The distinction between preliminary negotiations and completed contracts is often involved in cases where the parties contemplate the execution of a written agreement. It is everywhere agreed to be possible for parties to enter into a binding informal or oral agreement to execute a written contract. It is also everywhere agreed that if the parties contemplate a reduction to writing of their agreement before it can be considered complete, there is no contract until the writing is signed. But between these two clear situations, ambiguous ones arise as to which there is a difference. On the one hand it has been said, by the New York Court of Appeals: "Where all the substantial terms of a contract have been agreed on, and there is nothing left for future settlement, the fact, alone, that it was the understanding that the contract should be formally drawn up and put in writing, did not leave the transaction incomplete and without binding force, in the absence of a positive agreement that it should not be binding until so reduced to writing and formally executed." 26 And, on the other hand, it has been said by the New Jersey Supreme Court,27 "If it appears that the parties, although they have agreed on all the terms of then-contract, mean to have them reduced to writing and signed before the bargain shall be considered as complete, neither party will be bound until that is done, so long as the contract remains without any acts done under it on either side." 28 This leaves open the question, how it is to be known that parties who mean to reduce it to writing mean that till then the contract shall not be "considered as complete." Under both these statements the ultimate question is one of fact as to the intention of the parties,29 but if the statement of the New Jersey court means that the mere fact that a writing is to be prepared amounts to an expression of intention that until that is done the parties shall not be bound, it seems extreme. As has been pointed out previously,30 the intention to make a legal obligation is not necessary for the existence of a contract though an expressed intent that there shall be no legal obligation is effective to prevent one. In the absence of such an expressed intent, mutual assent, informally given, to make an exchange of acts or promises is sufficient. Consequently, if such assent exists, to avoid the conclusion that a contract has been formed it must be found as a fact that the parties impliedly agreed that until the writing was executed they should not be bound. The burden of establishing this implication of fact is on the one who denies the existence of a contract. The decisions although not all perfectly consistent, generally conform to this test.31 If the oral pre-

States, 92 U. S.73,23 L. Ed. 697; Lor-ing v. Boston, 7 Metc. 409; Biggers v. Owen, 79 Ga. 658, 5 S. E. 193; Williams v. West Chicago St. Ry. Co., 191 111. 610, 61 N. E. 456, 86 Am. St Rep. 278.

25 Brighton Packing Co. v. Butchers Association, 211 Mass. 398, 97 N. E. 780.

26 Disken v. Herter, 73 N. Y. App. Div. 453, 77 N. Y. Supp. 300, aff'd without opinion, 175 N. Y. 480, 67

N. E. 1081. lb the same effect see Concannon v. Point Mining Co., 156 Mo. App. 79, 135 S. W. 988.

27 Donnelly v. Currie Hardware Co., 66 N. J. L. 388, 49 Atl. 428.

28 Water Commissioners v. Brown, 32 N. J. L. 504, 510, quoted with approval in Donnelly v. Currie Hardware Co., 66 N. J. L. 388, 49 Atl. 488. Cf. McCuIloch v. Lake & Risley Co., 91 N. J. L. 381, 103 Atl. 1000.

29 Thus, in Mississippi etc S. S. Co. v.Swift, 86 Me. 248,268, 29 Atl. 1063, the court said: "From these expres-sions of courts and jurists, it is quite clear that, after all, the question is mainly one of intention. If the party sought to be charged intended to close a contract prior to the formal signing of a written draft, or if he signified such an intention to the other party, he will be bound by the contract actually made, though the signing of the written draft be omitted. If, on the other hand, such party neither had nor signified such an intention to dose the contract until it was fully expressed in a written instrument and attested by signatures, then he will not be bound until the signatures are affixed. The expression of the idea may be attempted in other words: if tike written draft is viewed by the parties merely as a convenient memorial, or record of their previous contract, its absence does not affect the binding force of the contract; if, however, it is viewed as the consummation of the negotiation, there is no contract until the written draft is finally signed."

30SeeSec. 21.

31 In the following eases it was held that there was a contract, though it was agreed that a written contract should be subsequently prepared: Jones v. Victoria Dock Co., 2 Q. B. D. 314; Bonnewell v. Jenkins, 8 Ch. D. 70, 73; Bolton v. Lambert, 41 Ch. D. 296; Eburchy v. Ellis, 140 Fed. 149; Jenkins & Reynolds Co. v Alpena Portland Cement Co., 147 Fed. 641, 77 C. C. A. 625; Wehner v. Bauer, 160 Fed. 240; Northwestern Lumber Co. v. Grays Harbor, etc., R. Co., 208 Fed. 624; Whittod v. Fairfield Cotton Mills, 210 Fed. 725, 128 C. C. A. 219; West India 8. S. Co. v. Chicago Ac. Co, 249 Fed. 338, 161 C. C. A. 346; Emerson v. Stevens Groc. Co., 95 Ark. 421,426, liminary agreement constituted a contract, a subsequent erroneous supposition of the parties that a formal contract was necessary to make the bargain binding will be ignored.32 It should be observed, however, that frequently where the parties contemplate a future written contract, it is obvious from their language or from the surrounding circumstances, that other matters, as to which no definite agreement has yet been reached, are expected to be provided for in the writing. In such a case the oral agreement may be objectionable for indef-initeness,33 and in any event a positive intention is apparent that the bargain shall be ineffectual until some further acts. Sometimes the parties expressly provide that no obligation shall arise until the formal writing is executed.34

130 S. W. 541; Friedman v. Schleuter, 106 Ark. 680, 151 8. W. 696; Alexander-Amberg v. Hollis, 115 Ark. 589, 171 8. W. 916; Webber v. Smith, 24 Cat. App. 51,140 Pac. 37; Mercer Elec. Mfg. Co. v. Connecticut Elec. Mfg. Co., 87 Conn. 691, 89 Atl. 909; Bell v. Offutt, 10 Bush, 632; Hollerbach & May Co. v. Wilkins, 130 Ky. 51, 112 S. W. 1128; Tucker v. Sheeran, 155 Ky. 670, 160 S. W. 176; Montague v. Weil, 30 La. Ann. 60; Berman v. Rosenberg, 115 Me. 19,97 Atl. 6; McConnell v. Harrell ft Nicholson Co., 181 Mich. 369, 149 N. W. 1042; Lamoreaux v. Weisman, 136 Minn. 207, 161 N. W. 604; Allen v. Chouteau, 102 Mo. 309,14 S. W. 869; Green v. Cole (Mo.), 24 S. W. 1085; Hudson v. Rodgers, 121 Mo. App. 168, 98 8. W. 778; T. C.Bottom Produce Co. v. Oleen, 188 Mo. App. 181, 175 S. W. 126; Gale v. J. Kennard etc Co., 182 Mo. App. 498, 165 S. W. 842; Long v. Needham, 37 Mont. 408,96 Pac. 731; Wharton v. Stoutenburgh, 36 N. J. Eq. 266; Sanders v. Pottlitaer Bros. Fruit Co., 144 N. Y. 209, 39 N. E. 75, 29 L. R. A. 431,43 Am. St. Rep. 757; Ferguson Contract Co. p. Helderberg Cement Co., 120 N. Y. Supp. 317,135 App. Div. 494; Peirce v. Cornell, 117 N. Y. App. Div. 66, 102 N. Y. Supp. 102; Morton v. Witte, 131 N. Y. Supp. 777; Teal p. Templeton, 149 N. C. 32, 62 8. E. 737; Gooding v. Moore, 150 N. C. 195, 63 S. E. 895; Billings v. Wilby, 175 N. C. 571, 96 S. E. 50; Blaney v. Hoke, 14 Ohio St. 292; Williams v. Burdick, 63 Or. 41, 126 Pac. 844; Mackey v. Mackey's Adm., 29 Gratt. 168; Paige v. Fullerton Woolen Co., 27 Vt. 485; Loewi v. Long, 76 Wash. 480, 136 Pac. 673; Lawrence v. Milwaukee etc. Ry. Co., 84 Wis. 427, 64 N. W. 797; Cohn v. Plumer, 88 Wis. 622, 60 N. W. 1000; Jungdorf v. Little Rice, 156 Wis. 466, 145 N. W. 1092. See also Garber v.

Goldstein, 92 Conn. 226, 102 Atl. 605.

In the following cases it was held that no contract existed until the execution of a written contract, the signing of which was one of the terms of a previous agreement. Ridgway v. Wharton, 6 H. L. C. 238, 264, 268, 305; Chinnock v. Marchioness of Ely, 4 DeG. J. & S. 638, 646; Winn v. Bull, 7 Ch. D. 29; Von Hatzfeldt-Wilden-burg v. Alexander, [1912] 1 Ch. 284; Spinney p. Downing, 108 Cat. 666, 41 Pac. 797; McCrimmon v. Brundage, 63 Fla. 478, 43 So. 431; Strong, etc., Co. v. Baars, 60 Fla. 263, 64 So. 92; Scott v. Fowler, 227 111. 104, 81 N. E. 34; Lynn v. Richardson, 161 ls. 284, 130 N. W. 1097; Alexandria Billiard Co. v. Miloslowsky, 167 la. 395, 149 N. W. 604; California Ins. Co. v. Settle, 162 Ky. 82, 172 S. W. 119; Fredericks v. Fasnacht, 30 La. Ann. 117; Ferre Canal Co. v. Burgin, 106 La. 309, 30 So. 863; Barretli v. Wehrli, 121 La. 640, 46 So. 620; Mississippi etc. S. S. Co. v. Swift, 86 Me. 248, 29 Atl. 1063; Wills v. Carpenter, 75 Md. 80,25 Atl. 415; Lyman v. Robinson, 14 Allen, 242; Sibley v. Felton, 156 Mass. 273, 31 N. E. 10; Houston etc R. Co. v. Joe. Joseph ft Bros. Co., 169 Mo. App. 174, 152 S. W. 394; Morrill v. Tehama Co., 10 Nev. 125; Water Commissioners v. Brown, 32 N. J. L. 604; Donnelly v. Currie Hardware Co., 66 N. J. L. 388, 49 Atl. 428; Brown v. New York Central R. R, Co., 44 N. Y. 79; Commercial Tel. Co. v. Smith, 47 Hun, 494; Niobolls v. Granger, 7 N. Y. App. Div. 113, 40 N. Y. Supp. 99; Arnold v. Rothschild's Sons Co., 37 N. Y. App. Div. 664, 66 N. Y. Supp. 161, affd without opinion 164 N. Y. 562, 58 N. E. 1085; Franke v. Hewitt, 66 N. Y. App. Div. 497, 68 N. Y. Supp. 968; Sherry v. Proal 131 N. Y. App. Div.