It frequently happens that the terms of a proposed agreement are discussed not with a view to an immediate obligation, but with a view to the execution of a formal contract. In such cases agreement upon the terms of the formal contract will not be binding Everything is inchoate until the execution of the formal contract. Ridgway v. Wharton, 6 H. L. C. 238, 264, 268, 305; Chinnock v. Marchioness of Ely, 4 De G. J. & S. 638, 646 , Winn v. Bull, 7 Ch. D. 29; Fredericks v. Fasnacht, 30 La. An. 117; Lyman v. Robinson, 14 Allen, 242; Sibley v. Felton, 31 Northeastern Rep. 10 (Mass.), Morrill v. Tehama Co. 10 Nev. 125; Water Commissioners v Brown, 32 N. J. L. 504, Brown v. Railroad Co. 44 N. Y. 79; Commercial Tel. Co. v Smith, 47 Hun, 494; Congdon v. Darey, 46 Vt. 478.

But if parties agree to make an immediately binding contract, the fact that they also agree that the contract shall subsequently be put into formal shape will not prevent them from being bound by the original agreement. Bonnewell v. Jenkins, 8 Ch. D. 70, 73; Bell v. Offutt, 10 Bush, 632; Montague v. Weil, 30 La. An 50; Allen v. Chouteau, 102 Mo 309; Wharton v. Stoutenburgh, 35 N. J. Eq. 266; Blaney v. Hoke, 14 Ohio St. 292; Mackey v. Mackey's Adm. 29 Gratt. 158; Paige v. Fullerton Woolen Co. 27 Vt. 485. In each case the question must be determined by ascertaining the intention of the parties as expressed by their words and acts.

1 Hyde v. Wrench, 3 Beav. 334; National Bank v. Hall, 101 U. S. 43, 50; Ortman v. Weaver, 11 Fed. Rep. 358; Baker v. Johnson Co. 37 Iowa, 186, 189, Cartmel v. Newton, 79 Ind. 1, 8; Fox v. Turner, 1 Bradwell, 153. But though a counter offer operates as a rejection of a proposal, it seems that a mere inquiry does not. In Stevenson v. McLean, 5 Q B. D 346, the defendants made an offer of iron at 40s. a ton, cash, the plaintiffs telegraphed, "Please wire whether you would accept forty for delivery over two months, or if not, longest limit you could give." Later on the same day the plaintiffs telegraphed an unconditional acceptance, and it was held that a contract was thereby created.

reply, accepting generally, and upon his acceptance claim the right of holding the other party to his first offer.

An answer or a compliance has been sometimes held insufficient to make a contract, where the difference of terms beta the parties did not seem to be very important. (f) In *fact the court seldom inquires into the magnitude or * '478 effect of this diversity; if it clearly exist, that fact is enough. But it is not material by which of the parties to an agreement the words which make it one are spoken; the intent governs, and if this be clear, and expressed with sufficient defi-niteness, it is enough. (g)

(f) Thus in Hutchison v. Bowker, 5 M. & W. 535, the action was assumpsit for the non-delivery of barley. It was proved at the trial that the defendants wrote to the plaintiffs, offering them a certain quantity of " good " barley, upon certain terms; to which the plaintiffs answered, after quoting the defendants' letter, as follows. "Of which offer we accept, expecting you will give us fine barley and full weight." The defendants in reply, stated that their letter contained no such expression as fine barley, and declined to ship the same. Evidence was given at the trial that the terms " good " and " fine " were terms well known in the trade; and the jury found that there was a distinction in the trade between "good" and "fine" barley. Held, that although it was a question for the jury what was the meaning of those terms in a mercantile sense, yet that, they having found what that meaning was, it was for the court to determine the meaning of the contract; and the court held that there was not a sufficient acceptance. See also Slay-maker v. Irwin, 4 Whart. 369; Gether v. Capper, 26 E. L. & E. 275, s. c. 15 C. B. 39, 696. And in Vassar v. Camp, 1 Kern. 441, the defendants wrote to the plaintiffs, offering them " 10,000 bushels of first quality Jefferson county barley of this year's growth." The plaintiffs replied, sending a contract for the purpose of having it signed by defendant, in which the barley was described as first quality Jefferson county two-rowed barley, of this season's growth." Held, that this was not an acceptance of the defendant's offer. So where there is a material variance between the bought and sold notes delivered by a broker to the vendor and vendee, there is no sale. Peltier v. Collins, 3 Wend. 459; Suydam v. Clark, 2 Sandf. 133. See the cases of Sivewright v. Archibald, 6 E. L. & E. 286; s. c. 17 Q. B. 103; Moore v. Campbell, 26 E. L. & E. 522; 8. c. 10 Exch. 323. So in Jordan v. Norton, 4

M, & W. 155. which was assumpsit for a mare sold and delivered, to which the defendant pleaded non-assumpsit. It appeared that the defendant, having seen and ridden the mare, wrote to the plaintiff, "I will take the mare at twenty guineas, of course warranted; and as she lays out, turn her out my mare." The plaintiff agreed to sell her for twenty guineas. The defendant subsequently wrote again to him " My son will be at the World's End (a public house) on Monday, when he will take the mare and pay you; send anybody with a receipt and the money shall be paid; only say in the receipt, sound and quiet in harness." The plaintiff wrote in reply, " She is warranted sound and quiet in double harness; I never put her in single harness." The mare was brought to the World's End on the Monday, and the defendant's son took her away without paying the price, and without any receipt or warranty. The defendant kept her two days and then returned her as being unsound. The learned judge stated to the jury that the question was whether the defendant had accepted the mare, and directed them to find for the defendant if they thought he had returned her within a reasonable time; and desired them also to say whether the son had authority to take her without the warranty. The jury found that the defendant did not accept the mare, and that the son had no authority to take her away. Held, on motion to euter a verdict for the plaintiff, that there was no complete contract in writing between the parties, that, therefore, the direction of the learned judge was right, that the defendant was not bound by the act of the son in bringing home the mare, inasmuch as he had thereby exceeded his authority as agent; and consequently that the plaintiff was not entitled to recover.

(g) Putnam, J., in Hubbard v. Cool idge, 1 Met. 93. But where a conversa*At a sale by auction, every bid of any one present is an offer by him. It becomes a contract as soon as the hammer falls, or the bid is otherwise accepted; (j) but until it is accepted it may * be withdrawn by the bidder, because until then it is not obligatory on him, for want of the assent of the owner of the property, by his agent the auctioneer. (k)1