(d) Bailey v. Sweeting, 9 C. B. (N. S.) (99 E. C. L. R.) 843; 30 L. J. (C. P.) 150; Wilkinson v. Evans, L. R. 1 C. P. 407; 35 L. J. (C. P.) 224; Buxton v. Rust, L. R. 7 Ex. 1, 279 (Ex. Ch.); 41 L. J. Ex. 1, 173. And compare Cooper v. Smith, 15 East, 103.
(e) Harvey v. Grabham, 5 A. & E. (31 E. C. L. R.) 61; Marshall v. Lynn, 6 M & W. 109; Stead v. Dawber, 10 A. & E. (37 E. C. L. R.) 57; Moore v. Campbell, 23 L. J. (Ex.) 310; Noble v. Ward, 35 L. J. (Ex.) 81; 36 L. J. (Ex.) 91, in Ex. Ch.; S. C, L. R. 1 Ex. 117; lb., 2 Ex. 135.
(f) lb. See Goss v. Lord Nugent, 5 B. & Ad. (27 E. C. L. R.) 58.
Contracts of insurance must in general be printed or written, whether the contract be a marine, fire, or life insurance (A).1
* Another case is that of a promise to pay a debt barred by the Statute of Limitations; but, as I shall have occasion to speak again of that statute before the conclusion of these Lectures, I shall reserve what I have to say regarding the writing by which its operation may be defeated.
(g) Kibble, Ex parte, In re Onslow, L. E. 10 Ch. 373: 44 L. J. (Bank.) 63. (h) 30 & 31 Vict. c. 23, s. 7, Sea. See 14 Geo. 3, c. 78, Fire; and 14 Geo. 3, e. 48, Life.
1 This requirement is of statutory origin. There are similar statutes in Georgia: Simonton v. Ins. Co. 51 Ga. 80; Clarke v. Brand, 62 lb. 28; but they are not general in this country and in their absence parol contracts of insurance will be sustained, unless in conflict with some explicit provision in the charters of the companies. See Read on the Statute of Frauds, §§ 1125-2.7 and cases cited.
Now, these are the principal cases in which the law of England requires that particular contracts should be reduced into writing; not that they are the only ones, for there are many statutes making writing necessary in certain particular transactions, but these are the cases of most frequent occurrence, and therefore fittest to be here mentioned.
Having now, therefore, pointed out to you the practical distinction which exists between the written and verbal contracts, though both of them alike, if not sealed and delivered, rank but as simple contracts, it is time to touch on some points which apply to all simple contracts alike.
The first point to be remarked will, perhaps, at first sight, be considered as nearly self-evident, but much difficulty does, in fact, arise from not attending to it; and, upon a little consideration, it will appear important to be borne in mind: it is this, that the parties to the contract mutually assent to the same thing (i).
*"A. contract," says Pothier, "includes a concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such promise." Hence, assent or acceptance is indispensable to the validity of every contract; for, "as I cannot," continues Pothier, "by the mere act of my own mind transfer to another a right in my goods, without a concurrent intention on his part to accept them, neither can I by my promise confer a right against my person until the person to whom the promise is made has, by his acceptance of it, concurred in the intention of acquiring such right." Wherever there is not an assent, express or implied (k), to the terms of the proposed dealing who sent the goods, it was held that the plaintiff could not recover their price: Bramwell, B., said : " When a contract is made, in which the personality of the contracting party is, or may be, of importance, as a contract with a man to write a book, or the like, or where there might be a setoff, no other person can interpose and adopt the contract" : Boulton v. Jones, 2 H. & N. 564; Boston Ice Co. v. Potter, 123 Mass. 28; Paddock v. Colby, 18 Vt. 485. On the other hand when the personal character of the party dealt with can have no effect upon the contract, or where a party has notice with whom he is dealing, a mistake of identity, in the absence of fraud, might justify the rescission of the contract, but not its avoidance after he has received the goods: Boston Ice Co. v. Potter, supra; Mudge v. Oliver, 1 Allen, 74.
(i) See Jordan v. Norton, 4 M. & W. 155, ante, p. *147; Foster v. Rowland, 30 L. J. (Ex.) 396; Felthouse v. Bindley, 31 L. J. (C. P.) 204.
(k) As to an assent being implied to terms and conditions contained in a contract by both parties, there is no mutuality, and no contract. Take for instance the case of Hutchinson v, Bowker (I). There, the defendants wrote to the plaintiffs offering them a certain quantity of "good" barley upon certain terms, to which the plaintiffs answered, after quoting the defendants' letter, as follows:-"Of which offer we accept, expecting you will give us fine barley and full weight." The defendants, in reply, stated that their letter contained no such expression as fine barley, and declined to ship the same. Evidence *was given at the trial that the terms "good" and "fine" were terms well known in the trade, and the jury found that there was a distinction in the trade between "good" and "fine" barley. It was held, that although it was a question for the jury what was the meaning of those terms in a mercantile sense, yet, that they having found what that meaning was, it was for the Court to determine the meaning of the contract; and the Court held that there was not a sufficient acceptance of the offer to make a complete contract. So, too, where the declaration stated that J. A. was indebted to the plaintiff, and that the defendant's agent, by written instrument, promised the plaintiff as follows:-"Mr. A., the defendant, offers to pay a composition of 7s. in the £ on your account against his nephew, J. A., on your giving proper indemnification to both. In the event of your accepting the offer I will thank you to forward me full particulars of your account, in order that the same may be properly examined;" that the plaintiff accepted the offer of the defendant, and forwarded the full particulars of his account, and had always been ready and offered to give a proper inprinted ticket, from an acceptance of the ticket without objection, see Watkins v. Rymill, 10 Q. B. D. 178; 52 L. J. (Q. B.) 121, and the cases there cited. (1) 5 M. & W. 535. 170 demnification to J. A. and the defendant, yet the defendant did not pay the composition: this declaration was held bad upon demurrer, as showing nothing more than an overture. Indeed, the very leaving of the terms of the indemnity open shows it to be incomplete. Clearly the defendant never intended to *pay unless he got such an indemnity as he should think proper, not what the plaintiff or a third person should think sufficient (m).