what the law will consider a reasonable time, the actual length of time depending altogether on the nature of the transaction.

15. Qualified assent. Whenever a proposition made by one party is accepted by another with any kind of qualification or change of the conditions or wording of the original proposition, such an acceptance is simply the making of a counter proposition to the first party, and does not constitute an agreement until such party has in turn assented fully to the entire proposition as last stated, and if he again assents to the proposition with further changes or amendments, it becomes again a new proposition, which must be agreed to by the second party, before it becomes binding on the party to whom it is sent. The assent which finally makes of the offer or proposition a binding contract, is the full, absolute, and unconditional acceptance of its terms.

16. Qualified offers. The party making the offer has the right to prescribe in it the time, place, form, or other condition of acceptance, in which case such offer can be accepted only in the manner prescribed. This privilege on the part of the proposer does not enable him to impose the condition, however, that a failure to receive an acceptance by a certain time will be construed as an acceptance. In other words, he may not impose the conditions of refusal.

17. Implied acceptance. An offer may be accepted by merely acting upon it, the act becoming an acceptance from the time it was performed. Thus an offer to purchase goods may be accepted by simply shipping the goods, or in the case of a published offer of a reward for the apprehension of a criminal, the act of apprehending is construed as both an acceptance and fulfillment of the contract.

18. Failure of agreement by mistake. The parties to an agreement are bound to the fulfillment of the same in

accordance with the plain intent and meaning of the language used, whether oral or written, provided the meaning of this language be clear, and neither party is allowed to plead either carelessness in the reading of the terms thereof or ignorance of the meaning of the language used. It goes almost without saying, however, that apparent or evident mistakes in the use of language will be corrected by the court. However, the following

kinds of mistakes will lead to a decision that no contract was really entered into because of utter failure of the parties to agree to the same thing.

(a) Mistake concerning nature of transaction, as where a person, by mistake, signs a document of an entirely different character from that which he intended to sign, as where he signs a bond instead of a petition, or a deed instead of a lease, the two documents being similar in form and appearance. In such cases it is held that the "mind of the signer did not accompany the signature" and therefore he never agreed to such a proposition. If it can be shown, however, that the mistake resulted from negligence to read the terms of the proposition, and that while the signer understood in a general way the character of the document, but did not read it over carefully, or perhaps did not read it at all, he will he held to the contract because of his culpable negligence. This only holds where the plea of fraud on the part of the other party to the contract is not maintained.

(b) Mistake concerning person with whom contract is made, as "where A contracts with B, thinking that he is contracting with C, there can obviously be no contract, for B not being present to A's mind, A can not be a consenting party to a contract with B." This, of course, does not affect contracts made through agents, when the agency is declared.

(c) Mistake concerning Subject-matter of Contract. If the parties contracting engage themselves concern

ing a thing which does not exist, such a mistake avoids the contract, because of the nonexistence of the subject-matter. This applies to property which may have ceased to exist before the contract is signed, although both of the parties were ignorant of the fact. In all cases, however, where the existence of the subject-matter is in the mind of the proposer more or less doubtful and yet the offer which he makes is unconditional, he can be held for damages resulting from failure, even though the subject-matter be nonexistent.

A mistake prevents the consummation of a contract also, where each of the parties has in mind a different subject-matter from the other. This applies to mistakes which may be considered legitimate, as where the same words apply with equal force to different things, or in the case of an oral contract where the language was clearly misunderstood, from a failure to hear the words which were really spoken.

The remedy for a contract entered into under a mistake is the privilege of repudiating it on the part of the person who made the mistake, or the privilege of recovering, by a suit at law, part payment which may have been made, it being understood that the contract has not been fully executed by a complete payment. Or the case may be brought into a court of equity, and justice obtained by having the court correct the terms of the agreement, it being assumed in all these cases that no fraud has been committed.

19. Misrepresentation in the Contract. In order that a misrepresentation of facts may make a contract invalid, it must have been made with a fraudulent intent. The mere falsity of a statement of a material fact in the contract, however much it may have misled the other party, will not invalidate the document, unless a fraudulent motive accompanied the misrepresentation. It is necessary, therefore, to prove the motive of the misrepresentation before the validity of the contract can be passed upon.

Jef

If, however, a particular term in the contract or some integral part of it is based upon a misstatement of fact, which term or integral part can be passed upon separately from the body of the contract, such a misrepresentation is equivalent to a promise by the party making it, and if not fulfilled the other party can recover damages. This, however, does not invalidate the contract as a whole.

A nondisclosure of fact is equivalent to a misrepresentation of fact, provided the disclosure properly accompanied the transaction.

Fraudulent misrepresentation will be treated in the following article.

Contracts for insurance, whether marine, fire, or life, and contracts for the purchase of stock in corporations, also contracts between parties occupying intimate and confidential relations with each other may be invalidated by misrepresentation of fact, which would not invalidate ordinary business or engineering contracts. (See a general treatise on the Law of Con

tracts for these cases.)

20. Invalidity of Contract through Fraud. As
That is to say,

a general rule fraud vitiates all contracts.
fraudulent misrepresentation by one party enables the other or
injured party to declare the contract void from fraud, or he
may enforce the contract against the defrauding party, at his
own option. The defrauding party, however, has no option or
privilege in the way of declaring the contract void. In other
words, should he find that the contract was adverse to his inter-
ests, he could not plead his own fraudulent act to his own
benefit.

miss.

Fraud in the sense here used consists in a false representation of fact made by the party who is charged with it, with a knowledge of its falsehood, or in reckless disregard whether

it be true or false, with the intention that it shall be acted upon

by the complaining party, and actually inducing him to act upon it to his damage."

"From the above definition the following essential elements of fraud may with profit be stated separately: (a) A false representation. (b) A misrepresentation of fact. (c) A representation made by the party charged. (d) Knowledge of its falsity or a reckless indifference in the matter. (e) An intention that it shall be acted upon by the other party. A reliance upon it by the other party. (g) Damage to the party deceived." Unless each and every one of the above essential elements of fraudulent misrepresentation be proved, the contract can not be avoided on the score of fraud.

The false representation also must refer to some material fact. Furthermore the concealment or nondisclosure of a material fact in an active manner, that is to say, an active prevention of the disclosure of material facts, may constitute fraudulent misrepresentation.

Where the one party knows that he is being trusted by the other party and relied upon for the disclosure of material facts, as is the case when a contractor relies upon the engineer or architect to disclose to him the material facts pertaining to the work to be done, this rule will be more rigidly applied than when no such confidence is imposed.

A concealment of the real value of goods shipped by express or freight, or by other agency, in order to obtain such shipment at a lower rate, is a fraudulent misrepresentation.

While the vendor or seller of an article is not obliged to make known to the purchaser the defects of the article, when such defects can be discovered by the buyer, yet a deliberate hiding of such defects on his part will be considered a fraudulent misrepresentation. As to defects which can not be discovered by the buyer, the vendor is bound to make known to him such defects as he himself may be aware of.