§ 507. Where goods not corresponding to the order are sent by mistake, it becomes important for the orderer to know what it is incumbent on him to do. If he elect to keep the goods, he should give notice to the consignor that they do not correspond to his order, and then he will only be liable for their actual worth; but if he accept them without such notice, and make no complaint, a presumption would arise that they correspond to the order; which, although it may be rebutted by proof of the contrary, might perhaps occasion much inconvenience and expense.6 If he determine not to keep the goods, it is also his duty to inform the consignor immediately of his determination, and to await his orders. If the consignor refuse or neglect to receive them, or transmit no orders, the orderer may proceed, after notice to the former, to sell them at public auction, and may charge the consignor with warehouse rent, and the expenses of keeping, during such a period of time after the refusal of the consignor, as is reasonably necessary to enable him to sell them.6 If the consignors transmit special orders, after receiving information of the determination of the orderer not to keep the goods, of course, such orders are to be strictly obeyed. Where the articles sent are perishable, and the consignor is at a distance, so that it would be dangerous to await orders, the consignee is bound to sell them immediately on account of the consignor, and hold the proceeds to his credit; and then to give notice.
2 Pothier de Vente, No. 32.
3 Downs v. Marsh, 29 Conn. 409 (1861).
4 Boulton v. Jones, 2 H. & N. 564 (1857).
5 Poulton v. Lattimore, 9 B. & C. 259; Fielder v. Starkin, 1 H. Bl. 17; Adam v. Richards, 2 H. Bl. 573; Street v. Blay, 2 B. & Ad. 456; Greaves v. Ashlin, 3 Camp. 426; Maclean v. Dunn, 4 Bing. 726; post.
6 Caswell v. Coare, 1 Taunt. 566; 2 Camp. 82; Germaine v. Burton, 3 Stark. 32, and note; Chesterman v. Lamb, 4 Nev. & Man. 195; s. c. 2 Ad.
§ 508. Where a misunderstanding arises from the error of one of the parties, the person in fault must sustain the loss. As where terms are used in an order for goods which mislead the other party, he is not liable for the loss.1 But where an offer has been made and accepted, if it be understood by the parties as a mere jest, it is not binding, although it be formal and complete.2
§ 509. .Where a contract is made in writing, the signature of the parties need not be in full, the initials being sufficient, if accompanied with an intention on the part of the signer to bind himself.3 A contract may be made binding upon both parties, though it be actually signed by only one, if it be assented to and acted upon by the other; if no statutory or other provision positively requires it to be signed by both.4