Propositions or offers on time involve questions of the assent of parties which are sometimes difficult. (/) Strictly speaking, tion is relied upon as proof of an agreement, it is for the jury to decide whether such an assent of the minds of the parties took place as to constitute a valid contract, or whether what passed between them was a loose conversation, not understood or intended as an agreement. Thurston v. Thornton, 1 Cush. 89.

(j) Payne v. Cave, 3 T. R. 148. The court there said: " The auctioneer is the agent of the vendor, and the assent of both parties is necessary to make the contract binding; that is signified on the part of the seller, by knocking down the hammer, which was not done here till the defendant had retracted. An auction is not unaptly called locus poenitentiae. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to." See further Fisher v. Seltzer, 23 Penn. St. 308. - As sales at auction are clearly within the statute of frauds, Hinde v. Whitehouse, 7 East, 568; Kenworthy v. Scofield, 2 B. & C. 945; Brent v. Green, 6 Leigh, 16; the assent would not be binding unless in writing, if the case came within the terms of that statute.

(k) See post, pp. * 539, * 540, on the contract of sale by auctions.

(/) This subject was discussed in the case of Boston and Maine Railroad v. Bartlett, 3 Cush. 224. It was there held, that a proposition in writing to sell land, at a certain price, if taken within thirty days, is a continuing offer, which may be retracted at any time; but if not being retracted, it is accepted within the time, such offer and acceptance constitute a valid contract, the specific performance of which may be enforced by a bill in equity. Fletcher, J., there observed: " In the present case, though the writing signed by the defendants was but an offer, and an offer which might be revoked, yet while it remained in force and unrevoked, it was a continuing offer during the time limited for acceptance; and during the whole of that time it was an offer every instant, but as soon as it was accepted it ceased to be an offer merely, and then ripened into a contract. The counsel for the defendants is most surely in the right, in saying, that the writing when made was without consideration, and did not therefore form a contract. It was then but an offer to contract; and the parties making the offer most undoubtedly might have withdrawn it at any time before acceptance. But when the offer was accepted, the minds of the parties met, and the contract was complete. There was then the meeting of the minds of the parties, which constitutes and is the definition of a contract. The acceptance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the defendants. There was then nothing wanting in order to perfect a valid contract on the part of the defendants. It was precisely as if the parties had met at the time of the acceptance, and the offer had then been made and accepted, and the bargain completed at once. A different doctrine, however, prevails in France and Scotland and Holland. It is there held, that whenever an offer is made, granting to a party a certain time within which he is to be entitled to decide whether he will accept it or not, the party making such offer is not at liberty to withdraw it before the lapse of the appointed time. There are certainly very strong reasons in support of this doctrine. Highly respectable authors regard it as inconsistent with the plain principles of equity, that a person, who has been induced to rely on such an engagement, should have no remedy in case of disappointment. But. whether wisely and equitably or not, the common law unyieldingly insists upon a consideration, or a paper with a seal attached. The authorities, both English and American, in support of this view of the subject, are very numerous and decisive; but it is not deemed to be needful or expedient to refer particularly to them, as they are collected and commented on in several reports, as well as in the text-books."

1 It has been suggested (Langdell, Summary of Contracts, § 19) that "the true view seems rather to be that the seller makes the offer when the article is put up, namely, to sell it to the highest bidder; and that, when a bid is made there is an actual sale subject to the condition that no one else shall bid higher." But the rule laid down in Payne v. Cave, as stated in the text, is settled law. Manser v. Back, 6 Hare, 443; Grotenkemper v. Achtermeyer, 11 Bush, 222.

Consequently not only may the bidder withdraw his bid, but the auctioneer may also decline to accept the highest bid even though the sale has been stated to be without reserve, Warlow v. Harrison, 1 E. & E. 295, the bidder's only remedy, if any, being an action against the auctioneer on a promise to sell according to the terms advertised. See Warlow v. Harrison, supra; Mainprice v. Westley, 6 B. & S. 420; Harris v. Nick-erson, L. R. 8 Q. B. 286.

Analogous cases have arisen where what might seem to be an offer has been held to amount only to an intimation that offers would be received. Thus in Spencer v. Harding, L. R. 5 C. P. 561, the defendants sent out a circular stating that they were instructed to offer certain stock in trade for sale by tender. The plaintiff made the highest tender, and claimed that by so doing he had accepted an open offer and entered into a binding contract. But the court held that the defendant's circular was not an offer but " a mere proclamation that the defendants are ready to chaffer for the sale of goods." To the same effect is Moulton v. Kershaw, 59 Wis. 316. And see Canning v. Farquhar, 16 Q. B. D. 727; Ashcroft v. Butterworth, 136 Mass. 611; Ahearn v. Ayres, 38 Mich. 692.

all offers are on time. If one says, I will sell you this thing for this money, and the other answers, I will buy that thing at that price, all authorities agree that this is a contract. But the * answer follows the offer; it cannot be actually simulta- neous with it, although it is sometimes said to be so. But the offer is regarded as continuing until the acceptance, if the acceptance is made at once. Nor can it be necessary that the acceptance should follow the offer instantaneously. Though the party addressed pauses a minute or two for consideration, still his assent makes a contract, for the offer continues unless it is expressly withdrawn. But how long will it continue? The only answer must be, in general a reasonable time; (m) and what this is must be determined by the circumstances of the case. If the party addressed goes away, and returns the next month or the next week, and says he will accept the proposition, he is too late unless the proposer assents in his turn. So it would be probably if he came the next day, or the next hour; or, perhaps, if he went away at all and afterwards returned.