a binding

contract.

2. In A v. B, a farmer saved his neighbor's stock of wheat from fire, then sued for his services. Held that the offer had not been accepted.

3. In C v. D, a horse was offered for sale. Defendant offered to buy if horse was warranted "quiet in harness.” Plaintiff replied warranting "sound and quiet in double harness." Held not an acceptance.

4. In W v. C, 46 N. Y. 467, C wrote W, "Upon agreeing to finish the fitting up of offices 57 Broadway in two weeks from date, you can commence at once." W bought lumber at once and prepared to begin work. The next day the offer was withdrawn. Held no acceptance.

5. In H v. E, 4 III. 255, E offered to buy flour of H, sending offer by his (E's) carrier, directing answer to be returned by same carrier. H instead sent answer by mail to place to which the carrier did not go. He believed his answer would reach E sooner. Held not an acceptance.

6. In W v. F, F said to W that he would give 100 pounds sterling to the one who would marry his daughter with his consent. W married the daughter but failed to recover the money, as the court held that F should not be held on promises of such a general nature, that he was not "bound by general words spoken to excite a suitor."

7. In T v. L, the captain of a ship threw up his command while en route, but helped work the vessel home, claiming pay for the service. Held that he was not entitled to recover, as the owner had not accepted the offer of his service.

8. In F v. T, Ill. Apr. 153, T offers certain property to F for $1,000. F says, “I will give you $950,” which is refused, and he thereupon says, “I will accept the first offer." Held that T is not bound by this acceptance, as the counter-offer was a rejection of the original offer. A proposal to accept an offer on its being varied from the original proposal and substituting a counter-proposal is held to be a rejection of the first offer.

9. In B v. T, an offer was made by mail requesting acceptance by cable. The acceptance was made properly, but after the acceptance had been sent and before received the proposer withdrew the offer. Held the withdrawal was not effective, as the contract began from the sending of the cable.

10. In A v. L, an offer was made by letter to sell a certain amount of wool. The letter was misdirected and was five days delayed in delivery. The receiver accepted the offer at once. In the meantime the proposer, not receiving a reply at the expected time, sold the wool elsewhere. Held that a contract resulted from this acceptance.

11. In D v. H, when an individual makes an offer by mail either stipulating for, or, from the nature of the business, having the right to expect an answer by return mail, the offer can only endure for a limited time, and the making of it is accomplished by an implied stipulation that the answer shall be sent by return mail. If that implied stipulation is not complied with, the person making the offer is released from it. In M v. H, 90 Ill. 525, the contract is complete only when the acceptance has been deposited in the mail within the time required by the law.

59. Introduction. While we have found that there must be at least two parties to a contract and that those parties are the only ones affected by the contractual relationship, yet we shall find also that the rights and even the liabilities of others may intervene. He who interferes with the operation of a contract, thereby causing one of the original parties to suffer loss or detriment, is liable in damages. In this chapter we have to deal largely with the conditions whereby one or more of the parties to a contract is changed for another who takes his place.

60. Assignment. Here one's rights under a contract are transferred to another, the new party assuming the place of the one going out. The one assigning his rights is called the assignor, and he to whom they are assigned, the assignee. Assignment of a contract is brought about in one of two ways: first, by agreement of parties; second, by operation of law.

1. By Agreement of Parties. Since the parties formed the contract by agreement, it must necessarily follow that they may

agree to change its terms. If A has agreed to build a house for B for $1,000, it may be agreed that C shall be substituted in the place of A. B is now obliged to pay the money to C, the latter agreeing to erect the house. It is now generally held that it is not necessary to have the consent of B to enable A to transfer his interest in the contract to C. Of course, however, A cannot escape liability; but the principal thing to B is the building of the house according to agreement, and if C complies with the terms of the contract he is entitled to the payment of the agreed sum.

But, while a right is assignable, yet a liability is not assignable. It is not necessary to secure the permission of the debtor to the transfer of a debt.

A, for instance, owes B $100. A cannot transfer his liability to B over to C, but B may transfer his claim against A to C.

2. By Operation of Law. By operation of law, rights and even liabilities may be transferred to another. At common law the husband acquired his wife's property and also became liable for her debts contracted prior to marriage. Death passes title of personal property to the administrator or executor of a deceased person. Contracts that depend upon personal services terminate upon the death of the party obligated. Upon entry of a decree of bankruptcy, title passes to the receiver or trustee.

61. Right Acquired. Under an assignment, the assignee acquires only the right possessed by the assignor. The assignment, so far as assignor and assignee are concerned, begins as soon as the assignment is made, but, in order to fully protect the rights of the assignee, notice must be given to the debtor. The debtor has a right to know to whom he is liable, as he naturally believes he owes the original creditor until he is notified to the contrary. As soon as he receives this notice he must not pay the first creditor, as he would still be liable to the assignee. The notice need not be formal; it is sufficient if the debtor has knowledge of the transfer. Anything that puts him on inquiry is all that is required. For instance, A owes B $1,000 for building a house. He pays $300 on the agreement. The payment is not acknowledged on the agreement, but he has good evidence of