66

statute, accidentally begin" do not include those involving negligence, was rested, not upon the statutes themselves, but upon a supposed decision to that effect in Filliter v. Phippard, 63 Eng. C. L. R. 346, and on examining that case, it appears that there the "fire was knowingly lighted by the defendant"; and thus such conclusion wholly rests upon an obiter dictum in that case. Nor has that dictum of Lord Denman any reasonable basis. His reasoning is that accidental may be used in contradistinction to willful or to negligent, and that considering "how great a change in the law" would result from adopting the latter sense, the former becomes the more reasonable one. But the statutes were passed to change the law (that of 14 George III added, “any law, usage or custom to the contrary notwithstanding"); and thus to construe "accidentally begin" negatived that intent, and rendered the statutes pro tanto meaningless and nullities; for it was only where there was negligence that there was any common-law liability. Besides, the same statutes recognized accidental as including negligent, by guarding against fires from negligence of servants by a penalty of £100, on the negligent servant; whilst the theory as to owners seems to have been that self-interest is a sufficient safe-guard. Vide 1 Bl. Com. 431.

But whatever the basis of Lord Denman's dictum or of the decision in Webb v. Rome, W. & O. Railroad Co., that decision forms the law under which we now are; and so severe and alarming is that law, that there is urgent need of a legislative act to the effect that no one shall be liable, except by agreement, for any loss by fire arising otherwise than by his intention or direction, or if our legislators would hold railroad companies to a severer rule, that could be specially provided for.

Liability for loss to others from fires intentionally kindled (as in brush or fallow) may well be left to depend, as now, upon their being negligently kindled or managed.

WITHDRAWAL OF OFFER TO SELL.

NO decision has given rise to so much discussion

among courts and text-writers as the well-known case of Cooke v. Oxley. It has been analyzed and commented on by Story, Kent, Duer, Metcalf, Bell, Leake, Pollock, Benjamin, and Anson. The American lawwriters are unanimous in condemning the adjudication, as one both contrary to the dictates

of justice and at variance with the acknowledged principles of law. It forms no part of our present purpose to review the strictures which have been passed upon Cooke v. Oxley by these eminent writers. Indeed Mr. Benjamin's very able and masterly defense of the decision, to say nothing of the arguments of Mr. Pollock and Mr. Leake in its support, has rendered this a supererogatory task. The opinion of Mr. Anson too is in substantial accord with the views of Mr. Benjamin, yet strangely enough, after correctly stating the legal proposition established in Cooke v. Oxley, Mr. Anson erroneously infers that the case is also an authority for the rule that when contracting parties are in immediate communication the proposer may lawfully revoke his proposal, any time before acceptance, without notifying

the other party. It is to this absurdly unjust rule, which has unfortunately met with the approval of some courts and writers, that we desire to call especial attention.

In order to guard against the possibility of misconstruing or misstating Mr. Anson's language on this point, we quote his precise words. In his admirable book on contracts (1st English edition, p. 17) he says: "As a proposal creates no legal rights, it is obvious that it may be withdrawn before acceptance; but as respects the communication of the withdrawal or revocation to the party to whom the offer is made, a distinction exists which needs to be noted, and which may be stated thus:

(a) Where the parties are in immediate communication a proposal may be revoked without notice to the person to whom it has been made.

(b) Where the parties communicate by correspondence, notice of revocation, in order to be valid, must reach the person to whom the proposal is made before he has accepted.

"This first rule (a), he continues, 'is illustrated by Cooke v. Oxley (1) and Dickinson v. Dodds (2).'" Let us briefly examine these cases and see whether they warrant such an inference.

etc.'

The facts of Cooke v. Oxley were these: Oxley offered to sell Cooke some goods at a certain price and promised to leave his offer open until 4 o'clock. Cooke notified Oxley of his acceptance of the offer before 4 o'clock and also before Oxley had sent him any notice of revocation, but Oxley, having sold the goods in the meanwhile, refused to deliver them to Cooke who thereupon brought suit. In his declaration the plaintiff averred" that he did agree to purchase the goods upon the terms of the proposal, and did give notice thereof to the defendant before the hour of four in the afternoon of that day;" he also averred "that he requested the defendant to deliver to him the said goods and offered to pay the defendant the price agreed to be paid therefor, yet the defendant did not, iff, but it was afterward arrested on motion of the de"Judgment was rendered in favor of the plaintfendant on the ground that the declaration was fatally defective. The case was argued before Lord Kenyon, C. J., Buller, J., and Grose, J., and it is submitted that there is nothing in the opinions of these learned judges to support the rule laid down by Mr. Anson. The sole question before the court was this: Did the plaintiff's averments as set forth in his declaratian constitute a breach of contract on the part of the defendant? The court thought they did not, and therefore decided that the plaintiff's declaration was bad on motion in arrest of judgment. In other words, the court held that the plaintiff could not maintain his action, even on the assumption that every statement in his narr. was true, because the facts showed that the defendant had only done what he was entitled to do, viz.: revoke his offer before it was accepted. The court was not called upon, nor did it express any opinion as to whether or not an offer can be revoked by the proposer without notice to the party to whom it is addressed. The very defect in the declaration rendered the consideration of this point unnecessary. In point of fact there was a valid contract between Cooke and Oxley; in point of fact, Oxley had violated his agreement, because although he had a perfect right to retract his offer any time prior to Cooke's acceptance, he failed to give notice of his revocation before Cooke accepted the offer. The court however was constrained to grant the motion in arrest of judgment, because Cooke failed to aver the very thing essential to the maintenance of his action, to wit: that the offer still continued unrevoked at the time he signified his ae(1) 3 T. R. 653.

(2) T. R., 2 Ch. D. 463,

ceptance of it to Oxley. Had he made this averment, the declaration would unquestionably have been held to disclose a good cause of action.(3)

Dickinson v. Dodds supports the rule laid down by Mr. Anson no better than Cooke v. Oxley. In this case the complainant applied for a decree of specific performance under the following circumstances: On Wednesday, June 10, 1874, Dodds delivered the following memorandum to Dickinson: "I hereby agree to sell to Mr. George Dickinson the whole of the dwelling-house, garden ground, etc., belonging to me, for the sum of £800. As witness my hand this tenth day of June, 1874.

"P. S.-This offer to be left over until Friday, o'clock A. M. (the twelfth) 12th June, 1874. (Signed)

J. DODDS."

This offer Dickinson accepted on Thursday, June 11th, but he did not signify his acceptance at once, believing that he could bind the proposer by acceptance any time before 9 A. M. on Friday morning. On Wednesday, June 10th (the day befere Dickinson actually determined to accept the offer), Dodds signed a formal contract for the sale of the same property to a certain Thomas Allan. On Thursday afternoon (probably after Dickinson had determined to accept the proposal, but certainly before he had communicated his acceptance to Dodds), he was informed by a Mr. Berry that Dodds had agreed to sell the property to Thomas Allan. On the following (Friday) morning, Berry, who was acting as agent for Dickinson, apprised Dodds of Dickinson's acceptance. Dodds replied that it was too late, as he had sold the property. A few moments later Dickinson himself found Dodds and handed him a duplicate notice of acceptance, but Dodds still refused to receive it.

In this case the question presented to the consider. ation of the court, was simply whether the acceptance of an offer, before the expiration of the time limited in the proposal, but after the party to whom the offer is made knows of its withdrawal, is such an acceptance as will bind the proposer. (4) The court very correctly decided that the contract was not binding on the defendant Dodds. How this case can be construed to decide that no notice of the withdrawal of an offer is essential when the contracting parties are in immediate communication, it is rather difficult to comprehend, when we remember that Dickinson actually received notice of revocation before he communicated his acceptance to Dodds. Whether Dickinson v. Dodds also decides that notice of revocation will be legally sufficient, even though the proposer himself has taken no steps to communicate it; as for example, where a stranger volunteers the information, is a point to which we shall advert hereafter.

In justice to Mr. Anson it must be said that he has (3) Cooke v. Oxley has frequently been cited in support of doctrines which it neither directly nor indirectly sanctioned, and it has as often been repudiated where it was an authority for, or at least did not conflict with, the principle sought to be established. It would be profitable study to collect all the cases which have thus either wrongly interpreted or unjustly repudiated Cooke v. Oxley. See Rail Co. v. Bartlett, 3 Cush. 224, 228; Hallock v. Commercial Insurance Co., 2 Dutcher (N. J.), 268, 282.

(4) The precise time at which the acceptance was determined on does not appear in the notes to this case, but if the determination to accept the offer preceded the notice of revocation, in point of time, the real question before the court, to be more precise, was this: Will the acceptance of an offer, actually determined on by the party to whom it is made, within the time limited in the proposal, and before he has any knowledge of its revocation, but not communicated to the proposer until after he has knowledge of the proposer's revocation, bind the latter? This however is a matter of minor importance, for it is well settled that an uncommunicated accent ee is binding on nobody.

somewhat modified his views on this subject in the second edition (5) of his work on contracts, chiefly on the authority of Byrne v. Van Tienhoven. (6) In this case the defendant at Cardiff wrote a proposal to the plaintiff at New York, directing him to reply by cable. The plaintiff received the letter on the 11th of October, and sent his reply by cable accepting the offer. On the 8th-seven days after the date of his original letter- the defendant posted a letter revoking his offer. The court (Lindley, J., delivering the opinion) was called upon to consider three questions: 1. Can an offer be withdrawn prior to acceptance? 2. Can a withdrawal of an offer have any effect before it is communicated to the party to whom the offer has been sent? 3. Is the mere posting of a letter of withdrawal a communication to the person to whom the letter is sent? The first point was very briefly disposed of, by citing with approval the case of Routledge v. Grout, 4 Bing. 653, which decides in the affirmative. Concerning the third question, the court held that a letter of revocation is not communicated until it is received by the party to whom the offer was made. With regard to the second question - the one with which we are now chiefly concerned -- Lindley, J., says: "I am aware that Pothier, and some other writers of celebrity, are of the opinion that there can be no contract if an offer is withdrawn before it is accepted, although the withdrawal is not communicated to the person to whom the offer has been made. The reason for this opinion is this: There is not, in fact, any such consent by both parties as is essential to constitute a contract between them. Against this view however it has been urged that a state of mind not notified cannot be regarded in dealings between man aud man, and that an uncommunicated revocation is for all practical purposes, and in point of law, no revocation at all. This is the view taken in the United States (see Tyler v. Merchants' Fire Insurance Co., 9 How. 390), and is adopted by Mr Benjamin. * * * This view, moreover, appears to me much more in accordance with the general principles of the English law than the view maintained by Pothier."

From this decision Mr. Anson very properly deduces the rule that the withdrawal of an offer has no effect unless it is communicated to the party to whom it was made; (7) but in another place (8) he still contends (contrary to what we have above endeavored to show) that Cooke v. Oxley and Dickinson v. Dodds conflict with this rule. "It must be admitted," he says, "that the language (9) of James, L. J. (in Dickinson v. Dodds), is in direct antogonism to the rule laid down by Lindley, J., in Byrne v. Van Tienhoven, and unless the cases can be distinguished, this decision of three lord justices of appeal must throw doubt on the ruling of a single judge in a Divisional Court. Three grounds of distinction may be suggested,

"(1) We may regard the knowledge of the acceptor as a good notice of revocation, and say with Mr. Pollock that the case decides that knowledge in point of fact of the proposer's changed intention, however it reaches the other party, will make the proposer's conduct a sufficient revocation.' But this is dangerous ground. In Dickinson v. Dodds the matter of the contract was the sale of specific land, and the plaint(5) Second English ed., pp. 29-34. (6) 5 C. P. D. 344.

(7) Anson on Contracts (2d Eng. ed.), p. 29. (8) Idem, p. 30.

(9) The language referred to is as follows: "I apprehend that there is neither principle nor authority for the proposition that there must be an actual and express withdrawal of the offer, or what is called a retractation. It must to constitute a contract appear that the two minds were one at the same moment of time, that is, that there was an offer continuing up to the moment of acceptance. If there was not such a continuing offer, then the acceptance comes to nothing."

iff knew that the property had been passed to another and that the defendant had no longer the power to fulfill his offer. But would the same rule apply in the case of an offer of personal services and the notice from a stranger that the offerer had made an inconsistent engagement? Or would it apply if before the plaintiff in Byrne v. Van Tienhoven had telegraphed his acceptance, a stranger had telegraphed to him that a letter of revocation was on its way? The conduct of business would surely be impeded by such a rule, for the acceptor would not know whom to believe, or how far he could venture to act on a contract which he might otherwise have concluded by acceptance. Besides, the distinction is not enough to meet the very explicit language of James, L. J. See p. 246, note 9.

"(2) The distinction may be found in the fact that in both the cases just cited the matter of the contract was the sale of a specific thing; and it may be that a sale to another, by which the property is passed to him, is a sufficiently overt act to amount to notice of revocation. * * *

"(3) Some part of the language of James, L. J.,would almost warrant the view that where parties are in direct communication, and are not dealing with one another by correspondence, the theory of the 'continuing offer' does not hold. But in business there must be many offers which do not contemplate, perhaps do not admit of, an immediate reply; in these cases a reasonable time is allowed during which the offer is open or "continuing," and a mere mental revocation would not avail against an acceptance made within a reasonable or a prescribed time."

-

It is submitted that Mr. Anson's first suggestion, when properly qualified, is the only rational ground of distinction possible. We say, "when properly qualified," because the language of the Lord Justices in Dickinson v. Dodds hardly warrants the inference that "knowledge in point of fact of the proposer's changed intention, however it reaches the other party, will make the proposer's conduct a sufficient revocation," if this is interpreted to mean- - which is evidently the construction put upon it by Mr. Anson that notice of revocation gratuitously given by a stranger to the contract is as good and effective in law as if the proposer had actually given the notice himself either in person or through an authorized agent. Had the court sought to establish any such absurdly unreasonable rule, there would unquestionably be much force in the objection which Mr. Anson urges against the acceptance of the distinction first above suggested, as a possible mode of reconciling Dickinson v. Dodds with Byrne v. Van Tienhoven. Such however is not the case. It is true that the complainant, in Dickinson v. Dodds, was notified of Dodds' revocation by a stranger to the contract, who volunteered the information; but the ground on which the court held Dickinson's acceptance not to be binding on the defendant was that the former admitted and expressly stated in his bill of complaint that he (Dickinson) knew of the revocation before he communicated his acceptance to Dodds. Whether the notice was authorized or not, Dickinson accepted it as true and acted on it without even so much as complaining to the court of its insufficiency. Was it for the court to say to the complainant: "Mr. Dickinson, although you actually knew of the revocation of Mr. Dodds' offer before you accepted it and expressly state so in your bill, yet you cannot be considered as having any such knowledge in law, because you were not bound to put faith in or be guided by the unauthorized statements of a stranger to the contract." To be sure, Dickinson was not obliged to accept the volunteered statements of a third party, or indeed any vague rumors at all, in lieu of the proper notice of revocation from the pro

poser, but if he chose to do so, he did so at his peril. (10) Had he properly averred in his bill that at the time of his acceptance he had received no notice whatever of the revocation of the defendant's offer, save what information he might have gathered from unauthorized statements of an entire stranger to the contract, in which he did not and was not bound to put any faith, the court might have rendered a quite different decision. But as already stated, Dickinson does not deny that he knew of the revocation before acceptance, nor does he in any way complain of the sufficiency of the notice. That this was the point on which the decision turned is very apparent from the remarks of Lord Justice James, who, in delivering his opinion, says: "It is said that the only mode which Dodds could assert that freedom [i. e., the right to revoke his offer] was by actually and distinctly saying to Dickinson, Now I withdraw my offer.' It appears to me that there is neither principle nor authority for the proposition that there must be an express and actual withdrawal of the offer or what is called a retractation. * * *Of course it may well be that the one man is bound in some way or other to let the other man know that his mind with regard to the offer has been changed; but in this case, beyond all question the plaintiff knew that Dodds was no longer minded to sell the property to him as plainly and clearly as if Dodds had told him in so many words, 'I withdraw the offer.' This is evident from the plaintiff's own statements in his bill. The plaintiff says, in effect, that having heard and knowing that Dodds was no longer minded to sell to him, and that he was selling or had sold to some one else, thinking that he could not in point of law withdraw his offer, meaning to fix him to it, and endeavoring to bind him, I went to the house where he was lodging, and saw his mother-in-law and left with her an acceptance of the offer, knowing all the while that he had entirely changed his mind.'' A careful perusal of this opinion will make it clear that the rule regarding the sufficiency of notice of revocation as apparently deducible from this decision must be strictly confined in its application to cases, the surrounding circumstances of which correspond exactly with the facts of Dickinson v. Dodds. The opinion is therefore hazarded, that as a general proposition, no withdrawal of an offer will be legally sufficient unless the proposer sends the other party an authorized notice of his revocation prior to acceptance.

In giving our reasons for holding the first distinction, when properly qualified, to be the only rational mode of reconciling Dickinson v. Dodds with Byrne v. Van Tienhoven, we naturally anticipated many objections to which the second and third distinctions are open, and therefore shall not stop to discuss them in detail. Before leaving this part of our subject however, it is necessary to say a few words on the conclusions at which Mr. Anson arrives. Immediately following the three grounds of distinction above laid down, he says: "Perhaps the cases may be reconciled by a combination of the last two distinctions, and it may be that where parties are in direct communication, an offer to sell a specific thing on certain terms may be revoked by selling the thing and passing the property in it to a third person, without notice to the party to whom the offer has been made. There can be no doubt that Mellish, L. J., attached considerable importance to the fact that the property had passed to a third party before the offer of sale was accepted, for he compares the effect of such a transfer of the subjectmatter of the contract to the case of a man making an offer and dying before it is accepted. In such a case no notice is needed to determine the offer." It is perfectly true that Mellish, L. J., does compare the

(10) This is but an application of the well-established rule that rights may be waived.

case to that of a man dying before the acceptance of an offer which he has made to another, but he did not say that the mere selling of the property was the point which justified the comparison; it was the complainant's knowledge that the property was sold before he had communicated his acceptance which warranted the institution of such a comparison. This becomes at once obvious when we read the remarks of Mellish, L. J., which immediately follow the comparison referred to. He says: "I am clearly of the opinion that just as when a man who has made an offer dies before it is accepted it is impossible that it can then be accepted, so when once the person to whom the offer was made knows that the property has been sold to some one else it is too late for him to accept the offer, and on that ground I am clearly of the opinion that there was no binding contract for the sale of this property by Dodds to Dickinson."

On

The views herein expressed concerning Cooke v. Oxley are fully confirmed by the recent English decision of Stevenson, Jacques & Co. v. Mc Lean, (12) in which Cooke v. Oxley is judicially construed. The facts of this case, which was decided after the publication of the second edition of Anson's work on Contracts, are as follows: The plaintiffs were iron merchauts at Middleborough and the defendant, who did business in London, wrote to the plaintiffs on September 24, requesting them to sell for him some warrants for iron. On the 26th of September the plaintiffs wrote to the defendant informing him of the excited state of the iron market and recommending the defendant to inform the plaintiffs by letter, the price at which he would sell the warrants. After the receipt of this letter defendant wrote the following to the plaintiffs: "I instructed the clerk of Mr. Fossick (my broker) to telegraph you that I will now sell for 40 shillings, net cash, and leave the offer open all Monday." This telegram the clerk failed to send. On the same day Fossick, the defendant's broker, wrote himself to the plaintiffs stating that the defendant was not inclined to make a firm offer. On the 28th (Sunday), the plaintiffs were thus in receipt of these two letters; one from the defendant, the other from Fossick. Monday, 29th, the plaintiffs sent the following dispatch to the defendant: "Please wire whether you would accept 40 for delivery over two months; or if not, longest limit you would give." The defendant made no reply to this telegram, but after its receipt he sold the warrants through Fossick, his broker, for 40 shillings net cash, and telegraphed at 1:25 A. M. to the plaintiffs as follows: "Have sold all my warrants here for forty net, to-day." This telegram the plaintiffs received shortly after 1:46 A. M. At 1:34 however, and before the arrival of the defendant's telegram, the plaintiffs telegraphed to the defendant, "Have received your price * * write you fully by post." The defendant however, having already sold the warrants to some one else, refused to be bound by the plaintiff's sale to a certain Walker, whereupon the plaintiffs instituted suit. In delivering the opinion of the court in this case, Lush, J., after holding that the first telegram sent by the plaintiffs to the defendant was not a rejection of the defendant's offer and a new proposal on their part, but only an inquiry, says: "The other objection raised by the defendant was one founded on a well-known passage in Pothier, which was supposed to have been sanctioned by the Court of Queen's Bench in Cooke v. Oxley, that in order to constitute a contract there must be the assent or concurrence of the two minds at the moment when the offer is accepted; and if when the offer is made, and time is given to the other party to determine whether he will accept or reject it, the proposer changes his (11) Anson on Contracts (2d Eng. ed.), p. 33. (12) 20 American Law Reg. (N. S.), p. 16.

mind before the time arrives, although no notice of withdrawal has been given to the other party, the option of accepting is gone. The case of Cooke v. Orley does not appear to me to warrant the inference which has been drawn from it, or the supposition that the judges ever intended to lay down such a doctrine. * ** All that the judgment in that case affirms is, that a party who gives time to another to accept or reject a proposal is not bound to wait until the time expires. And this is perfectly consistent with legal principles and with subsepuent authorities which have been supposed to conflict with Cooke v. Oxley. It is clear that a unilateral promise is not binding and that if the person who revokes an offer revokes it before it has been accepted, which he is at liberty to do, the negotiation is at an end; see Routledge v. Grant, 4 Bing. 653. But in the absence of an intermediate revocation, a party who makes a proposal by letter to another is considered as repeating the offer every instant of time till the letter has reached its destination and the correspondent has had a reasonable time to answer it. Adams v. Lindsell, 1 B. & Ald. 681. "Common sense" tells us, said Lord Cottenham in Dunlop v. Higgins, 1 H. L. C. 381, "that transactions cannot go on without such a rule. It cannot make any difference whether the negotiation is carried on by post or by telegraph or by oral message. If the offer is not retracted, it is iu force as a continuing offer till the time for accepting it has arrived. But if it is retracted, there is an end to the proposal. Cooke v. Oxley, if decided the other way, would have negatived the right of the proposer to revoke his offer." The court finally decided that the plaintiff's acceptance of the defendant's offer made a complete and binding contract.

This clear statement of the law by Lush, J., renders further comment on the supposed incongruity between Cooke v. Oxley and the later cases superfluous. In conclusion we will briefly recapitulate the doctrines laid down in the four cases referred to in this article, as the most satisfactory mode of demonstrating that all of them are perfectly consistent with each other. (1.) Cooke v. Oxley decides:

That a promise to keep an offer open until the expiration of a certain time, unsupported by a valid consideration, does not deprive the proposer of the right to revoke the offer any time before acceptance.

(2) Dickinson v. Dodds decides:

That a party cannot accept an offer after he has actual knowledge of its revocation, even though he accepts within the time limited by the proposal. (3) Byrne v. Van Tienhoven decides:

(a) That a withdrawal of an offer has no effect until it is communicated to the party to whom it has been sent. (b) That a letter of withdrawal is not communicated, in this sense, until it is received by the party to whom it is sent.

(4) Stevenson, Jacques & Co. v. Mc Lean decides: (a) That the acceptance of an offer, before notice of revocation, binds the proposer. (b) That the revocation will be of no effect unless communicated to the other party, and it makes no difference in this respect "whether the negotiation is carried on by post, telegraph, or by oral message."

The rule therefore is well settled now in England that an offer cannot be retracted without notice to the other party. The only problem which remains yet to be solved is, what will constitute a sufficient notice of withdrawal in law? As we have already pointed out, Dickinson v. Dodds decides what sort of notice would be sufficient under certain peculiar circumstances, but it lays down no general rule.

SYLVAN DREY.

[As to contract by letter, see note, 32 Am. Rep. 40. ED. ALB. LAW JOUR.]

OBLIGOR'S NAME NOT IN BODY OF BOND.

OHIO SUPREME COURT, JANUARY TERM, 1882.

PARTRIDGE V. JONES.*

To charge one as obligor, who has signed a bond or written undertaking, it is not necessary that his name should appear in the body of such instrument, provided the intention that he shall be so charged appears clearly from its terms, taken in connection with the circumstances attending its execution.

ACTION upon an undertaking brought by Edward

L. Jones against David H. Ralston, George W. Ralston, and Mary Partridge, administratrix of Ebenezer Partridge, deceased. The obligatory part of the undertaking read thus:

"Know all men by these presents: That David H. Ralston, and George W. Ralston are held and firmly bound unto Edward L. Jones in the penal sum of $2,600, to the payment of which, well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, excutors, and administrators." The undertaking was signed by the Ralstons, and also by Ebenezer Partridge, whose name was not mentioned therein. Judgment below was for plaintiff Jones. Charles H. Kibler and J. R. Davies, for plaintiff in

error.

Gibson Atherton, for defendant in error.

LONGWORTH, J. Although differing somewhat in form from the undertaking whose sufficiency was questioned in McLain v. Simington, 37 Ohio St. 484, we think the principle of that decision establishes the character of the undertaking now before us. It is enough in any written contract that the intent of the party clearly appear, though it be not fully and particularly expressed. In Kursely v. Shenberger, 5 Watts, 193, it was said: "If ever there was a time when courts listened to trivial and verbal inaccuracies in contracts when the real meaning and intention of the parties was plain, that time has gone by, and and the only object of the court is, that when the meaning and intention of the parties are perfectly plain, no grammatical inaccuracy, or want of the most appropriate words, shall render the instrument unavailing."

In Ahrend v. Ordione, 125 Mass. 50, it was held that when one signs a bond, as a party thereto, it is immaterial that he is not named in the bond.

*

"A bond was, 'I, William Bush, am held, etc. ** to which judgment, etc., * **I do bind myself, my heirs, etc., and every of them * *Sealed with my seal, etc.,' with condition the said William Bush' should account for money received as collector of school taxes, etc. The bond was signed and sealed by Bush and four others. Held, that it was the joint and several bond of all." Leath v. Bush, 61 Penn. St. 395. See also Shud v. Leibshultz, 51 Ind. 38.

It would be a waste of space to attempt to review the cases upon this subject. Their current is uniform. Those instances in which it has been held that the signer was not bound, will be found to be cases in which the language of the instrument was such as was thought to exclude the idea of liability, as where a bond recites that: "We, A. and B. are held," etc., and is executed by A., B. and C. Here the pronoun "we" is declared to refer to A. and B., and there are said to be no words to indicate any intention that C. shall be bound. Such intention must be gathered from the whole instrument, taken in connection with the circumstances of its execution, and cannot be supplied by parol.

The language of Brinkerhoff, J., in Stevens v. Allmen, 19 Ohio St. 485, indicating a contrary rule, has already * Appearing in 38 Ohio State Reports.

been commented upon, and disapproved in McLain v. Simington, supra.

Judgment affirmed.

NOTE. See as bearing upon the question above passed upon Adams v. Hedgepath, 5 Jones (N. C.), 327; Tiernan v. Fennimore, 17 Ohio, 546; Kelty v. State, 25 Ohio St. 546; Parks v. Brinkerhoff. 2 Hill, 663; Ex parte Fulton, 7 Cow. 484; Decker v. Judson, 16 N. Y. 439; Smith v. Crooker, 5 Mass. 538; Danker v. Atwood, 119 id. 146; Potter v. State, 23 Ind. 552; 4 Haywood, 239; Stone v. Wilson, 4 McCord, 203; Martin v. Dorch, 1 Stew. (Ala.) 479; Campbell v. Campbell, Brayt. (Vt.) 38; Joyner v. Cooper, 2 Bailey, S. C., 199; Bartley v. Yates, 2 Hen. & M. (Va.) 398; Beale v. Wilson, 4 Munf. (Va.) 380; Blakey v. Blakey, id. 463.

MARRIAGE BY COHABITATION.

NEW YORK COURT OF APPEALS, MARCH 6, 1883.

HYNES V. MCDERMOTT.*

H., a native born citizen of the United States, went to England in the spring of 1871, and there, prior to May, 1871, commenced an illicit intercourse with a woman, an English subject. In May, 1871, he gave her a ring saying that if she would wear the ring and be true to him he would consider her his wife as much as if they had been married in church, and she accepted the ring on these conditions, and from that time until his death he openly lived and cohabited with her, in England, in the apparent relation of husband and wife, until his death in 1874, introducing her in society as his wife, and having children by her. In June, 1871, he took her temporarily to Paris, and there introduced her as his wife, and there cohabited with her. On the foregoing facts, in the absence of proof of a marriage in England according to the local law, and of the marriage law of France, held (1) that the illicit origin of the intercourse in England rebutted the presumption of marriage which would otherwise have arisen from the cohabitation and its circumstances; but (2) that the jury were warranted in finding that there was the requisite consent in Paris to establish a valid marriage according to New York law, and that the children of such marriage were entitled to inherit their father's real estate in this State. CTION of ejectment.

A

case.

The opinion states the

Wm. H. Secor and Joseph H. Choate, for plaintiffs, respondents.

Mr. Drake, for defendant.

ANDREWS, J. The adult plaintiff, Mary Eliza Hynes is the alleged widow of William Rose Hynes, who died in London, England, June 27, 1874. The infant plaintiffs William Rose Hynes, and Andrew Hynes, are the children of William Rose Hynes, Sr., by her, and were born in London, the one December 18, 1871, and the other May 10, 1873. The father of the infant plaintiffs died intestate, seised of the premises in controversy, and the right of the plaintiffs to recover depends upon the question of the marriage of their mother with their father, William Rose Hynes. issue was found by the jury in favor of the plaintiffs. There was no proof of a formal ceremonial marriage between the parties, and the sole question upon the merits on the appeal is whether, upon the whole facts appearing in the record, the jury were authorized to find that a marriage between the parents of the infant plaintiffs was consummated prior to their birth.

This

William R. Hynes, the father, was a native born citizen of the United States, and prior to 1871 was a bachelor residing in the city of New York. He had retired from active business. He possessed quite a large property in this country, mainly real estate. He *See S. C. on former appeal, 82 N. Y. 41; S. C., 37 Am. Rep. 538.