Again, though there may be an assent to the terms of the proposed contract by both parties, yet if one party is induced to assent, believing through the fraudulent misrepresentation of the other that that other is some one else than he really is, then there is no contract because there is no agreement as to who the parties are, one man thinking only that he is contracting with another, when he is not really doing so. And if the man thus imposed upon furnishes goods under such a supposed contract, the fraudulent acquirer cannot give a good title to any one who purchases from him, though for valuable consideration and without notice of the fraud, unless the sale be in market overt. This is shown by the recent case of Lindsay v. Cundy. There, one Blenkarn took premises at 37, Wood Street, London, and wrote to the plaintiffs at Belfast, ordering goods of them. The letters were dated 37, Wood Street, and signed "A. Blenkarn & Co.," in such a way as to look like "A. Blenkiron & Co.," there being an old established firm of Blenkiron & Sons at 123, Wood *Street. One of the plaintiffs knew something of that firm, and the plaintiffs entered into a correspondence with Blenkarn, and ultimately-supplied the goods ordered, addressing them to "A. Blenkiron & Co., 37, Wood Street." The fraud having been discovered, Blenkarn was indicted and convicted for obtaining goods by falsely pretending that he was Blenkiron & Sons. Before the conviction the defendants had purchased some of the goods bond fide of Blenkarn without notice of the fraud, and re-sold them to other persons. The plaintiffs having brought an action for the conversion of the goods; it was held by the Court of Appeal (n), reversing the judgment of the Queen's Bench Division, and afterwards by the House of Lords (o), affirming the judgment of the Court of Appeal, that the plaintiffs intended to deal with Blenkiron & Sons, and therefore there was no contract with Blenkarn; that the property in the goods never passed from the plaintiffs, and that they were accordingly entitled to recover in the action. But mere error in the absence of fraud, as to the person with whom the contract is made, only annuls the contract if personal considerations enter *into it; if the person sought to be bound would have been equally willing to make the same contract with any other person, it would stand (p).1
(m) Cope v. Albinson, 22 L. J. (Ex) 37; 8 Ex. 185; M'lver v. Richardson, 1 M. & S. 557; Mozley v. Tinkler, 1 C. M. & R. 692; Russell v. Thornton, 29 L. J. Ex. 9; 30 L. J. (Ex.) 69; see the judgment of Kindersley, V. C, in Be Leeds Banking Company, 35 L. J. (Ch.) 75; Oriental Island Steam Company v. Briggs, 31 L. J. (Ch.) 241.
(n) Lindsay v. Cnndy, 2 Q. B. D. 96, 46 L. J. (Q. B. etc.) 233; reversing 1 Q. B. D. 348, 45 L. J. "(Q. B. etc.) 381.
(o) Cundy v. Lindsay, 3 App. Cas. 450, 47 L. J. (Q. B., etc.) 481 (H. L.). And see Hardman v. Booth, 1 H. & C. 803; 32 L. J. (Ex.) 105; Higgons v Burton, 26 L. J. (Ex.) 342.
(p) Smith v. Wheatcroft, 9 Ch. Div. 223.
1 Thus a contract for the performance of particular personal services is not assignable without the assent of the parties: Chapin v. Longworth, 31 Ohio St. 421; so that when an author agrees with a particular firm to publish a forthcoming work, this contract cannot be assigned by the publishers, without the author's consent, to another firm: Hole v. Bradbury, 12 Ch. Div. 886. "Where the defendants had been in the habit of dealing with a particular person, who was in debt to them, and they sent an order for goods intending it to be filled by this party, but it came into the hands of the plaintiff, the successor in business of the party with whom they had been in the habit of words "quality to be approved on Monday," and the plaintiff not having approved or disapproved on the Monday, the broker, a few days after, sent the sold note to the defendant with those words struck out, and the defendant then repudiated the engagement; it was held that he had no right to do so, for the plaintiff, not having signified his disapproval on Monday, was then bound by it, and the engagement, being mutual, was a perfect contract. This case, it will be observed, differs from Cooke v. Oxley, which was an offer to sell not accepted within the time given. Here was not merely an offer to sell, but the buyer had an option of renouncing the purchase on Monday, and not having renounced, the contract had become absolute (s). The case of Routledge v. Grant (t) is also a good example of this principle. Grant offered to purchase Rout-ledge's house, requiring possession on the 25th of July, and a definite answer in six weeks; Routledge accepted the offer, with possession on the 1st of August; Grant afterwards, within the six weeks, retracted his offer, and it was held that he had a right to do so.
The assent to a contract must be to the precise terms offered. Where one party proposes a certain bargain, and the other agrees subject to some modification or condition, there is no mutuality of contract until there has been an assent to it so modified; otherwise it would not be obligatory on both parties, and would therefore be void (q). There is a clear distinction between a mere proposal and an agreement to sell. As in Cooke v. Oxley, where the defendant offered goods to the plaintiff and gave him till four o'clock in the afternoon, the plaintiff did not within the time express that he acceded to the proposal, and was therefore held not entitled to sue the defendant for non-delivery of the goods. The engagement was all on one side, and the defendant had a right until four o'clock to sell the goods to any other person (r). In like manner *where a broker sold on Saturday certain goods of the defendant to the plaintiff, subject to the plaintiff's approval of the quality on Monday, and sent the sold note to the plaintiff on Saturday marked with the
(q) Jordan v. Norton, 4 M. & W. 155; Cooke v. Oxley, 3 T. R. 653; Be Leeds Banking Company, Mallorie's case, 36 L. J. (Ch.) 141; L. R. 2 Ch. 181; Re Universal Banking Corporation, ex parte Gunn, 37 L. J. (Ch.) 40; Re Saloon Steam Packet Co., ex parte Fletcher, lb. 49. But a binding contract may be made by letters or other writings, although they may contain a reference to the preparation of a more formal contract thereafter. Bonnewell v. Jenkins, 8 Ch. Div. 70; 47 L. J. (Ch.) 758; Rossiter v. Miller, 3 App. Cas. 1124; 48 L. J. (Ch.) 10 (H. L.); Lewis v. Brass, 3 Q. B. D. 667.