CONTRACTS.

C. L. RICHARDSON.

A contract as commonly accepted, is an agreement between two or more parties to do or to refrain from doing a certain thing. In order that it may be made, certain things--the elements of a contract-must exist. There must be the two parties to the agreement to do mutual things or exchange mutual promises; a thing or things to be contracted for; a consideration to support the contract; and the assent of the contracting parties.

It is a common expression in the law of contract that the minds of the parties must meet-meaning that they must have in mind and agree to the elements and all important particulars of the transaction, including the identity of the other party and of the thing contracted for, the consideration and its manner of payment, and the terms of the contract. Matters which are thus essential are said to be "of the essence of the contract," and are largely determined by the parties themselves-among the most common being the place of payment, and the effect of delay on the contract, in causing the delayer to pay damages, or by allowing the other party to abrogate the contract entirely.

The assent of the parties is another vital element, as it is the outward, visible sign that the minds of the parties have met on the terms. Assent is usually expressed by words or letters in answer to a spoken or written proposition, but any other means of communication will answer as well. Thus telegrams, telephone conversations, acts, gestures, and in rare cases, absolute silence under an obligation to speak, may signify assent and so bind the parties to perform the contract.

The essential acts in the formation of a contract are (1) An offer by one party, and (2) An acceptance by the other. Compliance with the offer must be with knowledge of it. Accidental compliance does not make a contract; the minds of the parties never met. Acceptance must be in precise compliance with the terms of the offer. In a leading Wisconsin case an offer to sell land, payment to be made in Connecticut, was accepted with the reservation that payment should be made in Wisconsin, and it was held not to be an acceptance in terms so as to bind the contract. In other words any material alteration in the terms of ac

ceptance is treated as a counter-offer and breaks the original offer as would a refusal, so that it cannot afterwards be accepted unless renewed. An offer takes effect from the time it is presented to the mind of the offeree, and is considered as continuing until it is either accepted, revoked, rejected or expires by lapse of time. An offer must be accepted within a reasonable time, although what constitutes a reasonable time is not fixed by any rule of law but depends on the circumstances of each particular case. Nine or ten days' delay has been held unreasonable. Four days has bee held too long a delay. The strict cases have allowed the offeree. the day of the receipt of the offer to consider, and have held that an answer by the first mail of the following day was binding. In the absence of instructions to the contrary, the acceptance is presumed to be made in the same manner as the offer, but the parties can stipulate for a different manner of acceptance, as by tele gram, shipment of goods or otherwise.

The acceptance differs from the offer in some marked respects. Thus while the offer is not effective until it reaches the offeree, the acceptance is valid and binds the contract from the moment it. is made, although not known to the offeror until later. The acceptance of a contract by mail is binding as soon as the letter, properly addressed and stamped is placed in the mail, although knowledge thereof may not reach the offeror for some time, or even although the letter never reaches its destination. A letter is "in the mail" when deposited in the post office or in a letter box. Whether an R. F. D. box is included is not yet adjudicated, but as the letter is not beyond control of the sender there would seem good reason to believe that a letter deposited in a rural letter box is not "in the mail." While acceptance is effective as soon as mailed, the revocation of an offer is not effective until it reaches the party intended. Thus A in Boston may make an offer to B in San Francisco. The offer may be sent on Monday, and received on Thursday. On Tuesday A may revoke the offer, but the letter will not reach B till Friday. So if B accept the offer Thursday or any time before the revocation reaches him the contract will be formed, though A's revocation has been three days on the road.

A contract requires a consideration to support it. By this is meant that gain or benefit to one party or that loss or detriment to the other which is the moving cause of the transaction. It may be money, a promise, or the doing or forbearing to do a certain

thing. A promise, or forbearance, or performance on one side may be the consideration for any of these on the other side. The contract to be binding must be mutual-in order that one party may be bound both must be bound.

Care should always be taken not to construe as an agreement letters which the parties intended only as preliminary neogtiations. Thus in a leading Wisconsin case the defendants offered, through a circular letter, salt at a low price in carload lots, whereupon plaintiffs telegraphed an acceptance for 2,000 barrels, and when delivery was refused, began action. The court was of the opinion that the letter offering salt was a circular, a mere preliminary advertisement intended to attract patronage, and that the telegram was not the acceptance of an offer to sell but an offer to buy, which must be accepted by the other party before a binding contract came into existence.

This case has a direct application to every nurseryman and fruitman in the state, as it establishes the rule that a circular, price list, or catalog is not an offer to sell but a preliminary advertisement intended to attract trade. Hence it follows that an order for nursery stock from a prospective customer for certain amounts, varieties, etc., is an offer to buy these goods only, and whether considered as an offer or a counter-offer abrogates all terms of the trade circular with which it may conflict. When taken in connection with the letter of acknowledgment, and retention of the purchase money it amounts to a contract of purchase and sale, subject it would seem to the implied condition. subsequent that the nurseryman has the stock on hand when the time for delivery arrives. It then becomes the duty of the nurseryman to fill the order exactly as ordered. If the order reads. "do not substitute" or "in case you are out of.... tain variety) you may substitute ... variety) only," it must be filled as ordered. In the absence of provisions to the contrary it would seem to be in the minds of the parties that the order should be filled as far as possible, and substitution allowed. If substitution were attempted in a "do not substitute order" the purchaser might at his option refuse the stock and demand back the purchase price and transportation charges.

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It will avoid difficulty if the purchaser will give the date of shipment as this is often a material element, "of the essence of the contract." While it is reasonably clear that undue delay in ship

ment is cause for avoiding the contract, there is no precise definition in law as to what constitutes undue and unreasonable delay. Three weeks has been held an unreasonable delay in shipping a carload of beans. Probably ten days or two weeks would be an unreasonable delay in forwarding nursery stock, depending on the stock, the time of year, the injury caused and the surrounding circumstances. In the absence of express terms making shipment by a certain day necessary, the purchaser would probably be deemed to waive the delay unless he notified the vendor that on failure of the stock to arrive he elected to rescind the contract, and demanding return of the purchase price. It will avoid misunderstanding, where time is essential if the order contains a direction that the stock shall be shipped by a certain day or else the money is to be returned to the purchaser. It would seem that such contracts for future delivery are made, if not otherwise specified upon the implied condition that the vendor shall actually have the stock when time for delivery arrives, and he is freed in case of destruction of his stock or in case he is previously sold out.

Often when the stock arrives it is found to be deficient in size, amount, quality, etc., failing to fulfill the representations or warranty under which it was sold. Under such conditions the purchaser has the right to inspect and examine the stock before accepting it. This right is not waived by payment of the express or freight charges, or even the entire price of the stock if this is necessary before the carrier will give possession thereof. If upon such examination, the stock fails to meet the express warranty (size, condition, quality and any other standard it was guaranteed to attain) under which it was sold, or the implied warranty that it is suitable to the purpose for which it was sold, the purchaser may within a reasonable time notify the vendor of these facts and refuse to take it, demanding repayment of the purchase price and freight. Or he may separate the good from the worthless stock and make payment for the good portion only, or in case none of the stock be worthless but merely defective or below grade, he may notify the vendor of such condition and refuse to pay full value therefor. In that case he is only liable for the fair market value, and if sued for the full purchase price he may set up a claim for damages to the amount of the difference between the market value of the property which was received and the market value of that contracted for, besides special damages

arising from the failure to perform, where such special injury was known or contemplated by the parties.

REPORT OF DELEGATE TO THE AMERICAN POMOLOGICAL SOCIETY.

J. G. MILWARD.

Through the courtesy of the State Horticultural Society, the writer was privileged to represent Wisconsin as delegate to the American Pomological Society meeting held at St. Catherine's, Ont., Canada, Sept. 14 to 17, 1909. The past convention was the first time that the Society met outside the boundaries of the United States.

The meetings of the Pomological Society have always been of national importance because of the opportunities to come in touch with the widely separate horticultural interests of the country. Your delegate, while in attendance at the meeting, had in mind two questions which have always been discussed at our Wisconsin conventions, (1) "What estimate should be placed on the commercial Wisconsin apples as compared with the apples of other commercial apple-growing centers," and (2) "Is Wisconsin horticulture progressive?"

(1) In connection with the American Pomological meeting a joint fruit exhibit was held with the local society at St. Catherine's. Your delegate entered an exhibit of apples to be passed upon for merit, and for the Wilder medal. The exhibit included the apples of Wisconsin origin-Northwestern Greening, MeMahon, Windsor Chief, Pewaukee, Wold River, Plum Cider, Milwaukee, Gem City and Newell. Professor Taylor of the Department at Washington passed upon the exhibit and awarded the Wisconsin State Horticultural Society the Wilder silver medal. Much favorable comment was passed by experts upon the apples exhibited, and the apples shown compared very favorable with any shown in the hall.

As a recommendation for future exhibits of this kind, your delegate would recommend that the exhibit be put up in commercial packed boxes, and that the display be made not only to include apples of Wisconsin origin, but also other varieties such