Sec 8

Contracts, as we have just seen, may be by conduct, or they may be by word of mouth, or they may be by writing, or they may be by record; and in these relations they may present innumerable variations. In one important relation, however, which will now be considered, they may be regarded as possessing a common requisite. There is no contract, so it is maintained, that may not be resolved into a proposal and an acceptance. It is possible, indeed, to conceive of the idea of a contract emanating simultaneously from two contracting minds. But the answer is that, as a matter of fact, there is no contract in which the initiative is not taken in the way of a suggestion or proposal from one party, followed up either by acceptance, or by counter-suggestion or counter-proposal from the other party; and, ultimately, no matter how protracted may be the negotiations, they are consummated, if there be a contract, in proposal and acceptance. The proposal by itself is no more a contract than a single pier on one side of a river is a bridge, or a single hook is a coupling. It is the acceptance that makes the contract, i. e., the cohesion of two puran order is sent for a specific amount of goods to be paid for at a certain price, at a certain day, in lump as a whole, and the vendor sends only a part of the order, and the goods sent are received and enjoyed by the purchaser, the question arises whether the vendor can recover at all, and if so, to what extent. This question is discussed in future sections ; infra, sec 898 et seq. As to whether there can be a payment on partial failure of consideration, see infra, sec 511, 520.

Contracts are resolvable into proposal and acceptance.

1 Benj. on Sales, 3d Am. ed. sec 49, citing Brinsmeed v. Harrison, L. R. 6 C. P. 584; Lovejoy v. Murray, 3 Wall. 1, 16 ; Hyde v. Nobles, 13 N. H. 494; Rotch v Hawes, 12 Pick. 138 ; Oster-hout v. Roberts, 8 Cow. 43.

2 Floyd v. Browne, 1 Rawle, 121; see Fox v. Northern Liberties, 3 W. & S. 107.

poses necessary to make up one joint conclusion.1-It is true that this position is assailed by Mr. Pollock, in the third edition of his valuable work on contracts, though, as he tells us, it was " tacitly adopted in the first two editions." He maintains that the analysis does not apply to cases in which " the consent of the parties is declared in a set form, as where they both execute a deed or sign a written agreement," wherever, in such cases, "the parties intend not to be equally bound to anything until their consent is formally declared." " In such a case," he holds, " it cannot be said that the proposal and acceptance constitute an agreement, at all events, not the true and final agreement." He instances the case of a lease, and asks who in such case is the proposer and who is the acceptor? On the face of the lease itself, it is true, this question may not be capable of solution; yet this does not establish the proposition that neither party is proposer or acceptor. Parol evidence is always admissible to show the relations to each other of the parties to a contract; and though the lease itself does not indicate who was proposer and who was acceptor, yet, in the negotiations leading to the lease, there was, as to each stipulation, a proposer and an acceptor, and, were this material, the fact could be brought out by parol. No contract consists exclusively of the words in which it is ultimately expressed. It consists, not simply of those words, but also of all others which, in a proper issue, may be admitted for its explanation and rectification, and in it are to be incorporated all the relative surrounding circumstances which may serve to put it in its true light.2-An indorsement on negotiable paper, to take another illustration, consists merely of the indorser's name; and here, we may say, there is neither proposal nor acceptance. But this indorsement is in itself a contract in short-hand; and the words of which it consists embody, in their surroundings, a proposal from the party seeking the accommodation, and an acceptance from the party granting it.3 The same criticism may be applied to brokers' memoranda. If there be a range of contracts of which instantaueousness may be predicated, it is that of brokerage as conducted in our great business centres. Myriads of contracts may be made in what to an uninitiated observer may appear to be the same instant. Yet not only may these contracts be severed, but each one of them contains in itself a proposal and an acceptance, which may be brought out by parol proof.1 No matter how apparently simultaneous, on the face of a contract, may be the action of the parties, there is no case in which, if the inquiry be material, evidence may not be received showing what are virtually proposal and acceptance.-It should at the same time be kept in mind, that, unless some action is required on the part of the proposer to give efficiency to an acceptance, an acceptance is sufficiently consummated by performance of the consideration.2

1 See Langd. Cont. ii. 990; Winds-cheid, Pandekt. sec 306.

2 Infra, sec 627, 641, 657-9. 3 Wh. on Ev. sec 1061.