There is no contract, unless the parties thereto assent; and they must assent to the same thing, in the same sense. (a)1 A

(a) Hazard v. New England Marine Ins. Co. 1 Sunnier, 218. In Bruce v. Pearson, 3 Johns. 534, it was held, that if a person sends an order to a merchant to send him a particular quantity of goods on certain terms of credit, and the merchant sends a less quantity of goods, at a shorter credit, and the goods sent are lost by the way, the merchant must bear the loss, for there is no contract, express or implied, between the parties. So where shingles were sold and delivered at $3.25, but there was a dispute as to whether the $3.25 was for a bunch or for a thousand; it was held, that, unless both parties had understandingly assented to one of those views, there was no special contract as to the price. Greene v. Bateman, 2 Woodb & M. 359. See further Tattle v. Love, 7 Johns. 470; Eliason v. Henshaw, 4 Wheat. 225; Falls v. Gaither, 9 Fort. (Ala.) 605: Keller v. Ybarru, 3 Cal. 147; Hutchison v. Bowker, 5 M. & W. 535; Hamilton v. Terry, 10 E. L. & E. 473; s. c. 11 C. B. 954; Barlow v. Scott, 24 N. Y. (10 Smith) 40; Hutcheson v. Blakeman, 3 Met. (Ky.) 80; Holtzman v. Millandon, 18 La. An. 29. See post, *494, note (j).

1 It is not the merely mental assent of parties to the same proposition that is of importance. It is the assent as expressed by their words or acts which is controlling. This was well expressed by Lord Blackburn in a recent ease in the House of Lords

"But when you come to the general proposition which Mr. Justice Brett seems to have laid down, that a simple acceptance in your own mind without any intimation to the other party, and expressed by a mere private act, such as putting a letter into a drawer, completes a contract, I must say I differ from that. It appears from the Year

Books that as long ago as the time of Edward IV. (17 Edw. IV. T. Pasch case 2), Chief Justice Brian decided this very point. The plea of the defendant in that case justified the seizing of some growing crops because he said the plaintiff had offered him to go and look at them, and if he liked them and would give 2s. 6d. for them, he might take them; that was the justification. . . . Brian Bays' 'Moreover, your plea is utterly naught, for it does not show that when you had made up your mind to take them you signified it to the plaintiff, and your having it in your own mind is nothing, for it is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is; but I grant you this, that if in his offer to yon he had said, go and look at them, and if you are pleased with them signify it to such and such a man, and if you had signified it, to such and such a man, your plea would have been good, because that was a matter of fact' I take it, my Lords, that that which was said three hundred years ago and more is the law to this day." Brogden v. Metropolitan Ry. Co 2 App. Cas. 666, 692. See also pp. 688, 697

And the same judge in another case said: " If, whatever a man's real intention may he, he so conducts himself that a reasonable man would believe he was assenting to the terms proposed by the other party, and that the other party upon that belief enters into the contract with him, the man thus conducting himself would be equally hound as if he had intended to agree to the other party's terms." Smith v, Hughes, L. R. 6 Q. B. 597, 607. An equally strong statement is made by Holmes, J., in Mansfield v. Hodgdon, 147 Mass. 304, 306.

So, where A sold goods to B, supposing that B was acting as agent for <', and solely in reliance on that (B, however, having done nothing to justify A's supposition), mere assent does not suffice to constitute a contract, for there may be an assent in a matter of opinion, or in some fact which is done and completed at the time, and therefore leaves no obligation behind it. But a contract requires the assent of the parties to an agreement, and this agreement must be obligatory, and, as we have seen, the obligation must, in general, be mutual. This is sometimes briefly expressed, by saying, that there must be " a request on the one side and an assent on the other, "(b) A mere affirmation, or proposition, is not enough. Nor is this any more a contract if it be in writing than if spoken only. (c) It becomes a contract only when the proposition is met by an acceptance which corresponds with it entirely and adequately.

An assent, however, may bind the party, although not express or in writing, if it can be fairly inferred from his profiting by the stipulations of the contract. (cd) l

(b) Tindal, C. J., in Jackson v. Galloway, 5 Bing. N. C. 75.

(c) Tucker v. Woods, 12 Johns. 190. See also Bruce v. Pearson, 3 Johns. 534; Tuttle v. Love, 7 Johns. 470; Weeks v. Tybald, Noy, 11; 1 Roll. Abr. 6 (M.) pl. 1. To render a proposed contract binding there must be an accession to its terms by both parties,- a mere voluntary compliance with its conditions by one who had not previously assented to it does not render the other liable on it. Johnston v. Fessler, 7 Watts, 48; Ball v. Newton, 7 Cush. 599; and see Meynell v. Surtees, 31 E. L. & E. 475. In this case certain parties were desirous of constructing a railway on the way-leave principle, and for that purpose entered into negotiations with a land-owner, and proposed terms which were discussed by the parties, but not agreed to. The company went forward, however, and constructed their road. Held, that the acquiescence of the land-owner in the construction of the road did not amount to an acceptance of the terms proposed by the company. - Eskridge v. Glover, 5 Stew. & P. 264, it was held, that an incomplete contract or agreement, which one of the parties has the option of completing at a particular day, raises a mutual right of rescission in the other party, at any time before the ratification by the first. Thus, where A proposed to exchange horses with B, and give B a specific amount, as difference, which proposition B reserved the privilege of determining upon by a certain day; and before that day arrived, A gave notice to B that he would not confirm the offered contract, it was held, that no action lay in favor of B to recover the difference agreed to be paid by A. See also Cope v. Albinson, 16 E. L. & E.470; s. c. 8 Exch. 185; Governor v. Petch, 28 E. L. & E. 470; s. C 10 Exch. 610.