Sec 21

The time of acceptance, as above fixed, determines the date of the contract.6 Until such acceptance, the buyer has no insurable interest;7 nor can he until acceptance, maintain an action for injury to the goods.8 When the acceptance is implied in the performance of the consideration, then the time of the contract is the time of the performance of the consideration.9 It is true that it has been argued that the acceptance relates back in time to the proposal.10 But it is impossible to see how a contract can be made, so far as third parties are concerned, to relate back to a period when it did not exist.11-As will hereafter be seen, money obligations without date,.are payable on demand ;12 while a party disabling himself from performance may be made liable to suit before the time fixed.1-When time is essential, also, stipulations respecting it will be enforced.2-A nominal date will be presumed to be real, though it may be varied by parol proof.3

Time of accepting is time of contract.

1 Wh. Con. of Laws, sec 421, and cases there cited ; Newcomb v. DeRoos,.

2 E. & E. 270; Dunlop v. Higgins, 1 H. L. C. 381; Taylor v. Jones, L. R. 1 C. P. D. 87 ; Taylor v. Nicholls, L. R. 1 C. P. D. 242; Chapman v. Cottrell,.

3 H. & C. 865 ; Tuttle v. Holland, 43 Vt. 542 ; Webber v. Donelly, 33 Mich. 469.

2 Leake, 2d ed. 49, citing Evans v. Nicholson, 45 L. J. C. P. D. 111, n. 4; 32 L. T. N. S. 778 ; Taylor v. Nicholls, L. R. 1 C. P. D. 242.

3 Wh. Con. of L. sec 486 ; infra, sec 874.

4 Infra, sec 871.

5 Infra, sec 872.

6 Supra, sec 15 et seq.

7 Stockdale v. Dunlop, 6 M. & W. 224 ; Seagrave v. Marine Co., L. R. 1 C. P. 305 ; Taylor v. Jones, L. R. 1 C. P. D. 87.

8 Felthouse v. Bindley, 11 C. B. N. S. 869.

9 See supra, sec 17.

10 Kennedy v. Lee, 3 Mer. 441; Dickinson v. Dodds, L. R. 2 Ch. D. 463. 11 See Lang. Sum. sec 10. 12 Infra, sec 881.

Sec 22

To bind the party to whom the proposal is addressed, it is necessary that his assent should be definite to go to the proposal specifically.4 One party cannot bind another by sending goods to him and saying, "if you do not refuse these goods you are bound for them." Mere inaction after such reception does not constitute a contract that binds the sendee.5 The proposal, in order to fix the party addressed with an admission, must be of a definite character he is bound to answer.6 In the same light are to be considered services accepted as courtesies or as family attentions.7 In any view, a mere proposal, unassented to, forms no contract.8 At the same time, as we have already seen, a person who knowingly encourages another to do for him work which is usually paid for as a matter of business, becomes liable to pay such other person for the work.9-Under this head may be noticed cases in which a proposal contains Assent must be definite; mere non-refusal not enough conditions printed in such a way as to elude the attention of the acceptor. A party is not bound by a condition, thus, without express notice to him, slid covertly into a contract in such a way as to materially modify what would be its ordinary meaning. Hence, when a condition materially limiting liability is inserted in a railway ticket or receipt, such a condition, if not brought to the notice of the other party, and if not put in such a way as to attract his attention, will not bind him. It is only as to the matter in respect to which his mind and that of the carrier met that he is bound.1 And even if notice be brought home to him, yet if it be against the policy of the law, as are all unreasonable releases of common carriers from the duty of care, the limitation will not bind.2 The rule that a party is presumed to know the contents of a document assented to by him,3 does not make it my duty to inform myself of provisions inserted in an informal contract in such a way as to elude ordinary attention. I am required to exercise the sagacity of a good business man ; and I am only chargeable with negligence when I omit to exercise such sagacity. That which a good business man would not ordinarily perceive, I am not chargeable with negligence in not perceiving. Besides, to impute to me a knowledge of conditions inserted, not in the body of a document, where I would be likely to see them, but in places where they would not be likely to attract my attention, would make a maxim which was designed to prevent fraud an engine of fraud, by enabling one party to surreptitiously' work into a contract conditions of which the other party was not likely to take notice. And this inference grows stronger when the condition is one repugnant to the body of the contract. We are not required to look for a sweeping abrogation of a book contract in a few small lines inserted in its margin or on its back. The contract, if the carrier meant to make it special, should have been constructed as a special contract. We have a right to suppose that matters apparently minor inserted in a contract relate to subordinate specifications, and we are not called upon to look to them to see whether they give the contract a shape repugnant to what it purports to be on its face. In proportion, therefore, to the repugnancy of such conditions to the body of the contract, is the inference strengthened that they were not seen.1 Whether there is notice in such cases is a question of fact.2

1 Infra, sec 885a.

2 Infra, sec 887.

3 Infra, sec 893.

4 That there must be some act of acceptance see White v. Corlies, 46 N. Y. 467. See infra, sec 184, 707 et seq.

5 Pollock, 3d ed. 25 ; Felthouse v. Bindley, 11 C. B. N. S. 869 ; Corning v. Colt, 5 Wend. 253 ; and cases cited infra, sec 184. In Felthouse v. Bindley, 11 C. B. N. S. 869, the proposal was to buy A.'s horse for £30, adding, " if I hear no more about him I consider the horse is mine at £30 15s." The mere non-answering of this letter was held not to constitute a contract. See Leake, 2d ed. 28.-On the other hand, " acceptance by the grantee, of a deed or land contract, executed by the grantor only, binds such grantee." Lyons, J. Hubbard v. Marshall, 50 Wis. 327 ; citing Lowber v. Connit, 36 Wis.

176. See supra, sec 6. That mere loose talk cannot constitute proposal and acceptance, see Bruce v. Bishop, 43 Vt. 161, supra, sec 3. That when a price is agreed on for a club supper, the club cannot be charged with extras furnished, see Eaton v. Gay, 44 Mich. 431.

6 Supra, sec 3; Corser v. Paul, 41 N. H. 24 ; Mattocks v. Lyman, 18 Vt. 98 ; McGregor v. Wait, 10 Geary, 72; Bartholomew v. Jackson, 20 Johns. 28; Borland v. Guffey, 1 Grant Cas. 394, and other cases cited, Wh. on Ev. sec 1138. As to interpretation see infra, sec 627 et seq.

7 Infra, sec 719.

8 Taylor v. Laird, 25 L. J. Exch. 329 ; Corning v. Colt, 5 Wend. 253; Bower v. Blessing, 8 S. & R. 243; and see infra, sec 707 et seq.

9 Supra, sec 7 ; and see infra, sec 184, 707, et seq.

1 Infra, sec 572; Wh. on Neg. sec 587; Harris v. R. R., L. R. 1 Q. B. D. 515 ; Parker c. R. R., L. R. 1 C. P. D. 618; Burke v. R. R., L. R. C. P. D. 1; Ma-lone v. R. R., 12 Gray, 388; Verner v. Sweitzer, 32 Penn. St. 208 : Elmore v.

Sands, 54 N. Y. 512; and other cases cited, infra, sec 572.

2 See infra, sec 438. As to telegraph limitations see Wh. on Neg. sec 761.

3 Infra, sec 196.