།

whichever side it is made, must conform exactly - so far as its substance is concerned — with the proposal, or there is no assent

acceptor before his acceptance. This might seem to be a contravention of the rule, that the contract is complete only when the minds of both parties agree on the same thing. But that rule has necessary qualifications. If a party made an offer by mail, no one would suppose that offer revoked by a mere change of will on the part of the offerer, however certainly made known to others, in conversation or otherwise, if not made known to him to whom the offer was made. If the rule were carried so far as this, it would be difficult to know when any contract was made. The rule must mean, therefore, that the law presumes that A's mind remains what it was, as long as B, by A's act, has the right to presume that it so remains. And, therefore, we should say that a revocation did not operate when mailed, just as it would not operate when communicated to friends; but that it did operate when known to the acceptor, unless he had then completed the bargain by his assent; and that he did this by mailing his assent. It seems to us that this rule of law is required by a practical necessity. We have said that this is an open question, and it will be found to be so upon a careful examination of the authorities. In order to present the exact existing state of the law, we shall be obliged to make a more extended review of the decisions than we should, were the question not one of so much importance and yet undetermined.

The case of M'Culloch v. Eagle Ins. Co., 1 Pick. 281, has been much commented on in the cases, and by text-writers. The facts of the case are very simple. A wrote to B inquiring on what terms he would insure his vessel. On the first of January B wrote that he would insure it at a certain rate. On the second, B wrote another letter retracting. A, before he received the last letter, but after it was mailed, wrote and put into the post-office an answer to B's first letter, accepting the terms proposed. The court held, that the proposal was revoked and the contract was not complete. This case is generally cited as being utterly inconsistent with Adams v. Lindsell, 1 B. & Ald. 681; but the facts of the two cases are not the same. In Adams v. Lindsell an offer to sell certain goods was made on the second of the month. The letter accepting was mailed on the fifth and received on the ninth. On the eighth the offer was revoked by the sale of the goods to another party. It will be seen, therefore, that in this case the retraction of the offer was subsequent in point of time to the mailing of the letter of acceptance, while in M'Culloch v. Eagle Ins. Co. it was prior. In Adams v. Lindsell the court said: "The defendants 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 is complete by the acceptance of it by the latter." This has been supposed to imply that after a person has accepted an offer by mailing a letter to that effect, he is obliged to remain of the same mind unless notice of his change of intention can be brought to the knowledge of the party making the offer before the first letter of acceptance is received. That the court did not necessarily mean this is evident from an examination of the facts of the case. It had been argued on the authority of Cooke v. Oxley, 3 T. R. 653, that the contract was not complete till notice of the acceptance arrived, because as the meeting of the minds of the parties constitutes the essence of the contract, the person offering should be proved to be of the same mind. But the court said that the law presumed that a person making an offer, or accepting one, continued of the same mind until his letter (or other information of the change in his mind) reached the other party. If the remark meant more than this, it has not been followed either in England or in this country. See cases cited ante, p. 22, n. 3. Having seen, then, that the two cases are quite distinct, let us examine how far they are incon

and no contract. For it is a universal principle, that there is no valid contract unless the minds of the parties meet; that is, agree together about the same thing, in the same sense.1

sistent with each other. The case of M'Culloch v. Eagle Ins. Co. may be considered as deciding, 1st, that a letter accepting does not bind the party accepting, till it is received by the party making the offer, and that until that time the party offering has a right to retract his offer; and, 2d, that if the letter accepting takes effect not from its reception, but from the time it was mailed, the letter of retraction must take effect from the same point of time, namely, when it was mailed and not when it was received. Though the first proposition was the one chiefly relied on by the court, yet the second was also considered. The counsel for the plaintiff contended that the putting the letter of the third into the post-office was a delivery to the defendant. "If so," said Mr. Justice Wilde, interrupting him, "why was not the putting of the defendant's letter of the second into the post-office a delivery to the plaintiff." The first proposition must now be considered as contrary to the general current of authorities, and it is settled that offers are to be considered as made and accepted at the time the letters containing them are respectively mailed. Mactier v. Frith, 6 Wend. 103; Adams v. Lindsell, supra; Potter v. Sanders, 6 Hare, 1; Dunlop v. Higgins, 1 H. L. Cas. 381; Duncan v. Topham, 8 C. B. 225; Kufh v. Weston, 3 Esp. 54; Stocken v. Collin, 7 M. & W. 515; Tayloe v. Merchants' Ins. Co., 9 How. 390; Averill v. Hedge, 12 Conn. 424; Vassar v. Camp, 14 Barb. 341; Brisban v. Boyd, 4 Paige Ch. 17; Levy v. Cohen, 4 Ga. 1, 13; Chiles v. Nelson, 7 Dana, 281. And in Thayer v. Middlesex Mut. F. Ins. Co., 10 Pick. 326, Shaw, C. J., said: "It may well be conceded, that where 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 sending it, may be good notice."

It has also been decided that after the letter has been mailed the sender is not responsible for any fault or negligence on the part of the post-office. Dunlop v. Higgins, supra; Duncan v. Topham, supra; Stocken v. Collin, 7 M. & W. 515.

In Tayloe v. Merchants' Fire Ins. Co., 9 How. 390, 400, it is said by Mr. Justice Nelson, that an offer cannot be withdrawn unless the withdrawal reaches the party to whom it is addressed before his letter of reply announcing the acceptance has been transmitted. If this doctrine is correct, then M'Culloch v. Eagle Ins. Co. was wrongly decided. But it must be admitted that this expression of opinion is, to some extent, a dictum. This appears by a reference to the facts of the case. The letter proposing the terms of insurance was sent on the second of December, the reply accepting was dated and sent on the twenty-first, and the house was burned on the twenty-second. There was no pretence that the offer was not in full force on the twenty-first. The ground of defence

1 Routledge v. Grant, 3 Car. & P. 267, 4 Bing. 653; Ocean Ins. Co. v. Carrington, 3 Conn. 357; Eliason v. Henshaw, 4 Wheat. 225; Hutchison v. Bowker, 5 M. & W. 535. In the late case of Myers v. Keystone Mut. Life Ins. Co., 27 Penn. State, 268, the party was already insured, but wished to effect another insurance with the same company on the same subject-matter on different terms. He agreed with the agents of the company on the terms, subject to the ratification by the company. A policy differing from what was agreed on was sent him with the request that he would return the first, and pay the balance due, if he wished to accept the second policy, or else to return the second. He retained the second, but did not return the first or pay the balance. Held, that this was not evidence of his acceptance of the terms proposed.

Where a policy is made absolutely void by a breach of any of its conditions, it is not revived by a mere waiver. But generally,

was, that as the letter was not received till the thirty-first, the contract was not complete till then. The head note in the case of Hamilton v. Lycoming M. Ins. Co., 5 Barr, 339, is to the same effect as the remarks in Tayloe v. Merchants' Ins. Co. above cited, and "per Gibson, C. J.," is attached to it. And, although Gibson, J., does not use the very words of the head note, we think it fairly expresses his opinion, as that may be gathered from the decision; but this opinion must be regarded as obiter, the precise question not arising in the case.

It has been recently settled in Massachusetts that where the party making the offer gives a certain time to the other party in which to accept, he has a right to retract his offer within the time, provided he does so before the other accepts. Boston & Maine Railroad v. Bartlett, 3 Cush. 224. And in Eliason v. Henshaw, 4 Wheat. 225, the court said: "It is an undeniable principle of the law of contracts that an offer of a bargain by one person to another imposes no obligation upon the former, until it is accepted by the latter according to the terms in which the offer was made." Now, if no obligation is imposed it would seem to follow that the party making the offer has the right to retract it at any time before the letter of acceptance is mailed. And this is not disputed, but it is contended that the retraction must reach the other party before the letter of acceptance is mailed. This proposition may be, however, open to the objection that it makes the letter of retraction date from the time when it is received, while the others date from the time when they are sent; and that if this be the law a party has a right to retract, but not the power to make that retraction immediately effectual. But we think it a sufficient answer to this objection, that while the party has a perfect right to change his mind when he will, he has no right to change the rights of the other party, except by an expression of his change of mind. If the offer be made by conversation, whatever be the change of mind, if it be silent it is ineffectual, nor has it any legal force until that change of mind is expressed and there be an uttered withdrawal. And if the bargain be made by letter, the reception of the letter by the person to whom it is sent, is the best and indeed only equivalent of the expressed retraction by words spoken and heard. There is certainly much want of unanimity not

1 Smith v. Saratoga County Mut. Fire Ins. Co., 3 Hill, 508, 511, per Bronson, J. See also, Neely v. Onondaga Co. Mut. Ins. Co., 7 Hill, 49. A forfeiture, however, arising from a deviation may be waived by writing. See post, ch. 8, § 6. In Frost v. Saratoga Mut. Ins. Co., 5 Denio, 154, the assured, in his application for insurance against a fire risk, which was made a part of the policy, had untruly stated that there were no buildings withing ten rods of the buildings insured. The insurers, with a knowledge of the loss and of the inaccuracy of the statement, afterwards made assessments on the premium note given by the assured, which he had paid. Held, that the insurers were estopped by these facts from setting up the warranty, and were liable for the loss. But see Smith v. Saratoga Co. Mut. Ins. Co., 3 Hill, 508; Neely v. Onondaga County Mut. Ins. Co., 7 Hill, 49; Murdock v. Chenango Co. Mut. Ins. Co., 2 Comst. 210 Whether a mere parol waiver would be sufficient depends, we think, upon the further question whether the policy provides that it shall be in writing, for generally a parol waiver would be sufficient. See Goit v. National Protection Ins. Co., 25 Barb. 189; Hale v. Mechanics' Mut. F. Ins. Co., 6 Gray, 169. In Cockerill v. Cincinnati Mut. Ins. Co., 16 Ohio, 149, it was held that a verbal waiver without further consideration was not binding.

if certain things were to be done before the contract would be complete, the issuing of the policy would be a waiver of their performance.1

only as to the rule of law, but as to the meaning and effect of the cases. In Falls v. Gaither, 9 Porter, 605, the following case is put by the court: "Suppose A offers to sell B a slave, B accepts the offer by addressing a letter to A, assenting to his terms; if the latter did not, previous to the date of B's letter, recall the offer, he is bound by the contract, but if he withdrew it by a letter sent to B before B's letter was written, the acceptance of the letter would be unavailing for any legal purpose, and this too though the letter of withdrawal was not received." The court reviewed the two cases of M'Culloch v. Eagle Ins. Co., and Adams v. Lindsell, and gave the preference to the latter, and it may, therefore, be inferred that they could not have understood the language used by the English court in the broad extent claimed by the text-writers. Mr. Justice Marcy, in Mactier v. Frith, said: "The principle of the decision of the King's Bench is simply, that the acceptance of an offer, made through the medium of a letter, binds the bargain, if the party making the offer has not revoked it, as he has a right to do before it is accepted. The rule laid down by the Supreme Court of Massachusetts regards the contract as incomplete until the party making the offer is notified of the acceptance, or until the time when he should have received it, the party accepting having done what was incumbent on him to give notice." By the civil law there is no contract if the letter of retraction is written and sent before the letter of acceptance is sent. Pothier, Contrat de Vente, p. 1, § 2, art. 3, n. 32, Cushing's Translation, p. 18, says: "In order that the consent of the parties may take place in the last-mentioned case, it is necessary that the will of the party, who makes a proposition in writing, should continue until his letter reaches the other party, and until the other party declares his acceptance of the proposition. This will is presumed to continue, if nothing appears to the contrary, but if I write a letter to a merchant living at a distance, and therein propose to him to sell me a certain quantity of merchandise, for a certain price; and before my letter has time to reach him, I write a second, informing him that I no longer wish to make the bargain; or if I die; or lose the use of my reason; although the merchant, on the receipt of my letter, being in ignorance of my change of will, or of my death, or insanity, makes answer that he accepts the proposed bargain; yet there will be no contract of sale between us; for as my will does not continue until his receipt of my letter, and his acceptance of the proposition contained in it, there is not that consent or concurrence of our wills, which is necessary to constitute the contract of sale. This is the opinion of Bartholus, and the other jurists cited by Bruneman, ad. I. 1, § 2, D. de contrah. empt. (18, I. 1, § 2), who very properly rejects the contrary opinion of the Gloss, ad dictam legem." He then goes on to say, that if the merchant suffer any wrong through the refusal, he has his right of action, though there be no contract. Toullier, also, vol. 6, No. 30, puts this case: "Offer made January 1st, acceptance January 5th. The letter of the 5th arrives on the 8th, but on the 7th, the acceptance being unknown, I revoke. Held, no contract." Mr. Justice Ware, in the case of The Palo Alto, Daveis, 357, held, that an offer until received, is but a proposition in mente retentum, and that the revocation must date,

1 Hall v. Peoples' Mut. F. Ins. Co., 6 Gray, 185. It was held, in this case, that the issuing of a policy upon an application for insurance, one interrogatory in which was unanswered, was a waiver of that defect.

SECTION II.

OF THE FORM AND ESSENTIALS OF A POLICY OF INSURANCE.

The policy varies in different States, and from time to time in all our States; but the general form and phraseology of the old English policy is usually, or indeed always, retained; and it might subject all parties to much inconvenience, if forms and phrases were abandoned of which the precise meaning has been at length settled, by long and expensive litigation.1

The policy is subscribed only by the insurers; but it is a binding contract, or evidence of one, on both sides; and as soon

therefore, from the same time, that is, when it was received. Mr. Justice Duer, in an elaborate note in his Treatise on Insurance, vol. 1, p. 116, supports with great ability the doctrine that the party accepting must have notice of the retraction before the letter of acceptance is mailed. And this learned jurist founds this opinion upon his construction of Adams v. Lindsell. And he considers the case of Head v. Diggon, 3 Man. & R. 97 (if it was decided on the facts of the case), to be inconsistent with his views of the law. In this case A offered goods to B at a certain price, and gave him three days in which to make up his mind. Before the time expired A offered the goods to C. Held, that B could not declare against A as upon an absolute bargain. Although the case may have gone off on a question of pleading, still it is so similar to Boston & Maine Railroad v. Bartlett, supra, that Mr. Duer may, therefore, perhaps, be supposed as differing from that case. At all events we consider Boston & Maine Railroad v. Bartlett, as unquestionable law.

1 For observations upon the loose and inaccurate manner in which policies are drawn, see Simond v. Boydell, 1 Doug. 270, per Lord Mansfield, C. J.; Marsden v. Reid, 3 East, 572, 578, per Lawrence, J.; Le Cheminant v. Pearson, 4 Taunt. 367, 380, per Mansfield, C. J.; Brough v. Whitmore, 4 T. R. 206, 210, per Buller, J. "I remember," said Lord Kenyon, C. J., in Brough v. Whitmore, "it was said, many years ago, that if Lombard street had not given a construction to policies of insurance, a declaration on a policy would have been bad on a general demurrer; but that the uniform practice of merchants and underwriters had rendered them intelligible." See also, Yeaton v. Fry, 5 Cranch, 335, 342; Maryland Ins. Co. v. Woods, 6 Cranch, 29, 45, per Marshall, C. J. Lord Eldon, in Smith v. Robertson, 2 Dow, 474, speaking of the contract of insurance, remarked: "It might, perhaps, be found when the matter came to be examined with the proper degree of impartiality that there was full as much uncertainty on this subject as in any other branch of the law." And notwithstanding the time that has elapsed since this opinion was pronounced, there seems to be quite as much uncertainty at the present day. For, although many old questions have been settled, yet new ones are constantly arising, and the courts are sometimes inclined to question the decisions of the old. In New York, distinct forms of policies are used for the different subjects of insurance, as ship, freight, and profits. 1 Duer, Ins. 63.