Sec 5

If terms be provisionally agreed to by the parties with the understanding that they are preliminary to a future and fuller contract, then the prior imperfect agreement is regarded as merged in the later and complete document.2 And where it is part of an acceptance or of a proposal that a written contract is to be framed by the parties, without which the negotiations are to be inoperative, then there is no agreement until this contract is framed. Whether it was intended that the preliminary proceedings should be thus inchoate is to be determined by an examination of the entire negotiations.3 A tentative scheme is not to be treated as a contract ;4 and the contract is to be regarded as a mere negotiation as long as matters essential to its completion are left undetermined;l or as long as it is understood that the terms are not binding until put in writing.2 But the fact that a more detailed contract is intended, does not deprive articles of agreement of their force ;3 and, when alternatives are presented, one may be accepted and the other rejected.4-It is also settled that "a contract may be made by letters, and that the mere reference by them to a future formal contract will not prevent their constituting a binding bargain ;"5 and that the question whether a specific agreement is to have provisional force, or is to be entirely inoperative until formally drafted, depends upon the circumstances of each particular case, being a question of construction when the evidence of the agreement consists of written documents. And whether a particular agreement is provisional or final is to be tested in the same way.6

Provisional concurrence not to be treated as final.

1 That a proposal may be continuous, and only take effect on a remote contingency, is illustrated in Bornstein v. Lans, 104 Mass. 216. See Xenos v. Wickham, L. R. 2 H. L. 296; Morton v. Burn, 7 A. & E. 19. As to continu-ousness of proposal, see Boston, etc. R. R. v. Bartlett, 3 Cush. 224 ; infra, sec 14. That a party is not bound by conditions on a railroad ticket printed in such a way as to elude attention, see Harris v. R. R., L. R. 1 Q. B. D. 515; and cases cited infra, sec 22, 438.

2Wh. on Ev. sec 1014.

3 Chinnock v. Ely, 4 De G. J. & S.

638 ; Adams v. Woodley, 1 M. & W. 74 ; Proprietors Eng. & For. Cred. Co. v. Arduin, L. R. 5 H. L. 64; Stevenson v. McLean, L. R. 5 Q. B. D. 346 ; Winn v. Bull, L. R. 7 Ch. D. 29; Honeyman v. Marryatt, 6 H. L. C. 112 ; Ridgway v. Wharton, 6 H. L. C. 238 ; Chicago v. Sheldon, 9 Wall. 50 ; Millett v. Marston, 62 Me. 477 ; Real Est. Ins. Co. v. Roessle, 1 Gray, 336; Chicago etc. R. R. v. Dana, 43 N. Y. 240 ; Commissioners v. Brown, 32 N. J. L. 504. See infra, sec 643.

4 Wh. on Ev. sec 1090, and cases there cited ; Smith v. Webster, L. R.

Sec 6

Acquiescence by conduct may operate as an acceptance in all cases in which such acquiescence is with knowledge of the facts and is of a nature to imply assent.7 Thus the reception and retention without objection of a banker's pass-book, returned by the bank, is a prima facie approval by the depositor of the account contained in the book;' and an invoice makes a, prima facie case against a business man who receives and retains it without dissent.2 Admission by silence, also, as well as admission by speech, may have a contractual force, and may bind as effectually as may words.3 When such silent admissions so operate as to put the actor in a specific attitude to other persons by which such other persons are induced to do or omit to do a particular thing, then he is estopped from subsequently denying that he occupied such position, and is compelled to make good any losses which such other parties may have sustained by his course in this relation.4-The proposal, as well as the assent, may be by conduct without words.5 He who takes his seat in a railway car binds himself to pay fare;6 he who takes a book at a book-stall out of a parcel marked with a particular price, binds himself to pay that price and the bookseller to sell at that price though no words be spoken ;7 he who enters into an inn, and occupies a chamber, to pay for his entertainment ; he who leaves a horse at a livery stable, to pay for the horse's keep. A nod at an auctioneer may be a proposal of a particular price, and the fall of the hammer may indicate the acceptance of that price.8 A mere tacit recognition by a man of a woman as his wife may not only bind him to her, but bind him, on her account, to third parties.9 And, as a rule, a contract evidenced by conduct may bind as effectually, there being no statutory prohibition, as a contract evidenced by words.10-On the topic before us we have the following by Contract may be by conduct.

L. R. 3 Ch. D. 49 ; see infra, sec 643 et seq.; Rossiter v. Miller, L. R. 5 Ch. D. 648 ; 3 App. Cas. 1124.

' Infra, sec 644 et seq. 646 ; Brown v. R.R.,44N. Y. 79 ; Appleby v. Johnson, L. R. 9 C. P. 158.

* Ridgway v. Wharton, 6 H. L. C. 305, by Lord Wensleydale ; Maitland v. Wilcox, 17 Penn. St. 231; Brown v. Finney, 53 Penn. St. 373 ; Fredericks v. Fasnacht, 30 La. An. pt. i. p. 117.

3 Thomas v. Dering, 1 Keen, 729, and cases cited infra, sec 645.

4 Infra, sec 619 et seq.

5 James. L. J., in Bonnewell v. Jenkins, L. R. 8 Ch. D. 70, 73.

6 Ridgway v. Wharton, 6 H. L. C. 238, 264, 268 ; Rossiter v. Miller, L. R. 3 Ap. Ca. 1124, 1152; Winn v. Bull, L. R. 7 Ch. D. 29 ; Lewis v. Brass, L. R. 3 Q. B. D. 667, and cases cited infra,.