(r) 3T.R. 653.
The party who made the offer has a right to say, *"Non hoec in foedera veni;" and to decline any other bargain than that which he offered. Where an offer is accepted in the terms in which it was made, the contract is binding on both parties. At any time before it is accepted the offer may be rescinded, but not afterwards (u). The importance of ascertaining accurately that the offer which the one party has made has not been altered by any term or stipulation introduced by the other in accepting it, is so great, that another example or two will be useful. Thus, a broker sold to Cowie, of Calcutta, a quantity of indigo, and drew up a sold note addressed to the vendor, who having objected to a particular word, Cowie struck his pen through it, placing his initial over the erasure, and returned it to the broker, who delivered it so altered to the vendor. The broker afterwards delivered to Cowie a bought note which differed materially from the sold note. In an action brought by the vendor against Cowie for non-performance of the contract as stated in the sold note, the Supreme Court at Calcutta considered that the sold note formed the contract, and found for the plaintiff; but the Judicial Committee of the Privy Council, upon appeal, considered that the parties intended the bought and sold notes together to form the agreement between the parties, notwithstanding Cowie's alteration of the sold note, and consequently, that *there being a material variation in the terms of the bought and sold notes, they did not together constitute a binding contract (x). In another case, a broker, acting for the plaintiff, verbally contracted to buy certain hemp of the defendant, and sent him a note stating the terms, commencing thus :-"Sold, for Campbell (the defendant), to Moore (the plaintiff), 50 tons of Petersburgh clean hemp, ex G. G. to arrive, at £34 per ton, payment at the option of the buyer by acceptance on London at six months from delivery, or cash in 14 days less 2 1/2 per cent., to be taken from the quay at the landing weights, and to be a fair average quality of the season." The defendant sent back another note in these words:-" I have this day sold, through you, to M. 50 tons Petersburgh clean hemp, expected to arrive per G. G. at £34 per ton from the quay. If the ship is lost, or the hemp damaged on the voyage, this contract to be considered void for such quantity as may he lost or damaged. The quality to he of an average of the season, and if any dispute arises, the same to he settled by arbitration. Payment, six months' acceptance, or cash in 14 days less 2 1/2 per cent. discount, at the buyer's option. Customary allowances." The plaintiff sued for non-delivery of the hemp, treating the note signed by the defendant as the contract, and it was held that the liability of the defendant depended upon the *question of fact, whether the note signed by him was intended by both parties to be the contract, in which case he would be liable, or whether the defendant only intended to be bound as the seller, provided the plaintiff should also sign a note to bind himself as the buyer. "If this were a case," said Parke, B., in delivering the judgment of the Court of Exchequer, "in which the plaintiff sought to prove a contract by means of bought and sold notes, made by a broker for both parties, he must have failed, for the two notes disagree, and there would have been no valid contract. This, however, is not the case of a contract entered into by a broker for the buyer and seller; the person who made the contract was, indeed, a broker, but he acted solely for the plaintiff. The plaintiff then insists that the note signed by the defendant is the contract, and if it be true that this was intended by both parties to be the contract between them, the defendant would be bound as a party to be charged, and the memorandum would be sufficient within the Statute of Frauds. But if Campbell, the defendant, never intended to be bound as the seller unless Moore was also bound as the buyer, and meant that Moore should sign the note on his part to bind him, then there was no valid contract between them "(y).
(s) Humphreys v. Carvalho, 16 East, 45. (t) 4 Bing. (13 E. C. L. R.) 653. (u) Cooke v. Oxley, 3 T. R. 653.
(x) Cowie v. Remfry, 5 Moore (P. C.) 232.
(y) Moore v. Campbell, 10 Ex. 323; 23 L. J. (Ex.) 310; see Heyworth v. Knight, 33 L. J. (C. P.) 298.
That the acceptance of the *offer, in order to be binding, must not be qualified by any fresh stipulation not contained in the offer, has also been strongly shown in contracts for the purchase of scrip and shares. These contracts are often made by letters, the intended purchaser applying by letter for shares, and the answer, after complying with this request, going on to stipulate that the shares should not be transferable, or adding some term not contemplated by the applicant (z). In such cases, in the absence of assent to the additional stipulation, the contract would be void; and no such allottee could be sued on the transaction, for the stipulation was clearly not implied in the agreement to take the shares.
Where the offer of a contract is made by letter, the offerer must be considered as making during every instant of the time his letter is travelling the same identical offer to the receiver (a). In like manner the receiver's acceptance of the contract is complete when in due time he sends his answer. This clue time is ascertained by the usage of trade, by the actual stipulation of the parties, or by what is a reasonable time under the circumstances (b). When the post is either *directly or impliedly appointed by the party making the offer to be the channel of communication, the contract is complete when the letter accepting the offer is posted, even if the letter of acceptance never reaches its destination.1 The party accepting has then done all he letters was not complete until the letter accepting the offer had been received by the person making the offer; and the correctness of that decision is maintained, upon an able and elaborate discussion of reason and authorities, in Langdell on Contracts (2d ed.), 989-996. In England, New York, and New Jersey, and in the Supreme Court of the United States, the opposite view has prevailed, and the contract has been deemed to be completed as soon as the letter of acceptance has been put into the post-office duly addressed. [He cited the English cases referred to in the text and also] 2 Kent Com. 477 note c.; Mactier v. Frith, 6 Wend. 103; Vassar v. Camp, 1 Kernan, 441; Trevor v. Wood, 36 N. Y. 307; Hallock v. Commercial Ins. Co., 2 Dutcher, 268, and 3 Dutcher, 645; Tayloe v. Merchants' Ins. Co., 9 How. 390. But this case does not require a consideration of the general question; for, in any view, the person making the offer may always, if he chooses, make the formation of the contract which he proposes dependent upon the actual communication to himself of the acceptance." whatever be the means of communication employed.1 "It cannot make any difference whether the negotiation is carried on by post, by telegraph, or by oral message. If the offer is not retracted, it is in force as a continuing offer till the time for accepting or rejecting it has arrived. But if it is retracted there is an end of the proposal" (f).