§ 995. Unless there be a mutual consent of both parties1 to terms which are either certain, or capable of being rendered certain by reference to some definite criterion, there is no sale.2 Thus, any mistake as to the identity of the thing to be sold,3 or as to the price demanded or offered, or perhaps as to the quantity of goods ordered,4 will vitiate the sale,
1 Thus, if a bill of sale of personal property is made to a person -without his previous authority, or assent, or subsequent ratification, no title passes thereby as against an attaching creditor of the vendor. Dudley v. Denning, 34 Conn. 169 (1867).
2 A receipt of certain shares of stock, which the receiver is "to do the best he can with, and have one-half of the proceeds," is not an absolute sale of one-half the stock, but merely a right to the proceeds. Wight v. Wood, 57 Barb. 471 (1867). And see Dow v. Whetten, 8 Wend. 160.
3 In an action for the price of land, in which the defendant set up as a defence that the land conveyed to him was not that which he agreed to purchase, the judge instructed the jury that "if the defendant was negotiating for one thing, and the plaintiff was selling another, and their minds did not agree as to the subject-matter, they could not be said to have agreed and made a contract, although there was no fraud on the part of the plaintiff," and that "mistake alone,if proved, was a good defence." And it was held that the plaintiff had no ground of exception. Kyle v. Kavanagh, 103 Mass. 356 (1869).
4 See Tamvaco v. Lucas, 1 El. & E. 581 (1859); Cross v. Eglin, 2 B. & Ad. 106; Ireland v;. Livingston, Law R. 2 Q. B. 99,104 (1866); Rommel v. Wingate, 103 Mass. 327 (1869). This would clearly be the case where there was no mistake as to the amount ordered, and the order was not complied with as to quantity lb. Under a sale of the entire interest of the vendor in a partnership and the property thereof, in terms embracing, besides enumerated articles, " all other property and valuable things belonging to said firm, of every kind and nature;" the balance of a bank account to the credit of the said firm, but unknown to all of the parties at the time of the sale, is to be regarded as among the properties subject to such sale, and the vendee succeeds to the rights therein of the except where the buyer supposes the price to be larger than the seller has consented to take. Such a mistake, however, should be with regard to a fact or circumstance going to the essence of the contract, and not of an immaterial or inconsequential fact.1 The negotiation of sale may be carried on by letter; and the sale becomes complete when the buyer puts his answer, assenting to the seller's proposition, into the mail. But the seller may retract his offer at any time previous to the mailing of the buyer's letter containing his assent.2
§ 996. As the rules applicable to this subject have already been fully considered in a previous part of this treatise, it is unnecessary to repeat them here; and the reader is therefore referred to the chapter in which they are stated.3 vendor. Cram v. The Union Bank, 4 Keyes, 558 (1868); 1 Abb. Ct. of App, Dec. 461.
1 See ante, § 170-175.
2 See ante, § 145, and notes.
3 Vol. I. ch. xvi.