self decisive, even when coupled with the writing. Furthermore, a manual delivery to a third person on a condition precedent may leave the instrument incomplete; and the doctrine that a deed-escrow to the grantee is binding, in spite of the condition (ante, § 2408), never found any orthodox place in this part of the law, though in some jurisdictions the analogy of deeds has naturally been given recognition. For purchasers for value without notice, the principle of Intention may affect these results (post, § 2420).

§ 2410. Same: (3) Delivery, as applied to Contracts in general; Conditions Precedent and Subsequent; Assent of Third Persons; Blanks; Dates. Sealed instruments - otherwise known as deeds were the chief legal documents, in the earlier history of our legal system, and for a long time the only ones whose contents were indisputable.1 Other writings thus came. down to us without the tradition of delivery as a formal and arbitrary mark of the finality of the act. It has therefore long been well understood, for other writings, that the finality of the writing as a legal act depends upon the circumstances of each case; that it may be left to depend on a third person's assent or upon any other precedent condition, and, in particular, that this is so whether the writing (or escrow) is provisionally handed to the grantee himself or to any one else. The case of Pym v. Campbell, in England,2 is commonly taken as the leading one. In the United States, the

1836, Brind v. Hampshire, 1 M. & W. 365 (indorsement is effected, "either by the actual delivery . . . or by some binding engagement"); 1841, Marston v. Allen, 8 id. 494 (indorsement followed by a placing in the custody of the indorser's agent, not sufficient).

51875, Chipman v. Tucker, 38 Wis. 43 (that a note was delivered to a third person with an agreement not to deliver to the payee unless a certain vote of mortgagors took place, and that the custodian delivered it without such a vote, allowed to invalidate the note).

:

6 Eng. 1840, Adams v. Jones, 12 A. & E. 455 (bill accepted by the defendant for F. as payee, and indorsed in blank and delivered by F. to the plaintiff as agent for R. only; defendant's plea denying title in the plaintiff, held good); 1848, Bell v. Ingestre, 12 Q. B. 317 (indorsement of bills sent by mail to plaintiff, on the express condition that certain other bills should be returned by post, but they were not; "they were delivered to them as mere trustees"; "on a plea traversing the indorsement of a bill, its delivery with intent to transfer an interest is put in issue"); U. S.: 1899, Burns & S. L. Co. v. Doyle, 71 Conn. 742, 43 Atl. 483 (acceptance of a bill delivered with the condition that it should not operate until a cottage was completed and money became due, admitted); 1899, Mehlin v. Mutual R. F. L. Ass'n, 2 Ind. Terr. 396, 51 S. W. 1063 (handing of a note to payee's agent, to be delivered to payee on certain conditions only; allowed); 1893, Robertson v. Rowell, 158 Mass. 94, 32 N. E. 898 (agreement to leave a note with payee as incomplete until indorsement by a third person; admitted); 1895, McCormick Co.

v. Faulkner, 7 S. D. 363, 64 N. W. 163 (condition enforced that notes should not become operative till signed by a third person); 1894, Burke v. Dulaney, 153 U. S. 228, 234, 14 Sup. 816 (admitting proof of an agreement that a note was left in the payee's hands "to become an absolute obligation of the maker in the event of his electing, upon examination or investigation, to take the stipulated interest in the property in question ").

71877, Stewart v. Anderson, 59 Ind. 375; and cases cited pro and con in Ames' Cases on Bills and Notes, II, 99, note.

The question whether a conditional acceptance is valid (i. e. an acceptance, final as such, but expressly subject to the contingency of a condition subsequent) is a different one; see Ames' Cases on Bills and Notes, II, 152–154.

1 Post, § 2426.

2 1856, Pym v. Campbell, 6 E. & B. 370 (purchase of an invention; a writing formally complete and signed, and delivered to plaintiff, was offered by the plaintiff; the defendant was allowed to show that, upon a meeting of all persons concerned except A., "it was then proposed that, as the parties were all present, and might find it troublesome to meet again, an agreement should then be drawn up and signed, which, if A. approved of the invention, should be the agreement, but, if A. did not approve, should not be one; A. did not approve of the invention when he saw it"; Erle, J.: "If it be proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party cannot fix it as an agreement upon those signing. The distinction in point of law is that evidence to vary the

doctrine is not only completely accepted, but has even been applied to sealed instruments other than deeds of land in jurisdictions still bound by precedent to the older rule for deeds (ante, § 2408). The only opportunity for doubt arises, not from any question as to the correct theory, but from the difficulty of distinguishing in practical application the present principle and that other one (post, § 2435), also a part of the parol evidence rule, which denies validity to any oral part of an act when the act has been reduced completely to writing. By the other principle, a condition subsequent, which of course forms a part of the act which it qualifies, must be contained in the writing, in order to be enforced, and an oral one is therefore ineffective. But by the present principle, the act is not an act until the final moment

appointed, and that moment may by the parties be made to depend upon some future event, which thus becomes a condition precedent to the legal existence of the act. Theoretically, these two things are entirely distinct, but in particular negotiations it may become difficult to determine judicially which of them the parties were providing for. In such cases, opposite results may turn upon an apparently trifling difference of phrase.5

It follows, from the present principle, that a writing signed and delivered, but left with a blank part, may or may not be final, according to circumstances; and that whether the filling up of the blank by a third person completes the instrument and makes it effective depends upon whether this circumstance was agreed upon beforehand as the decisive one. It also follows that the date of a document's execution may be established by proving the actual time of the conduct, regardless of any statement of date contained in the writing;7 because the time of finality of the utterance, as a legal act. is something essentially independent of and exterior to the writing itself. It may also be suggested that the much-mooted questions, in the specific field of contracts, whether the acceptance of a contractual offer, or the revocation of such an offer,9 must be communicated, are dependent (in part, at least) upon this principle that the finality of an act varies according to circumstances and cannot be prejudged by any invariable test.

§ 2411. Same: (4) Publication, as applied to Wills. The formal rule of delivery was never applied to wills, - partly, no doubt, because their history was distinct from that of other written acts, and partly because the notion of delivery does not naturally suggest itself for unilateral acts. Yet the element of finality of utterance must somehow be marked, and the term "publication" came to be used for that purpose. But this test, concededly, was flexible. Apart from the statutory formality of attestation, no arbitrary or uniform mark of finality was ever fixed upon in the law of wills. Thus, for all wills between the statute of Henry VIII (1540) and the statute of Charles II (1678), and for wills of personalty from the latter date until the

The cases of doubt are placed post, § 2435. Compare the instructive case of Stanley v. White, 160 Ill. 605, 43 N. E. 729, cited ante, $2408.

1829, Hudson v. Revett, 5 Bing. 368 (a deed may be prepared leaving a blank, and prescribing this to be filled by a specified person, and will then have effect from the time when the blank is filled in; quoted ante, § 2408). The following ruling is therefore unsound: 1811, Weeks v. Maillardet, 14 East 568 (contract to sell certain machinery "as per schedule annexed"; the parties signed, sealed, and delivered duplicate originals, lacking any schedule, and separated; held, that a schedule afterwards written in by one G. P., a subscribing witness, in accordance with the understanding and expectation of the parties, was no part of the deed).

71804, Hall v. Cazenove, 4 East 477, 482 (date of delivery); 1866, Reffell v. Reffell, L. R. 1 P. & D. 139 (a will's date of 1855, shown to

be a mistake for 1865; thus effecting a revocation of a will of 1858); 1898, Lambe v. Manning, 171 Ill. 612, 49 N. E. 509 (date of execution of undated paper attached to a deed); 1892, Saunders v. Blythe, 112 Mo. 1, 6, 20 S. W. 319 (deed); 1893, Vaughan v. Parker, 112 N. C. 96, 100, 16 S. E. 908 (deed); 1895, Moore v. Smead, 89 Wis. 558, 62 N. W. 426 (deed).

81879, Household F. & C. A. Ins. Co. v. Grant, L. R. 4 Exch. D. 216; 1857, Hallock v. Ins. Co., 26 N. J. L. 268; 1871, White v. Corlies, 40 N. Y. 467 ("A mental determination not indicated by speech, or put in course of indication by act to the other party, is not an acceptance which will bind the other; nor does an act which in itself is no indication of an acceptance become such because accompanied by an unevinced mental determination").

91880, Byrne v. Van Tienhoven, L. R. 5 C. P. D. 344; 1887, Coleman v. Applegarth, 68 Md. 21, 11 Atl. 284.

statute of Victoria in England (1837) and the corresponding statutes in the United States, the problem constantly arose whether a particular testamentary writing had been finally acted upon by the decedent; and this question depended entirely upon the circumstances. But under the statutory solemnity of attestation (post, §§ 2421, 2456) this question practically disappeared; for the attestation serves as an unquestionable mark of finality.2

2. Intent and Mistake, as applied to Subject, Terms, and Delivery, of an Act.

§ 2413. Intent and Mistake, in general; Modern Test of Reasonable Consequences, applied to Expressed Intent. The elements of an act, in themselves considered, being its subject, its terms, and its final utterance (ante, § 2404, par. 1), it is obvious that these must all be preceded and brought into being by some sort of volition or intent. The result, however, that is thus brought into outward being does not always correspond with the inward intent; and the problem thus arises (ante, § 2404, par. 2) how far either the expression or the intent shall be treated as legally paramount the one to the other. The primitive law (ante, § 2405) looked only at the expression. Juristic speculation of the metaphysical sort tended in modern times at first to regard the intent as vital. But in truth neither can be exclusively the standard; it is a question of adjusting the due relation between the two; and this is the trend of the last half-century in law and in juristic thought.

In order to solve the problem, it is indispensable that the different possible meanings of the words "intent" or "intention" be kept apart, and that the distinction between "volition" and "intention," in the proper sense of the words, be established:

Circa 1832, Mr. John Austin, Jurisprudence, Campbell's ed., Sect. XVIII, XIX, §§ 602617: "In order that we may settle the import of the term 'intention,' it is necessary to settle the import of the term 'will.' For, although an intention is not a volition, they are inseparably connected. . . . These expressions, and others of the same import, merely signify this: Certain movements of our bodies follow invariably and immediately our wishes or desires for those same movements. . . . For example: If I wish that my arm should rise, the desired movement of my arm immediately follows my wish. There is nothing to which I resort, nothing which I wish, as a mean or instrument wherewith to attain my purpose. But if I wish to lift the book which is now lying before me, I

1 1814, Nichols v. Nichols, 2 Phillim. 180 (a paper drawn merely as an example of conciseness in testamentary language was held not to be a will); 1853, Boling v. Boling, 22 Ala. 826 (certain unfinished papers, held not a will of personalty; "the final action, the settled purpose of mind to pass his property, did not then exist"; here the paper was olographic, but undated and unsigned).

2 Temp. Geo. II, circa 1730, Allen v. Hill, Gilbert 257, 261 ("The design [of the statute requiring attestation] was that the will may appear to be compleat, and not a preparation only; for by taking the names of the witnesses

...

to his paper, the testator has shown that he has compleated his will ").

11568, Brett v. Rigdon, Plowd. 340, 343 ("The making of a testament consists of three parts, as do all other human acts which are done with discretion [i. e. sound mind], viz., inception, progression, and consummation. But there is one same thing annexed to each of these parts, and that is the intent of the party, for every one who does any act with discretion has an intent in the inception of it, . . . and in the progression and consummation of it the same intent also subsists; so that one same intent runs through all the parts and continues in the doing of them ").

wish certain movements of my bodily organs, and I employ these as a mean or instrument for the accomplishment of my ultimate end. . . . Our desires of those bodily movements which immediately follow our desires of them, are therefore the only objects which can be styled volitions. And as these are the only volitions, so are the bodily movements, by which they are immediately followed, the only acts or actions properly so called. . . . Most of the names which seem to be names of acts, are names of acts coupled with certain of their consequences. For example: If I kill you with a gun or pistol, I shoot you. And the long train of incidents which are denoted by that brief expression, are considered (or spoken of) as if they constituted an act, perpetrated by me. In truth, the only parts of the train which are my act or acts, are the muscular motions by which I raise the weapon, point it at your head or body and pull the trigger. These I will. The contact of the flint and steel, the ignition of the powder, the flight of the ball towards your body, the wound and subsequent death, with the numberless incidents included in these, are consequences of the act which I will. I will not those consequences, although I may intend them. But in common language the words 'will' and' intend' are often confounded. . . . To desire the act is to will it. To expect any of its consequences is to intend those consequences. The act itself is intended as well as willed. For every volition is accompanied by an expectation or belief that the bodily movement will immediately follow the wish. And hence (no doubt) the frequent confusion of will and intention. Feeling that will implies intention, numerous writers upon jurisprudence (and Mr. Bentham amongst the number) employ 'will' and 'intention' as synonymous or equivalent terms. They forget that intention does not imply will."

It may be assumed, then, that there must at least be a volition of some sort preceding every legal act. But it is also apparent that the act, as expressed and apprehensible to the world at large, or to the other party in particular, may not be such an act as was intended. In those cases, then, where a volition was exercised, but the outward consequences were not produced according to intention, are we to say that because there was a volition, the person is necessarily to be fixed with all the consequences, of whatever sort they be? Or are we to say that, because there was no intention of certain consequences, the person is necessarily not to be fixed with them? We are to accept neither solution in this absolute form. The latter solution is not fair to the community dealing with the person. The former solution is not fair to the person himself. No practical system of law could be content with either, applied in rigid uniformity. The established doctrine of tortious responsibility suggests an analogy and provides a solution. We are to fix the person with such expressed consequences as are the reasonable result of his volition. In other words, the act as legally effective will be determined, in respect to the three elements of subject, terms, and finality, by that expression of it which results, to the other person in the transaction, as the consequence, reasonably to have been anticipated under all the circumstances, of the volition of the actor. This avoids on the one hand the impracticality of the merely external standard, so far as it would have held the person liable for an apparent act which was not the reasonable consequence of his conduct; and, on the other hand, it avoids the impracticality of the merely internal standard, so far as it would have exonerated the person from an unintended consequence which he ought to have foreseen and might have avoided. In short, it adapts, to the general doctrine of legal acts, the test of negligence, i. e. responsibility