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material that one of them, after the provisions were laid in and were in the hands of the cook, called on the plaintiff, stated that it would be very difficult to procure money, and requested him to give the matter up. The evidence shewing a joint liability of the members of the committee, judgment was given against those who were sued; the non-joinder of the others not being pleaded in abatement.
6. Distinction between a binding engagement and an unaccepted proposal. How contract may be completed by the post. From what time bargain is closed by acceptance of offer.
There is of course a material difference between an unaccepted proposal and a binding engagement;-between negotiations preparatory to an agreement, and the agreement itself, Head v. Providence Ins. Co. 2 Cranch 127, 1 Curtis 459. Sometimes the meaning is that there shall be no binding engagement until a written contract is entered into and signed by the parties. Governor &c. v. Petch, 28 Eng. Law & Eq. 470. Sometimes a contract is completed by the post. It wont do to say that a defendant is not bound by his offer when accepted by the plaintiff till the answer is received. If that were so, then said Ellenborough, the plaintiffs ought not to be bound till after they had received the notification that the defendants had received their answer and assented to it. And so it might go on ad infinitum. When a party makes an offer by letter, he is considered in law as making, during every instant of the time the letter is travelling, the same identical offer to the other party; and then the contract is completed by the acceptance of it by the latter. Adams &c. v. Lindsell &c. 1 Barn.
& Ald. 681.
This case (decided in 1818) had not been seen by the supreme court of Massachusetts when (in 1822) it decided the case of McCulloch v. Eagle Ins. Co. 1 Pick. 281, holding the offer not binding until the letter announcing its acceptance was received or until the regular time for its arrival by mail had elapsed. But Adams v. Lindsell was before the court when it decided Thayer v. Middlesex Mut. Fire Ins. Co. 10 Pick. 326.
Elsewhere in the United States Adams v. Lindsell has been followed. Mactier v. Frith, 6 Wend. 115, 16. The supreme court of the United States has recognized the rule of Adams v. Lindsell as a general principle of law governing the formation of all contracts entered into between parties, residing at a distance, by means of correspondence: the unqualified acceptance
by the one of the terms proposed by the other, transmitted by due course of mail, is regarded by the supreme court as closing the bargain from the time of the transmission of the acceptance. Tayloe v. Merchants Fire Ins. Co. 9 How. 402. A party may fail in his action when the acceptance has not been according to the terms of the bargain proposed. Eliason v. Henshaw, 4 Wheat. 228, 9 How. 402; Wontner v. Shairp, 4 Man. Gr. & Scott 441, 56 Eng. Com. Law Rep. 441; Duke v. Andrews, 2 W. H. & G. 296, 7.
In a case before Chancellor Walworth, wherein the answer was not intended as an acceptance of the offer, he considered that the offer was not afterwards binding on the party who made it. Frith v. Lawrence, 1 Paige 440. This decision was reversed in the court of errors. The proposition, says Marcy, J., may be considered as established that the acceptance of a written offer of a contract of sale consummates the bargain provided the offer is standing at the time of the acceptance. Mactier v. Frith, 6 Wend. 119. In this case, though the offer was not deemed accepted by the first answer, yet that offer was considered as continuing down to the time when it was accepted; and the bargain was closed by that acceptance. S. C. 122, 3.
The decision would no doubt have been otherwise had the offer been retracted before it was accepted. The idea being that until an acceptance the party is supposed to be continually repeating his offer,-the presumption of a repetition of the offer is rebutted by a declaration that the offer is retracted. Routledge v. Grant, 3 C. & P. 267, 14 Eng. Com. Law Rep.
The law will not imply a promise of any person against his own express declaration; it will not imply it when his declaration is repugnant to any implication of a promise. Whiting v. Sullivan, 7 Mass. 109; 13 Johns. 97.
ACTION FOR BREACH OF A PROMISE TO MARRY; OR FOR THINGS FURNISHED TO A WIFE OR CHILD.
1. For breach of promise to marry.
Courts do not look with favour upon a contract to restrain marriage generally. Hartley v. Rice, 10 East 22. man by a writing under his hand and seal promised a woman that he would not marry with any person besides herself, and that if he did, he would pay her £1000, and ten years afterwards he did marry another woman, the covenantee was unsuccessful in her action on the covenant. It was considered as a restraint upon him against marrying any one else besides the plaintiff; not a reciprocal engagement to marry each other. Lowe v. Peers, 4 Burr. 2225. If there was a mutual promise to marry, the action for breach of that would rest on different ground.
At an early period it was determined that although a suit to perfect a marriage or concerning its lawfulness or unlawfulness might properly belong to the ecclesiastical court, yet that a court of common law may take cognizance of an action on a mutual promise to marry, for a breach by one party of his promise to marry the other; for that here is a mutual contract concerning a lawful act. Holcroft v. Dickinson, Carter 233, Freem. 95. This decision was in the 25 Car. 2 (1673). It was objected that these actions upon the case were things invented in the late times when there was no remedy in the spiritual court; but it was answered, there were precedents of this very case before the time of the troubles; as appears 1 Roll. 14, pl. 3, 4. There have been precedents since in the United States as well as in England. Milstead v. Redman,
3 Munf. 219.
The action lies not only against a man for breach of his promise but also against a woman for breach of hers. Harrison v. Cage and wife, 1 Ld. Raym. 386, 3 Id. 268, Salk. 737; Seymour v. Gartside, 2 Dow. & Ry. 55, 16 Eng. Com. Law Rep. 72. When at the time of the promise, no time is specified for the marriage, it is implied that it shall be in a convenient or reasonable time. Id.
In Holcroft v. Dickinson, it was argued that the marriage could not be without a third person, a priest, and it was objected that the plaintiff had not alleged that the priest was
there when she offered herself; but it was answered that if I am bound to do an act to which a third person must necessarily concur, I must procure the third person at my peril; as it is held in Lamb's case, 5 Rep. 23. A like exception was overruled in Harrison v. Cage & wife, 1 Ld. Raym. 386.
It may be inconsistent with that affection which ought to subsist between married persons that a man should, while his wife is alive, promise to marry another woman. But if at the time of the promise to the plaintiff she was ignorant of the defendant's marriage, there ought to be a remedy against him.
In an action on a promise to marry the plaintiff within a reasonable time, the declaration averred that the plaintiff remained sole and unmarried, and that the defendant disregarded his promise, and at the time of his promise and thenceforward was married and the plaintiff was ignorant of the defendant's marriage at the time of his promise. It was contended that as the declaration disclosed that the defendant was a married man at the time of the promise-so that the plaintiff was not bound by her promise to marry the defendantthere was a total absence of consideration. But as the declaration alleged a promise by the plaintiff to marry the defendant within a reasonable time-which involved within it a promise to remain single for a reasonable time; and this the plaintiff averred that she did;-the court considered this consideration enough. It added that the defendant's promise to marry the plaintiff within a reasonable time was not absolutely impossible of performance; for his wife might have died within a reasonable time, and so he would have been in a condition to perform his promise to the plaintiff. Wilde, C. J. said, "it would be strange, indeed, to allow the defendant to rely upon his own wrong-to set up his fraudulent concealment of his marriage-in order to discharge himself from his promise; the plaintiff having performed her part of the condition, by remaining unmarried and ready to marry the defendant until she discovered that he was already a married man." Wild v. Harris, 7 Man. Grang. & Scott 999, 62 Eng. Com. Law Rep. 999.
The matter is placed on clear ground by Parke, B. His position is that "the promise by the defendant to marry the plaintiff, implies on his part that he is then capable of marrying, and he has broken that promise at the time of making it. The consideration to support the promise is, that the plaintiff, at the request of the defendant, engaged to marry him within a reasonable time, and therefore she remained unmarried; and that is a sufficient consideration to bind the defendant." This.
consideration would be sufficient, though the plaintiff "discovered on the day after the defendant's promise that he was a married man." Millward v. Littlewood, 5 W. H. & G. 775; 1 Eng. Law & Eq. 408.
In Seymour v. Gartside-where the man sued the woman-it was objected to the count, first, that it did not state that she had any notice of his being ready to marry her during the reasonable time therein alleged; 2dly, that it did not state any request made to her to marry him; 3dly, that it did not aver any appointment of time when he was ready to marry her; and fourth, that there was no allegation of any special refusal to perform the contract of marriage. But the motion in arrest of judgment was overruled. The court said "The words 'did not, nor would within such reasonable time as aforesaid, or at any time afterwards, marry him the said plaintiff, but hath hitherto wholly neglected and refused so to do,' necessarily imply a request to marry."
In a case in New York where the woman was plaintiff, the supreme court of that state thought an offer by her of marriage was unnecessary. Johnson v. Caulkins, 1 Johns. Cas.
If a party puts himself out of the condition in which a request could properly be made, he dispenses with the request. Harrison v. Cage & wife, 1 Ld. Raym. 386; Short v. Stone, 8 Adol. & El. N. S. 358, 55 Eng. Com. Law Rep. 358.
If a man being under a contract to deliver certain goods to another, should put it out of his power to do so by destroying them, it cannot be necessary to request him to deliver them. And so a declaration may state that the defendant promised the plaintiff to marry her, and the plaintiff remained and still is sole and unmarried, and was during all the time ready to marry the defendant, whereof the defendant always had notice; yet the defendant disregarded his said promise and wrongfully and injuriously married another woman. such case it is no valid plea that the defendant was not at any time before the commencement of the suit requested by the plaintiff to marry her; nor can it be necessary to aver the lapse of a reasonable time for the performance of the defendant's agreement with the plaintiff. It being argued that the defendant's wife may die before the lapse of the reasonable time, and he may still be able to perform his contract with the plaintiff; that the declaration does not even aver that the defendant's wife is still alive, Alderson, B. asked "why should we presume that the wife will die before the lapse of a reasonable time, or in the lifetime of her husband? We ought," he said, "rather to presume the continuance of the