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CHAP. V.

goods is accepted, but the answer adds a further stipulation to the effect that goods already supplied shall be paid for at the rate contained in the offer, that is a new term in the agreement, and must be shown to be accepted.(a) An immaterial addition to an acceptance of an offer Immaterial

addition to will not vitiate a contract.(6) Where a proposal by a acceptance. purchaser to take the remainder of a lease was answered by a letter which, after acceding to the proposal, added, “We hope to give you possession at half quarter-day,” it was held that the addition did not introduce a new term, but that the acceptance was unconditional.(c)

If there is a simple acceptance of an offer to purchase, Conditional accompanied by a statement that the acceptor desires acceptance. that the arrangement should be put into more formal terms, the mere reference to such a proposal will not prevent the court from enforcing the final agreement arrived at. But if the agreement is made subject to certain conditions then specified, or to be specified by the party making it, or by his solicitor, then, until those conditions are accepted, there is no final agreement such as the court will enforce. (d) Thus, where the vendors of land, in a letter acknowledging the receipt of an offer by intending purchasers, wrote as follows :“Which offer we accept, and now hand you two copies of conditions of sale," and therewith enclosed a formal agreement, with conditions of a special character, it was held that the

(a) Heyward v. Barnes, 23 L. T. 68; and see Smith v. Sarman, 9 B. & C. 561; 4 Mann. & R. 455.

(6) Gibbins v. North East Metropolitan Asylum District,

11 Beav. 1.

(c) Clive v. Beaumont, 1 De G. & S. 397.

(d) Crossly v. Maycock, L. R. 18 Eq. 180, per Jessel, M.R.

Chap. V.

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acceptance was only conditional, and that there was no final agreement of which specific performance could be enforced as against the purchasers. (a)

In Lucas v. James, (b) on a treaty for an under-lease, a memorandum of the terms of the intended agreement was prepared, stipulating that the lease should contain all usual covenants, and also the covenants in the leases of the ground landlord ; and the proposed lessee signed the memorandum accompanying his signature, with the qualification that he agreed thereto, subject to there being nothing unusual in the leases of the ground landlord. A draft of the proposed lease was afterwards submitted by the lessor's solicitors to the proposed lessee, who made some alterations and returned the draft with a request that the lessor would at once grant the lease so altered, or refuse it. The lessor's solicitors sent the draft back the same day, assenting to all the alterations except one, whereby the proposed lessee had expunged a clause in the draft restraining any assignment or demise by him without the consent of the lessor.

It was held that, upon the return of the draft lease, not acceding to all the alterations, and in the absence of any proof that the lessor was previously bound by the terms as to unusual covenants, introduced by the proposed lessee on his signing the memorandum, the contract was incomplete, and the proposed lessee was at liberty to determine the treaty. (c)

A proposal in writing, containing the terms of the proposed contract, signed by the party to be charged, and

(a) Crossley v. Maycock, L. R. (c) And see Warner v. Wil. 18 Eq. 180; see also, Stanley v. lington, 3 Drew,523; Ridgway F. Dowdeswell, L. R. 10 C. P. 102. Wharton, 6 H, L. C, 264 ; Smith (6) 7 Hare, 410.

v. Neale, 2 C. B. (N. S.) 67.

Parol acceptance of written offer.

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accepted by parol, by the party to whom it is made, is a Chap. V. sufficient memorandum, or note in writing, to satisfy the statute. (a) In Warner v. Willington,(6) Kindersley V.C. said: “I think, upon principle, that parol acceptance is sufficient; because, when one party has signed a written proposal, and the other expressly accepts it by parol, as if he says in express terms, 'I accept the proposal,' it appears that that reduces it to a case of parol agreement come to between the parties, and a memorandum of the agreement signed by one, in which case it is clear that the signature of one party is sufficient to bind him, although the other has not signed.” (C)

Where a letter contains the entire terms of an agree- Special ment, it is not necessary for the plaintiff to prove that acceptance. he accepted the terms. If it require the plaintiff to supply a term in the agreement, there must be a special acceptance in writing supplying that term, in order to take a case out of the statute.(d) When an offer in writing is made by a vendor to sell Withdrawal

of offer. on specified terms, and this is unconditionally accepted, there is binding contract, which neither party can vary; but the vendor is entitled, at any time before his offer has been definitely accepted, to withdraw or add any new terms to his proposal. If these be refused the treaty

(a) Ashcroft v. Morrin, 4 M. (c) And see Benecke v. Chad. & Gr. 451 ; Reuss v. Picksley, wick, 4 W. R. 687; Forster v. L. R. 1 Exch. 342; Watts v. Rowland, 7 H, & N. 103; 30 L. Ainsworth, 3 F. & F. 12; 1 H. J. Ex, 396; Liverpool Borough & C. 83; Smith v. Neale 2 C. Bank v. Eccles, 4 H. & N. B. (N. S.) 67; Horsfall v. Gar- 139. nett, 6 W. R. 387; Peek v. (d) Boys v. Ayerst, 6 Madd. North Staffordshire Railway Co. 316; and see Taylor v. Porting29 L. J. Q. B. 97.

ton, 7 D. M, G. 328. (6) 3 Drew. 532.

CHAP. V.

Determination of offer.

Rejection of offer.

is at an end,(a) and this, although a time is fixed for acceptance.(b)

If the person making an offer dies, becomes bankrupt, or sells before acceptance, the contract is at an end.(c)

Where an agreement has been commenced by letter, but in the course of the treaty an offer made in writing has been verbally rejected, the party who has made the offer is relieved from his liability unless he consents to renew the treaty.(d)

The party who has rejected an offer cannot afterwards, at his own option, convert the same offer into an agreement by acceptance without a renewed offer from the other party.(e)

In order that an offer to sell may be binding upon the person making it, it must be accepted within a reasonable time, and if a person communicates his acceptance of an offer within a reasonable time after the offer is made, and if within a reasonable time of the acceptance being communicated no variation has been made by either party in the terms of the offer so made and accepted, the acceptance will be taken as simultaneous with the offer, and both together constituting such an agreement as the court will execute. (f)

Acceptance must be in reasonable time.

(a) Honeyman v. Marryat, 21 J. Ch. 257; 1 Jur. (N.S.) 737. Beav. 14, 1 Jur. (N. S.) 857, 6 (d) Sheffield Canal Co.v. ShefH. L. C. 112; Chinnock v. Mar- field & Rotherham Railway Co. chioness of Ely, 4 De G. J. & S. 3 Rail. Cas. 121; Honeyman v. 647; 6 N. R. 1.

Marryat, 21 Beav. 14; 6 H. L. (b) Martin v. Mitchell, 2 Jac. C. 14. & W. 428; Routledge v. Grant, (e) Sheffield Canal Co.v. Shef. 4 Bing. 653; Lucas V. James, 7 field & Rotherham Railway Co. Hare, 410.

3 Rail. Cas, 121. (c) Meynell v. Surtees, 25 L. (1) Kennedy v. Lee, 3 Mer. Not only is it contrary to the Statute of Frauds, but CHAP. V. to the common law before the statute, to add anything to Parol evidence an agreement in writing by parol, (a) for the court cannot to add to or

not admissible draw distinctions between stipulations that are material vary memo

randum. and those that are not.(b) So parol evidence cannot be adduced by the plaintiff to show that certain stipulations or terms were come to between the parties at the time of making the contract or afterwards, and that they have been omitted from the writing.(c) Thus, where the written agreement on a contract of hiring and service provided that the servant's salary should be paid yearly, it was held that, there being this precise stipulation for yearly payments, parol evidence was not admissible to show that, at or after the time the contract was entered into in writing, it was verbally agreed between the parties that the salary should be paid quarterly, and that the fact of the payments having been made quarterly did not vary the rights of the parties under the agreement.(d) So in an action for a breach of warranty on the sale of goods upon a written contract, parol evidence is not admissible to show that the seller's agent at the time of the sale represented the goods to be of a particular quality.

455, per Lord Eldon ; Thornbury v. Bevill, 1 Y. & C. C. C. 554; Williams v. Williams, 17 Bear. 213; Powers v. Fowler, 4 E. & B. 519 (n.); Meynell v. Surtees, 25 L. J. Ch. 257; 1 Jur. (N. S.) 737.

(a) Parteriche v. Powlet, 2 Atk. 383 ; Omerod v. Hardman, 5 Ves, 722; Woollam v. Kearn, 7 Ves. 211.

(6) Marshall v. Lynn, 6 M. &

W. 116; Emmett v. Dewhirst,
21 L. J. Ch. 497; and see Benj.
on Sales, 2nd ed. 158 n. 6, as to
cases overruled.

(c) See, as to the admissibility
of evidence on behalf of a de-
fendant resisting specific per-
formance, post, chapter on
Specific Performance.

(d) Giraud v. Richmond, 2 C. B. 835.

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