If the acceptance is made immediately after the offer when the parties are together, no question can arise as to the place of the contract. The place where the parties are is the only possible place of contract. But if the acceptance is not made simultaneously with the offer, and is made in a different place, the universal principle disposing of this and any similar question is that the place of the contract is the place where the last act necessary to the completion of the contract was done,-34 that is where the contract first becomes a legal obligation. If an offer contemplates a unilateral contract and calls for the performance of an act, the place where that act is done is the place of the contract.35 Thus if goods are shipped in conformity with an offer, the place of the contract is the place of shipment, since the act requested is the transfer of title to the goods by shipment. 36 If, however, the seller shipped goods but not in conformity with the contract, or if title to the goods was not to pass until they reached their destination, the place of the contract would be the destination of the goods, where they were received and accepted, since in the former case the shipment was a counter-offer and no contract would be formed till it was accepted by the buyer's assent to take the goods, and in the latter case the terms of the original offer would not be fully complied with until the goods reached their destination.37 Similarly if an offer calls for the sending of a note,38 or an insurance policy,39or a check,40 or money,41
31 See supra, Sec. 62.
32Felthouse v. Bindley, 11 C. B. (N. S.) 669. 33 Potter v. Sandere, 6 Hare, 1. 34Emerson Co. v. Proctor, 97 Me.
360, 54 Atl. 649; Ohl v. Standard Steel Section, Inc., 179 N. Y. App. D. 637, 167 N. Y. S. 184.
35 Milliken v. Pratt, 125 Maw. 374, 28 Am. Rep. 241.
36 Mobile, etc., R. R. Co. v. Copeland, 63 Ala. 219, 35 Am. Rep. 13; Atlantic Phosphate Co. v. Ely, 82 Ga. 438, 9 S. E. 170; State v. Colby, 92 Ia. 463,61 N. W. 187; Clafiin p. Mayer, 41 La. Ann. 1048, 7 So. 139; Boothby v. Filiated, 51 N. H. 436, 12 Am. Rep. 140; Mack v. Lee, 13 R. I. 293.
37In State v. O'Neil, 58 Vt. 140, 2 Att. 586, 56 Am. Rep. 557, intoxicating liquors were ordered by a Vermont buyer from New York. They were shipped to Vermont by express C. 0. D. and delivered and paid for in Vermont. It was held that the shipment C. O. D. retained title in the seller and that, therefore, as no sale was made until delivery in Vermont, the liquor law of that State had been violated. See also Crabb v. State, 88 Ga. 584, 15 S. E. 455; State v. American Express Co., 118 Iowa, 447, 92 N. W. 66; State v. Goes, 59 Vt. 266, 9 Atl. 829, 59 Am. Rep. 706.
On the other hand, on similar facts the Maine court held that shipment C. O. D. did not prevent a transfer of title and that therefore the sale was made in the State from which the goods were shipped. State v. Intoxicating liquors, 98 Me. 464, 57 Atl. 798. See also to the same effect Filgreen v. State, 71 Ala. 368; Hunter v. State, 55 Ark. 357,359; State v. Cairns, 64 Kans.
782, 68 Pac. 621, 58 L. R. A. 55; State v. Mullin, 78 Ohio St. 358,85 N. E. 556, 18 L. R. A. (N. S.) 609, 125 Am. St. Rep. 710; Commonwealth v. Fleming, 130 Pa. 138, 18 Atl. 622, 5 L. R, A. 470, 17 Am. St. Rep. 763; Golightly v. State, 49 Tex. Cr. App. 44, 90 8. W. 26, 2 L. R. A. (N. S.) 383; State v. Flanngan, 38 W. Va. 53, 17 S. E. 792, 22 L. R. A. 430, 45 Am. St. Rep. 836.
38 Wm. Glenny Glass Co. v. Taylor, 99 Ky. 24, 34 S. W. 711; Shoe, etc., Rank v. Wood, 142 Mass. 563, 8 N. E. 753; Wayne County Savings Bank v. Low, 81 N. Y. 566, 37 Am. Rep. 533; Barrett v. Dodge, 16 R. I. 740, 19 Atl. 530, 27 Am. St. Rep. 777.
39 State Mutual Fire Ins. Assoc, v. Brinkley Stave & Heading Co., 61 Ark. 1, 31 S. W. 157, 29 L. R. A. 712, 54 Am. St. Rep. 191; Commonwealth Mutual Fire Ins. Co. v. Wm. Knabe Mfg. Co., 171 Mass. 265, 60 N. E. 516; Northampton Mut. Ins. Co. v. Tuttle, 40 N. 3. L. 476; Davis v. Manufacturers' Mut. Fire Ins. Co., 67 N. H. 218, 34 Atl 464; Hyde v. Goodnow, 3 N. Y. 266; Fidelity Mutual Life Assoc, v. Harris, 94 Tex. 25, 57 S. W. 635, 86 Am. St. Rep. 813; Galloway v. Standard Fire Ins. Co., 45 W. Va. 237, 31 S. E. 969.
40 See supra, Sec. 81 ad fin.
the place of the contract is where the offer was complied with by sending the thing requested. On the other hand, if goods,42 or notes,43 or anything else is sent without authority, and not in response to an offer, it is itself an offer and cannot be accepted except at the place of destination, and if any contract is formed it is formed there.44 If the offer contemplates a bilateral contract, the place of the contract is where the acceptance and counter-promise of the offeree is made. Therefore in contracts by mail, or by telegraph, when these means of communication are authorized by the offer, the place of the contract is the place where the reply is mailed,45 or delivered to the telegraph company.46 Similarly in contracts by telephone it has been held that the place of the contract is the place at which the acceptor speaks.47 If the use of the means of communication adopted by the offeree was not authorized by the offer, no contract can be complete until the acceptance is received. The place of a contract thus formed, therefore, is the place where the acceptance is received. What has been said thus far relates to the place where a simple contract is formed. A formal contract becomes binding when the last requisite formality is complied with. In a contract under seal, this is when the instrument is delivered, and the place of contract is therefore the place of delivery.48
42 See generally Williston on Sales, Sec.Sec. 278 at seq.
43 Bell v. Packard, 69 Me. 106, 31 Am. Rep. 251; Emerson Co. v. Proctor, 97 Me. 360, 364, 64 Atl. 849. See also Hewitt v. Bank, 64 Neb. 463, 90 N. W. 260.
44 See cases cited in the preceding
45 Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 315, 74 Pac. 866, 66 L. R. A. 90; Worcester Bank v. Wells, 8 Met. 107; W. G. Ward Lumber Co. v. American etc. Mfg. Co., 247 Pa. 451, 93 Atl. 470, Ann. Cas. 1918, A. 451.
46Garrettson v. North Atchison Bank, 47 Fed. 867; Tyng v. Convene, 180 Mich. 195, 146 N. W. 629; Perry v. Mount Hope Iron Co., 16 R. I. 380, 5 Atl. 632, 2 Am. St. Rep. 902; Til-linghast v. Boston, etc., Lumber Co., 39 S. C. 484, 18 S. E. 120, 22 L. R. A. 49.
47 Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 74 Pac. 855, 65 L. R. A. 90; Tyng v. Converse, 180 Mich. 195, 146 N. W. 629; Planters' Oil Co. v. Whitesboro Cotton Oil Co. (Tex. Civ. App.), 146 S. W. 225; Cuero Cotton Oil & Mfg. Co. v. Feeders' Supply Co. (Tex. Civ. App.), 203 S. W. 79. See criticism of these cases, supra, Sec. 82.
48 Baring v. Inland Revenue Commissioners, [1898) 1 Q. B. 78. In regard to what constitutes delivery, see infra, Sec. 210.