fall of the hammer, when the agreement is complete (a). The sending an order for goods to a merchant or tradesman is in effect an offer to purchase; and the sending the goods is an acceptance of the offer, and creates a contract of sale (b). The publication of an advertisement offering a reward for information respecting a loss or a crime is an offer to any person who is able to give the information asked; and the acceptance of it by giving such information creates a valid contract (c). The time tables published by a railway company are a promise that the trains will run as advertised, offered to all persons who apply in a regular manner to be carried by them (7). A correspondence between two parties by letter may contain an agreement which will produce a contract as binding as if drawn up in articles and signed by the parties as such ; but there must be found in the correspondence a proposal of terms, met by such final acceptance as imports a consent of both parties. The same construction must be put upon a letter, or a series of letters, that would be applied to the case of a formal instrument, the only difference between them being, that a letter or a correspondence is generally more loose and inaccurate in respect of terms, and creates a greater difficulty in arriving at a precise conclusion (e). accepted. An offer unaccepted, or, what amounts to the same thing, Offer unof which the acceptance is not communicated to the party making it, does not constitute an agreement (f). The defendant sent to the plaintiff a letter offering to guarantee to the plaintiff the debt of a third party, and the plaintiff, though he gave credit to the third party on the faith of such guarantee, did not communicate his acceptance of it to the defendant; it was held that there was no contract, and that the plaintiff could not maintain an action upon the letter (y). (a) Payne v. Cave, 3 T. R. 148. (b) See Harvey v. Johnston, 6 C. B. 295, 301; and see Levy v. Green, 8 E. & B. 575, cited post, p. 16. (c) Williams v. Carwardine, 4 B. & Ad. 621. (d) Denton v. Great Northern Ry. Co., 5 E. & B. 860; 25 L. J. Q. B. 134. (e) Kennedy v. Lee, 3 Mer. 441, 451; and see Thomas v. Blackman, (f) Russell v. Thornton, 10 Ex. Variance between the terms offered and accepted. A person wrote a letter to another offering to purchase of him a horse, and stating that if he received no answer he should assume that his offer was accepted, to which letter no answer was returned; it was held that the letter unanswered did not constitute an agreement, and that a person in making an offer has no right to put upon another the burden of notifying his refusal by letter or otherwise (a). The contract arising from an agreement dates from the acceptance, and not from the offer of the terms. Accordingly, under a contract of sale passing the property in the goods sold the title of the purchaser dates, not from his offer to purchase, but from the acceptance of the offer; and therefore he cannot sue for a conversion of the goods committed before the acceptance though after the offer (b). Where there is a variance between the terms offered and the terms accepted there is no agreement, or consensus ad idem, without which there can be no contract. As in the following cases-The defendant offered to purchase the plaintiff's house, with possession on the 25th July, and the plaintiff accepted the offer with possession on the 1st August (c). The defendant offered by letter to buy a mare of the plaintiff upon his giving a warranty of her being quiet in harness, and the plaintiff wrote in answer agreeing to sell the mare and warranting her quiet in double harness (d). The defendant offered by letter to sell the plaintiff a certain quantity of "good" barley, the plaintiff by letter accepted the offer for "fine" barley, and it appeared that by the usage of the trade the expressions good and fine meant different qualities of barley (e). The defendant offered to purchase the lease of a house of the plaintiff on certain terms, and the plaintiff consented on the same terms to grant the plaintiff an underlease (f). Upon a treaty for an underlease a memorandum of terms proposed by the lessee stipulated that it should contain all usual (a) Felthouse v. Bindley, 11 C. B. N. S. 869; 31 L. J. C. P. 204. (b) Felthouse v. Bindley, supra ; and see Stockdale v. Dunlop, 6 M. & W. 224. (c) Routledge v. Grant, 4 Bing. 660. (d) Jordan v. Norton, 4 M. & W. 155. (e) Hutchison v. Bowker, 5 M. & W. 535. (f) Holland v. Eyre, 2 S. & S. 194. covenants and also the covenants in the leases of the groundlandlord, and the proposed lessee wrote on the memorandum that he agreed thereto, subject to there being nothing unusual in the lease of the ground-landlord (a). In all the above cases it was held that there was no binding agreement, because of the variance between the terms proposed and accepted. The plaintiff applied by a letter in the prescribed form to the provisional committee of a railway company for an allotment of shares, undertaking to accept the shares and to pay when required the deposit thereon; the company informed the plaintiff by letter that they had allotted him the shares upon condition that the deposit was paid on a certain day, in default of which the allotment would be forfeited; it was held that the letter of allotment not being an unconditional acceptance of the offer made by the letter of application, the two did not constitute a valid contract (b). So, where to a similar letter of application an answer was sent by a letter allotting the shares, but the letter was headed "not transferable," it was held that this term qualified the acceptance of the defendant's offer, and that there was no contract (c). Where to a similar application an answer was returned that the shares had been allotted, and that the memorandum and articles of association must be signed, and in default thereof the shares and deposit would be forfeited, it was held that there was no complete contract to take the shares (d). In contracts of sale conducted through a broker as the agent of both buyer and seller, if the bought and sold notes delivered by the broker to the respective parties vary in their terms, they will not serve to establish a contract (e), as where the two sale notes varied in the description of the goods (f), and where they varied as to the mode of payment, the one stating it to be by ready money and the other by (a) Lucas v. Jumes, 7 Hare, 410. (b) Wontner v. Shairp, 4 C. B. 404, 441; and see Addinell's Cuse, 1 L. R. Eq. 225; 35 L. J. C. 75. (c) Duke v. Andrews, 2 Ex. 290: and see Chaplin v. Clarke, 4 Ex. 403. (d) Oriental Inland Steam Co. v. Briggs, 31 L. J. C. 241 and see (e) Grant v. Fletcher, 5 B. & C. 436; and see Sievewright v. Archibald, 17 Q. B. 103. (f) Thornton v. Kempster, 5 Taunt. 786. Proliminary nego. tiations. bill (a). In a case where the bought and soid notes varied in several expressions, evidence was admitted of the mercantile meaning of the expressions in order to reconcile the two notes (b). The defendant sent a written order for goods addressed to a person with whom he had been in the habit of dealing, and the plaintiff, who had succeeded that person in the business, executed the order without giving notice to the defendant that the goods were not supplied by the person to whom the order was addressed; it was held that there was no contract with the plaintiff, because the defendant had never intended to contract with him (c). An order was sent for certain goods, and goods were sent agreeing with the order, together with other goods not ordered, in one parcel and with one invoice; the court was equally divided upon the question whether, under the circumstances, there was a binding contract to pay for the goods ordered, or whether the purchaser might refuse the whole of the goods sent, and not merely those not ordered (d). A variance between the offer and acceptance may be caused by the matter containing a term of ambiguous meaning, and the two parties accepting it with different meanings. There is then an apparent agreement; but each party in fact mistakes the meaning of the other, and it is open to each party to explain the meaning with which he accepted the term, in order to show that there was no real agreement between them (e). Terms offered and representations made during the negotiation for a contract, which are not comprehended in the matter of the final agreement, are excluded from the contract. The defendant represented to the plaintiff that a horse which he was about to sell by auction was sound, and the next day the plaintiff, relying on the representation, purchased (a) Gregson v. Ruck, 4 Q. B. 737. (c) Boulton v. Jones, 2 H. & N. Hardman v. Booth, 1 H. & C. 803; 32 L. J. Ex.105; Schmaling v. Thomlinson, 6 Taunt. 147. (d) Levy v. Green, 8 E. & B. 575. (e) See post, Chap. I, Sect. VI, "Mistake." the horse at the auction at which it was put up for sale, without a warranty; it was held that the representation of the defendant formed no part of the contract. According to Maule, J., "the contract commenced when the horse was put up for sale, and ended when he was knocked down to the highest bidder," and thus excluded the representation, which was not made pending the contract (a). Upon the negotiation for a sale of goods a sample was exhibited, but a contract was afterwards made in writing describing the goods by kind and quality without referring to the sample; it was held to form no part of the contract that the goods should agree with the sample (b). Upon treaty for the sale of a ship it was represented as copper fastened, but in the written contract of sale it was not so described; it was held that no warranty to that effect could be implied from the previous representation (c). But fraudulent representations made with the intention of inducing the other party to enter into the agreement may become material, as giving ground for avoiding the contract or for an action of fraud; and such representations, though not absolutely fraudulent in law, may be material in equity, as affecting the right of the party making them to specific performance of the contract, or as founding a claim against him. to make them good (d). ance of The offer of a contract necessarily precedes the acceptance Continuby some interval of time; and, as it must continue open until offer. the acceptance, it is sometimes necessary to determine how long it continues open, and how it may be put an end to. An offer may in express terms limit its own continuance, and it then comes to an end by mere lapse of time. Thus, an offer by letter is sometimes made conditionally upon receiving an answer by return of post (e). Offers not expressly limited are in general made upon the implied condition that they shall be accepted within a reasonable time (ƒ), and if (a) Hopkins v. Tanqueray, 15 C. B. 130; 23 L. J. C. P. 162, (b) Tye v. Fynmore, 3 Camp. 462; Meyer v. Everth, 4 Camp. 22. (c) Pickering v. Dowson, 4 Taunt. 779; Kain v. Old, 2 B. & C. 627; Freeman v. Baker, 5 B. & Ad. 797. (d) See post, Chap. I, Sect. VI, "Fraud." (e) Adams v. Lindsell, 1 B. & Ald. 681; Dunlop v. Higgins, 1 H. L. C. 381. (f) See per Lord Eldon, Kennedy v. Lee, 3 Mer. 441, 454; Thornbury C |