Even on the doc

offer, and to receive an answer in behalf of A. trines of the civil law, it would seem to be permissible under such circumstances to hold that A.'s revocation comes too late, if it only arrives after the completion of the bargain thus authorized to be made in his behalf. In reality, the true theory of the case seems to be, that an offer sent by mail is an authority to the party to whom it is sent to bind the sender by acceptance, and includes an implied promise that no revocation is to take effect till received by the agent.

v. Alex

§ 74. The cases that arise in attempts to contract by correspondence present at times very singular complexity. In Dunmore Dunmore v. Alexander, (a) the party to whom the pro- ander. posal was made wrote and posted a letter of acceptance; and then wrote and posted a letter recalling the acceptance, and both letters reached the proposer at the same time. The majority of the court of sessions in Scotland held that there was no contract, reversing the judgment of the lower court; and a very similar case is cited by Merlin, Repert. tit. Vente, sec. 1, art, 3, no. 11, where an offer was sent by letter to buy goods on certain conditions. The offer was accepted by letter, but by a subsequent letter the unconditional acceptance was recalled, the writer proposing some modification in the conditions. Both letters reached the original proposer together, and he declined to execute the contract. It was held that the proposer could not be forced to perform the bargain, the second answer to his proposal authorizing him to consider the acceptance as withdrawn. (b)

§ 75. In the case of M'Culloch v. The Eagle Insurance Company, (c) A. wrote to ask B. on what terms he would M'Culloch insure a vessel. B. wrote on the 1st January that he Insurance would insure at a specified rate, and on the 2d January Company. wrote a letter retracting his offer.

(a) 9 Shaw & Dunlop, 190.

(b) [See In re Constantinople & Alexandria Hotels Co., Reidpath's case, L. R. 11 Eq. 86; Finucane's case, 17 W. R. 813.]

(c) 1 Pick. 283. [In Hallock v. Commercial Ins. Co. 2 Dutcher, 268, 283, Vredenburgh J., referring to M'Culloch v. The Eagle Ins. Co., says: "This case is against the whole current of authorities,

A. had written an acceptance

both in England and in this country, and appears to me requires for the creation of a contract a fact without significance, or a condition that would render its creation impossible." The principle of M'Culloch v. Eagle Ins. Co. is certainly most positively controverted in the recent cases of Byrne v. Leon Van Tienhoven, L. R. 5 C. P. 344, and Stevenson v. McLean, L. R. 5 Q. B. Div. 346.]

of the offer before receiving the second letter, but after B. had posted the second letter, and it was held that there was no contract; but this case is disapproved by the American text-writers, and is in conflict with the decision of the supreme court of the United States in Tayloe v. Merchants' Fire Insurance Company, cited ante, § 69.

which has

Strickland

§ 76. As there can be no sale without a thing transferred to the purchaser in consideration of the price received, it fol- A thing lows, that if at the time of the contract the thing has ceased to ceased to exist, the sale is void. In Strickland v. Tur- exist. ner, (a) a sale was made of an annuity dependent upon a life. It was afterwards ascertained that the life had already expired at the date of the contract, and not only was the v. Turner. sale held void, but assumpsit by the purchaser to recover back the price paid as money had and received was maintained. In Hastie v. Couturier, (b) a cargo of corn, loaded on a vessel not yet arrived, was sold on the 15th of May. It was afterwards discovered that the corn, having become heated, had been Couturier. discharged by the master at an intermediate port, and sold on the 21st of the preceding month of April. Held, that the sale of the 15th of May was properly repudiated by the purchaser.

Hastie v.

§ 77. These cases are sometimes treated in the decisions as dependent on an implied warranty by the vendor of the existence of the thing sold: sometimes on the want of consideration for the purchaser's agreement to pay the price. Another, and perhaps the true ground, is rather, that there has been no contract at all; for the assent of the parties, being founded on a mutual mistake of fact, was really no assent, there was no subject-matter for a con

(a) 7 Ex. 208. See, also, Cochrane v. Willis, L. R. 1 Ch. App. 58; 35 L. J. Ch. 36; Smith v. Myers, L. R. 5 Q. B. 429; 7 Q. B. 139, in error.

(b) 9 Ex. 102, and 5 H. L. Cas. 673, reversing the judgment in 8 Ex. 40. See, also, Barr v. Gibson, 3 M. & W. 390.

tract, and the contract was therefore never completed. (c) This was the principle applied by Lord Kenyon in a case where the leasehold interest which the buyer agreed to purchase turned out to be for six years instead of eight and a half, and where he held the contract void, as founded on a mistake in the thing sold, the buyer never having agreed to purchase a less term than that offered by the vendor. (d) This is also the opinion of the civilians. Pothier (e) says: "There must be a thing sold, which forms the subject of the contract. If then, ignorant of the death of my horse, I sell it, there is no sale for want of a thing sold. For the same reason, if when we are together in Paris, I sell you my house at Orleans, both being ignorant that it has been wholly, or in great part, burnt down, the contract is null, because the house, which was the subject of it, did not exist; the site and what is left of the house are not the subject of our bargain, but only the remainder of it." And the French Civil Code, art. 1109, is in these words, "There is no valid assent, where assent has been given by mistake, extorted by violence, or surprised by fraud.”

yet in ex

istence, or

quired by

vendor.

§ 78. In relation to things not yet in existence, or not yet beThings not longing to the vendor, the law considers them as divided into two classes, one of which may be sold, while the not yet ac- other can only be the subject of an agreement to sell, of an executory contract. Things not yet existing which may be sold are those which are said to have a potential existence, that is, things which are the natural product or expected increase of something already belonging to the vendor. (el) A man may sell the crop of hay to be grown on his field, (2) the wool to be clipped from his sheep at a future time, the milk that his cows will yield in the coming month, (f) and the sale is valid. (g)

(c) [Forbes J. in Rice v. Dwight Manuf. Co. 2 Cush. 80, 86; McLean J. in Allen v. Hammond, 11 Peters, 63, 71, 72; 2 Kent, 468, 469; Hitchcock v. Giddings, 4 Price, 135; Bigelow C. J. in Gardner v. Lane, 9 Allen, 492, 499; Franklin v. Long, 7 Gill & J. 407; Wilde J. in Thompson v. Gould, 20 Pick. 139.]

(d) Farrar v. Nightingal, 2 Esp. 139. (e) Contrat de Vente, No. 4.

(el) [Heald v. Builders' Ins. Co. 111 Mass. 38; Lewis v. Lyman, 22 Pick. 437, 442, 443; Smith v. Atkins, 18 Vt. 461.] (e2) [Or a certain quantity of corn,

where the corn is growing in the field, at a stipulated price, to be delivered in the future. Sanborn v. Benedict, 78 Ill. 309. See Gittings ". Nelson, 86 Ill. 591.]

(f) 14 Viner's Ab. tit. Grant, p. 50; Shep. Touch. Grant, 241; Perk. §§ 65, 90; Grantham v. Hawley, Hob. 132; Wood & Foster's case, 1 Leon. 42; Robinson v. Macdonnell, 5 M. & S. 228; [Sanborn v. Benedict, 78 Ill. 309.]

(g) [See Low v. Pew, 108 Mass. 350. An assignment of goods at Assignments sea, and their proceeds, is sufficient to pass a legal title

of

goods at sea, and their pro

ceeds.

But he can only make a valid agreement to sell, not an actual sale, where the subject of the contract is something to be afterwards acquired, (h) as the wool of any sheep, or the milk of any cows, that he may buy within the year, or any goods to which he may obtain title within the next six months. This distinction involves very important consequences, as will be pointed out hereafter. (Book II.) For the present it suffices to say, that in an actual sale the property passes, and the risk of loss is in the purchaser, while in the agreement to sell, or executory contract, the risk remains in the vendor.

Lunn v.

§ 79. The leading modern case on the subject is Lunn v. Thornton, (i) decided in 1845. The action was trover for bread, flour, &c. The plaintiff, in consideration of a Thornton, sum lent to him, had by deed-poll covenanted that he "sold and delivered unto the defendant all and singular his goods, household furniture, &c. then remaining and being, or which should at any time thereafter remain and be in his dwelling-house," &c. Tindal C. J., in delivering the opinion of the court, said: "It is not a question whether a deed might not have been so framed as to have given the defendant a power of seizing the future personal goods of the plaintiff, as they should be acquired by him, and brought on the premises, in satisfaction of the debt, but the question arises before us on a plea which puts in issue the property in the goods, and nothing else; and it amounts to this, whether by law a deed of bargain and sale of goods can pass the property in goods which are not in existence, or at all events, which are not belonging to the grantor at the time of executing the deed." Held in the negative. Subsequent cases are to the same effect. (k)

to the proceeds. Hodges v. Harris, 6 Pick. 360. Parker C. J. said: "It is very clear that the transfer of an invoice of an outward cargo, after the sailing of the vessel, operates upon the proceeds so as to make them the property of the purchaser." The goods, being the proceeds, were, in fact, delivered to the purchaser when they arrived in port.]

(h) Per Mansfield C. J. in Reed v. Blades, 5 Taunt. 212, 222. [See Low v. Pew, 108 Mass. 347. In Thrall v. Hill, 110 Mass. 330, Morton J. said: "It is true that a man cannot sell personal property

in which he has no interest. A mere possibility, coupled with no interest, is not the subject of sale, and would not pass by bill of sale. But if he has a present interest in the property sold, a sale of it is valid."]

(i) 1 C. B. 379.

(k) Gale v. Burnell, 7 Q. B. 850; Congreve v. Evetts, 10 Ex. 298, and 23 L. J. Ex. 273; Hope v. Hayley, 5 E. & B. 830, and 25 L. J. Q. B. 155; Chidell v. Galsworthy, 6 C. B. N. S. 471; Allatt v. Carr, 27 L. J. Ex. 385. See, also, Moakes v. Nicholson, 34 L. J. C. P. 273;