Abbott v. Shepard

Nesmith, J.

Was there such an acceptance of the proposition of the defendant, as made by the letter of his attorneys to plaintiffs’ attorney, as will amount to a contract binding the defendant? The true elementary rule on this subject is laid down by Chancellor Kent, 2 Kent’s Com. 477. (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. 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after the receipt of the letter containing the proposal, and before any intimation is received that the offer is withdrawn. J Kent quotes the leading case on this point, Adams v. Lindsell, 1 B. & Ald. 681.

Parsons gives this rule, (1 Parsons on Contracts, 406) : 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 either of them has a right to recede, and one party cannot be bound without the other. Paine v. Cave, 3 Term Rep. 146; Cook v. Oxley, Term Rep. 653; Rutledge v. Grant, 4 Bing. 653.

Hilliard, in his Treatise on Sales, states the rule to be as follows : Where there is a written offer to sell, an acceptance consummates the agreement, if the offer is still standing. And it is presumed to be so, until the time fixed, or, if none were appointed, till it is expressly revoked, or countervailed by a contrary presumption. If the other party agree to decide, whether he will accept the offer, upon the happening of a certain event, no bargain arises until such decision, though the *17 event has happened. There is a binding agreement when the minds of-two persons meet, as signified by acts, although both do not know of such concurrence at the time.

A bargain is closed when nothing more regains to be done to give either party the right to have it effected. Until both parties are agreed, either may withdraw an offer which he has made. But when A. offers to sell goods to B., requesting an answer by return of mail, but by a misdirecting of the letter, B. does not immediately receive it, and sends an answer by the first mail, accepting the proposal, which reaches A. two days later than he accepted, A. is bound by the contract. He must be considered in law, as making, during every instant his letter was travelling, the same offer to B., and B.’s acceptance completed the contract. Mactier v. Firth, 6 Wend. 103 ; 3 M. & R. 97.

In Thayer v. Middlesex Ins. Co., 10 Pick. 332 , Shaw, C. J., says "that an offer is not matured into a complete and effectual contract, until it has been acceded to by a person to whom it is made, and notice thereof, either actual or constructive, given to the party making it. And it may be well conceded, that, when notice is to be given by mail, a notice actually put into the mail, especially, if forwarded, and beyond the control or revocation of the party making it, may be a good notice; evidently meaning, as Judge Duer remarks, that a notice thus put into the mail and beyond the control of the party is valid as a constructive notice, so as to render the contract from that time complete and effectual. Duer on Insurance, p. 121, note 9. This rule substantially agrees with Adams v. Lindsell, ante, and approved by Chief Justice Gibson in Clark v. Russell, 3 Wall’s Penn. 217; Angelí on Ins., secs. 45, 46, 48.

Angelí says : The doctrine may, therefore, be considered as well settled in this country, that the acceptance of a written proposal for insurance consummates the bargain, provided the offer is standing open at the time of the acceptance. When the proposition is by letter, the usual mode of acceptance is the sending of a letter, announcing a consent to accept. When it is made known by a messenger, a determination to accept, returned through him or by another, would seem to be all that the law requires, if the contract may be perfected without writing.

\ Anything that shall amount to a manifestation of a former 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 remained 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. [

We are inclined to think, upon the aforesaid authorities, that the acceptance by letter was in season, and binding upon the defendant. Vide also, Taylor v. Merchants' Fire Ins. Co., 9 Howard 390 .

Under the authority of Whittemore v. Gibbs, 24 N. H. 484, the contract for an assignment of a judgment would not come within the statute of frauds; such judgment not being goods, wares and merchan *18 dise, under a just construction of that statute, according to the import of that decision. In- Massachusetts, the sale of promissory notes is held to be within the statute. Baldwin v. Williams, 3 Met. 367 . In New York, a parol agreement, wholly executory, for the sale of a judgment for a sum exceeding $50, was held to be within the statute of frauds. People v. Beebe, 1 Barb. 379 ; Hilliard on Sales, 469. But it occurs to us, the letters in this case show the contract to be in writing, and state the consideration thereof, and the names of the contracting parties ; and the assignment of the judgment was duly tendered by plaintiffs to defendant’s agents in fulfilment of the contract. Hilliard on Sales, 470 — 71.

We are of the opinion that the plaintiffs are entitled to judgment for «$^0¿),and interest, agreeably to the terms of the casa»»» — ,. ,,9