in discourse; a mere overture or offer to enter into an agreement not definitively and expressly assented to by both parties. Thus:-" If there be a communication between the father of A., and B., respecting a marriage between A. and the daughter of B., and B, then affirms and declares to the father of A., that he will give to him who marries his daughter with his consent, £100, and afterwards 4. marries the daughter of B. with his consent, yet this declaration of B. does not raise a promise upon which assumpsit lies, because these words do not include a promise." This is laid down in Rol. Ab. (m); and the case in which the decision took place is also to be found in Yelverton (n), and it is thus reported: "In assumpsit the plaintiff alleges, that whereas there was a communication of marriage between the plaintiff and the daughter of the defendant; that the defendant upon speech between the father of the plaintiff and the defendant for free liberty to the plaintiff to come to the house of the defendant to woo his daughter, the defendant then and there affirmed and published that he would give 100l. to him that should marry his daughter with his consent, &c. By the Court: The action doth not lie, for asseruit et publicavit do not make words that include a promise. It is not averred nor declared to whom the words were spoken, and it is not reason that the defendant should be bound by such general words spoken to excite suitors." It is plain that the Court proceeded upon the principle that there was not a final and accepted promise by the defendant to pay the money to the plaintiff, considered by both parties at the time to be binding on the defendant (0).

The defendant's brother being indebted to the plaintiff, the defendant wrote a letter to the plantiff stating that " He wished

(m) Trinity Term, 3 Jac. B. R. Week v. Tibold, per Cur. Rol. Ah. Action sur Case (M) pl. 1. In Com. Dig. Action upon the case upon Assumpsit, (T) 2, this case is thus cited-"Assumpsit does not lie upon a speech in discourse; as if a man in discourse say that he will give so much money with his daughter in marriage; for the agreement must be complete upon which an assumpsit lies." And Noy R. 11; Dan. 26, are referred to.

(n) Yelv. R. 11. It is reported under the names of Weeks v. Tybold. Since the Statute of Frauds, 29 Car. 2, c. 3,

promises to pay money, in consideration of marriage, must be in writing.

(0) A promise to pay a reward to any person who may apprehend an offender, &c., will support an action; see post. In that case, however, there is an engagement which is as certain and final as circumstances will allow, and the promise is intended by the party to operate as a final and binding contract with the person who acts upon it. It seems that a representation having reference to a bill of exchange, and implied by law from certain acts of the party, (as that a party

to know if the plaintiff would give the brother a full discharge if the defendant would pay a moiety of the debt; that the defendant had specified what he would pay, and no more; and that if the plaintiff would accept that, he was to call upon the defendant the next morning." And Lord Ellenborough was of opinion that the defendant's letter was a mere proposition to pay a moiety, reserving a power to do any thing or nothing as he pleased the next day; and that, at all events, it would be necessary to shew that the plaintiff had acceded to the proposal in writing (p). And where the defendant wrote a paper containing assurances to the plaintiff that a third person was worthy to be trusted to a certain amount, and adding that he, the defendant, had no objection to guarantee the plaintiff against any loss from giving the third person credit, upon an order he had sent to the plaintiff'; it was held that the paper did not amount to a guarantee, the plaintiff having given no notice that he accepted it as such, and the defendant not having consented that it should be a conclusive guarantee (q).

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A contract," says Pothier (r), "includes a concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such promise. A pollicitation is a promise not yet accepted by the person to whom it is made. Pollicitatio est solius offerentis promissum. L. 3 ff de Pollicit. A pollicitation, according to the rules of mere natural law, does not produce what can be properly called an obligation; and the person who has made the promise may retract it at any time before it is accepted, for there cannot be, any obligation, without a right being acquired by the person in whose favour it is contracted against the party bound. Now, as I cannot, by the mere act of my own mind, transfer to another a right in my goods, without a concurrent intention on his part to accept them, neither can I by my promise confer a right against my person, until the person to whom the promise is made has, by his acceptance of it, concurred in the intention of acquiring such right ($).”

accepting a bill for the drawee, had his authority to do so,) cannot be viewed by a person who subsequently becomes an indorsee, as a promise or guarantee to himself, so as to enable him to bring assumpsit; see per Lord Tenterden, C. J., Polhill v. Walter, 3 B. & Ad.

22, 23.

(p) Gaunt v. Hill, 1 Stark. R. 10. (q) M'Iver v. Richardson, 1 M. & Selw. 557.

(r) On Obligations, part 1, c. 1, s. 1, article 2.

(s) Grotius, lib. ii. c. 2.

In Cooke v. Oxley (t), the declaration stated that the defendant had proposed to sell and deliver to the plaintiff goods upon certain terms, if the plaintiff would agree to purchase them upon those terms, and would give the defendant notice thereof before four o'clock on that day. Averment that plaintiff did agree, and gave the required notice, but defendant, on request, did not deliver. After verdict, the judgment was arrested, on the ground that the engagement, when made, was all on one side; that the plaintiff was not bound at the time; that there was no mutuality; and that therefore the defendant's promise was nudum pactum. The objection seems, in effect, to have been, that there was only a proposal of sale by the one party, and no allegation upon the record, showing a complete and mutual bargain between the parties.

In Adams v. Lindsell (u), the defendant, by letter, offered to sell certain goods to the plaintiff, receiving an answer by return of post. The letter to the plaintiff being misdirected, the answer, signifying the acceptance of the offer, arrived two days later than it ought to have done. This was caused by the defendant's mistake. The defendant had, on the preceding day, sold the goods to a third person. The court held that there was a binding contract with the plaintiff, and that an action lay for non-delivery of the goods. They considered, that a party who transacted a proposal, by letter, must be considered as renewing his offer every moment, until the time at which the answer is to be sent, and then the contract is completed by the acceptance of the offer. They said, that if the law were otherwise, no contract could ever be completed by the post. For if the defendant were not bound by his offer, when accepted by the plaintiff, until the answer was received, then the plaintiff ought not to be bound until after he had received the notification that the defendant had received his answer and assented to it; and so it might go on ad infinitum.

In the case of Routledge v. Grant (x), the defendant offered, in writing, to purchase of the plaintiff the lease of a house,

(1) 3 T. R. 653, affirmed in the Exchequer Cham. Id. note to 2. d ed. See observations on this case, per Bayley, J., in Humphreys v. Carvalho, 16 Fast, 48; and per Best, C. J., in Routledge v. Grant, 1 M. &. P. 733; 4 Bing. 660, S. C. And see Ilead v. Diggon, 3 M. & R. 97.

(u) 1 B. & Ald. 681.

(r) Reported in 3 C. & P. 267, and in 4 Bing. 653, and 1 M. & P. 717, Mr. Justice Gaselee declined to give an opinion on the principal point, as he considered that the authorities referred to appeared to be contradictory. 1 M. & P. 735.

requiring possession to be given on the 25th July, and a definitive answer within six weeks. The plaintiff accepted the proposal, offering possession on the 1st August. The defendant afterwards, and before the six weeks had expired, retracted his offer. It was held, that as the acceptance of the defendant's offer by the plaintiff was not in the terms proposed, and as there was no proper acceptance before the defendant retracted, the agreement was vacated. Two of the three judges gave their judgments only upon the ground of a variance in the statement of the plaintiff's interest in the lease; but the Chief Justice decided the case, upon the ground, that until both parties had agreed to the terms proposed, either had a right to rescind or put an end to the contract. And he considered that the court decided Adams v. Lindsell on the ground that there was in that case a due acceptance within the prescribed period of the offer made.

The principle seems to be, that a party is not bound simply by a mere offer not accepted; that he may, at all events, retract it, before it is accepted, by a communication to the person to whom the offer is made;-but that if an offer be made to a party at a distance, by letter, it is presumed to be constantly repeated until the period for acceptance, and it is to be inferred, that there is a continuation of the intention to contract, and then the acceptance of the exact terms proposed, within the precise period limited, shall, when forwarded, complete the contract; the party making the offer not having, in the interim, withdrawn it.

Pothier (y) places this subject in a very intelligible light. "In the contract of sale, as in other contracts, there may be consent of parties, not only between those who are present, but those who are absent, by letters, or by an agent, (entremetteur) per epistolam aut per nuntium. In order to constitute consent in this case, it is necessary that the intention of the party who writes to another to propose the bargain, should continue until the time at which the letter reaches the other party, and at which the latter

declares that he accepts the bargain. This intention is presumed to continue as long as nothing appears to the contrary; but if I write to a merchant at Leghorn, a letter in which I propose to purchase of him a certain quantity of merchandise, at a certain price; and before my letter can have reached him, I write a second letter, by which I intimate that I no longer desire to make this purchase; or if before that time I die, or lose the use of my reason, although this merchant of Leghorn, at the receipt of my letter, in ignorance of the change of my intention, or my death, or my insanity, answers that he accepts the proposed bargain, yet no contract of sale arises between us, for my intention not having continued until the time at which my letter was received, and my proposal accepted, the consent or concurrence of our wills necessary to form a contract of sale, has not occurred. This is the opinion of Barthole, and of the other doctors cited by Bruneman ad legem 1 ff. de contractu emptionis, who have with reason rejected the contrary opinion of the Gloss. ad dictam Segem."

At all events, if there be an actual sale by the defendant to the plaintiff, subject only to the plaintiff's approval of the quality on a named day, and not a mere offer to sell; and the plaintiff do not exercise his option of renouncing on the specified day, the defendant is bound, and cannot afterwards retract; for neither party had an option after the day named, and the plaintiff must be presumed to have approved of the goods, and assented to the bargain taking effect, by not having renounced it (2).

The assent or consent must be mutual, although the defendant's promise be in itself positive and unambiguous. Every agreement ought to be so certain and complete, that each party may have an action upon it, in regard to matters to be performed for his benefit by the other contracting party; and the agreement is incomplete if either party withhold his assent to any of its terms, that is, do not finally agree to them. The agreement, as before observed, must in general be obligatory upon both parties, or it will bind neither (a). There are several cases satisfactorily establishing, that if the one party never were bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.

45.

(z) Humphreys v. Carvalho, 16 East, (a) Plowd. Com. 5 Co. Lit. 35 b.