Mistake of foreign laws. Mutuality of consent. Communication of consent. fd. 1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or, 2. A misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify.2 1 Many v. Beekman Iron Co., 9 Paige, 188; Hall v. Reed, 2 Barb. Ch., 501; see Pitcher v. Turin Plank Road Co., 10 Barb., 436; Wake v. Harrop, 6 H. & N., 768. In Cooke v. Nathan (16 Barb., 342), it was held that a misrepresentation of the law by one party, on which the other ignorantly relied, was a fraud. It seems to follow that a transaction such as is described in the text should be relieved against, as a mistake, if not as a fraud. $ 764. Mistake of foreign laws is a mistake of fact. Bank of Chilicothe v. Dodge, 8 Barb., 233; McCormick $765. Consent is not mutual, unless the parties all agree upon the same thing in the same sense." But in certain cases defined by the chapter on INTERPRETATION, they are to be deemed so to agree without regard to the fact. 1 Scranton v. Booth, 29 Barb., 171; Salters v. Pruyn, 18 How. Pr., 512. ' Hazard v. New England Ins. Co., 1 Sumn., 218; Greene v. Bateman, 2 Woodb. & M., 359. $766. Consent can be communicated with effect, only by some act or omission of the party contracting, by which he intends to communicate it, or which necessarily tends to such communication. This is intended to exclude the possible case of a declaration of consent made to a person having no interest in the contract, and communicated by him to the other party, without authority. S767. If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; Dunlop v. Higgins, 1 H. of L. Cas., 381, 398; Vassar v. $768. Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section. This section is intended to recognize the rule that con- When comdeemed munication complete. $769. Performance of the conditions of a propo- Perform sal, or the acceptance of the consideration offered with a proposal,' is an acceptance of the proposal. 'Harvey v. Johnston, 6 C. B., 304; see Kenyon v. People, 26 N. Y., 203. 2 Decker v. Judson, 16 N. Y., 446. So the conditions of ance of con ditions; acceptance. must be S770. An acceptance must be absolute and un- Acceptance qualified,' or must include in itself an acceptance of absolute. that character, which the proposer can separate from the rest, and which will conclude the person accepting.2 A qualified acceptance is a new proposal. 'Hough v. Brown, 19 N. Y., 114, 115; Code La., 1799; Borland v. Guffey, 1 Grant (Pa.), 394; Duke v. Code La., 1801. Revocation of proposal. Revocation, how made. Ratifica tion of contract void for want of consent. Assumption of obligation by acceptance of benefits. S771. A proposal may be revoked at any time before its acceptance is communicated to the proposer,1 but not afterwards." 'Stephens v. Buffalo & N. Y. R. R. Co., 20 Barb., 332; Eskridge v. Glover, 5 Stew. & Port., 264; see Boston & Me. R. R. v. Bartlett, 3 Cush., 224. 'Routledge v. Grant, 4 Bing., 653; Head v. Diggon, 3 Man. & R., 97; Cooke v. Oxley, 3 T. R., 653. $ 772. A proposal is revoked: 1. By the communication of notice of revocation by the proposer to the other party, in the manner prescribed by sections 766 and 768, before his acceptance has been communicated to the former;1 2. By the lapse of the time prescribed in such proposal for its acceptance, or if no time is so prescribed, the lapse of a reasonable time without communication of the acceptance;2 3. By the failure of the acceptor to fulfill a condition precedent to acceptance; or, 4. By the death or insanity of the proposer.3 'See last section. Beckwith v. Cheever, 1 Fost. [N. H.], 41; Peru v. Tur ner, 1 Fairf., 185; Moxley v. Moxley, 2 Metc. [Ky.], 309. The Palo Alto, Daveis, 356. S773. A contract which is voidable solely for want of due consent, may be ratified by a subsequent consent.2 1 Gray v. Hook, 4 N. Y., 449. "Newton v. Bronson, 13 N. Y., 595; Bronson v. Wiman, 8 id., 188; see Sweetman v. Prince, 26 id., 224. S774. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting. Bennett v. Judson, 21 N. Y., 238. CHAPTER IV. OBJECT OF A CONTRACT. SECTION 775. Object, what. 776. Requisites of object. 777. Impossibility, what. 778. When contract wholly void. 779. When contract partially void. what. $ 775. The object of a contract is the thing which object, it is agreed, on the part of the party receiving the consideration, to do or not to do. Martin v. McCormick, 8 N. Y., 335. of object. $776. The object of a contract must be lawful Requisites when the contract is made, and possible' and ascertainable by the time the contract is to be performed.3 1 Code La., 1885, 1886. See Tufnell v. Constable, 7 Ad. & Abeel v. Radcliff, 13 Johns., 300; see Tracy v. Al- Thus, an agreement to pay so much as a barrel of flour bility, what S777. Everything is deemed possible, except that Impossi which is impossible in the nature of things. Impossibility is to be determined, not by the means or When contract $178. Where a contract has but a single object, and such object is unlawful,' whether in whole or in wholly part, or wholly impossible of performance, or so void. When con. tract par vaguely expressed as to be wholly unascertainable, the entire contract is void. 'See Smith v. Wilcox, 24 N. Y., 353; Porter v. Havens, 37 Barb., 343; Devlin v. Brady, 32 id., 518. 2 Brown v. Brown, 34 Barb., 533; Hopkins v. Prescott, 4 C. B., 578. 3 See Faulkner v. Lowe, 2 Exch., 595. $779. Where a contract has several distinct objects, tially void. of which one at least is lawful, and one at least is unlawful in whole or in part, the contract is void as to the latter, and valid as to the rest. See Bank of Australasia v. Bank of Australia, 6 Moore P. C., 152; Leavitt v. Palmer, 3 N. Y., 37; Chase's Good con sideration, what. CHAPTER V. CONSIDERATION. SECTION 780. Good consideration, what. 781. How far legal or moral obligation is a good consideration 782. Consideration lawful. 783. Effect of its illegality. 784. Consideration executed or executory. 785. Executory consideration. 786. How ascertained. 787, 788. Effect of impossibility of ascertaining consideration. $780. Any benefit conferred,' or agreed to be con ferred, upon the promiser, by any other person,3 to which the promiser is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promiser, is a good consideration for a promise. 8 'Johnson v. Titus, 2 Hill, 606; Oakley v. Boorman, 27 Wend., 588; see Hamilton College v. Stewart, 1 N. Y., 581; Palmer v. North, 35 Barb., 282. It is immaterial whether the benefit is small or great (Haigh v. Brooks, 10 Ad. & El., 309; Johnston v. Nicholls, 1 C. B., 251). |