such person as shall be appointed the trustee of the said

for that

purpose by the said Judge of Probate for the time being; who is, in that event, authorized to make the appointment. And the said

doth also

if he

further covenant as aforesaid, that upon the death of the said shall then be her trustee under the provisions of this indenture, he will grant, transfer, and assign all and singular the estate and property, both real and personal, which he may then hold under the grant and trusts aforesaid, unto the child or children of her, the said if she shall leave any. But no grant and conveyance, as is above provided, shall be made unto any such trustee until he shall have given bond, with sufficient sureties, to the Judge of Probate for said county for the time being, for the benefit of the said

and her heirs, upon condition that he, the said trustee, his heirs, executors, or administrators, shall hold the said estate and property, to be granted and transferred, subject to all the limitations, provisions, powers, and agreements, and for the several uses, purposes, and trusts, in this indenture limited, declared, and expressed; and upon the condition that he shall at all times well and truly observe, fulfil, and perform the same.

And the said trustee so appointed shall thereupon have all the powers, and be bound to perform all the duties, enjoined upon and required by this indenture, of him, the said

In Witness Whereof, The said parties have hereto interchangeably set their hands and seals, the day and year first above written.

and severally acknowledged this indenture to be their free act and deed.

(Signature.)

Justice of the Peace.

CHAPTER VI.

AGREEMENT AND ASSENT.

SECTION I.

THE LEGAL MEANING OF AGREEMENT.

No contract which the law will recognize and enforce exists, until the parties to it have agreed upon the same thing, in the same sense. Thus, in a case where the defendants by letter offered to

the plaintiffs a certain quantity of "good" barley, at a certain price. Plaintiffs replied: "We accept your offer, expecting you will give us fine barley and full weight." The jury found that there was a distinction in the trade between the words "good" and "fine," and the court held that there was not a sufficient acceptance to sustain an action for non-delivery of the barley. So where a person sent an order to a merchant for a particular quantity of goods on certain terms of credit, and the merchant sent a less quantity of goods, and at a shorter credit, and the goods were lost by the way, it was held by the court that the merchant must bear the loss; for there was no sale or contract between the parties.

There is an apparent exception to this rule, when, for example, A declares that he was not understood by B, or did not understand B, in a certain transaction, and that there is therefore no bargain between them; and B replies by showing that the language used on both sides was explicit and unequivocal, and constituted a distinct contract. Here, B would prevail. The reason is, that the law presumes that every person means that which he distinctly says. If A had offered to sell B his horse for twenty dollars, and received the money, and then tendered to B his cow, on the ground that he was thinking only of his cow, and used the word horse by mistake, this would not avoid his obligation, unless he could show that the mistake was known to B; and then the bargain would be fraudulent on B's part. This would be an extreme case; but difficult questions of this sort often arise. If A had agreed to sell, and had actually delivered, a cargo of shingles at "3.25," supposing that he was to receive that price for a "bunch," which contains five hundred, and B supposed that he had bought them at that price for a "thousand," which view should prevail? The answer would be, first, that if there was, honestly and actually, a mutual mistake, there was no contract, and the shingles should be returned. But, secondly, if a jury should be satisfied, from the words used, from the usage prevailing where the bargain was made and known to the parties, or from other circumstances attending the bargain, that B knew that A was expecting that price for a bunch, B would have to pay it; and if they were satisfied that A knew that B supposed him

self to be buying the shingles by the thousand, then A could not reclaim the shingles, nor recover more than that price. There was such a case so decided.

In construing a contract, the actual and honest intention of the parties is always regarded as an important guide. But it must be their intention as expressed in the contract.

If the parties, or either of them, show that a bargain was honestly but mistakenly made, which was materially different from that intended to be made, it would be a good ground for declaring that there was no contract.

Mistakes of fact in a contract can be corrected by the courts, but not mistakes of law; no man being permitted to take advantage of a mistake of the law, either to enforce a right, or avoid an obligation; for it would be obviously dangerous and unwise to encourage ignorance of the law, by permitting a party to profit, or to escape, by his ignorance. But the law which one is required at his peril to know, is the law of his own country. Ignorance of the law of a foreign state is ignorance of fact. In this respect the several States of the Union are foreign to each other. Hence, money paid through ignorance or mistake of the law of another State may be recovered back.

Fraud annuls all obligation and all contracts into which it enters, and the law relieves the party defrauded. If both of the parties act fraudulently, neither can take advantage of the fraud of the other; and if one acts fraudulently, he cannot set his own fraud aside for his own benefit. Thus, if one gives a fraudulent bill of sale of property, for the purpose of defrauding his creditors, he cannot set that bill aside and annul that sale, although those who are injured by it

may.

SECTION II.

WHAT IS AN ASSENT.

THE most important application of the rule stated at the beginning of this chapter, is the requirement that an acceptance of a proposition must be a simple and direct affirmative, in order to con

stitute a contract. For if the party receiving the proposition or offer accepts it on any condition, or with any change of its terms or provisions which is not altogether immaterial, it is no contract until the party making the offer consents to these modifications.

Therefore, if a party offers to buy certain goods at a certain price, and directs how the goods shall be sent to him, and the owner accepts the offer and sends the goods as directed, and they are lost on the way, it is the buyer's loss, because the goods were his by the sale, which was completed when the offer was accepted. But if the owner accepts the offer, and in his acceptance makes any material modification of its terms, and then sends the goods, and they are lost, it is his loss now, because the contract of sale was not completed.

Nor will a voluntary compliance with the conditions and terms of a proposed contract always make it a contract obligatory on the other party, unless there have been an accession to, or an acceptance of, the proposition itself. In general, if A says to B, if you will do this, I will do that; and B instantly does what was proposed to him, this doing so is an acceptance, and A is bound. But if the doing of the thing may be something else than an acceptance of the offer, or if the thing may be done for some other reason than to signify an acceptance or assent, there must be express acceptance also, or there is no bargain.

SECTION III.

OFFERS MADE ON TIME.

Ir sometimes happens that one party makes another a certain offer, and gives him a certain time in which he may accept it. The law on this subject was once somewhat uncertain, but may now be considered as settled. It is this. If A makes an offer to B, which B at once accepts, there is a bargain. But it is not necessary that the acceptance should follow the offer instantaneously. B may take time to consider, and although A may expressly withdraw his offer at any time before acceptance, yet if he does not do so, B may accept within a reasonable time; and if this is done, A cannot say: "I

have changed my mind." What is a reasonable time must depend upon the circumstances of each case. If A when he makes the offer says to B that he may have a certain time wherein to accept it, and is paid by B for thus giving him time, he cannot withdraw the offer; or if he withdraws it, for this breach of his contract, the other party, B, may have his action for damages. If A is not paid for giving the time, A may then withdraw the offer at once, or whenever he pleases, provided B has not previously accepted it. But if B has accepted the offer before the time which was given expired, and before the offer was withdrawn, then A is bound, although he gave the time voluntarily and without consideration. For his offer is to be regarded as a continuing offer during all the time given, unless it be withdrawn. A railroad company asked for the terms of certain land they thought they might wish to buy. The owner said in a letter, they might have it at a certain price, if they took it within thirty days. After some twenty-five days, the railroad company wrote accepting the offer. The owner says, No, I have altered my mind; the land is worth more; and I have a right to withdraw my offer, because you paid me nothing for the time of thirty days allowed you. But the court held that he was bound, because this was an offer continued through the thirty days, unless withdrawn. They said that the writing when made was without consideration, and did not therefore form a contract. It was then but an offer to contract, and the party making the offer most undoubtedly might have withdrawn it at any time before acceptance. But when the offer was accepted, the minds of the parties met, and the contract was complete, and no withdrawal could then be made.

SECTION IV.

A BARGAIN BY CORRESPONDENCE.

WHEN a contract is made by correspondence, the question occurs, At what time, or by what act, is the contract completed? The law as now settled in this country may be stated thus. If A writes to B proposing to him a contract, this is a continued proposition or offer of