But in these cases, and in all cases where there is no mutuality of contract and obligation, there is nothing to bind the party to the continuance of his promise, so long as nothing has been done upon the faith of it; and the party making the promise or giving the undertaking may, at any time before it has been accepted and acted upon, and any portion of the intended consideration has been accomplished, retract such promise or withdraw such undertaking, and place himself in the same situation as if it had never been made.

By the civil law, contracts between persons of full age and infants, formed an exception to the general rule, that both parties must be bound by an executory contract founded upon mutual promises, or neither party could be made liable upon it. This exception has been introduced into our own law as well as into the French law, (y) and other systems of jurisprudence, for the protection and benefit of minors. It is a principle of the common law, that if a contract has been entered into between an infant and a person of full age, the former may take advantage of his minority, and resist the completion of his contract; but that right cannot be urged by the other to show, that as there was not a mutual obligation, there was no consideration for his promise. (z) If a person of full age, for example, enter into a contract of marriage with a lady who is a minor, the latter may sue the former upon the contract, although she is not herself liable to an action for a breach of promise.

Of the assent of the parties.-As contracts founded upon mutual promises and a mutuality of obligation, are perfected and made binding by the bare consent of the parties, it becomes important to distinguish in what way and to what extent such assent must be manifested, and accurately to distinguish between mere offers and proposals by the one party, unaccepted and unapproved of by the other, and which may consequently be retracted and withdrawn, and mutual and positive engagements.

If the terms of a contract founded upon mutual promises have not been finally agreed upon, if either party withholds or has not given his full assent to them, the contract is incomplete; it binds neither of the parties, and can give rise to no cause of action. (a)

Offers of MARRIAGE.-A promise of marriage is not binding on the party making it, unless it has been accepted by the party to whom it is made, and a reciprocal and mutual engagement has thus been created, it amounts, so long as it remains unaccepted, to a mere proposal or offer,

(y) Pothier. Traité des Obligations, part. 1, art. 4.

(2) Holt v. Ward Clarencieux, 2 Str. 938.

(a) Routledge v. Grant,,1 M. & P. 717; 4 Bing. 653, s. c.; Doe v. Cartwright, 3 B. & Ald.

327.

which may be retracted at any time. (b) Before, therefore, the plaintiff can succeed in an action upon such a promise, it must be shown that he or she accepted the proposal, and so entered into a corresponding engagement; and this acceptance may be proved and established by the conduct and acts of the party, as well as by express words. (c)

Offers of sale and purchase not amounting to a complete and definite contract.—If an offer has been made by one man to sell goods to another, such offer is not, of course, binding until it has been formally accepted by the party to whom it has been made, as the one cannot be held liable to the other for not selling the goods, unless that other, by accepting the offer, has bound himself to purchase. Thus, where the defendant proposed to sell certain goods to the plaintiff at a fixed price, and gave him, at his request, a certain time to determine whether he would buy them or not, and the plaintiff, within the time determined to buy them, and gave notice thereof to the defendant, and offered to pay the price; but the latter receded from his offer, and refused to deliver the goods and accept the money: it was holden, in an action for the non-delivery of the goods, that there was no complete contract of sale; that as the defendant was not by the original contract bound to purchase, there was no consideration to bind the defendant to sell; that the engagement was all on one side, and was, therefore, nudum pactum. (d) But where the defendants wrote to the plaintiffs, making them an offer of a quantity of merchandise at a fixed price, they "receiving an answer in course of post," and the defendants wrote accepting the offer; it was holden that there was a binding contract of sale the moment that the offer was accepted, and that the defendants were not at liberty to retract their offer before the arrival of the time for receiving the answer; that they must be considered in law as making, during every instant of the time their letter was travelling, the same identical offer to the plaintiffs, and then the contract was completed by the acceptance of it by the latter, otherwise it was observed no contract could ever be completed by post. In this case the defendants had misdirected the letter, and sent it to a wrong county, and so caused a delay in its receipt, and in the return of the answer, and not having received the answer at the expected time, sold the merchandise to another person; and it was holden that as the delay had been occasioned by their own neglect, and not by any omission or default on the part of the plaintiff, that the answer must be taken to have

(b) Cock v. Richards, 10 Ves. 438; Daniel v. Bowles, 2 C. & P. 553.

(c) Hutton v. Mansel, 3 Salk. 16, 64; Daniel

v. Bowles, 2 C. & P. 553.
(d) Cooke v. Oxley, 3 T. R. 653.

come back in due course of post, and that the defendants were liable upon the contract for the damage sustained by the plaintiff by reason of his loss of the bargain, and of the non-delivery of the goods. (e)

"In the contract of sale, as in other contracts," observes Pothier, 66 there may be consent of parties, not only between those who are present, but those who are absent, through the medium of letters, or by an agent. In order to constitute consent in this case, it is necessary that the intention of the party who writes to another to propose the bargain should continue until the letter reaches the other party, and he has an opportunity of accepting or rejecting the bargain." (f) But where the offer is not made through the medium of the post or an agent, and is not immediately accepted, but the party making the offer gives the other, at his request, a certain time to determine whether he will accept it or not, and promises to keep the offer open, and not enter into any contract with a third party until such answer and determination have been received; this is a mere nudum pactum or voluntary promise, which the party may abide by or withdraw at his pleasure or convenience; it is a promise binding, doubtless, in conscience and good faith; but has no legal force or validity, as the engagement is all on one side, and there is no consideration on the other to support it.

"There was a proposal by the defendant to take a lease from the plaintiff on certain terms. To this proposal the plaintiff was to give a definite answer within six weeks. Now I am of opinion that if six weeks are given by one party to accept an offer, the other has the same period to put an end to it. The contract must be mutual, and the one party cannot be bound without the other . . . until both parties have agreed to the terms proposed, either has a right to rescind or put an end to the contract." (g)

The intention of the party, therefore, making the proposal, and giving time for its acceptance, to adhere to this proposal, must continue down to the time that the acceptance is actually notified by him, (unless the proposal be communicated by post or through the medium of an agent,) and there must then be a mutual assent of both parties to the terms of the bargain, to constitute a contract binding in law, but the party is not bound to wait for the determination and acceptance of the other, although he has promised and engaged so to do.

If, however, anything has been given or done as the consideration for the promise, if the party to whom it is made has agreed to incur any

(e) Adams v. Lindsell, 1 B. & Ald. 681.
(f) Pothier, Contrat de Vente, partie 1, art. 3.

(g) Best, C. J., Routledge v. Grant, 1 M. & P. 731.

expense or labour in consideration of the offers being continued or kept open for a certain time, then the party making the offer is not at liberty to retract it.

Biddings at an auction.-A bidding at an auction is a mere offer which may be retracted at any time before the hammer is down and the offer has been accepted. In Payne v. Cave, (h) where the defendant had retracted his bidding at an auction, the court said, "The assent of both parties is necessary to make the contract binding; that is signified on the part of the seller by knocking down the hammer, which was not done till the defendant had retracted. An auction is not unaptly called locus pænitentiæ. Every bidding is nothing more than an offer on the one side, which is not binding on the other side till it is assented to. But according to what is now contended for, one party would be bound by the offer and the other not, which never can be allowed."

From the preceding remarks, it will at once be perceived that it is not essential in point of law that the consideration for a simple contract or promise should be adequate in point of value. "If there be any consideration, the court will not weigh the extent of it." (i) It has no means of scrutinizing the varied hidden motives and reasons that may have influenced the parties at the time, and induced them to enter into the contract, nor can it determine upon the prudence or propriety of the transaction. If parties, therefore, choose to enter into unwise and improvident bargains, they must abide by the consequences of their own rashness and folly; (k) they have contracted for themselves, and the court cannot contract for them.

(h) 3 T. R. 148.

() Ellenborough, C. J., 16 East, 372; Hitchcock v. Coker, 6 Ad. & E. 457; Starlyn v. Albany, Cro. Eliz. 67, 2 H. Bl. 312; Pin5 Co. 117 a., 117 b.

nell's case,

(k) Haigh v. Brooks, 10 Ad. & E. 320; Skeate v. Beale, 11 Ad. & E. 992; but the consideration must be of some value; Smith v. Smith, 3 Leon. 88; 1 Rol. Abr. 23.

40

CHAPTER III.

OF THE CONTRACT OF SALE, AND ITS REQUISITES, IN RESPECT OF AUTHENTICATION BY WRITING.

SECTION I.-Executory contracts for the sale of goods and chattels-Effect and operation of the contract at common law-When the acts of payment and delivery are concurrent and constitute mutual conditions-When the right of property and the risk of loss pass by the bargain, but not the right of possession-To what extent the contract must be completed to operate as a transfer of the right of property-Ascertainment of the subject matter and of the price-Contracts for the making or manufacture of goods and chattels-Of the time within which the contract of sale must be fulfilled-The transfer of the right of property and possession defeated by the fraud or deceit of the purchaser-The purchaser's right of possession divested by his bankruptcy or insolvency before actual payment-Stoppage in transitu-Effect of stoppage of part of goods sold under an entire contract-As to what is sufficient notice of a stoppage in transitu and the mode of giving it— Consummation of the contract of sale by actual delivery-Actual and constructive possession by the purchaser-Transfer by bill of lading-Transfer by delivery orders-When a sale by a bailee or wrongful possessor shall bind the true owner-Colourable sales to defraud creditors.

SECTION II.-Authentication of the contract of sale by writing, when necessary-Effect of the Statute of Frauds on executory contracts for the sale of goods and chattels-Its extension to contracts for the making and manufacture of goods and chattels-How far the contract must be executed, to be withdrawn from the operation of the statute-Acceptance and receipt of the thing sold within the meaning of the statute-Part acceptance and receipt-Earnest and part paymentWhat is a sufficient note or memorandum in writing of the contract.

SECTION I.

OF THE CONTRACT OF SALE.

Bargain and sale of goods and chattels.-The contract of sale is founded, as before mentioned, upon a mutuality of engagement, or upon mutual promises, the promise or undertaking of the one party to sell, being the consideration for the promise of the other to buy. It is perfected, consequently, by the bare consent of the parties, although the thing sold be not delivered nor the price paid. "It never depends on the seller to elude the effect of the sale, by refusing to make delivery of the thing