the moment the letter accepting the offer is posted: Harris' Case, Law Rep. 7 Ch. 587; Dunlop v. Higgins, I. H. L. 381, even although it never reaches its destination. When, however, these authorities are looked at, it will be seen that they are based upon the principle that the writer of the offer has expressly or impliedly assented to treat an answer to him by a letter duly posted as a sufficient acceptance and notification to himself, or, in other words, he has made the postoffice his agent to receive the acceptance and notification of it. But this principle appears to me to be inapplicable to the case of the withdrawal of an offer. In this particular case I can find no evidence of any authority in fact given by the plaintiffs to the defendants to notify a withdrawal of their offer by merely posting a letter; and there is no legal principle or decision which compels me to hold, contrary to the fact, that the letter of the 8th of October is to be treated as communicated to the plaintiff on that day or on any day before the 20th, when the letter reached them. But before that letter had reached the plaintiffs they had accepted the offer, both by telegram and by post; and they had themselves resold the tin plates at a profit. In my opinion the withdrawal by the defendants on the 8th of October of their offer of the 1st was inoperative; and a complete contract binding on both parties was entered into on the 11th of October, when the plaintiffs accepted the offer of the 1st; which they had no reason to suppose had been withdrawn. Before leaving this part of the case it may be as well to point out the extreme injustice and inconvenience which any other conclusion would produce. If the defendants' contention were to prevail no person who had received an offer by post and had accepted it would know his position until he had waited such a time as to be quite sure that the letter withdrawing the offer had not been posted before his acceptance of it. It appears to me that both legal principles and practical convenience require that a person who has accepted an offer not known to him to have been revoked, shall be in a position safely to act upon the footing that the offer and acceptance constitute a contract binding on both parties.40

In Patrick v. Bowman, 149 U. S. 411, the Court, after holding that a revocation of an offer was ineffectual if not received before acceptance,

40 Stevenson v. McLean, 5 Q. B. D. 346; Henthorn v. Fraser (1892) 2 Ch. 27; Re London & Northern Bank (1900) 1 Ch. 220; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390; Patrick v. Bowman, 149 U. S. 411, 424; The Palo Alto, 2 Ware, 343; Brauer v. Shaw, 168 Mass. 198. Acc.; Kempner v. Cohn, 47 Ark. 519; Sherwin v. Nat. Cash Register Co., 5 Col. App. 162; Wheat v. Cross, 31 Md. 99.

said (at p. 424): "There is indeed, in a case of this kind, some reason for urging that the party making the revocation should be estopped to claim that his attempted withdrawal was not binding upon himself; but this could not be done without infringing upon the inexorable rule that one party to a contract cannot be bound unless the other be also, notwithstanding that the principle of mutuality thus applied may enable a party to take advantage of the invalidity of his own act."'

Failure to accept in prescribed manner.

HYDE v. WRENCH.

IN CHANCERY, DECEMBER 8, 1840.

(Reported in 3 Beavan, 334.)

This case came on upon general demurrer to a bill for specific performance, which stated to the effect the following:

The defendant, being desirous of disposing of an estate, offered, by his agent, to sell it to the plaintiff for £1,200, which the plaintiff, his agent, declined; and on the 6th of June the defendant wrote to his agent as follows: "I have to notice the refusal of your friend to give me £1,200 for my farm; I will only make one more offer, which I shall not alter from; that is, £1,000 lodged in the bank until Michaelmas, when title shall be made clear of expenses, land tax, etc. I expect a reply by return, as I have another application." This letter was forwarded to the plaintiff's agent, who immediately called on the defendant; and, previously to accepting the offer, offered to give the defendant £950 for the purchase of the farm, but the defendant wished to have a few days to consider.

On the 11th of June the defendant wrote to the plaintiff's agent as follows: "I have written to my tenant for an answer to certain inquiries, and, the instant I receive his reply will communicate with you, and endeavor to conclude the prospective purchase of my farm. I assure you I am not treating with any other person about said purchase."

The defendant afterwards promised he would give an answer about accepting the £950 for the purchase on the 26th of June; and on the 27th he wrote to the plaintiff's agent, stating he was sorry he could not feel disposed to accept his offer for his farm at Luddenham at present.

This letter being received on the 29th of June, the plaintiff's agent on that day wrote to the defendant as follows: "I beg to acknowledge the receipt of your letter of the 27th inst., informing me that you are not disposed to accept the sum of £950 for your farm at Luddenham. This being the case, I at once agree to the terms on which you offered the farm, viz.: £1,000, through your tenant, Mr. Kent, by your letter of the 6th inst. I shall be obliged by your instructing your solicitor to communicate with me without delay, as to the title, for the reason which I mentioned to you.”

The bill stated that the defendant “returned a verbal answer to the last-mentioned letter, to the effect he would see his solicitor thereon"; and it charged that the defendant's offer for sale had not been withdrawn previous to its acceptance.

To this bill, filed by the alleged purchaser for a specific performance, the defendant filed a general demurrer.

41

Mr. Kindersley and Mr. Keene, in support of the demurrer. To constitute a valid agreement there must be a simple acceptance of the terms proposed. Holland v. Eyre. The plaintiff, instead of accepting the alleged proposal for sale for £1,000 on the 6th of June, rejected it, and made a counter proposal; this put an end to the defendant's offer, and left the proposal of the plaintiff alone under discussion; that has never been accepted, and the plaintiff could not, without the concurrence of the defendant, revive the dedefendant's original proposal.

Mr. Pemberton and Mr. Freeling, contra. So long as the offer of the defendant subsisted, it was competent to the plaintiff to accept it; the bill charges that the defendant's offer had not been withdrawn previous to its acceptance by the plaintiff; there therefore exists a valid subsisting contract. Kennedy v. Lee,12 Johnson v. King,43 were cited.

42

The MASTER OF THE ROLLS. Under the circumstances stated in this bill, I think there exists no valid binding contract between the parties for the purchase of the property. The defendant offered to sell it for £1,000, and if that had been at once unconditionally accepted, there would undoubtedly have been a perfect binding contract; instead of that, the plaintiff made an offer of his own to purchase the property for £950, and he thereby rejected the offer pre

41 2 Sim. & St. 194.

42 3 Mer, 454.

42 Bing, 270,

viously made by the defendant. We think that it was not afterwards competent for him to revive the proposal of the defendant, by tendering an acceptance of it; and that therefore there exists no obligation of any sort between the parties; the demurrer must be allowed.45

SANDERS v. POTTLITZER BROS. FRUIT CO.

144 NEW YORK, 209.-1894.

Action by Archie D. Sanders and others against Pottlitzer Bros. Fruit Company for damages for breach of a contract of sale. From a judgment of the general term affirming a judgment in favor of defendant, plaintiffs appeal.

O'BRIEN, J. The plaintiffs in this action sought to recover damages for the breach of a contract for the sale and delivery of a quantity of apples. The complaint was dismissed by the referee, and his judgment was affirmed upon appeal. The only question to be considered is whether the contract stated in the complaint, as the basis for damages, was ever in fact made, so as to become binding upon the parties. On the 28th of October, 1891, the plaintiffs submitted to the defendant the following proposition in writing:

"BUFFALO, N. Y., Oct. 28, 1891.

"Messrs. Pottlitzer Bros. Fruit Co., Lafayette, Ind.

"Gentlemen: We offer you ten car loads of apples, to be from 175 to 200 barrels per car, put up in good order, from stock inspected by your Mr. Leo Pottlitzer at Nunda and Silver Springs. The apples not to exceed one-half green fruit, balance red fruit, to be shipped as follows: First car between 1st and 15th December, 1891; second car between 15th and 30th December, 1891; and one car each ten days after January 1, 1892, until all are shipped. Dates above specified to be considered as approximate a few days either way, at the price of $2.00 per barrel, free on board cars at Silver Springs and Nunda, in refrigerator cars; this proposition to be accepted not later than the 31st inst., and you to pay us $500 upon

44 Lord Langdale.-Ed.

45 National Bank v. Hall, 101 U. S. 43, 50; Minneapolis, &c. Ry. Co. v. Columbus Rolling Mills, 119 U. S. 149; Ortman v. Weaver, 11 Fed. Rep. 358; W. & H. M. Goulding Co. v. Hammond, 54 Fed. Rep. 639 (C. C. A.); Baker v. Johnson Co., 37 Ia. 186, 189; Cartmel v. Newton, 79 Ind. 1, 8; Fox v. Turner, 1 Ill. App. 153; Egger v. Nesbitt, 122 Mo. 667; Harris v. Scott, 67 N. H. 437; Russell v. Falls Mfg. Co., 106 Wis. 329, acc.

acceptance of the proposition, to be deducted from the purchase price of apples at the rate of $100 per car on the last five cars.

"Yours respectfully,

"J. SANDERS & SON."

To this proposition the defendant replied by telegraph on October 31, as follows:

"J. Sanders & Son:

"LAFAYETTE, IND., 31st October.

"We accept your proposition on apples, provided you will change it to read car every eight days from January first, none in December; wire acceptance.

"POTTLITZER BROS. FRUIT Co."

On the same day the plaintiffs replied to this dispatch, to the effect that they could not accept the modification proposed, but must insist upon the original offer. On the same day the defendant answered the plaintiffs' telegram as follows:

"Can only accept condition as stated in last message. Only way we can accept. Answer if accepted. Mail contract, and we will then forward draft.

"POTTLITZER BROS. FRUIT Co."

The matter thus rested till November 4th, when the plaintiffs received the following letter from the defendant:

"LAFAYETTE, IND., November 2, 1891.

"J. Sanders & Son, Stafford, N. Y.

"Gents: We are in receipt of your telegrams, also your favor of the 31st ult. While we no doubt think we have offered you a fair contract on apples, still the dictator of this has learned on his return home that there are so many near-by apples coming into market that it will affect the sales of apples in December, and therefore we do not think it advisable to take the contract unless you made it read for shipment from the 1st of January. We are very sorry you cannot do this, but perhaps we will be able to take some fruit from you, as we will need it in the spring. If you can change the contract so as to read as we wired you we will accept it and forward you draft in payment on same.

"POTTLITZER BROS FRUIT Co."

On receipt of this letter the plaintiffs sent the following message to the defendant by telegraph:

"Pottlitzer Brothers Fruit Company, Lafayette, Ind.

"November 4th.

"Letter received. Will accept conditions. If satisfactory, answer, and will forward contract.

"J. SANDERS & SON."