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livery of the message to the offerer. An exact idea of the effect on the position of the parties, of using this means of communication, is essential to a clear view of the subject. Upon a casual examination, I have not found the matter much discussed. (See Attorney-Generals' Opinions, 7, p. 76 ; 5 ib. 560; Teal v. Felton, 12 How. 284; Bell's Commentaries, McLaren's ed. i. p. 497 ; Story on Bailments, 8th ed. SS 461 and seq., and cases cited.) The law long since settled in Lane v. Cotton, 1 Lord Raym. 646, and Whitfield v. Lord Despencer, Cowper, 754, shows that there is no legal agency, nor quasi agency, in the case. The word “ agent" can have only the popular or figurative meaning in which it may be applied to any of the instruments which men sometimes use to communicate their intentions. A carrier pigeon, or a balloon, (à la Commune), might be called an agent, but without throwing light on the legal situation of the correspondents. Perhaps it may best answer the purpose to regard the Post-office simply as a place, and nothing more. The operation of the general rule of delivery then becomes plain. Regarding the letter as a packet or piece of property, it will on general principles (Sheppard's Touchstone, 378) be delivered when it comes to the hands of the person addressed, unless its mailing has been directed by him, expressly or by implication. The rule as to payment by mail, thus stated by Chitty, may illustrate the principle: “ If money be sent by post in a letter properly directed to the creditor, and be lost, the debtor is discharged, if he were directed so to transmit the money, or if that were the usual course between the parties." (Chitty on Contracts, 9th ed. p. 686.) The last clause, resting on a dictum of Lord Kenyon's in Warwick v. Noakes, Peake, 67 (a somewhat peculiar case), is perhaps too broadly stated. If it means that when A. and B. have been in the habit, each for his own convenience, of remitting to each other by mail, A. must object or be responsible for B.'s remittances, and B. for A.'s, it may well be questioned. If the original burden of risk is on the sender, why should it shift, so long as the mode of sending is his own choice? There is not the same foundation for usage, or implied request, as in deliveries of goods to a place under the control of the transferee, for here the place is a public one. Supposing, however, that it is generally and not exceptionally true that property in the letter of acceptance passes upon posting (apparently it can make no difference whether or not the letter contains money), it is difficult to see how this involves the generally assumed proposition that the receiver thereby gains constructive knowledge of the contents. Even if the general government were the receiver's carrier, the conclusion would not follow. Property may be transferred by delivery to a carrier, but only a true alter ipse, an agent empowered to contract, can receive a promise. A letter (of acceptance) must be viewed in two aspects. As a packet, it is a subject of property rights; as a promise, it is like spoken words, vox et præterea nihil, till arrival. It would not necessarily follow that in law it ought to be effectual only when read. After it has passed into the control of the other party, there is something to support a legal presumption of knowl. edge. But the theory that posting the letter of acceptance completes the contract involves a fiction, which, if law, is certainly not common sense. To escape this position, the writing and posting of the letter has sometimes been called an " overt act," and regarded as a compliance with or performance of an implied condition of the offer. (See opinions in Thomson V. James, 18 Dun. lop, 1, given in Langdell's Select Cases on Contracts.) This is only another form of the mixing of different classes already spoken of. The efforts of the parties to come to an understanding cannot be regarded as acts done in pursuance of that understanding. The making of the executory contract does not involve performance.

Without attempting to go further with the abstract discussion (the plausible but faulty reductio ad absurdum in Adams v. Lindsell, 1 B. & Ald. 681, has been fully exposed in your pages), a remark may be made upon the question of business convenience. Putting theory aside, it seems to me that the advantages of holding the contract completed by posting are very questionable. The supposed gain is a saving of time. But A. (the offerer) gains nothing, for practically he must wait till he hears from B. before he can act upon the acceptance. B. doubtless gains the time it takes the letter to travel, for A. is cut off from the right he would otherwise have, of revoking his offer by a message put into B.'s hands before the arrival of the acceptance. Is this advantage to B. a sufficient equivalent for the startling results which the rule must often involve, for examples of which reference must be made to British & Am. Tel. Co. v. Colson, and which move Kelly, C. B., in that case, to remark energetically, “ It is absolutely impossible that such can be the law of this country.

The doctrine has borrowed a plausibility not its own by its application in a class of cases already referred to (contracts arising upon performance), which stand on different ground. It is not necessarily good legal policy to cut off the retreat of contracting parties at the earliest imaginable moment. Mutuality is the first requisite, and this not forced by an artifice of law, but reached in the natural course of voluntary negotiation. There is no moral duty in the case to justify a fiction of law, nor claim on either side to legal preference. Whatever the result of the further adjudication which the question must shortly receive, it is to be hoped that the rule adopted may be put on some intelligible ground. In American courts, Vassar v. Camp is perhaps the only case where the anomalous doctrine here objected to has been applied in a true executory contract, and that decision was governed by misconstrued precedents.

We gladly give place to the above communication in connection with the subject of contract by letter discussed in the paper referred to. As is the case with every other controverted question in the law, the matter presents itself in many aspects, and even those persons who arrive at the same conclusion may well reach it by different routes. The aim of the author of the paper in our April number appears to have been to point out and illustrate a principle of general jurisprudence that should be recognized as governing all cases which could properly be called cases of mutual promises by letter; and he does not seem to have especially set before himself the task of reconciling the existing decisions with one another. But it is necessary to observe the maxim, stare decisis, though it cannot be denied that the necessary process thereof often consists in ignoring the view of the case taken by the court, and pointing out and raising into importance other facts which were equally ignored by the court in forming its decision. These considerations are illustrated by our correspondent's treatment of the case of Tayloe v. The Merchants' Ins. Co., as will be seen by a perusal of that case, and as he himself indeed points out. The criticism would seem to be a correct one, however, if we assume that the general principle on which it is based is well founded. The distinction between executory and partially executed contracts, in connection with this question, is pointed out and recognized on page 452 of the paper referred to, in connection with a reference to the opinion of the French writer, M. Massé ; and it is here more fully developed by our correspondent and applied to the several adjudications. But, on general principles, and without going into the authorities, it is difficult to see how the English Joint Stock Companies cases can be explained on this ground. The mere circumstance that one party to the correspondence happens to be a corporate company, the rules of which require a corporate vote, for the purpose of ascertaining its will, cannot, it would seem, affect the status of the other party. The corporate vote is no more than a process by which the corporate body, the quasi person, signifies to itself its will. It is as much an internal process, so far as the other party is concerned, as is the operation of making up his mind, on the part of an individual. Then as to the process of registering the name of the applicant, that would not seem to have more significance than the corresponding act on the part of an individual of making an entry in his day-book or other book of accounts. Neither the corporate vote nor the registration has reference to any thing but the convenience of the party making use of them, and, it would seem, can no more be called part performance than the filing and copying the missive of offer or the writing, and copying that of acceptance. But whatever may be thought a sufficient act on the part of the acceptor to render the contract an executed one for the purposes of this subject, it is plain that the distinction between such contracts and those purely executory is one important to be borne in mind in the discussion of the question as to when a bargain negotiated by letter becomes irrevocable. If, however, the rule is adopted, that contracts by post become complete upon the posting of the letter

of acceptance, the distinction between cases of executed and executory contracts becomes practically far less important, and it is perhaps one of the strongest arguments in favor of that view that in that case there would be a nearer practical correspondence between the acknowledged rule in case of executed contracts and that thus adopted for executory ones. The argument is a practical one, however, and the reply on the part of the advocates of the other theory would be that it is illogical and in violation of the principles lying at the basis of the law of contracts.

Without, however, going further into the interesting questions suggested by our correspondent, it must suffice us to say that any effort to eliminate from the consideration of the subject those cases which have heretofore been considered as belonging to it, but which are really impertinent, will contribute in no small degree to the intelligible solution of the real difficulty, whatever that solution may be. In view of the immense interests that might possibly depend upon the point in dispute, it is greatly to be desired that an uniform rule should prevail. The question has already again arisen in England, as we learn from the issue of the “ London Law Times," for May 24, 1873; where the Exchequer Chamber, affirming a decision of the Court of Exchequer, recognized the general principle that, in negotiations by post, every communication must come to the knowledge of the party for whom it is destined, before it is accorded effect quoad the contract.

New York, July 10, 1873. TO THE EDITOR OF THE AMERICAN Law Review:

DEAR SIR, — Almost the only passage in your very complete article on Accident Insurance which is not supported by an illustration is the closing one. Permit me to prove the truth of the views therein contained by referring you to the following : Champlin v. Railway Pass. Ass. Co., 6 Lansing, 71; Tooley v. Hartford Pass. Ass. Co., 2 Insurance Law Journal, 275.

Your obedient servant,


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In the famous case of Dartmouth College v. Woodward 1 (famous rine in the past, and likely to be equally if not more historical in therestfuture), the Supreme Court of the United States decided that al by charter granted by a State government to a “private” corporx-cate tion without any reservation of a right to amend or repeal it, was an irrevocable grant of the rights, privileges, and franchises included in it, possessing the nature of property; and that any subsequent act of legislation, altering or amending the terms of S the charter, increasing the number of members named in it, or changing the conditions upon which the members originally accepted it, was a “ law impairing the obligation of a contract,” within the meaning of those words in the Constitution, and was, y, therefore, inoperative and void. The decision was rendered, after elaborate argument, by one of the ablest courts that has ever administered justice, speaking through the great Chief Justice Marshall, and through another judge of world-wide reputation; and although one of their less distinguished associates dissented, it was at once hailed by a large party as a insecond Magna Charta, was universally acquiesced in, and has nay repeatedly been affirmed since; and the doctrine has been extended, as it necessarily must be, to every species of corporation, except those solely owned by the State or established for purely governmental purposes, including banks, and canal and no

14 Wheat. 518; 8. c. 4 Curt. 468. VOL. VIII.

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