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property situate in Flamank Street, Birkenhead.

On the 7th July, 1891, the secretary of the society handed to
the plaintiff, in the office of the society at Liverpool, a letter in
these terms : "I hereby give you the refusal of the Flamank
Street property, at 750/., for fourteen days." The plaintiff had
been for some time in negotiation for the property, and had on
two previous occasions made offers for the purchase of it, which
were not accepted by the society. These offers were made by
means of letters written by the secretary in the office of the
society, and signed by the plaintiff there. The plaintiff was
unable to write except to sign his name. The plaintiff resided
in Birkenhead, and he took away with him to that town the
letter of the 7th of July, containing the offer of the society. On
the 8th of July a letter was posted in Birkenhead at 3.50 p.m.,
written by his solicitor, accepting on his behalf the offer to sell
the property at 750/. This letter was not received at the defen-
dant's office until 8.30 p.m., after office hours, the office being

J. c



18 CONTRACT.

closed at six o'clock. On the same day a letter had been
addressed to the plaintiff by the secretary of the building society
in these terms : " Please take notice that my letter of the
7th inst., giving you the option of purchasing the property at
Flamank Street, Birkenhead, at 750/., for fourteen days, is
withdrawn, and the offer cancelled." This letter was posted
in Liverpool between 12 and 1 p.m., and was received in
Birkenhead at 5.30 p.m. Consequently, it was received before
the plaintiff's letter of acceptance had reached Liverpool, but
after it had been posted.

Held, that the acceptance was complete before the offer
ivas withdrawn. Where an offer is made under such circum-
stances that it must have been within the contemplation of
the parties that, according to the ordinary usages of man-
kind, the post might be used as a means of communication,
the acceptance is complete as soon as it is posted ; but this
doctrine does not apply to the revocation or modification of
an offer, for this can be no more effectual than the. offer
itself, unless brought to the mind of the person to whom the
offer is made.



The Mode of Acceptance must be that, if any, indicated by the

Offeror.

ELIASON v. HENSHAW. [1819]
(4 Wheaton (U. S.) 225.)

Eliason offered to purchase from Henshaw two or three
hundred barrels of flour, to be delivered at Georgetown (Dis-
trict of Columbia) by the first water, and to pay for the same
9 dollars and 50 cents per barrel. Eliason asked for a reply to
this offer by the return of the wagon by which the letter was
sent. This wagon was at that time in the service of Henshaw,
and employed by him in conveying flour from his mill to



OFFER AND ACCEPTANCE. 19

Harper's Ferry, near to which place Eliason then was. The
offer was accepted by Henshaw in a letter sent by the first
regular mail to Georgetown, and received by Eliason at that
place ; but no answer was ever sent to Harper's Ferry.

Held, that this acceptance, communicated at a place
different from that indicated by Eliason, imposed no obliga-
tion binding upon him.

An offer of a bargain by one person to another imposes
no obligation upon the former unless it is accepted by the
latter according to the terms in which the offer was made.
Any qualification of, or departure from, those terms
invalidates the offer, unless the same be agreed to by the
party who made it.



The doing of an Act indicating that the Offeree has made up his
mind to Accept is not necessarily Acceptance.

. FELTHOUSE v. BINDLEY. [1862]

(31 L. J. 0. P. 204; 7 L. T. 835; 11 W. E. 429;
11 C. B. (N. 8.) 869.)

At the trial it appeared that the defendant was an auctioneer
and the plaintiff a builder in London. Late in the year 1860
John Felthouse, a nephew of the plaintiff, was about to sell his
farming stock, and a conversation took place between the plaintiff
and his nephew as to the purchase by the former of one of the
nephew's horses, the result of which appears from the following-
correspondence.

On the 1st January, 1861, the nephew wrote to the plaintiff
as follows : —

" Dear Sir, — I saw father on Saturday. He told me that
you considered you had bought the horse for 30/. If so, you
are labouring under a mistake, for thirty guineas was the price

c2



20 CONTRACT.

I put upon hira, and you never heard me say less. When you
said you would have him I considered you were aware of the
price, as I would not take less.

(Signed) "J. Felthouse."

To this the plaintiff replied on the following day as follows : —

" Dear Nephew, — Your price, I admit, was 30 guineas. I
offered 30/. — never offered more — and you said the horse was
mine. However, as there may be a mistake about him, I will
split the difference — : 30/. 15s., I paying all expenses from Tarn-
worth. You can send him at your convenience between now
and the 25th of March. If I hear no more about him I con-
sider the horse is mine at 301. 15s.

(Signed) " Paul Felthouse."

No reply was sent by the nephew to this letter.

On the 21st of February the nephew's stock was sold by
auction by the defendant, when the horse in question was sold
by a mistake of the defendant with the rest of the stock.

On the 22nd February the defendant wrote to the plaintiff as
follows : —

" Dear Sir, — I am sorry I am obliged to acknowledge
myself forgetful in the matter of one of Mr. J. Felthouse's
horses. Instructions were given me to reserve the horse, but
the lapse of time and a multiplicity of business pressing upon
me caused me to forget my previous promise. I hope you will
not experience any great inconvenience. I will do all I can to
get the horse again, but shall know on Saturday if I have
succeeded.

(Signed) " Wm. Bindley."

On the 27th of February the nephew wrote to the plaintiff
as follows : —

" My dear Uncle, — My sale took place on Monday last, and
we are very much annoyed in one instance. When Mr. Bindley
came over to take an inventory of the stock I said that horse
(meaning the one sold to you) is sold. Mr. 13. said it would be
better to put it in the sale, and he would buy it in without any



OFFER AND ACCEPTANCE. 21

charge. Father stood by whilst he was running it up, but had
no idea but he was doing it for the good of the sale, and
according to his previous arrangement, until he heard him call
out Mr. Grlover. He then went to Mr. B. and said that horse
was not to be sold. He exclaimed he had quite forgotten, but
would see Mr. Grlover and try to recover it, and says he will
give 51. to the gentleman if he will give it up, but we fear it
doubtful."

Held, in action by the plaintiff against the defendant for
conversion of the horse, the defendant ivus entitled to judg-
ment, as llif plaintiff had no title to the horse at the time of
the auction, there having been no acceptance of the plaintiff 's
offer before the auction ivhich tvas binding on the nepheiv.
The direction to the auctioneer by the nepheiv before the
auction to reserve the horse was simply an expression of his
intention to accept the plaintiff's offer, and although the
nepheiv 's letter of the 27th February to the plaintiff shows
that the defendant had accepted the plaintiff's offer, yet
the plaintiff could not rely upon this letter as it would not
relate back so as to complete the plaintiff ' s title to the horse
at the time of the auction.



An Offer will lapse if not accepted within the time fixed for
Acceptance, or, if no time be fixed for Acceptance, then
within a reasonable time.

EAMSGATE HOTEL CO. v MONTEFIOEE. j , - -.
MONTEFIOEE v. EAMSOATE HOTEL CO. I L
(35 L. J. Ex. 90; 4 H. & C. 164; 12 Jur. (N. S.) 455; 13 L. T. 715;

14 W. R. 335.)

The company was completely registered on the 6th .June,
1864, on which day the articles of association were duly
registered.



22 CONTRACT.

Prior to the 8th June, 1864, the defendant had received one
of the company's prospectuses containing this statement :
" Deposit on application 1/. per share, and 4/. on allotment."
On the 8th June the defendant paid to the company's bankers
the sum of 50/., taking the printed receipt in the form attached
to the prospectus for " 50/., being the deposit paid in accordance
with the terms of the prospectus on an application for an allot-
ment of fifty shares." On the same day he filled up and
forwarded to the directors the printed application for shares,
also attached to the prospectus, in the following form : —

" To the Directors of the Ramsgate Victoria Hotel Company
(Limited).

" Grentlemen, — Having paid to your bankers the sum of 50/.,
I hereby request you will allot me fifty shares of 20/. each in
the Ramsgate Victoria Hotel Company (Limited), and I hereby
agree to accept such shares or any smaller number that may be
allotted to me."

Between the month of June and the 23rd of November the
defendant received no direct communication from the directors
or their secretary.

On the same day the secretary prepared a third list of share-
holders, including the defendant's name as a holder of fifty
shares, and notice of it was sent to him in the following letter
from the secretary : —

" I am instructed by the directors to acquaint you that in
compliance with your application they have allotted to you fifty
shares in this company, and have entered your name in the
register of shareholders for the same."

The defendant's solicitor wrote declining the shares, and
requiring the removal of the defendant's name from the list of
shareholders, and a return of the deposit.

Cross actions were then commenced, the company suing for
the amount of the call, and damages for not accepting the
shares ; the defendant suing for a return of the deposit.

Held, the defendant teas entitled to the return of his



OFFER AND ACCEPTANCE. g3

deposit on the ground that there had been no allotment
within a reasonable time after the application for the shares,
and consequently the defendant was not bound.



An Acceptance, otherwise sufficient, may be operative although
it never reaches the Offeror.

HOUSEHOLD FIRE INSURANCE CO. v. GRANT. [1879]
(48 L. J. Ex. 577 ; 4 Ex. D. 216 ; 41 L. T. 298 ; 27 W. R, 858.)

The plaintiff's sued for the amount of a call on certain shares
in their company alleged to be held, by the defendant. The
defendant denied that he was a shareholder. It appeared that
the defendant duly applied by a letter in the usual form for
100 shares in the plaintiff company on the 30th September,
1874; that the shares were allotted to him, and a letter of
allotment directed to him at the address given by him was
posted on the 20th October, 1874. The defendant said that
this letter of allotment never reached him, and that he never
heard anything about the shares until March, 1877, when he
received a letter demanding the payment of a call upon 100
shares, which was the amount sought to be recovered in this action.

The jury found that the letter of allotment of the 20th October,
1874, had been posted, but that it had never been received by
the defendant.

Held, the defendant was liable, for the contract was
complete directly the letter of allotment was posted, although
it never reached the offeror.



An Acceptance must be unqualified.

JONES v. DANIEL. [1894]

(63 L. J. Ch. 562 ; (1894) 2 Ch. 332 ; 8 R. 579 ; 70 L. T. 588 ;

42 W. R. 687.)

In April, 1893, the plaintiff, "W. Jones, being the owner in
fee of certain land in Ely Road, Llandaff, subject to long



24 CONTRACT.

building leases, was negotiating by his agents and solicitors,
Messrs. Lewis & Jones, for the sale of the land. On the 26th
of April, 1893, Messrs. Lewis & Jones wrote as follows to
the defendant : —

"Merthyr Tydfil, 26th April, 1893.

" Ely Road Property.

" Dear Sir, — We wrote to Mr. David as we thought he acted
for you in all matters ; but as this is not so, and you wish us
to communicate with you direct, we now do so. Mr. W. Jones
has considered your offer of 1,150/. for his reversionary interest
in this property. He thinks it very low ; but as his state of
health will not permit him to personally look after the property,
and he does not like being worried by the differences between
his lessees as to right of way, &c, he accepts it, and we enclose
contract for your signature. On receipt of this, signed by you
across the stamp, and deposit, we will send you copy signed
by him. The fees we referred to are those which you will
see by your lease are payable on any assignment, mortgage,
transfer, or disposition by the lessee, to amount of five shillings
in each case. These, of course, vary according to circumstances.
We think they ought to have been taken into consideration, and
thus increase your offer 25/. or o0/.

" Yours faithfully,

" Lewis & Jones."

The " contract " enclosed provided for payment of deposit,
completion on a certain date, limitations as to the title to be
shown, and other matters not previously referred to in the
correspondence.

The plaintiff claimed specific performance of an agreement
to purchase at 1,400/., on the footing that the correspondence
contained a sufficient contract in writing.

Helc^ the plaintiff } s case failed, as it was clear that
there was no contract between the 'parties apart from the
letters, which did not show a concluded agreement, as the



OFFER AND ACCEPTANCE. 25

letter of the 2tith April, purporting to accept the offer,
enclosed for the purchaser ] s signature a formal document
which contained material terms not mentioned in either
letter, and requiring payment of a deposit. There was
therefore not a sufficient note or memorandum to satisfy
sect. 4 of the Statute of Frauds as a concluded agreement
in writing enforceable at the suit of the vendor.



A Qualified Acceptance is equivalent to a Refusal, and will cause
the Offer to lapse.

HYDE v. WEENCH. [1840]
(3 Beav. 334 ; 4 Jur. 1106.)

The defendant on the 6th of June offered, in writing, to sell
his farm for 1,000/. ; but the plaintiff offered 950/., which the
defendant, on the 27th of June, after consideration refused to
accept. Two days later the plaintiff by letter agreed to the
defendant's original offer of 1,000/. The defendant, however,
although there had been no formal withdrawal of his original
offer, now refused to sell.

Held, there was no binding contract, for the plaintiff, by
making an offer of his own to buy the property for 9501,
had thereby rejected the offer previously made by the defen-
dant, and that it was not afterwards competent for him to
revive the proposal of the defendant by tendering an
acceptance of it.



26 CONTRACT.



An Acceptance is not unqualified merely because to it are
appended Remarks relating to Points arising" out of, but not
actually forming- part of, the Bargain.

SIMPSON v. HUGHES. [1897]
(66 L. J. Oh. 334 ; 76 L. T. 237 ; 45 W. E. 221.)

The defendant was the owner of a certain freehold house and
land called the " Wray Estate." On the 7th of November,
1895, his agent wrote on his behalf to the plaintiff asking
whether he was disposed to purchase this estate at the price of
2,000/. In answer to this the plaintiff wrote on the 8th Novem-
ber, 1895, a letter, the material parts of which were as follows:

" I . . . have decided to accept Mr. Hughes' offer, and will
give you the 2,000/. he asks for the freehold of the Wray
property.

" I should like to know from what time Mr. Hughes wishes
the purchase to date. . . .

" You do not mention fences, but I should be obliged if they
may be seen to at once, as they really need attention."

No reply was made to this letter.

The Wray Estate was in the occupation in part of Mr. Simp-
son, and in part of Professor Armstrong, as tenants of
Mr. Hughes. Both tenants had been for some time aware
of Mr. Hughes' wish to sell, and had been negotiating as to a
purchase ; and in September, 1895, Mr. Hughes' agent had
written to Professor Armstrong offering him the Wray Estate
upon terms similar to those contained in the offer to Mr. Simp-
son. Professor Armstrong wrote accepting this offer on the
12th of November, 1895.

Both Mr. Simpson and Professor Armstrong brought actions
against Hughes for specific performance of their contracts.

Held, that Simpson was entitled to specific performance

of the contract, as the letters of the 7th and Sth November



OFFER AND ACCEPTANCE. 27

constituted a binding agreement. There was nothing in
Simpson's letter of the 8th November which detracted from
the acceptance contained therein.

The action by Professor Armstrong was dismissed.



An Inquiry as to whether the Offeror will modify his Terms will
not necessarily amount to a refusal so as to cause the Offer
to lapse.

STEVENSON v. McLEAN. [1880]

(49 L. J. Q. B. 701 ; 5 Q. B. D. 346 ; 42 L. T. 897 ; 28 W. R. 916.)

This was an action for non-delivery of a quantity of iron which
it was alleged the defendant contracted to sell to the plaintiffs
at 40s. per ton net cash.

In reply to inquiries by the plaintiff, the defendant's broker,
Mr. Fossick, wrote that the defendant was not inclined to make
a firm offer to sell certain warrants for iron which he held.

On the 29th September (Saturday), however, the defendant
himself wrote to the plaintiff as follows : —

" Mr. Fossick's clerk showed me a telegram from him yester-
day mentioning 39s. for No. 3 as present price, 40s. for forward
delivery. I instructed the clerk to wire you that I would now
sell for 40s. net cash, open till Monday."

No such telegram was sent by Fossick's clerk.

The plaintiffs were thus on the 28th (Sunday) in possession
of both letters, the one from Fossick stating that the defendant
was not inclined to make a firm offer, and the other from the
defendant himself to the effect that he would sell for 40s. net
cash, and would hold it open all Monday. This, it was admitted,
must have been the meaning of " open till Monday."

On the Monday morning at 9 42 the plaintiffs telegraphed to
the defendant, " Please wire whether you would accept forty for
delivery over two months, or if not, longest limit you would give."



28 CONTRACT.

This telegram was received at the office at Moorgate at
10.1 a.m. and was delivered at the defendant's office in the
Old Jewry shortly afterwards. No answer to this telegram was
sent by the defendant, hut after its receipt he sold the warrants
through Fossick for 40s. net cash, and at 1.25 sent off a tele-
gram to the plaintiffs, " Have sold all my warrants here for
forty net to-day." This telegram reached Middlesboro' at 1.46,
and was delivered in due course.

Before its arrival at Middlesboro', however, and at 1.34, the
plaintiffs telegraphed to defendant, " Have secured your price
for payment next Monday, write you fully by post."

By the usage of the iron market at Middlesboro', contracts
made on a Monday for cash are payable on the following
Monday.

The principal objection relied on by the defendant was that
the telegram sent by the plaintiffs on the Monday was a rejection
of the defendant's offer, and a new proposal on the plaintiffs'
part, and that the defendant had therefore a right to regard it
as putting an end to the original negotiation.

Held, that the plaintiffs were entitled to judgment. The

telegram sent by them did not amount to a refusal so as to

cause the offer to lapse, but was merely an inquiry as to
whether the defendant would modify his terms.

The defendants offer being a continuing one throughout
Monday, the plaintiffs were authorized by it to sell at any
time during the day until notice of its revocation reached
them. The revocation having no effect until it was com-
mu ideated, the plaintiffs were entitled to require delivery of
the iron.



OFFER AND ACCEPTANCE. 29

A Contract is deemed to be made at place where accepted.

COWAN r. O'CONNOR. [1888]

(57 L. J. Q. B. 401 ; 20 Q. B. 1). 640 ; 58 L. T. 857 ; 36 W. R. 895.)

Plaintiff telegraphed from Regent Street to defendant in the
City directing him to make bets, on his behalf, on certain
horses.

Defendant replied by telegram, " Yon are on." Upon plain-
tiff suing defendant as his agent in the Mayor's Court for 356/.
received to his use, defendant applied for a writ of prohibition,
on the ground that that Court had no jurisdiction, as the whole
cause of action did not arise within the City.

Held, that the application must be refused since the
whole cause of action arose within the City — the telegraph
office being merely the medium through which the parlies
were brought into communication — and they were accord-
ingly in the same position as if they had met together in the
City and made a contract.



The publication of a Time-table constitutes a promise to run the
advertised Trains, which, when accepted by an application
for a Ticket, constitutes a Contract which may be sued upon
if Train is not run or is late.

DENTON v. GREAT NORTHERN RAILWAY CO. [1856]

(25 L. J. Q. B. 129 ; 5 E. & B. 860 ; 2 Jur. N. S. 185.)

In the printed and published time-tables of the defendants
for the month of March, 1805, which were kept in circulation
throughout the month, a passenger train was advertised to leave
the defendants' station in London at 5 p.m., and to arrive at
Peterborough at about 7.20 the same evening, and about the
same time to proceed on to Hull, arriving at Hull about mid-
night. The time-tables contained a notice to the effect that the
defendants would not hold themselves responsible for delay, or



30 CONTRACT.

the consequences arising therefrom, Relying on the time-tables,
the plaintiff left London on the 25th of March for Peterborough
on business, intending to go to Hull the same evening. He
accordingly applied to the clerk at Peterborough station in
proper time for a ticket by the train advertised to leave for
Hull about 7.20 p.m., and offered to pay the fare ; the clerk,
however, refused to grant the ticket, stating as a reason that
the train only went as far as Milford Junction, and the North
Eastern train which formerly took the passengers from Milford
Junction to Hull had ceased to run. By reason of his inability
to reach Hull that evening the plaintiff suffered pecuniary loss,
and brought this action against the defendants.

Held, that the publication of the time-tables amounted
to a promise by the defendants that a train ivould leave
Peterborough for Hull as advertised, for the conveyance
of any person ivho regularly applied for a ticket and
tendered the proper fare, although part of the line of rail-
way belonged to a different company, and that the defendants
therefore iv ere liable to the plaintiff for a breach of contract.

(See also Le Blanche v. L. X. W. Rail. Co., infra, p. 113.)



Where Goods are delivered " on Sale or Return," the Pledging
of the Goods constitutes " an Act adopting the Transaction,"
and the Property thereupon passes.

KIEKHAM v. ATTENBOROUGH. [1897]

(6fi L. J. Q. B. 149 ; (1897) 1 Q. B. 201 ; 75 L. T. 543 ; 45 W. R,

213— C. A.).

The plaintiff, a manufacturing jeweller, who had been in the
habit of allowing Winter, who was a retail jeweller, to have
articles of jewellery " on sale or return," delivered to Winter,
in the usual course of business, two articles of jewellery, accom-



OFFER AND ACCEPTANCE. 31

panied by a contract note specifying the articles delivered and
the prices, and headed " on sale or return."

Winter pledged the goods with the defendant, who in good
faith took them, and made advances to Winter upon them.

Winter having died without paying for the goods, the plaintiff
brought the action against the defendant for their return.

Held, ivhere goods delivered " on sale or return'''' are
pledged by the buyer, the pledging of the goods by him is
" an act adopting the transaction" within the meaning of
sect. 18, rule 4 (a) of the Sale of Goods Act, 1893, so as
to pass the property in the goods to him, and consequently
the pledgee obtains a good title to the goods, as against the
seller.

Where goods are delivered to a person " on sale or
return" the person who receives the goods may return the
goods, but the option is solely his, and the other party
cannot demand them back, but the only right left is to sue
for the price or the value of the goods, as the case may be.

Per Lopes, L.J. The person to whom the goods are
delivered on sale or return may exercise the option to become
the purchaser in three different ways : —

(1) By buying the goods at the price named.

(2) By retaining them so long as to make it unreasonable

that he should return them.



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 5 of 29)