A. Art. 2, sec. 1 of N. Y. Constitution answers this question, and is as follows: "Every male citizen of the age of twenty-one years, who shall have been a citizen for ninety days, and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people, and upon all questions which may be submitted to the vote of the people, provided that in time of war no elector in the actual military service of the state, or of the United States, in the army or navy thereof, shall be deprived of his vote by reason of his absence from such election district; and the legislature shall have power to provide the manner in which and the time and place at which such absent electors may vote, and for the return and canvass of their votes in the election districts in which they respectively reside."

Q. The legislature passes an act abolishing the office of coroner. A, an incumbent of the said office, attacks the constitutionality of the law. What do you say?

A. The law is constitutional, the office of coroner not being a constitutional one, may be abolished by the legislature. Koch v. Mayor, 152 N. Y. 77.

CHAPTER VII

Contracts

Q. A writes to B, a carpenter, asking him to make certain office fixtures, and offering to pay a certain price therefor. B did not reply thereto, but purchased the necessary lumber and began the work. A thereafter wrote B countermanding the order. After receiving this letter, B brings suit for breach of contract. Can he recover?

A. No. A's offer was never accepted. "The note did not make an agreement. It was a proposition, and must have been accepted by the plaintiff before either party was bound, in contract, to the other. The only overt action which is claimed by the plaintiff, as indicating on his part an acceptance of the offer, was the purchase of the stuff necessary for the work, and commencing work, as we understand the testimony, upon that stuff. We understand the rule to be, that where an offer is made by one party to another when they are not together, the acceptance of it by that other must be manifested by some appropriate act. It does not need that the acceptance shall come to the knowledge of the one making the offer, before he shall be bound. But though the manifestation need not be brought to his knowledge before he becomes bound, he is not bound, if that manifestation is not put in a proper way, to be, in the usual course of events, in some reasonable time communicated to him. In the case in hand, the plaintiff determined to accept. But a mental determination, not indicated by speech, or put in course of indication by act to the other party, is not an acceptance which will bind the other. Nor does an act, which, in itself, is no indication of an acceptance, become such, because accompanied by an unevinced mental determination. Where the act uninterpreted by concurrent evidence of the mental purpose accompanying it, is as well referable to one state of facts as another, it is no indication to the other party, of an acceptance, and does not operate to hold him

to his offer. Conceding that the testimony shows that the plaintiff did resolve to accept this offer, he did no act which indicated an acceptance of it, to the defendants. He, a carpenter and builder, purchased stuff for the work. But it was stuff as fit for any other like work. There was nothing in his thought formed but not uttered, or in his acts that indicated or set in motion, an indication to the defendants of his acceptance of their offer, or which could necessarily result therein." Folger, J., in White v. Corlies, 46 N. Y. 467.

Q. A wires B that he has a horse, and thinks that he will suit B, describing him, whereupon B writes A that he will take the horse if he "will fill the bill." A immediately telegraphs B, "The horse is yours," and sends the horse to B by his man. B refuses to take the horse, saying that he has bought no horse of A. What are the rights of the parties? Give reasons.

A. A has no rights against B, as there was no contract. B's reply was not an acceptance of A's offer, nor was it a counter-offer. In order to have a contract, there must be mutual assent of the parties. An offer to sell imposes no obligation, until it is accepted according to its terms. For a case covering this point, see Stagg v. Compton, 88 Ind. 171.

Q. A is an auctioneer, and B is a bidder on a certain property; the auctioneer says, "One, two, three," but before the hammer falls, B revokes his bid. The auctioneer said, "Sold to B for so much." What are the rights of the parties?

A. There was no contract, as the offer was withdrawn before acceptance. The auctioneer is the agent of the vendor, and 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 here till the bidder had retracted. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to. This principle has been firmly established since the early and leading English case of Payne v. Cave, 3 Term Rep. 148, and uniformly followed in this state.

Q. Defendant wrote to plaintiff offering to sell a horse for $200.

Plaintiff replied that he would reply in five days. As he is about to mail letter, he receives a telegram withdrawing the offer. He reads the telegram and mails the acceptance of the offer. What are the rights of the parties?

A. Plaintiff cannot recover as there was no contract, as the offer was withdrawn before its acceptance. The receipt of the telegram operated as a revocation of the offer, and, therefore, the attempted acceptance was of no avail, as there was no offer in existence at the time capable of being accepted. The revocation of an offer, to be effective, must always be communicated to the offeree. This principle is elementary and requires no citation of authorities.

Q. A in New York writes B in California making a proposition of contract. Upon receipt of the letter, B mails an answer accepting his proposition; next day B telegraphs A rejecting the offer, telegram and letter reaching A at the same time. What are the rights of the parties?

A. B is liable, as there is a contract here, which arose upon the mailing of the letter of acceptance, irrespective of the time when the letter was received. An acceptance once given cannot be withdrawn, and therefore the telegram retracting the acceptance has no effect. "Where two parties, both being present together, enter into negotiations looking to the making of a contract, the minds of both must ordinarily meet at the same time, upon the same identical terms, or no contract is made. Where the parties reside at a distance from each other, and the negotiation is conducted by written correspondence, though there must be the assent of both parties, to the same provisions, it is of course impracticable that such assent be manifested simultaneously. One must state what he is willing to agree to, and the other must, when the proposition has reached him, assent to the same terms, and in some manner manifest that assent." Selden, J., in Vassar v. Camp, 11 N. Y. 441. "It is only necessary, that there should be a concurrence of the minds of the parties upon a distinct proposition, manifested by an overt act, and the sending of a letter, announcing the consent to the proposal was a sufficient manifestation, and consummated the contract, from the

time it was sent. The sending of a letter accepting the proposition is regarded as an acceptance, because it is an overt act clearly manifesting the intention of the party sending it, to close with the offer of him to whom it is sent, and thus making that 'aggregatio mentium' which is necessary to constitute a contract." Scrugham, J., in Trevor v. Wood, 36 N. Y. 307. "The minds of the parties met, when the plaintiff complied with the usual, or even occasional practice, and left the acceptance in a place of deposit recognized as such by the defendant. The doctrine is analogous to that which has been adopted in the case of communication by letter or telegram. The principle governing these cases is, that there is a concurrence of the minds of the parties upon a distinct proposition, manifested by an overt act." Dwight, C., in Howard v. Daly, 61 N. Y. 362.

Q. A wrote B, offering to sell the latter 100 barrels of flour at $10 per barrel, and gave the latter ten days in which to accept or reject the proposition. On the third day thereafter, A sold the flour to C, and B on the fourth day, without notice, wrote A accepting the offer. B, on learning of the sale, brings suit against A. Judgment for whom and why? Suppose B had notice of the sale before accepting the offer; how would this affect your answer?

A. Judgment for B, but if he had notice of the sale, no recovery would be allowed. While in general, a revocation of an offer to be effective, must be communicated to the offeree by the offeror, yet it is held that any act of the offeror, inconsistent with the continuance of the offer, and which comes to the knowledge of the offeree, constitutes a revocation. B here accepted before the offer was withdrawn, and therefore can recover. But of course, if he obtained information of the sale to C before accepting, his acceptance would be of no effect. "It appears to me, that there is neither principle nor authority, that there must be an express and actual withdrawal of the offer, or what is called a retraction. It must, to constitute a contract, appear that the two minds were at one, at the same moment of time, that is, that there was an offer continuing up to the time of the acceptance. If there was not such a continuing offer, then the acceptance comes to nothing. Of course it may well be, that the one man is bound in some way or other to let the other