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a hundred weight at eight such stones ; and a ton at twenty such hundred weight. And it is provided, that no one shall sell by any other weights or measures than the imperial weights or measures prescribed by the act, under a penalty ; but commodities sold in a vessel, not specifying any particular measurement, are excepted.
The provisions of this put an end to such questions as occurred under the former, whether a bargain was void, in which the ratio between the local measures by which the parties settled their contract and the imperial mea. sures was omitted.
Lord Tenterden, in delivering the judgment in such a case, (e) said, - I cannot forbear observing, that if a contract for a sale by the Winchester bushel is to be deemed valid, the object of the statute will be in a great measure defeated.” It was to put an end to such doubts that the Winchester bushel and all other local weights and measures were abolished.
It may, however, be observed, that where the measures and weights are different in the place of the contract and in that of delivery; or in the country of the buyer and in that of the seller; or in that where the order *is,
[ *30 ] given and that in which the merchant resides to whom it is address-' ed; a question may arise by which of the standards the quantity is to be estimated ; and in a case of this sort in Scotland, the matter was held to depend on the port of delivery.(f )
In sales of goods by quantity or weight, there sometimes occurs an ambiguity of phrase relative to the thing sold which requires the interpretation of custom or of the Court. Thus, where a bargain was for 6 about 300 qrs. more or less” of foreign rye of good merchantable quality, at 38s. 3d. ; also, 66 about 50 qrs, of foreign red wheat,” &c., at 72s. per quarter, shipped on board the Anna Elizabeth, &c.; the ship arrived with 345 qrs. of rye, and 91 qrs. of wheat. The question was, whether the defendant was, under the words “ more or less," and under the word " about,” bound to take so large an excess over the expressed quantity. The Court of King's Bench held that this was not a question on which mercantile evidence was to be let in, the words not being technical, but for the Court to construe. And as to the meaning of the contract, they held,-1. That it did not fairly mean all that the ship could bring, or the seller send by her; 2. That in common construction it could not intend so large an excess, and that as it lay on the sellers to shew that such an excess was meant, if from obscurity they failed in this, they could not succeed in binding the buyer to take it.(g)
3. Sale of a quantity of goods of known description.Where the subject either offered by the seller, or *ordered by the buyer, is a commodity known by a certain name in the market, the subject, when furnished, must correspond with that description ; as in two cases where sassafras wood in the one, and scarlet cuttings in the other, were terms held to be descriptive in the market, of a particular species of commodity, with which that furnished by the buyer did not agree.
4. Sale of a subject to be provided.—Where the subject of the bargain is to be afterwards provided, collected, or manufactured, and delivered to the
(e) Watts v. Friend, 1830; K. B.; 10 Barn, and Cress. 446; and 1 Bell's Illus. p. 94.
f) Schurmans and Son v. Stephen, 18th July 1832; 10 S. 839; and 25th June 1833; 11 S. 779; 1 Bell's Illus. p. 93.
(g) Cross v. Eglin, 1831 ; 2 Barn. and Adolph. 106; 1 Bell's Illus. p. 94.
buyer, the contract is not null, as in the case of a proper sale, but effect is given to it only in certain circumstances. Thus, where one sold a quantity of nutmegs which he had not in his possession, but meant to go into the market and buy them, in order to fulfil his contract, Abbott, Chief Justice, said, “I have always thought, and shall continue to think, until I am told by the House of Lords that I am wrong, that if a man sells goods to be delivered at a future day, and neither has the goods at the time, nor has entered into any prior contract to buy them, nor has any reasonable expectation of receiving them by consignment, but means to go into the market and to buy the goods, which he has contracted to deliver, he cannot maintain an action upon such a contract. It amounts, on the part of the vender, to a wager on the price of the commodity, and is attended with the most mischievous consequences.”(h)
In America, the same doctrine seems to be approved of.(0)
SALE is a mutual and reciprocal contract, in which both parties are bound or neither. Proof of their mutual consent and engagement is the first essential point in all actions on the contract. But there may be a preliminary negociation towards a sale, out of which, although as a sale it may prove abortive, there may arise an undertaking by one of the parties, from failure to fulfil which, disappointment and loss may arise to the other, and an equitable right to demand either the completion of the contract, or indemnification of the loss incurred by the disappointment.
It may, therefore, be proper to consider, 1st, the proof of such preliminary negotiation and undertaking, with the effect which is given to it in different countries ; and, 2d, the proof of the complete contract of sale.
1. Proof and Effect of Preliminary Negociations.
The preliminary proposals and negociations for a sale may consist either in an Offer to purchase or sell, made verbally, or by letter; or in an Order for goods sent to a dealer who professes to have such goods to dispose of.
OFFER.An offer to buy, or to sell, goods, when accepted, forms the con
2 tract of sale ; while unaccepted, *it may infer an obligation on the
" offerer, from which, if he retract unduly, disappointment and loss may arise to the other party, and equitably a ground of action to the person io whom the offer is made.
Whether such an action is maintainable is a question differently adjudged in different countries. In those countries which have followed the principles
(h) Bryan v. Lewis, 1826; Ryan and Moody, 386; 1 Bell's Illus. p. 113. (i) 2 Kent, Com. 468.
of the Roman jurisprudence, such action is admitted ; but in England and America, proceeding on the common law of England, it is denied.
In inquiring into the principle upon which this matter ought to be settled, it is proper, in the first place, to distinguish between mutual contract, and unilateral obligation. In a mutual contract both parties must be bound or neither ; but by a unilateral engagement one may bind himself to another. In England, no parole engagement is effectual, unless it either be for a consideration, or as part of a mutual contract; a promise or engagement, in other circumstances, being regarded as nudum pactum ex quo non oritur actio. France, Scotland, and Holland, an engagement duly made is binding on the party without regard to the consideration on which it has proceeded. And it seems inconsistent with the plain principles of equity, that a person who has been induced to rely on such an engagement should have no remedy in case of disappointment. If, for example, a merchant propose to sell to another a cargo of sugar or of tobacco, and agree to give him a certain time to determine whether he will buy the goods or not, engaging not to dispose of them till the time has elapsed, and in the meanwhile he dispose of them, and disappoint the person to whom the promise has been made, who may have rejected an advantageous offer *from another dealer, it seems unjust that for the disappointment thus occasioned there should be no remedy. L
td The only answer to this in the English law, appears to be, that no one is entitled to rely on a unilateral engagement gratuitously made and without consideration. But one cannot help feeling that a rule so different from what commonly happens in the intercourse of life raises that inconsistency between law and justice which is sometimes complained of. The subtleties of lawyers never ought to interfere with the common sense and understanding of mankind; and the law is on a better footing where an engagement, seriously made, is by the law enforced, without regard to the motive from which it proceeds.
“In France,” says Touiller, " when he who makes an offer has fixed a determinate time for acceptance, or has expressly or tacitly engaged not to revoke before the answer of the other party, the promise is not revocable during the terms; so, if I offer to you 100 pipes of wine at a certain price, and add that I wait your answer before selling them to another, I cannot revoke my offer before the time necessary for having your answer. But if that answer is unduly delayed, I regain my freedom, which I had suspended only for a limited time.”(a)
In Holland, where the rules of the Code Civile are law, unless in so far as altered by the Code de Commerce de Hollande, the same doctrine may be held as established.(6)
In Scotland the same doctrine prevails. Lord Stair *says, “An offer hath the implied condition of the other party's acceptance." . So Los that, if the acceptance be not adhibited presently, or within the time expres. sed in the offer in which the other party hath liberty to accept, there ariseth no obligation."(c)
The doctrine thus established in France, in Holland, and in Scotland, rests upon the principle, that a promise is binding as a unilateral engagement, and
(a) 6 Toullier ; Le Droit Civile Français, p. 33, No. 30.
that an offer is a conditional promise or engagement if duly accepted. Therefore, although there is no action, as upon a mutual contract, the unilateral engagement is effectual to bind the offerer till discharged by rejection of the offer, or by expiration of the time allowed for acceptance.
In England, this doctrine, which seems consistent with good faith, stands opposed to a maxim of the old common law, which mercantile usage does not appear entirely to have overturned. By that law a promise is nudum pactum, and an offer is regarded only as a promise not binding on the offerer.(d)
The distinction already taken notice of between a mutual contract and a unilateral engagement, leads to this further consequence, that an offer still unaccepted, while it binds the offerer in the French, Dutch, and Scottish law for any damage which may arise from undue refusal to fulfil the engagement, does not bind the commodity (not yet specific and identified) to the person to whom the offer is made, so that if the offerer should sell it to another, there is no right in the buyer to demand delivery; or if it should perish *96, before acceptance *of the offer, the loss could not be laid upon the
- person to whom the offer is made. But an offer accepted is, by the law of England, as well as by that of France and Scotland, binding from the moment of acceptance, such acceptance completing the contract of sale and forming the reciprocal engagement on either party which distinguishes the mutual contract from the unilateral engagement. The acceptance is duly made if it take place before the offer has been recalled. And so in England, where an offer of a commodity - requiring your acceptance in course” was made by a letter, which being misdirected, did not reach the correspondent till the day after it should have been delivered, and he having accepted the moment he received it, the Court held that the offerer was bound by the contract as duly accepted, although not having received the answer to his offer 6 in course," he had in the meanwhile sold the commodity.(e)
It may be observed, that an offer duly accepted will have a different effect, according as the subject of the offer is a specific commodity, or indefinitely part of a larger quantity. In the former case, from the moment of acceptance the risk of the commodity is with the buyer; in the latter, the goods continue in all senses the property and at the risk of the seller.
Two points remain on this subject,—What is the proof of acceptance of the offer ? What is sufficient to bar revocation ?
(1.) Where acceptance is by word of mouth between the parties or their agents, parole evidence of such acceptance will be sufficient in France, ScotP O land, and *Holland. In England and America, proof by a note in [ *37]
".. writing, signed by the parties or their agent, or parole proof with earnest, part payment or part delivery, is necessary.
Where the transaction is between parties at a distance, correspondence by letter is the natural evidence; but silence or compliance on the part of the offeree may be a sufficient acceptance. As if one offer to sell and send goods to another unless forbidden in course of post, or before a certain day, and no notice of such forbidding is received by the time limited, the offeree is bound as having accepted. Or if, on the other hand, one offer to buy goods at a certain price, provided they are sent, or a bill of lading trans
(d) Cooke v. Oxley, 3 T. Rep. 653. See also Routledge v. Grant, 4 Bing. 653. (e) Adams v. Lindsell, 1 Barn. and Ald. 681 ; 1 Bell's Illus. p. 86.
mitted by a certain day, the arrival of the goods or of the bill of lading binds the offerer. (f)
If the offer should be accepted with a condition annexed, that is no acceptance, but substantially a new offer requiring acceptance on the part of the original offerer. For example, an offer is sent of a commodity at a certain price and at three months' credit, and the correspondent accepts on condition that the credit be extended to six months; the offerer is not bound, for this is no acceptance, and requires either an acceptance by the original offerer or acquiescence in the change.(g) *(2.) As to what shall be required to bar revocation on the part of r*9
[*38] the offerer, this may be either by an express agreement not to revoke L till a certain event, or by the limitation of time for the acceptance of the offer.
Where an offer is made, and the offeree asks a certain time within which to refuse or accept, the offerer, if he agree to grant the time, is barred from revoking till it shall expire.(h)
The counterpart of the above rule is, that the offer is discharged, and the offerer free by the expiration of the time limited without acceptance.(i)
ORDER.—Where a merchant sends to his correspondents price-lists of goods which he has so disposed of, inviting them to give him an order, this is construed as an offer to sell those goods at the rates fixed in the pricelists, and an order sent in course of post will bind the person thus acting. But where there is no special engagement to keep the goods undisposed of, the correspondent is not entitled to rely on his order being complied with as if it were the acceptance of a specific offer. It is only by an acceptance in course of post, or by tacit agreement, that the bargain will be concluded, or the person who sends the order entitled to damages.(k) When an order is sent in the above *circumstances, it may be rejected, and the person *907 to whom it is sent is bound so to do in due course of post; but if L" not rejected, the person who sends it will be entitled to take it for granted that it is accepted, and to rely on the goods being sent.
2. Proof of the Contract of Sale.
Different proofs are required in the Courts of Law of different countries for establishing the agreement for the sale of goods.
The most peculiar are those required by the law of England, and of America. Scotland, France, and Holland, are in general regulated by the principles of the Roman law in admitting parole as well as written evidence.
(1.) Of sales in which writing is indispensable.
(f) 2 Pardessus, No. 253. Lombe v. Scott, 17th Nov. 1779. Mor. 5627; 1 Bell's Illus. p. 84. See also Farries v. Stein, March 7, 1799 ; Mor. 8482, as reversed in the House of Lords, March 24, 1800 ; 1 Bell's Com. 326; 1 Bell's Illus. p. 85.
(g) Jacques, Serruys, and Co. v. Watt, 12th Feb. 1817; Fac. Coll. ; 1 Bell's Illus. p. 84. M'Neill v. Cameron, 21st Jan. 1830; 8 S. 362; 1 Bell's Illus. p. 84.
(h) Jaffrey v. Boag, 7th Dec. 1824; 3 S. 266; 1 Bell's Illus. p. 85. Watson and Co. v. O'Reilly and Co., 16th Feb. 1826 ; 4 S. 480; 1 Bell's Illus. p. 85. See the case of Cooke v.Oxley, 3 T. Rep. 653, which perhaps proceeded on some technical rule of English plead. ing. (i) 2 Pardessus, No. 253, 1 Stair, 3. 9, and Farries v. Stein, as cited above, p. 37.
k) 2 Pardessus, No. 253.