Wheeler, J.
The defendants justified their detention of the goods on two grounds :
1st. That the contract of sale was not complete, and consequently the property in the goods did not vest in the plaintiff by the shipment of them.
2nd. That the sale was procured by the fraudulent representations of the plaintiff; and though complete, the vendors had the right to rescind it upon the discovery of the fraud, and reclaim the property. These were the grounds on which the defendants, in their answer, rested their defense, and it is upon one or both of them that the judgment must be maintained, if at all.
The effect of a consignment of goods generally, is to vest the property in the consignee. If the terms of the sale were agreed on by the parties, the shipment of the goods and delivery of the bill of lading undoubtedly transferred the property to the consignee, and the consignors retained only the right of stoppage in transitu. (2 Kent, 549 ; 1 Parsons on Con. 488 ; 2 Wash, C. C. R. 283 ; 8 How. R. 429; Parsons, Merc. L. 346.) But if the contract of sale was not ■complete, I apprehend the consignment and sending forward the bill of lading before the parties had agreed upon the terms of the sale, would not have the effect to transfer the property. There must be a contract of sale, to pass the property. And there is no contract unless the parties thereto assent,; and they must assent to the same thing in the same sense. There was, in this case, a proposal to purchase and an acceptance of [87]*87the proposal, but the terms of the sale were not agreed on. In the proposal to purchase, nothing was said respecting terms; but the vendors having communicated their terms, and supposing they would be assented to, shipped the goods without waiting for the answer containing the vendee’s acceptance of them. The terms were never accepted, and there was, consequently, no contract of sale. The terms proposed called for notes payable in six months at the office of E. & D. G. Mills, in Galveston, with exchange, and, if a further extension of time was required, that the notes should bear interest after six months. The notes returned, in reply, were made payable in nine and twelve months at the office of 0. Ennis & Co. in Houston, with interest at seven per cent, after six months, and without exchange. This was not an acceptance of the terms proposed. It does not matter that the difference of terms between the parties may not seem to be very material. If a diversity exists, that fact is enough. To make a contract, there must be a mutual assent. “ The assent must comprehend the whole of the proposition ; it must be exactly equal to its extent and provisions, and it must not qualify them by any new matter.” If the answer, “ either in words or effect, departs from the proposition, or varies the terms of the offer, or substitutes for the contract tendered one more satisfactory to the respondent,” there is no assent and no contract. (Parsons on Con.400.) “If a proposition be accompanied with certain conditions or limitations, the acceptance must correspond to it exactly, for if any alteration be suggested, or any exception be made to its exact terms, the provisional acceptance becomes merely a new proposition, which also requires an acceptance.” (Story on Sales, Sec. 136.) The Court cannot undertake to say how much consequence the consignors may have attached to the condition of making the notes payable at the office of their confidential agents at Galveston, or what objection they might have to their being made payable at the office of 0. Ennis & Co., at Houston. It is enough that they proposed the [88]*88one and not the other. They required the payment of interest, after six months, if the time of payment was enlarged. At the place where the notes were made and payable, interest, without more, meant eight per cent, per annum; and this must be taken to be the interest proposed. They were not bound to accept notes drawing seven per cent. However apparently important the variations in the terms proposed may have been, they amounted to a new proposition, which required acceptances, and which was not accepted. The contract of sale therefore was not consummated, and there consequently was no transfer of the property. It is wholly immaterial whether the consignors declined to accept because of the variation in the terms they had proposed, or because they had been informed of the imposition which had evidently been practiced upon them, as to the means and ability of the purchaser. Their assent was necessary to the completion of the contract; without it there was no contract, from whatever cause it may have been withheld. They were at liberty to recede at any time before the acceptance of their proposition ; and having done so, they had the right to resume the possession of their property. The exercise of that right was not, as the argument for the appellant assumes, that of a stoppage in transitu. That is a right which subsists where there has been a contract of sale, which transfers the property to the consignee ; this was merely the resuming of the possession, which had been parted with, while the parties were negotiating the terms of the sale, but which was not accompanied by a transfer of the property, because of the failure to agree upon terms. In the one case there is the enforcement of a right, in the nature, it is said, of a lien, which subsists after the title has vested in the purchaser ; in the other it was but the act of taking possession by the owners of their property.
The present is distinguishable from the case of Wilmshurst v. Bowker, (7 M. & Gr. 882, 49 E. C. L. R.,) in this : there was a contract of sale in that case, which specified the terms [89]*89and manner of payment; it was to be “ by banker’s draft on London at two month’s date, to be remitted on receipt of invoice and bill of lading.” The wheat was put on board of a general ship, under a bill of lading, by which it was made deliverable “ to order or assigns, he or they paying freight,” &c. The defendants sent the plaintiffs the bill of lading, indorsed generally, and an invoice, stating the wheat to be shipped by-order and for the account and risk of the plaintiffs. Upon-the receipt of the invoice and bill of lading, the plaintiffs, instead of a banker’s draft on London, transmitted to the defendants their own acceptance for the invoice price of the-wheat and the cost of the insurance, which the defendants immediately returned, informing the plaintiffs that such acceptance was contrary to agreement, and that they had arranged otherwise for the disposal of the cargo, which they obtained "back from the captain of the vessel and resold. The question upon these facts was, whether the property in the wheat had passed to the plaintiffs under the contract. And the Court of Common Pleas held that it had ; but that the intention of the parties, under the contract was, that the consignor should retain the power of withholding the actual delivery of the wheat,, in case the consignees failed in remitting the banker’s draft,, on the receipt of the bill of lading. “ When goods are sold,, (the Court said,) and nothing is said about the time of delivery and the time of payment, the seller is bound to deliver them whenever they are demanded on payment of the price. But the buyer, as is observed by Mr. Justice Bayley, in Bloxam v. Sanders, 4 B. & C. 948, has no right to have the possession of the goods until he pays the price.
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Wheeler, J.
The defendants justified their detention of the goods on two grounds :
1st. That the contract of sale was not complete, and consequently the property in the goods did not vest in the plaintiff by the shipment of them.
2nd. That the sale was procured by the fraudulent representations of the plaintiff; and though complete, the vendors had the right to rescind it upon the discovery of the fraud, and reclaim the property. These were the grounds on which the defendants, in their answer, rested their defense, and it is upon one or both of them that the judgment must be maintained, if at all.
The effect of a consignment of goods generally, is to vest the property in the consignee. If the terms of the sale were agreed on by the parties, the shipment of the goods and delivery of the bill of lading undoubtedly transferred the property to the consignee, and the consignors retained only the right of stoppage in transitu. (2 Kent, 549 ; 1 Parsons on Con. 488 ; 2 Wash, C. C. R. 283 ; 8 How. R. 429; Parsons, Merc. L. 346.) But if the contract of sale was not ■complete, I apprehend the consignment and sending forward the bill of lading before the parties had agreed upon the terms of the sale, would not have the effect to transfer the property. There must be a contract of sale, to pass the property. And there is no contract unless the parties thereto assent,; and they must assent to the same thing in the same sense. There was, in this case, a proposal to purchase and an acceptance of [87]*87the proposal, but the terms of the sale were not agreed on. In the proposal to purchase, nothing was said respecting terms; but the vendors having communicated their terms, and supposing they would be assented to, shipped the goods without waiting for the answer containing the vendee’s acceptance of them. The terms were never accepted, and there was, consequently, no contract of sale. The terms proposed called for notes payable in six months at the office of E. & D. G. Mills, in Galveston, with exchange, and, if a further extension of time was required, that the notes should bear interest after six months. The notes returned, in reply, were made payable in nine and twelve months at the office of 0. Ennis & Co. in Houston, with interest at seven per cent, after six months, and without exchange. This was not an acceptance of the terms proposed. It does not matter that the difference of terms between the parties may not seem to be very material. If a diversity exists, that fact is enough. To make a contract, there must be a mutual assent. “ The assent must comprehend the whole of the proposition ; it must be exactly equal to its extent and provisions, and it must not qualify them by any new matter.” If the answer, “ either in words or effect, departs from the proposition, or varies the terms of the offer, or substitutes for the contract tendered one more satisfactory to the respondent,” there is no assent and no contract. (Parsons on Con.400.) “If a proposition be accompanied with certain conditions or limitations, the acceptance must correspond to it exactly, for if any alteration be suggested, or any exception be made to its exact terms, the provisional acceptance becomes merely a new proposition, which also requires an acceptance.” (Story on Sales, Sec. 136.) The Court cannot undertake to say how much consequence the consignors may have attached to the condition of making the notes payable at the office of their confidential agents at Galveston, or what objection they might have to their being made payable at the office of 0. Ennis & Co., at Houston. It is enough that they proposed the [88]*88one and not the other. They required the payment of interest, after six months, if the time of payment was enlarged. At the place where the notes were made and payable, interest, without more, meant eight per cent, per annum; and this must be taken to be the interest proposed. They were not bound to accept notes drawing seven per cent. However apparently important the variations in the terms proposed may have been, they amounted to a new proposition, which required acceptances, and which was not accepted. The contract of sale therefore was not consummated, and there consequently was no transfer of the property. It is wholly immaterial whether the consignors declined to accept because of the variation in the terms they had proposed, or because they had been informed of the imposition which had evidently been practiced upon them, as to the means and ability of the purchaser. Their assent was necessary to the completion of the contract; without it there was no contract, from whatever cause it may have been withheld. They were at liberty to recede at any time before the acceptance of their proposition ; and having done so, they had the right to resume the possession of their property. The exercise of that right was not, as the argument for the appellant assumes, that of a stoppage in transitu. That is a right which subsists where there has been a contract of sale, which transfers the property to the consignee ; this was merely the resuming of the possession, which had been parted with, while the parties were negotiating the terms of the sale, but which was not accompanied by a transfer of the property, because of the failure to agree upon terms. In the one case there is the enforcement of a right, in the nature, it is said, of a lien, which subsists after the title has vested in the purchaser ; in the other it was but the act of taking possession by the owners of their property.
The present is distinguishable from the case of Wilmshurst v. Bowker, (7 M. & Gr. 882, 49 E. C. L. R.,) in this : there was a contract of sale in that case, which specified the terms [89]*89and manner of payment; it was to be “ by banker’s draft on London at two month’s date, to be remitted on receipt of invoice and bill of lading.” The wheat was put on board of a general ship, under a bill of lading, by which it was made deliverable “ to order or assigns, he or they paying freight,” &c. The defendants sent the plaintiffs the bill of lading, indorsed generally, and an invoice, stating the wheat to be shipped by-order and for the account and risk of the plaintiffs. Upon-the receipt of the invoice and bill of lading, the plaintiffs, instead of a banker’s draft on London, transmitted to the defendants their own acceptance for the invoice price of the-wheat and the cost of the insurance, which the defendants immediately returned, informing the plaintiffs that such acceptance was contrary to agreement, and that they had arranged otherwise for the disposal of the cargo, which they obtained "back from the captain of the vessel and resold. The question upon these facts was, whether the property in the wheat had passed to the plaintiffs under the contract. And the Court of Common Pleas held that it had ; but that the intention of the parties, under the contract was, that the consignor should retain the power of withholding the actual delivery of the wheat,, in case the consignees failed in remitting the banker’s draft,, on the receipt of the bill of lading. “ When goods are sold,, (the Court said,) and nothing is said about the time of delivery and the time of payment, the seller is bound to deliver them whenever they are demanded on payment of the price. But the buyer, as is observed by Mr. Justice Bayley, in Bloxam v. Sanders, 4 B. & C. 948, has no right to have the possession of the goods until he pays the price. In the present case it is part of the stipulation that something shall be done by the buyer before the time when, in the usual course of business, the goods can be actually delivered ; namely, upon the-handing over of the bill of lading to the buyers, which ordinarily precedes the arrival of the ship ; so that the right to-[90]*90the possession of the goods could not vest until the buyer either -remitted, or tendered, or offered to remit, the banker's draft in payment.” These principles were sanctioned by the Court ■of Exchequer Chamber; but the judgment was reversed on the ground that there was a complete contract of sale on ■credit, which passed the property to the buyer, and the payment stipulated for was not a condition precedent to the delivery of the goods. Lord Abinger, C. J., said, “ We accede to the general principle laid down by the Court below, and if the facts had been before a jury, we are not prepared to say ■that they might not have drawn the inference that the remitting of a banker’s draft was a condition precedent to the vesting of the property in the wheat in the plaintiffs. But we ■draw no such inference from what appears upon the record. The delivery of the bill of lading, and the remitting of the banker’s draft, could not be simultaneous acts ; the plaintiffs must have received the bill of lading and invoice before they -could send the draft. The default on the part of the plaintiffs •amounts to no more than this, that they have omitted to perform one part of their contract.” (7 M. & Gr. 891, E. C. L. R.) The case, as observed by Mr. Smith, (Smith on Con. 440,)-falls within the rules applicable to the ordinary one of a vendor who having sold on credit has not been paid. The contract of sale was complete; the property had passed ; and the ¡payment was a condition subsequent and not a condition precedent. And so it would have been in this case, if the contract of sale had, been complete : the terms, that is, the time .and manner of the payment agreed on between the parties before the goods were shipped, as in that case. Then, undoubtedly, the failure of the buyer to comply with the stipulated terms of payment would have been a breach of contract, for which an action would lie. But the terms of the sale had not ¡been agreed on by the parties, and until that was done there was no contract, and consequently could be no breach by the failure of the vendee to comply with the terms proposed by [91]*91the seller. The buyer was not obliged to accept the terms proposed; and it is of the very essence of a contract, that the obligation must be mutual, in order to be binding.
It was for the.Court to construe the writings relied on as constituting the evidence of a contract; and it would not have been improper for the Court to have instructed the jury that there was not such a contract as passed the title to the property, and consequently the plaintiff could not maintain the action.
This view of the law arising upon the plaintiffs’ evidence, would lead to an affirmance of the judgment, on the ground that he had not acquired a property in the goods, and consequently had no right of action against the defendants, for the detention of them But if we were in error as it respects our construction of the contract, and suppose the judgment to rest upon the other ground, that the contract was void for fraud practiced in procuring the sale, the result must be the same. It cannot be doubted that the jury were well warranted in the belief that the consignors were deceived and induced to make the consignment by the false impression produced by the plaintiffs’ letter and the representation made, as to the ability and standing of the plaintiff’s house. The letter was well calculated to make, and doubtless did make, a false impression upon their minds; and it can make no difference, that the impression was confirmed by the representations of another. The effect was. a deception, produced in part, at least, by the plaintiff, and for which he is responsible. The evidence places it beyond doubt, that if the consignors had been truly advised of the pecuniary ability of the plaintiff, and his business and standing as a merchant, they would not have made the consignment. But they acted under a deception produced in part, at least, by the plaintiff’s letter ; and the jury, therefore, were well warranted in finding that the contract, if complete in terms, was void on the ground of fraud. Upon either ground, [92]*92therefore, upon which the defendants rested their defence, the verdict and judgment were rightly rendered.
There was no question of a right of stoppage in transitu raised by the pleadings ; no such question was in issue before the jury, and the Court therefore might very properly have declined to give any instructions upon that subject. The instruction given was not erroneous; (Parson’s Mercantile Law,. 60-61; Story on Sales, Sec. 329 ;) and although abstract, can not have misled the jury. The judgment is affirmed.
Judgment affirmed.