1 Code de Commerce de Hollande. Dispositions Generates, art. 1, p. 65; 1 Stair, 3, 9.
2 Toullier, Droit Civ. Frangais, p. 33, No. 30.
§ 497. Again, it is difficult to see why the same rule should not apply to cases where a proposal is made with a privilege to the other party to accept within a given time, that applies to sales "on trial." Sales "on trial" are executory contracts of sale, in which it is agreed that the proposed purchaser shall take the article of sale for a certain space, "on trial," with the privilege of returning it, in case it do not suit him. And, in these cases, if 'the seller allow to the purchaser a definite time for trial, the rule is, that he cannot, by any retraction of his offer, deprive the other of the right of trial during the whole term; or of the privilege of accepting the article at any time before the time has elapsed.1 Nay, the rule goes even further than this, and allows the proposed purchaser to change his mind any number of times, and state different decisions to the other during the term, unless he return the article, or clearly break off the negotiation by a final refusal.
§ 498. In the next place, a proposal may not only be made
1 Ellis v. Mortimer, 1 Bos. & Pul. N. R. 257; Humphries v. Carvalho, 16 East, 45; Reed v. Upton, 10 Pick. 522. vol. I. 29 personally, but by means of agents1 or letters, in case the parties are at a distance from each other. And in such cases, the rule is, that if the proposition be made in writing, and sent by the post, the person making the offer can retract by a subsequent letter reaching the other party at any time before an answer of acceptance is written and put in the mail. But as soon as such answer is placed in the mail, the contract is completely closed as to both parties. Although, therefore, a letter containing a retraction of the offer be actually on the way at the time when the letter of assent is mailed, yet the contract is closed, unless such letter of retraction be received prior to the mailing of the letter of assent. An acceptance by written communication takes effect from the time when the letter containing the acceptance is sent, and not from the time when it is received by the other party.2 And the person as-
1 And the letters of agents may be sufficient to constitute a contract between the principals. See Cowley v. Watts, 17 Jur. 172; 17 Eng. Law & Eq. 147.
2 The Court of King's Bench, in the case of Adams v. Lindsell, 1 B. & Al. 681, conclusively settled this to be the English doctrine. The case was this: The defendants, by letter, offered to sell to the plaintiffs certain specified goods, "receiving an answer in course of post." The letter, being misdirected, arrived two days later than it ought, and was immediately answered by the plaintiff accepting the offer; but in the mean time, the goods had been sold to a third person. It was held, that as soon as the letter of acceptance was written and put in the mail the bargain was perfected, and nothing remained to be done but to deliver the goods, which was not essential to complete the sale. The court disregarded the case of Cooke v. Oxley, 3 T. R. 654, which decides the contrary doctrine, and which is so inaccurately and deficiently reported that it is of little weight as an authority. Indeed, from the remarks of Bayley, J., in Humphries v. Carvalho, 16 East, 48, it would seem that the ground of the decision in Cooke v. Oxley was, that "there was only a proposal of sale by one party, and no allegation that the other party had acceded to the contract of sale," which harmonizes the case with the other authorities. The rule enunciated in the text has, since the last edition, been held in Hamilton v. Lycoming Ins. Co., 5 Barr, 339; Levy v. Cohen, 4 Ga. 1. See also Potter v. Sanders, 6 Hare, 1; Dunlop v. Higgins, 1 H. L. C. 381; 12 Jur. 295; Tayloe v. Merchants1 Fire Ins. Co., 9 How. 390; Duncan v. Topham, 8 C. B. 225; The Palo Alto, Daveis, 344; Vassar v. Camp. 14 Barb. 341, and 1 Kern. 441; Beckwith v. Cheever, 1 Fost. 41; Averill v. Hedge, 12 Conn. 436; Kentucky Ins. Co. v. Jenks, 5 Ind. 96; Halleck v. Commercial Ins. Co., 2 Dutch. 280; Lungstrass v. German Ins. Co., 48 Mo. 201 (1871). But see Gillespie v. Edmonston, 11 Humph. 553. Dunlop v. Higgins, 1 senting cannot, therefore, even stop his letter on the road after it is once mailed.1 But a retraction takes effect when the letter the English and the Massachusetts rule, which seems to embrace the advantages of both and to avoid the objections to both. He says: "In this contract, as in others, the consent of the parties may be manifested, not only between those who are present together, but also between those who are at a distance from each other, by means of letters, or through the intervention of an agent, per epistolam, aut per nuntium. In order that the consent of the parties may take place in the last-mentioned case, it is necessary that the will of the party who makes a proposition in writing should continue until his letter reaches the other party, and until the other party declares his acceptance of the proposition. This will is presumed to continue, if nothing appears to the contrary; but, if I write a letter to a merchant living at a distance, and therein propose to him to sell me a certain quantity of merchandise, for a certain price; and, before my letter has time to reach him, I write a second, informing him that I no longer wish to make the bargain; or if I die; or lose the use of my reason; although the merchant, on the receipt of my letter, being in ignorance of my change of will, or of my death or insanity, makes answer that he accepts the proposed bargain, yet there will be no contract of sale between us; for, as my will does not continue until his receipt of my letter, and his acceptance of the proposition contained in it, there is not that consent or concurrence of our wills which is necessary to constitute the contract of sale. This is the opinion of Bartolus and the other jurists cited by Bruneman, ad. 1. 1, § 2, D. de contrah. empt. (18,1. 1, § 2,) who very properly reject the contrary opinion of the Gloss, ad dictam legem. It must be observed, however, that if my letter causes the merchant to be at any expense, in proceeding to execute the contract proposed, or if it occasions him any loss, as, for example, if. in the intermediate time between the receipt of my first and that of my second letter, the price of that particular kind of merchandise falls, and my first letter deprives him of an opportunity to sell it before the fall of the price; in all these cases I am bound to indemnify him, unless I prefer to agree to the bargain as proposed by my first letter. This obligation results from that rule of equity, that no person should suffer from the act of another; Nemo ex alterius facto prosgravari debet. I ought therefore to indemnify him for the expense and loss which 1 occasion him by making a proposition which I afterwards refuse to execute. For the same reason, if the merchant, on the receipt of my first letter, and before receiving the second, which contains a revocation of it, or being in ignorance of my insanity or death, which prevents the conclusion of the bargain, charges to my account and forwards the merchandise; though in that case there cannot properly be a contract of sale between us, yet he will have a right to compel me or my heirs to execute the proposed contract, not in virtue of any contract of sale, but of my obligation to indemnify him, which results from the rule of equity above mentioned."See also Toullier des Contrats, § 30; Duranton, Contrat de Vente, Liv. 3, tit. 6, § 45; Story on Agency, § 493, n.; Brisban v. Boyd, 4 Paige, 17, 20; 2 Kent, Comm. 477.