Sec 4

There must not only be a concurrence of mind at a particular time, but this concurrence must be as to a particular thing. There must be, to constitute this, as will presently be seen more fully, a proposal squarely assented to. If the proposal be assented to with a qualification, then the qualification must go back to the proposer for his adoption, amendment, or rejection. If the acceptance be not unqualified, or go not to the actual thing proposed, then there is no binding contract.2 "A proposal to accept or acceptance based upon terms varying from those offered, is a rejection of the offer."1 A variance between the proposal and the acceptance prevents a contract from maturing;2 and this has been held to be the case where the proposal was to buy with a warranty, and the acceptance to sell without a warranty ;3 where there was a difference as to what the warranty was to be ;4 where the proposal was for "good" barley, and the acceptance was for "fine" barley, there being a material difference between " good" and "fine ;"5 where bought and sold notes differed in material points ;6 where there was a material difference between the application for and the allotment of shares.7 Sending, also, a smaller quantity of goods v. Carrington, 3 Conn. 357 ; Crocker v. R. R., 24 Conn. 262; Bruce v. Pearson, 3 Johns. 534 ; Tuttle v. Love, 7 Johns. 470; Tucker 9. Woods, 12 Johns. 190 ; Barlow v. Scott, 24 N. Y. 40 ; Rittenhouse v. Tel. Co., 44 N. Y. 263 ; Allis v. Reed, 45 N. Y. 142; De-muth v. Am. Inst., 75 N. Y. 502 ; Potts v. Whitehead, 5 C. E. Green, 55, 8 C. E. Green, 512; McKibbin v. Brown, 1 McCart. 13 ; s. c. 2 McCart. 498 ; Slay-maker v. Irwin, 4 Whart. 369 ; Morrow v. Waltz, 18 Penn. St. 118 ; McKinley v. Watkins, 13 111. 140 ; Dana v. Shoot, 81 111. 468 ; Maclay v. Harvey, 90 111. 525 ; Johnson v. Stephenson, 26 Mich. 63; Baker v. Johnson Co., 37 Iowa, 189 ; North W. Iron Co. v. Meade, 21 Wis. 474; McCartney v. Hubbell, 52 Wis. 361 ; Brown v. Rice, 29 Mo. 322 ; Bruner v. Wheaton, 46 Mo. 363; Hutcheson v. Blakeman, 3 Met. (Ky.) 80 ; Plant Seed Co. v. Hall, 14 Kan. 553 ; Solomon c. Webster, 4 Col. 335. That the acceptance must be definite, see infra, sec 22. That an essential error as to the parties or the object precludes a contract, see infra, sec 171 et seq. That the minds of the parties must assent "on both sides to one and the same set of terms," see Chevely v. Fuller, 13 C. B. 122; Hazard v. Ins. Co., 1 Sumner, 218 ; Lyman v. Robinson, than ordered, when quantity is material, and on a shorter credit, is not an acceptance corresponding to a proposal;l nor is acceptance of goods of a quality materially different from that proposed.2 On the other hand, if there be an acceptance, the concurrence of minds requisite to make a contract is not prevented by the use by the party assenting of expressions of reluctance or of dissatisfaction.3 Nor are differences of opinion as to collateral or remote or immaterial matters inconsistent with concurrence on the points the contract is immediately to meet.4 Nor does the introduction in the assent of comments, provided they are mere surplusage, deprive it of its binding force.5 Nor does a memorandum attached to the acceptance fixing a time for a formal signature.6 There must be, in other words, to constitute a contract, a concurrence of the minds of the parties at a given time to a given thing.7 In old times this concurrence was given in the great majority of cases by parties dealing face to face. Subsequently came in the agent, or nuntius, who was charged with delivering and receiving the acceptance of a proposition, and in whom, within such limits, the minds of the parties met and coalesced. Then came the postal service; and as multitudinous business communications are by letter, and as the parties live often at great distances, this coalition of minds does not take place until, in the ordinary course of travel, a letter can be transmitted from the one to the other; but when a proposal is thus transmitted, and when it is accepted, and the acceptance embodied in a reply duly mailed, then, on the putting the acceptance in this formal shape, there is the requisite coincidence of minds. Now, by the telegraph, and more particularly by the telephone, negotiations, if not face to face, may be made almost instantaneously, mind to mind. But in any case, as will presently be seen more fully, the question whether a reply is in time depends upon the mode of communication. Due business expedition, as we will see, must, be employed in forwarding proposal and reply. When, however, the proposition is forwarded and delivered, and the proposer puts himself in communication with his correspondent, then their minds meet, and an acceptance of a proposal thus made is, when forwarded in the way (unless it be otherwise limited in the proposal) business usage prescribes, a contract between the parties. The act of forwarding is the point at which their minds meet.1

Concurrence must be as to the same thing.

1 See infra, sec 641 et seq.

2 Hyde v. Wrench, 3 Beav. 336; Honeyman v. Marryatt, 6 H. L. C. 112 ; Routledge v. Grant, 4 Bing. 653 ; Oriental Steam Co. v. Briggs, 4 De G. F. & J. 191; Chinnock v. Ely, 4 De G. J. & S. 638 ; Jordan v. Norton, 4 M. & W. 155 ; Appleby v. Johnson, L. R. 9 C. P. 158 ; Crossley v. Maycock, L. R. 9.

C. P. 163 ; Dickinson v. Dodds, 2 Ch.

D. 463 ; Smith v. Webster, 3 Ch. D. 49 ; Holland v. Eyre, 2 Sim. & S. 194; Eliason v. Henshaw, 4 Wheat. 225 ; Carr v. Duval, 14 Pet. 77; Greene v.

Bateman, 2 Wood. & M. 359 ; Snow v. Miles, 3 Cliff. 608; Utley v. Donaldson, 94 U. S. 29 ; National Bank v. Hall, 101 U. S. 51 ; Jenness v. Iron Co., 53 Me. 20; Belfast, etc. R. R. v. Unity, 62 Me. 148 ; Abbott v. Shepard, 48 N. H. 16; Bruce v. Bishop, 43 Vt. 161; Thruston v. Thornton, 1 Cush. 89 ; Allcott v. Flour Mill, 9 Cush. 17 ; Smith v. Gowdy, 8 Allen, 566; Lyman v. Robinson, 14 Allen, 254 ; Rommel v. Wingate, 103 Mass. 327; Gowing v. Knowles, 118 Mass. 232; Harlow v. Curtis, 121 Mass. 320; Ocean Ins. Co.

14 Allen, 242; Rommel v. Wingate, 103 Mass. 327 ; Hartford, etc., R. R. v. Jackson, 24 Conn. 514. That in sales error as to identity of things sold avoids, see infra, sec 186.

1 Swayne, J., National Bank v. Hall, 101 U. S. 51.

2 Infra, sec 177, 202 et seq. 207; Champion v. Short, 1 Camp. 53 ; Hutchison 0, Bowker, 5 M. & W. 535 ; Honey-man v. Marryatt, 6 H. L. C. 112; Prop. Eng. Co. v. Arduin, L. R. 5 H. L. 64; Andrews v. Garrett, 6 C. B. (N. S.) 262; Holland v. Eyre, 2 Sim. & S. 194; Addinell's Case, L. R. 1 Eq. 225 ; aff. in H. L. under name of Jackson v. Turquand, L. R. 4 H. L. 305 ; Utley v. Donaldson, 94 U. S. 48 ; First Nat. Bank v. Hall, 101 U. S. 43; Kyle v. Kavanagh, 103 Mass. 356.

3 Smith v. Hughes, L. R. 6 Q B. 597 ; infra, sec 186.

4 Jordan p. Norton, 4 M. & W. 155.

5 Hutchison v. Bowker, 5 M. & W. 535 ; infra, sec 186 et seq.

6 Grant v. Fletcher, 5 B. & C. 436 ; Gregson v. Ruck, 4 Q. B. 737. See, for these illustrations, Leake, 2d ed. 30.

7 Addinell's Case, L. R. 1 Eq. 225 ; Jackson v. Turquand, L. R. 4 H. L. 305 ; Wynne's Case, L. R. 8 Ch. 1002 ; infra, sec 185.

1 Bruce v. Pearson, 3 Johns. 534; infra, sec 190.

2 Hutchison v. Bowker, 5 M. & W. 535 ; infra, sec 180 et seq.

8 Pollock, 3d ed. 39, citing Joyce v. Swann, 17 C. B. (N. S.) 84; Abbott v. Shepard, 48 N. H. 14.

4 Clive v. Beaumont, 1 De G. & S. 397 ; Baines v. Woodfall, 6 C. B. (N. S.) 657. It is otherwise where material points are left open ; Appleby v.

Johnson, L. R. 9 C. P. 158; infra, sec 193-4.

5 Pollock, ut supra, citing Gibbins v. Asylum Dist., 11 Beav. 1 ; English & Foreign Cred. Co. v. Arduin, L. R. 5 H. L. 64.

6 Branson v. Stannard, 41 L. T. (N. S.) 474.

7 As to error and mistake, see infra, sec 171 et seq. As to interpretation and construction, see infra, sec 627 et seq.; Tilley v. Chicago, U. S. Sup. Ct. 1881.