§ 118. A mandate may include an authority to contract; and as the power is withdrawn by the death of the mandator, it is often necessary to fix the precise time when the contract is complete. In a sale negotiated by letter, the offer to sell, standing open and unretracted, becomes a contract of sale as soon as it is accepted; even though the person making the offer die before he receives knowledge of the fact. As in other

1 Mactier v. Frith, 6 Wend., 103; Vassar v. Camp, 11 N. Y., 441; Taylor v. Merchants' Fire Ins. Co., 9 How. U. S., 370; Trevor v. Wood, 36 N. Y., 307; Pothier Trait du contract de Vente, § 2, art. 3, No. 32. The passage from Pothier is as follows: In order that this consent may take place where the contracting parties are in different places, it is necessary that the will of the party who has written to the other, proposing a sale, should continue until his letter has reached the other party and he has declared that he accepts the offer. This will is presumed to have continued, if nothing appears to the contrary. But if I have written to a merchant at Livourne a letter proposing to sell him a particular article for a specified price, and before my letter has been received by him, I write to him a second declining to make the contract, or if before that time (i. e., before my letter is received and the offer contained in it accepted) I am dead, or have lost the use of my reason, although the merchant at Livourne, ignorant of my change of will, death or loss of reason, should, on receiving my letter, accept the offer contained in it, there would be no contract of sale; for my will not having continued down to the time when this merchant had received my letter and accepted the proposition contained therein, there was not that concurrence or meeting of our minds required to make a contract of sale. This is the opinion of Bartholus and of the other doctors of the civil law quoted by Bruneman, ad. l. 1, § 2, f, de contrat empt, who have correctly rejected the contrary opinion of the commentary ad dictam legem. This doctrine, says Mr. Justice Marcy, which presumes the continuance of a willingness to contract, after it has been manifested by an offer, is not confined to the civil law and the codes of those nations which have constructed their systems with the materials drawn from that exhaustless storehouse of jurisprudence; it is found in the common law; indeed, it exists, of necessity, wherever the power to contract exists in parties separated from each other. (6 Wend., 115.) In Vassar v. Camp, recently decided in the Court of Appeals in this State, Mr. Justice Selden observes: This precise question has been so fully considered in several modern cases, that it would be a work of entire supererogation to discuss it here. It arose in England in the case of Adams v. Lindsell (1 Barn. and Ald., 681). In that case an offer to sell wool was made through the mail. The offer was received by the plaintiffs on the 5th of September, who wrote and mailed their answer, accepting the offer, the same evening; but this answer was not received until the 9th of September by the defendants, who in the mean time, supposing their offer had not been accepted, had sold the wool to other parties. The action was for the non-delivery of the wool; and if the contract was regarded as consummated on the 5th of September, when the answer accepting the offer was mailed, the defendants were liable; but if not until its receipt on the 9th, then no liability attached. The court held unanimously that the contract became obligatory on the 5th, when the answer of the plain

cases, the contract is complete as soon as the minds of the parties meet. Of necessity the person making the offer to sell by letter, must be considered as making it during every instant of time his letter is passing to its destination; and if the party addressed presently or within a reasonable time write a letter of acceptance and mail it, the contract is complete. It is necessary that the minds of the contracting parties should meet on the subject and terms of the contract, but not necessary they should know that they meet in order to create the contract.' The mailing of the letter of acceptance properly addressed, or the sending of a telegram where the offer is made by telegraph, completes the contract. There are certain qualifications of this rule: 1. where the party sending the offer, retracts it by letter or by telegraph by a communication reaching the party addressed before his letter of acceptance has been written and mailed, an acceptance will not create a contract; 2. where the party receiving the offer does not write and post his letter of acceptance within a reasonable time, no contract will arise; 3. delays and miscarriages by mail do not prevent the completion of the contract; the post-office being the agent of both parties. The law relating to contracts negotiated by telegraph or by mail, is framed to promote the convenience of the business community.

tiffs was deposited in the mail. In the case of Mactier v. Frith, the same question arose in this State, and was elaborately discussed by our late Court of Errors. The court in that case, by an almost unanimous vote, affirmed the doctrine of Adams v. Lindsell, in opposition to that of McCulloch v. The Eagle Insurance Company (1 Pick., 278), in which the Supreme Court of Massachusetts had adopted a different rule. The decision in Mactier v. Frith has since been followed in our own State in the case of Brisban v. Boyd (4 Paige, 17); in the State of Connecticut, in the case of Averill v. Hedge (12 Conn., 424); in Pennsylvania, in the case of Hamilton v. Lycoming Ins. Co. (5 Barr., 339); and in Georgia, in Levy v. Coke (4 Georgia R., 1). The question has again arisen in England, and been passed upon by the House of Lords there, in the case of Dunlop v. Higgins (12 Jurist., 295). In that case, the case of Adams v. Lindsell is referred to and confirmed in the most decided and unequivocal terms. The doctrine of this case, therefore, and that of Mactier v. Frith, must be considered as too firmly settled, both in this country and in England, to be shaken or doubted. It is moreover maintained, in the cases referred to, by the most satisfactory and conclusive reasoning. (1 Kernan R., 446, 447.)

1 McCulloch v. Eagle Ins. Co., 1 Pick., 278, is not followed.

2 An offer sent by telegraph invites or authorizes a reply by the same mode of communication. Trevor v. Wood, supra; In re Imperial Land Co. of Marseilles; Wall's Case, 5 English R. (Moak.), 6365, and cases there cited.

39 How. U. S., 390; Thompson v. James, 18 Dunlop, 1.

* Averill v. Hedge, 12 Conn., 424.

Duncan v. Topham, 8 C. B., 225; Vassar v. Camp, supra; Thompson v. James, supra.

§ 119. There are several ways in which the contract of mandate may be terminated, so far as the right of control over the property is concerned. If the mandator become insane or an habitual drunkard and a guardian or committee be appointed of his person and estate, the right of control must necessarily pass to the guardian or committee. If a feme sole mandator marry, the title to her goods and chattels passes under the common law to her husband, and with it the right of control over them. If the mandator become a bankrupt and his estate passes into the hands of an assignee, the right to demand and receive it supersedes the authority under which the goods were delivered. A valid assignment for the benefit of creditors must have the same effect as an absolute sale. These several transfers operate upon the authority under which the mandatary holds the goods; in some instances they operate to convert the contract of mandate into a simple deposit, arresting the object of the mandate, and leaving the mandatary still bound to keep the property with ordinary care.1

A seizure of the property under process against the mandator, with notice to him, will operate to dissolve the contract. The mere insolvency of the mandatary, where the owner is willing to rely upon his fidelity, will not terminate the trust.5

As the mandatary acts gratuitously, having no interest in the subject of the bailment as against his principal, the mandator may at any time revoke the mandate. He has a right to recall the trust and resume possession of the property; or he may transfer the property to another, and with it the right of revocation." To make the revocation of the trust effectual, notice must be given to the mandatary; but this may be done by the appointment of another to relieve him of the trust.

1 Wadsworth v. Sharpsteen, 8 N. Y., 388; Leonard v. Leonard, 14 Pick., 283. Udal v. Kenney, 3 Cowen, 590, 599. It is otherwise under the present law

of this State; Gage v. Dauchy, 34 N. Y., 293.

3 Matter of Cook and Exp., Newhall, 360, 376; Merritt v. Forrester, 4 Taunt., 541; Parker v. Smith, 16 East, 382.

Tracy v. Wood, 3 Mason, 132.

Williams v. East India Co., 3 East, 192; Doorman v. Jenkins, 3 Adolph. & Ellis, 80.

6 Hodges v. Hurd, 47 Ill., 363.

Salt v. Field, 5 Term R., 215.

8 Copeland v. Mercantile Ins. Co., 6 Pick., 198.

CHAPTER IV.

GRATUITOUS LOANS.

§ 120. A gratuitous loan of goods for temporary use, to be afterwards returned, creates a bailment; the title does not pass. A loan of articles to be returned in kind, as money, corn, cattle, and other things that may be valued by number, weight or measure, is a contract of another class; it is a sale. The absolute property is transferred to the borrower; the understanding of the parties is that he shall consume or sell or otherwise appropriate it as his own.' As in a loan of money, the intention is that the borrower shall make use of it as his own, and the law therefore treats it as his property. It is the mutuum of the civil law; a contract frequently adopted in connection with a lease of lands, to enable the tenant to stock his farm and carry on the business with a complete control over it. The contract was formerly much used in Scotland, and the grain or cattle thus leased under a stipulation that the like property in quantity and quality should be returned at the end of the lease, were called steelbow goods.2

§ 121. A loan of things to be returned in kind, resembles a loan for a temporary and gratuitous use only in form; there is no real similitude. between the two contracts. But there is often a close resemblance be

12 Kent's Comm., 573, 574. In a loan or letting of cattle or sheep for a certain term, at the expiration of which they are to be returned with others, we have a bailment: in a loan of cattle or sheep under a contract giving the party receiving them the option to replace them with so many other cattle or sheep as good, we have a sale. Hurd v. West, 7 Cowen, 752; Otis v. Wood, 3 Wend., 498; Smith v. Clark, 21 Wend., 83; exchange of grain for flour; Pierce v. Schenck, 3 Hill, 28; exchange of logs for lumber; it is treated as a sale under the statute of frauds; Bartlett v. Wheeler, 44 Barb., 162; Weir v. Hill, 2 Lansing, 278; a rather speculative contract; Carpenter v. Griffin, 9 Paige Ch., 310. A contract giving the right to consume the property, may withhold the title until it is consumed: Armington v. Houston, 38 Vt., 448; and there may be different interests or rights of property created in the same goods. Wood v. Orser, 25 N. Y., 348.

and

2 Carpenter v. Griffin, 9 Paige Ch., 310; see Ives v. Hartley, 51 Ill., 520; Lonergan v. Stewart, 55 Ill., 45, and Inglebright v. Hammond, 19 Ohio, 337; a loan of money, see Chiles v. Garrison, 32 Mo., 475.

tween a bailment for hire and a sale: a delivery of wheat to a miller to be ground and returned in the form of flour, five bushels of wheat for one barrel of flour, is a bailment, where by the contract the miller is to return the flour produced from the wheat delivered; the title does not pass; it is an agreement for work and services. On the other hand, an exchange of wheat for flour, under a contract which leaves the miller at liberty to deliver flour of a given quality, produced from any wheat, is a double sale; the title to the wheat passes on delivery, and so does the title to the flour. The miller agrees to purchase the wheat and sell the flour; he is therefore bound to deliver the flour, though the wheat be destroyed by fire before he is able to grind it.' The distinction running through all the authorities is very simple and clear when the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the title to the property is not changed. But when there is no obligation to restore the goods delivered, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed; it is a sale.2

:

§ 122. A loan of commercial paper, bills of exchange, promissory notes, or other securities for the payment of money, often made by one merchant to another for his accommodation, has but a slight resemblance to a loan of goods or chattels for use. If a man make and deliver his note to a friend without any restriction as to the manner in which it is to be used, he authorizes him to negotiate it for any lawful purpose; and he must pay the note to the holder when it becomes due. He loans himself into a debt, unless the borrower pays the note as he ought to. If a man make and loan his note to a friend to be used for a special purpose, it is a breach of good faith to use it for any other purpose, and

1 Seymour v. Brown, 19 John., 44, is overruled; Norton v. Woodruff, 2 N. Y., 153; Chase v. Washburn, 1 Ohio St., 244; Buffum v. Merry, 3 Mason, 478; Ewing French, 1 Blackf., 353; South Australian Ins. Co. v. Randell, 6 Moore P. C. (N. S.), 341.

V.

2 Mallory v. Wallis, 4 N. Y., 76. In this case there was some difference of opinion as to the interpretation of the contract. The wheat was delivered to be manufactured into flour, on certain terms, and the question was whether the flour was to be returned, or so much flour. In Foster v. Pettibone, 7 N. Y., 433, a similar question was passed upon, without any dissent upon the rule of law. So in Wadsworth v. Allcot, 6 N. Y., 64. In Ives v. Hartley, supra, it was held that a receipt given by a warehouseman in these terms, "Received of H. 134 bushels of wheat left in store, to take market price when he sees fit to sell," imports a sale: Wescott v. Tilton, 1 Duer, 53; King v. Humphrey, 10 Penn., 1 Barr, 217.

3 Edwards on Bills and Notes, 316-324.