Westoíí J.
delivered the opinion of the Court at the succeeding August term in Oxford, as follows.
There is no small obscurity in the written correspondence adduced as evidence of a contract on the part of the defendant, for the breach of which damages are sought to be recovered in this action. But we are of opinion that, upon a fair analysis, it does import a contract, and that each of the parties must have been apprized that the other so understood it.
[414]*414The first letter of the plaintiff to the defendant, under date of the second of May 1822, advises that from three to eight thousand bushels of wheat might be had at Ilallowell, of an average quality with a sample forwarded to Rice and Thaxter, as the letter states, ££ in order to be able to buy the w'heat, should you want.” And the letter further states, ££ should you conclude to purchase, the sooner it is done the better.” This letter contains a proposition' to sell to the defendant, or to purchase for his use at Ilallowell,* from three to eight thousand bushels of wheat, Corresponding with the sample. The defendant replies on the twenty fourth of the same month of May, apologises for the delay, approves of the sample, and subjoins,££ the wheat will be worth one hundred and thirty cents per bushel, delivered at the mills, called the city mills in this town.” These mills belonged to the defendant. This letter appears to us to be tantamount to saying, on his part, ££ I have ££ attended to your proposition, have examined the wheat, approve ££ of it, and will pay you therefor one dollar and thirty cents per ££ bushel, delivered at my mills in Boston”; and by the wheat, must be understood that which the plaintiff had proposed to sell to him or to purchase for him, namely, from three to eight thousand bushels, equal in quality to the sample. The plaintiff, by his letter to the defendant, dated the thirty first of the same month, states that inconsequence of the delay on the part of the defendant, he had written to Alexandria for a market, from which he expected an answer very soon; and adds, ££ should the offer be a “ better one than yours, I should like, at the same price, to give ££ you the preference, and will advise you; otherwise shall ship ££ it to you with all possible despatch”; and in a postscript, he advises the defendant that contracts for about five thousand bushels of wheat had been made. The plaintiff thus apprizes the defendant that he considers his letter an offer for the wheat, and that unless he very soon receives a better one from Alexandria, of which he will advise him, he will accept his offer, and forward the wheat as soon as possible. If the defendant was misunderstood by the plaintiff in considering his letter an offer, it was very easy for him to have disclaimed such intention; and if he had done so, before the plaintiff had actually accepted, either in express terms, or by some act done, the defendant could not have [415]*415been charged. Instead of which, although he had reason to believe from the plaintiff’s last letter that, unless he was otherwise advised within a reasonable time, the wheat would be sent by the plaintiff, in expectation of obtaining therefor the price stated in his letter, he remains silent, and actually receives the greater part of the wheat forwarded.
It has been insisted in argument, that both of the parties must be bound or neither. In order to take a case'out of the statute, a note or memorandum in writing must be made and signed by the party to be charged. In Egerton v. Matthews & al. where the defendants agreed in writing to buy of the plaintiff, thirty bales of Smyrna cotton, and they signed, but the plaintiff did not, it was decided that the defendants were bound; they being the parties sought to be charged. The same doctrine is held in Allen v. Bennet 3 Taun. 169; and it is there considered that the party who does sign is liable, although he has no legal means of enforcing the contract against the other. Mansfield C. J. in the same case says, “ every one knows it is the daily practice of the court of “ chancery to establish contracts signed by one person only, and “ yet a court of equity can no more dispense with the statute of “ frauds than a court of law can.”
But it is by no means certain that the plaintiff was not equally bound; and that the contract might not have been legally enforced against him. By his letter of the thirty-first of May, he virtually accepts the defendant’s offer, unless he otherwise advises him soon; and if, after a reasonable time had elapsed, having had no better offer from Alexandria, and giving no notice to that effect to the defendant, wheat had in the mean time risen in value, and he had not forwarded it to the defendant, it is far from being clear that he might not have been held answerable to him in damages for his failure so to do. However this may be, we are of opinion that the defendant’s letter, connected with the first letter of the plaintiff, was an offer to purchase upon certain terms; and that the second letter of the plaintiff, and the act of forwarding the wheat, was an acceptance of that offer by him; by which the contract became operative and binding on the part of the defendant, the acceptance of the plaintiff forming a sufficient consideration therefor; more especially as it. appears that the defendant [416]*416was advised of the mariner in which his letter was understood by the plaintiff, and by his silence, as well as by his receipt of the greater part of the wheat, acquiesced in that construction. , ■
• White, the witness, who is objected to as incompetent in consequence of interest, being at the request of. the defendant’s counsel examined upon that point, disclaims all interest in the event 'of this suit. He admits that he was permitted by the plaintiff to participate,, to a limited extent, in the benefit of the contract; but states that that portion of the wheat, in which he was concerned, having been received- by the defendant, according to his engagement, and lie having been fully paid and satisfied, he has no interest whatever in the controversy between these parties. The objection to his competency therefore, upon the ground of interest, is not supported.
• But it is urged that, from the facts disclosed by his testimony, White ought to have joined in bringing the action; and that the plaintiff, instead of being entitled to a verdict, ought to have been non-suited. There was no privity whatever between White and the defendant. The plaintiff, when he made the contract, had no connection with White. The bargain, afterwards made between them, merely fixed the terms upon which the latter would furnish a part of the wheat, which the plaintiff was to procure for the defendant.
In Mawman v. Gillet, reported in a note, 2 Taunt. 326, the plaintiff had employed the defendant to print certain works for him, which was the'consideration for the assumpsit set forth in the declaration. The plaintiff was the only person known to the defendant in the contract, but others had been permitted by the plaintiff to share in the benefit of it, among whom was one Evans offered by the plaintiff as a witness, and an objection, made to his admissibility as such, was overruled by the Court.
In Lloyd v. Archbowle 2 Taunt. 324, a dormant partner, who participated with the plaintiff in the benefit of the contract, was not joined in the action, which it was insisted he should have been.
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Westoíí J.
delivered the opinion of the Court at the succeeding August term in Oxford, as follows.
There is no small obscurity in the written correspondence adduced as evidence of a contract on the part of the defendant, for the breach of which damages are sought to be recovered in this action. But we are of opinion that, upon a fair analysis, it does import a contract, and that each of the parties must have been apprized that the other so understood it.
[414]*414The first letter of the plaintiff to the defendant, under date of the second of May 1822, advises that from three to eight thousand bushels of wheat might be had at Ilallowell, of an average quality with a sample forwarded to Rice and Thaxter, as the letter states, ££ in order to be able to buy the w'heat, should you want.” And the letter further states, ££ should you conclude to purchase, the sooner it is done the better.” This letter contains a proposition' to sell to the defendant, or to purchase for his use at Ilallowell,* from three to eight thousand bushels of wheat, Corresponding with the sample. The defendant replies on the twenty fourth of the same month of May, apologises for the delay, approves of the sample, and subjoins,££ the wheat will be worth one hundred and thirty cents per bushel, delivered at the mills, called the city mills in this town.” These mills belonged to the defendant. This letter appears to us to be tantamount to saying, on his part, ££ I have ££ attended to your proposition, have examined the wheat, approve ££ of it, and will pay you therefor one dollar and thirty cents per ££ bushel, delivered at my mills in Boston”; and by the wheat, must be understood that which the plaintiff had proposed to sell to him or to purchase for him, namely, from three to eight thousand bushels, equal in quality to the sample. The plaintiff, by his letter to the defendant, dated the thirty first of the same month, states that inconsequence of the delay on the part of the defendant, he had written to Alexandria for a market, from which he expected an answer very soon; and adds, ££ should the offer be a “ better one than yours, I should like, at the same price, to give ££ you the preference, and will advise you; otherwise shall ship ££ it to you with all possible despatch”; and in a postscript, he advises the defendant that contracts for about five thousand bushels of wheat had been made. The plaintiff thus apprizes the defendant that he considers his letter an offer for the wheat, and that unless he very soon receives a better one from Alexandria, of which he will advise him, he will accept his offer, and forward the wheat as soon as possible. If the defendant was misunderstood by the plaintiff in considering his letter an offer, it was very easy for him to have disclaimed such intention; and if he had done so, before the plaintiff had actually accepted, either in express terms, or by some act done, the defendant could not have [415]*415been charged. Instead of which, although he had reason to believe from the plaintiff’s last letter that, unless he was otherwise advised within a reasonable time, the wheat would be sent by the plaintiff, in expectation of obtaining therefor the price stated in his letter, he remains silent, and actually receives the greater part of the wheat forwarded.
It has been insisted in argument, that both of the parties must be bound or neither. In order to take a case'out of the statute, a note or memorandum in writing must be made and signed by the party to be charged. In Egerton v. Matthews & al. where the defendants agreed in writing to buy of the plaintiff, thirty bales of Smyrna cotton, and they signed, but the plaintiff did not, it was decided that the defendants were bound; they being the parties sought to be charged. The same doctrine is held in Allen v. Bennet 3 Taun. 169; and it is there considered that the party who does sign is liable, although he has no legal means of enforcing the contract against the other. Mansfield C. J. in the same case says, “ every one knows it is the daily practice of the court of “ chancery to establish contracts signed by one person only, and “ yet a court of equity can no more dispense with the statute of “ frauds than a court of law can.”
But it is by no means certain that the plaintiff was not equally bound; and that the contract might not have been legally enforced against him. By his letter of the thirty-first of May, he virtually accepts the defendant’s offer, unless he otherwise advises him soon; and if, after a reasonable time had elapsed, having had no better offer from Alexandria, and giving no notice to that effect to the defendant, wheat had in the mean time risen in value, and he had not forwarded it to the defendant, it is far from being clear that he might not have been held answerable to him in damages for his failure so to do. However this may be, we are of opinion that the defendant’s letter, connected with the first letter of the plaintiff, was an offer to purchase upon certain terms; and that the second letter of the plaintiff, and the act of forwarding the wheat, was an acceptance of that offer by him; by which the contract became operative and binding on the part of the defendant, the acceptance of the plaintiff forming a sufficient consideration therefor; more especially as it. appears that the defendant [416]*416was advised of the mariner in which his letter was understood by the plaintiff, and by his silence, as well as by his receipt of the greater part of the wheat, acquiesced in that construction. , ■
• White, the witness, who is objected to as incompetent in consequence of interest, being at the request of. the defendant’s counsel examined upon that point, disclaims all interest in the event 'of this suit. He admits that he was permitted by the plaintiff to participate,, to a limited extent, in the benefit of the contract; but states that that portion of the wheat, in which he was concerned, having been received- by the defendant, according to his engagement, and lie having been fully paid and satisfied, he has no interest whatever in the controversy between these parties. The objection to his competency therefore, upon the ground of interest, is not supported.
• But it is urged that, from the facts disclosed by his testimony, White ought to have joined in bringing the action; and that the plaintiff, instead of being entitled to a verdict, ought to have been non-suited. There was no privity whatever between White and the defendant. The plaintiff, when he made the contract, had no connection with White. The bargain, afterwards made between them, merely fixed the terms upon which the latter would furnish a part of the wheat, which the plaintiff was to procure for the defendant.
In Mawman v. Gillet, reported in a note, 2 Taunt. 326, the plaintiff had employed the defendant to print certain works for him, which was the'consideration for the assumpsit set forth in the declaration. The plaintiff was the only person known to the defendant in the contract, but others had been permitted by the plaintiff to share in the benefit of it, among whom was one Evans offered by the plaintiff as a witness, and an objection, made to his admissibility as such, was overruled by the Court.
In Lloyd v. Archbowle 2 Taunt. 324, a dormant partner, who participated with the plaintiff in the benefit of the contract, was not joined in the action, which it was insisted he should have been. But the Court decided otherwise; and Mansfield C. J. who delivered the opinion of the Court, says “ there is a material distinc- “ tion between the case, where partners are defendants, and “ where partners are plaintiffs; if you can find out a dormant [417]*417££ partner defendant you may make him pay, because he has had “ the benefit of your work; but a person with whom you have no i£ privity of communication in your contract shall not sue you.”
To entitle the plaintiff to maintain this action, it was necessary for him to aver and to prove that he delivered or offered to deliver the wheat, at the city mills, unless such delivery or offer to deliver was prevented or waived on the part of the defendant. The wheat arrived on ship board in the harbor of Boston; the master of the vessel had orders to deliver it at the city mills; this he was ready and desirous to do, and called on the defendant at the mills, offering to deliver it, and requesting him to receive it. This the defendant refused; declaring to the master that it was of no use for him to bring it any nearer to the mills. As much as to say, it is entirely unnecessary for you to pass through the several bridges, and to bring your vessel round, in order to go through the useless ceremony of tendering the wheat at the mills; for I shall not receive it- Had the defendant been passive, doing no act and making no declaration, excusing or waiving the delivery at the mills, the wheat must have been tendered there to entitle the plaintiff to recover. But this condition being expressly waived, the plaintiff has all the fights which would have accrued to him, if he had actually delivered or tendered the wheat at the mills. Jones v. Barkley 2 Doug. 684. Rawson v. Johnson 1 East 203. Waterhouse v. Skinner 2 Bos. & Pul. 447. West v. Emmons 5 Johns. 179. Miller v. Drake 1 Caines 45.
Judgment on the verdict.