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ing them to some one else.' The offer continues and may be accepted at any time before it is revoked and its revocation is brought to the knowledge of the offeree. The offeree and the purchaser of the materials cannot both acquire title to the materials, but as against the seller they can both acquire the right to the goods, together with the alternative right to damages, which is all that a contract secures to the contractor in any case. In the case of a specific chattel where the title passes immediately upon the acceptance of the offer doubtless the person who first completes his contract with the seller will get title to the goods, and may retain possession of them; but when the offer is to sell real property or unspecified personal property it may be doubted whether a subsequent sale of the property, whether executed or executory, would have any effect upon the contract created by accepting the offer.'

It is often held that a definite proposal to do work according to plans and specifications plus an unqualified acceptance by a city together constitute a contract, and the plans and specifications become a part of it.' But there are other decisions to the effect that the acceptance of a legally made bid for a proposed building does not in itself constitute a contract, but that the bidder is entitled to a contract in accordance with the terms of his proposal.' *

The distinction is a nice one, to say the least, and it is doubtful if it is worth making, as the contractor's rights and claims are substantially the same in either case. If no new terms are contemplated and the acceptance is unqualified, there is no doubt a binding contract. If from the circumstances there is an evident intention to enter into an agreement, and the preparation of the written contract was postponed as a matter of convenience and for the purpose of expressing in more formal language the agreement already arrived at, the contract will be considered as completed when accepted, and must be performed according to the terms of the proposal.' An intimation in the written acceptance of a proposal that a contract will be afterwards prepared, does not prevent the contract from taking effect.

Care should be taken not to accept bids absolutely, but only on condition that the builder sign the contract and specifications in their prescribed forms, finding securities and executing the required bonds, etc. If the acceptance be made “subject to the execution of a contract to be prepared,” or “subject to the preparation and approval of a formal contract," or “subject to the conditions and regulations of a contract to be substituted for this memorandum,” the contract will not take effect until it has been

"Query: if the offeree had been apprised 800 (1888).
of the sale by the purchaser would it re- * Hughes 0. Clyde, 41 Ohio St. 339.
voke the offer.

6 Lewis v. Brass, L. R. 3 Q. B. D. 667; Langdell's Summary of Contracts 1091. Lawrence v. M. L. S. & W. R. Co., 54 N. * Denton 0. City of A., 34 Kan. 438 W. Rep. 797. (1885); Wiles o. Hoss (Ind.), 16 N. E. Rep. 6 Winn o. Bull, L. R. 7 Ch. Div. 29. * See Lowest Bidder, Secs. 182-3, infra.

+ See Sec. 797, infra.


formally executed.' In each case the evident intention of the parties will hold in determining whether the contract was completed, or whether it was intended to complete it on some later occasion.

An offer which is to continue or remain open for a time named is only an expression of the intention of the parties, and fixes the length of time it shall continue, provided it be not revoked in the meantime. To make such a stipulation binding it must be supported by a consideration or be expressed in a sealed instrument. Even then the offer may be revoked, which act on the part of the offerer would give to the other party a right to damages for the breach of his contract to keep the offer open. A court would not enforce the execution or completion of the contract.'

If a dealer agrees with a contractor in consideration of $1 that the contractor shall have the refusal of certain materials for one month for $5000, the law supposes the dealer to offer the materials to the contractor for $5000 and to stipulate that the offer shall continue for one month. If the contractor revoke the offer, then he becomes liable for the damages the contractor suffers in consequence, which would probably be the difference between the price agreed upon and the price at which the contractor could have bought.3*


Walter o. Walther (City Ct.), 24 N. Y. Supp. 307; but see Emdem's Luw of Build

Langdell's Summary of Contracts, 1089.
Langdells Suminary of Contracts, 1090.


ing 58.

* See Lowest Bilder, Secs. 132-200, especiaiiy Sec. 184, infra.





98. Proof of Terms of Contracts.-From what has preceded the reader has no doubt often wondered how certain things were to be proved. The existance of certain facts and the proof of them are two quite different things. The facts attending every contract must be viewed in the light shed by the evidence offered as seen by the jury. The facts ascertained, it is the province of the court to determine what laws are applicable and what rights belong to the parties. The most inexperienced will appreciate how difficult it must be to prove the terms of contracts by the parol évidence of the parties or by that of witnesses. The fallibility of men's memories and the frequent change of residence increase the difficulties as the time increases.

To prevent frauds and perjuries statute laws have been passed which require that important contracts be attended by certain ceremonies and overt acts by which they may be proved in courts, and on account of the loss of evidence after the lapse of time statutes have been passed limiting the liability of parties to certain periods or lengths of time. That the public may have notice of certain contracts and obligations, especially those pertaining to transfers of land and to important construction work some states require that they shall be made the subject of public record. In some states it is required that all contracts and specifications for construction of buildings and works shall be recorded with the registry clerk of the district.

99. Statute of Frauds. —In nearly all the states, in Canada, and England there are statutes requiring certain contracts to be in writing which are known as the Statute of Frauds. The statute arose from the necessity of having contracts in writing to prevent frands and perjuries in proving the the contract; hence its name. These statutes usually provide that contracts in which the consideration is more than £10 (or $40 or $50) cannot be enforced in courts of law if they are not in writing, or there has not been a part payment or a part delivery; and contracts for an interest in lands, or that cannot be performed within one year, or to pay the debt of another, are voidable if not in writing. The reasons and circumstances requiring the passage of such a statute law exist in construction contracts, and every prudent man will require a written contract for construction work. When the statute provides that certain contracts should be in writing, it



is imperative that they should be so made. If such a contract is not in writing it can furnish no ground of action or basis of defense to either party, but they must stand as though no express contract had been made. The person rendering services may usually recover upon a quantum meruit,' but not upon the express contract.' If a contract is required to be in writing, all material variations of such contract must be in writing.'

The general requirements of the different statutes are the same for the different states, but there are slight differences which it is impossible to treat here. The advice of a local attorney should be sought for the interpretation and application of the statute of the different states, however, some general statements may be made and cases be given which will illustrate the working of the statutes.

100. Statute of Frauds. - Contracts for the Sale of Goods, Materials, and Merchandise.— The statute as enacted in nearly all the states of the Union has a section very similar to the following: “No contract for the

“ sale of goods, wares, and merchandise for the price of ($30 in New Jersey to $300 in Utah] or more, shall be good or valid unless the purchaser accepts and receives part of the goods so sold or gives something in earnest to bind the bargain or in part payment ; or unless some note or memorandum in writing of the bargain is made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.”

This section of the statute has been held to govern all forms of selling goods, as at auction, and to extend to every manner of private sale. It applies to contracts for exchange, barter, and to executory as well as executed sales ; but a contract to give a chattel mortgage or a contract to become partner in the sale has been held not within the statute.

101. Contract for Goods to be Manufactured.-If the subject matter of goods contracted for or sold has no existence and is to be manufactured, then the law varies in different states. Some hold that such a contract is within the statute, and other states hold it is merely a contract for work and labor. The latter doctrine is often called the New York rule ; but there is a tendency to get away from it, even in the State of New York. If a contract be for the sale of an article which requires the personal skill or attention of the seller, it is a contract for work and labor ; the test frequently applied being whether the seller is himself to manufacture them or to procure some particular person, or whether a delivery of goods by any one will satisfy the contract. If the latter, then it is a contract for the sale of goods. Other cases make the test one of design and purpose, holding that if the article manufactured is to be of special or peculiar design and not

1 Salb v. Campbell (Wis.), 27 N W. Rep.

. 45 ; Coben r. Siene (Wis.), 21 N. W. Rep. 514.

? Lanham v. Osbor: e(Nev.), 18 Pac. Rep. 881 (1888)

3 Malone o. Philadelpbia 147 Pa. St. 416.

4 Davis 0. Robertson, 1 Mill. 71 ; Davis v. Rowell, 2 Pick. 64.

68 Amer, & Eng. Ency. Law 704.
68 Amer. & Eng. Ency. Law 705.



suitable for general trade, then it is not within the statute.' Therefore a contract to furnish a monument for a certain amount, to be erected by a state on a battlefield, was held not a contract for sale of goods, within the statute of frauds, though the contractors were not bound to bestow their personal skill and labor thereon.' An agreement to take down a building and reërect it on another lot was held not a sale of goods, but an agreement for labor and to improve real estate.' A verbal contract to furnish material, and, after performing labor thereon, to attach it to the realty, as a part of a building in the course of construction, is not a sale of goods or chattels, and is not within the statute.* *

There is a safe road to travel in all such cases, and that is the surest though it be the longest. Adopt a steadfast rule of committing the terms of every contract to paper, and avoid the question and litigation consequent to a failure to adhere to the rule. The object of this book is not to get its readers out of trouble, but if possible to teach them to avoid trouble and litigation.

In the United States the statute is held to apply not only to personal chattels and ordinary goods, wares, merchandise, and materials, but also to stocks of corporations, bank and promissory notes, book accounts, and bondscrip, but not, it seems, to an interest in a patent right.'

The burden of proving that the price exceeds the sum named in the statute rests upon the party setting up the statute in his defense, and where many articles or different materials are bought at the same transaction the aggregate price of the whole is the price to be considered.

102. What is a Sufficient Memorandum of a Sale.—The note or memorandum need not be an agreement or contract, but it must contain the essential terms of the contract. It must show who are the parties, what was the subject-matter of the contract, the quantity, price, and any special terms agreed upon. The memoranda may be contained in several papers, as in the ordinary exchange of letters in correspondence. A written offer or proposal is sufficient if accepted. A bill of parcels, a receipt for money, a vote of a private or municipal corporation duly entered on its books,' or a series of letters or of telegrams put together, may make the necessary memorandum. Where connection is to be established between separate papers they must contain references to one another or be physically joined together. Parol evidence should not be necessary to establish their connec



Brown & H. Co. o. Wunder (Minn.), 67 Ency. Law 860 ; Lee v. Griffin. 1 B. & S. N. W. Rep. 357.

272 ; Clay o. Yat's, 1 H & N. 73. * Forsyth o. Mann (Vt.) 34 Atl. Rep. Grigsby o. Fombs (Ky.), 21 S. W. Rep. 481.

37; 8 Amer. & Eng. Ency. Law 710. * Scales o. Wil y (Vt.). 33 Atl. Rep 771. 68 Amer. & Eng. Eucy. Law 710.

4 Brown & H o. Wunder (Mivo ). 67 N. 78 Amer. & Eng. Ency. Law 712; CamW. Rep. 357; and cases in 29 Amer. & Eng. den I. Wks. 0. Fox, 34 Fed. Rep. 200


* See Sec. 106, infra.

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