Vermont. See Durkee v. Vermont C. R. Co. (1856) 29 Vt. 127.

England. Stevenson v. McLean (1880) L.R. 5 Q. B. Div. 346, 6 Eng. Rul. Cas. 82; Bruner v. Moore [1904] 1 Ch. 305.

It would seem clear that the writing of a telegram containing a notice of acceptance is not of itself sufficient to complete a contract. The telegram must be deposited in an office for transmission, before the assent becomes effectual and a contract is consummated. Trounstine Sellers (1886) 35 Kan. 447, 11 Pac. 441.

v.

It has been held that the governing principle is the same, whether the acceptance is made orally, by mail, by telegraph, or by other means, i. e., that a contract arises at the time of any overt act by the person receiving the offer, intended to signify to the other party the acceptance of his offer. Hallock v. Commercial Ins. Co. (N. J.) supra, wherein the court said: "This involves the more general question, Does a contract arise when an overt act is done, intended to signify the acceptance of the specific proposition, or not until that overt act comes to the knowledge of the proposer? This question may arise upon every mode of negotiating a contract, whether the parties be in each other's presence or not. First comes the mental resolve to accept the proposition; but the law can only recognize an overt act. Whether that act be a word spoken, a telegraphic sign; or a letter mailed, some interval of time, more or less appreciable, must intervene between the doing of the act and its coming to the knowledge of the party to whom it is addressed. . . The meeting of two minds, the aggregatio mentium necessary to the constitution of every contract, must take place eo instanti with the doing of any overt act intended to signify to the other party the acceptance of the proposition, without regard to when that act comes to the knowledge of the other party; everything else must be question of proof or of the binding force of the contract by matters subsequent. The overt act may be as various as the form and nature of contracts. It may be by the

fall of the hammer, by words spoken, by letter, by telegraph, by remitting the article sent for, by mutual signing or by delivery of the paper, and the delivery may be by any act intended to signify that the instrument shall have a present vitality. Whatever the form, the act done is the irrevocable evidence of the aggregatio mentium; at that instant the bargain is struck."

As the contract is complete at the time when the acceptor delivers his message of acceptance to the company, the binding character of the agreement is not affected by a delay in delivery of the message by reason of a derangement of the telegraph lines. Trevor v. Wood (1867) 36 N. Y. 307, 93 Am. Dec. 511.

In Cosgrove v. Woodward (Pa.) supra, it appeared that, after several cablegrams had passed between the parties as to the price of a proposed sale of potatoes and the vessel on which they were to be shipped, the sellers sent the following cablegram: "Rather than lose the business, I will accept your offer. Shipment Haverford. Confirm." The buyers replied by cablegram, "We confirm the purchase." About one hour later they sent another cablegram, requesting that the previous cablegram be canceled and that there be substituted for it a confirmation of the purchase, shipment to be made on the Friesland. As to the time when the contract was consummated, the court said: "In our opinion, the contract was complete when the appellants deposited with the cable company their cablegram of April 17, 1909, stating, "We confirm the purchase.' The appellants could not abrogate this contract by the cablegram sent an hour later, without the consent of the appellees. The learned counsel for appellants contend that in such cases 'the usual practice is an offer and acceptance, and then a confirmation by the offerer.' By this they advance, as a proposition of law, that a contract is not complete with the offer and acceptance, but must be followed by a confirmation or some further action on the part of the offerer. We do not so understand the law, and it does not seem necessary to

cite authorities to sustain the proposition that, when one offers to sell a quantity of merchandise and deliver the same at a stipulated place and for a named price, and the other party accepts the offer, the contract is then, without more, complete."

In Kennedy Mercantile Co. v. Western U. Teleg. Co. (1914) Tex. Civ. App., 167 S. W. 1094, the plaintiff sought to recover from a telegraph company for the loss of a sale of cotton. It appeared that an offer and acceptance of a sale of the cotton was made by telegraph, but that the telegram of acceptance was not delivered by the company. In affirming a judgment for the company, the court said: "It is well-settled law in this state that, where an offer is submitted by letter, an acceptance is conclusive and binding when a letter is deposited in the postoffice, accepting same. The delivery to the one making the offer is not the test; for when the offer is submitted in that way it is equivalent to an invitation to accept by the same means, and when the acceptance is delivered to the agency chosen by the one making the offer the contract is complete. And so, where the offer is by telegram, and the answer is by the same means, the contract is then complete. The risk of prompt delivery is upon the one selecting the agency." See to the same effect, Western U. Teleg. Co. v. Fletcher (1919) Tex. Civ. App., 208 S. W. 748, wherein the court said: "It seems to be the law in this state that, if an offer be submitted by telegraph, the sendee may accept the proposal by the same instrumentality, and, if there be an unconditional acceptance of the proposition, the filing of the telegram of acceptance with the telegraph company constitutes a binding contract, without reference to the delivery of the same to the sender; and that in such cases there would be no cause of action against the telegraph company for failure to deliver the telegram, or for negligence in its transmission, but that the cause of action, if any, would be against the party accepting the offer and making the contract."

47 A.L.R.-11.

Western U. Teleg. Co. v. E. F. Connell Land Co. (1910) 61 Tex. Civ. App. 168, 128 S. W. 1162, was an action by real estate brokers against a telegraph company, for loss of commissions, due to a failure of the company to deliver promptly a telegram closing a real-estate transaction. The court said: "Appellees sent to Lane & Company the following message: 'Hereford, Texas, 1/18/07. C. Lane & Co., Danville, Ill. If you can guarantee loan of $10,000 on 480 acres, deal is made. Answer on or before twentieth, otherwise deal off. E. F. Connell Land Company.' Appellant received and promptly. transmitted and delivered this message. On January 19, 1907, C. Lane & Company prepared and delivered to appellant at Danville, Illinois, for transmission to appellees at Hereford, Texas, the following telegram: 'Danville, Illinois, Jan. 19, 1907. E. F. Connell Land Company, Hereford, Texas. Deal closed per your telegram. Party guaranteed $10,000 on 480 acres. Letter follows. C. Lane & Company.' Appellant negligently failed to deliver this message to appellees until after January 20th, and, by reason of this fact, the said Hawkins refused to pay them the agreed commissions of $1 per acre, aggregating $1,020, for which amount judgment was sought. By using the telegraph as a medium of communication, appellees must be held to have indicated to C. Lane & Company that their reply might be returned in the same way. And a delivery by C. Lane & Company to the telegraph company of the message last quoted constituted an acceptance of the offer, binding on appellees and their principal. ScottishAmerican Mortg. Co. v. Davis (1903) 96 Tex. 504, 97 Am. St. Rep. 932, 74 S. W. 17; Western U. Teleg. Co. v. Davis (1896) - Tex. Civ. App. —, 35 S. W. 189. The acceptance, then, being complete, appellees had fully earned their commissions, whether appellant ever delivered the Danville message or not. And this is true whether the two

telegrams constitute an enforceable

contract or not."

In Bruner v. Moore [1904] 1 Ch. (Eng.) 305, it appeared that the plain

tiff had an option, under a contract with the defendant, to purchase the right, title, and interest of the defendant in certain countries in an invention. The plaintiff sent a telegram to exercise his option, and on the same day posted a letter confirming his telegram. It was claimed that the option expired on March 29th, and that the telegram and letter, sent on March 28th, but not reaching the defendant until March 30th, were too late. The court said: "In my opinion this contention fails also, for the option was duly exercised when the telegram was sent and the letter posted. I take the rule as stated by Lord Herschell in Henthorn v. Fraser [1892] 2 Ch. (Eng.) 33 C. A.: 'Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted.' In the present case the parties are American citizens staying temporarily at London hotels when they signed the contract. That contract obviously contemplates the events that in fact happened,--that the two parties would separate and would visit various parts of Europe, and would communicate with one another constantly by letter and telegram. If there ever was a case in which the parties contemplated that 'the post might be used as a means of communicating' on all subjects connected with the contract, this is that case. I hold, therefore, that the option was duly exercised."

In Brauer v. Shaw (1897) 168 Mass. 198, 60 Am. St. Rep. 387, 46 N. E. 617, it appeared that the defendant telegraphed an offer from Boston at half past 11, that the message was received by the plaintiff in New York at sixteen minutes past 12, and that at twenty-eight minutes past 12 a reply was sent accepting the offer. The acceptance was not received by the defendant until twenty minutes past 1. At 1 o'clock the defendant telegraphed a revocation of his offer, the message being received by the plaintiff at fortythree minutes past 1. Thus it will be

seen that the revocation was not received by the plaintiff until after the acceptance had been received by the defendant. The court refused to adopt the suggestion of Wilde, J., in M'Culloch v. Eagle Ins. Co. (1822) 1 Pick. (Mass.) 278, as a ground of decision, and, following the general rule, held that the contract was complete and binding.

In Chesebrough v. Western U. Teleg. Co. (1912) 76 Misc. 516, 135 N. Y. Supp. 583, affirmed without opinion in (1913) 157 App. Div. 914, 142 N. Y. Supp. 1112, it appeared that the plaintiff sent instructions by mail to one Bayne, a broker, to purchase 2,000 bags of coffee at 8.53 cents per pound. The broker purchased the coffee at 8.54 cents per pound, and sent a telegram to the plaintiff, stating that he had made the purchase at that price, subject to the plaintiff's approval, and that he had to have an immediate reply by wire. There was a delay in the delivery of this message to the plaintiff. On its receipt, the plaintiff immediately answered by telegraph, that he approved of the purchase. At the time the plaintiff's telegram was received, the coffee exchange had closed, and it was impossible to purchase coffee at less than 8.81 cents per pound. The plaintiff brought suit against the telegraph company, claiming that, through the delay of the company in delivering the telegram to him, he lost the benefit of the purchase, made subject to his approval. In holding that the delay did not result in the loss of a contract to the plaintiff, the court said: "Bayne selected the telegraph as a means of communicating his offer to the plaintiff. Under the offer, the broker was obliged to hold the coffee purchased for the account of the customer, if the latter, immediately on receipt of the offer, wired his acceptance. This the customer did. As soon as he sent the message accepting the broker's offer, the contract between the customer and the broker was complete, and the coffee purchased was the property of the plaintiff."

In Williams v. Burdick (1912) 63 Or. 41, 125 Pac. 844, rehearing denied

plaintiffs; that the telegram contained notice of acceptance of the proposition; that the condition named, 'if you can secure freight at ten' (cents), could have been complied with if the message had been delivered when it should have been; that, if it had been thus delivered, the bargain would have been closed, and the plaintiffs would at that moment have obtained the cargo at 90 cents per bushel, with freight at 10 cents."

b. Effect of offer by mail.

It has been held that the mere sending of an offer by mail does not authorize an acceptance by telegraph, so as to make a contract binding at the time the acceptance is deposited at a telegraph office for transmission. Lucas v. Western U. Teleg. Co. (1906) 131 Iowa, 669, 6 L.R.A. (N.S.) 1016, 109 N. W. 191. But see Weld v. Victory Mfg. Co. (1913) 205 Fed. 770. And Stein-Gray Drug Co. v. H. Michelsen Co. (1909) 116 N. Y. Supp. 789.

In Lucas v. Western U. Teleg. Co. (Iowa) supra, it appeared that an offer to exchange property was made by mail, and that an answer, intended as an acceptance of the offer, was made by telegraph. There was a delay, however, in the transmission of the answer by the telegraph company, so that it was not received by the person making the offer until he had negotiated an exchange with another person.

It was held that a person sending an offer by mail, without a suggestion as to the means of acceptance, is not bound by an acceptance by telegraph until he receives or has notice of it. The decision appears to be based on the ground that a person making an offer by mail does not impliedly authorize an acceptance to be returned in some other way, and that, when the acceptor chooses to answer by telegraph, the telegraph company is his own agent, and may be required to surrender the acceptance without liability to the person making the offer.

In Weld v. Victory Mfg. Co. (1913) 205 Fed. 770, however, it was held that a telegraphic acceptance of an offer by mail, which offer was subject to withdrawal before execution, made a com

plete contract of sale as soon as the message of acceptance was filed with the telegraph company, and so a message of withdrawal which was received after the message of acceptance was sent did not affect the contract, although such message of withdrawal had been filed with the telegraph company twenty minutes earlier than the filing of the message of acceptance, the court stating that the withdrawal of the offer or proposal was not completed by filing with the telegraph company the message, but was effectual for that purpose only when received.

In Stein-Gray Drug Co. v. H. Michelsen Co. (N. Y.) supra, a telegraphic acceptance of an offer by mail was held not to have completed a contract, where a withdrawal of the offer was sent by mail on the same day that the acceptance was telegraphed, but was not received until after the acceptance had been sent; but the decision was based on the court's construction of the offer as a mere invitation to negotiate, or an invitation for an order which the maker would still have the right to reject or the option to fill, or which it might find it could not fill. The court, in the course of its opinion, however, stated that "an acceptance of a contract by letter or by telegraph, if the latter is a proper means of communication and reaches the party to whom it is sent, being governed by the law of the place whence the acceptance is despatched, and the law of Ohio being to the effect that a contract is made when the acceptance is despatched, the plaintiff would be entitled to recover (notwithstanding that on the same day that plaintiff sent its telegram, the defendant mailed in New York, to the plaintiff at Cincinnati, a letter withdrawing its offer of July 22d), if the defendant's letter of July 22d had contained all that was neces; sary to make a contract, and had contained an unqualified offer to sell a specific quantity,

or a statement that defendant had a specific quantity to sell or dispose of, and left no option on defendant's part to fill any order which plaintiff might decide to send in response to that letter."