as to the particular time and place that the agreement is to be considered as closed, and the rights and obligations of the parties fixed. The general rule is that whenever and wherever the minds of the parties meet in agreement as to all the particulars of the transaction, the contract is made and binding. The contract is completed by the acceptance of an offer and the time and place of acceptance is the time and place of the contract. Where a letter containing an offer is transmitted by mail, and an answer accepting the offer in its precise terms is mailed also, the contract is closed and the rights of the parties fixed, at the time and place the letter of acceptance, properly stamped and addressed, is deposited in the post office.

§ 435. Legality of object of contract.-Since the courts do not favor illegal or immoral acts they will not enforce contracts which are prohibited by law or which contribute to specific acts prohibited by law, but will hold them null and void. They will also hold void contracts which they have determined to be contrary to public policy. In many states gambling contracts are expressly prohibited by law and consequently the courts will determine such contracts to be void. Where the law

prohibits a specific act, as the doing of business on Sunday, and one contracts with another to publish advertising in a Sunday paper, the contract will be held void as contributing to an illegal end.

There are many examples of contracts which are void as being contrary to public policy. Contracts to commit torts, to refrain from prosecuting criminals, to influence legislation by lobbying, to interfere with the freedom or security of marriage, to restrain unreasonably trade or competition, or to engage in immoral practices are all

examples of contracts which the courts have held to be void as contrary to public policy.

$436. Reality of consent-Mistake. In all contracts, there must be an agreement of the minds of the parties as to the subject-matter of the contract and as to the obligations assumed by each party. If there is a misunderstanding as to the thing contracted for, or as to the time or place of performance, as to the price to be paid, or any other essential matter, there is no agreement, and consequently no binding contract. Thus, if A, having in mind one of several horses in his field, says to B, who has in mind another horse in the same field, "I will sell you the horse for one hundred dollars," and B says, "I will take it at that price," there is no contract, for the minds of the parties have not met and agreed upon the same thing. So, if A says, I will sell an article, naming it, for one hundred and sixty-five dollars, and B, supposing that the sum named was only sixty-five dollars, agrees to pay it, it is plain that there is no agreement. These are simple forms of illustration, and they could be multiplied indefinitely.

§ 437. Reality of consent-Fraud and misrepresentation. Where a person is induced to enter into a contract through fraud there is then lacking that reality of consent or actual agreement of the minds necessary to a binding contract. Such contracts are voidable and the defrauded party may take his choice and either avoid the contract or abide by the contract and sue the wrongdoer for damages in an action in tort for deceit. Το establish a case of fraud it must be shown that there was a false representation of fact, made with a knowledge of its falsity or with a reckless disregard of whether it was false or true, that it was made with the intent that it should be relied on, and that it actually did induce the

other party to act upon it to his damage. Thus if A induces B to purchase a horse from him through his representations that the horse is capable of certain speed and A knows that such is not the case and consequently B pays more than the horse is worth, he may rescind the contract and recover back his money, or he may if he prefers keep the horse and sue A for damages for the deceit.

If, however, A made the above misrepresentation honestly and innocently, then B has no relief at law, unless the representation was so made as to amount to a warranty or a part of the contract, for the law affords no relief in the case of mere innocent misrepresentation. In such cases, however, equity will afford relief, and innocent misrepresentation is a good defense to an action for specific performance. In case the innocent misrepresentation is so made as to make it a part of the contract or a warranty then an action for damages for breach thereof may be maintained at law.

§ 438. Reality of consent-Duress and undue influence. Contracts made by persons under duress are not binding. Duress exists where one by the unlawful act of another is induced to make a contract or perform some act under circumstances which deprive him of the exercise of his free will. There may be duress of the person, as by threats, imprisonment, or an exhibition of apparently irresistible force, or of the goods, where one is compelled to submit to an illegal exaction to obtain possession of them. The imprisonment must be unlawful in itself, or if lawful it must be enforced in a cruel and oppressive manner. The threat or threats must be such as to excite fear of some grievous wrong, and such as would overcome the will of a person of ordinary courage. Where a contract is obtained by duress, it is

incumbent upon the person who wishes to avoid the contract on that account to proceed without delay. If after the duress he does any act in ratification of the contract, he is cut off from his defense.

"Undue influence may be defined as an undue and unconscientious use of power, whereby the will of one of the contracting parties is enthralled by the other. A presumption of undue influence or of fraud will commonly arise where the parties stand in confidential relations in which one naturally possesses an advantage over the other, making it necessary for the parties seeking to hold the benefit of the contract or conveyance to show perfect fairness on his part and no abuse of power." Contracts and conveyances between parent and child, guardian and ward, and husband and wife are cases of this sort. If the contract is secured through undue influence, it is voidable.

$439. Void and voidable contracts.-The terms void and voidable are often confused. A contract is void when its terms are so uncertain that it can not be enforced, or where there is a total lack of capacity in one or both of the parties, or where the contract is illegal, being in contravention of some positive law forbidding it; to these are to be added contracts to refrain from doing what the law requires, contracts which are impossible of performance, contracts based upon an immoral consideration, and contracts contrary to public policy. Contracts legal in part and illegal in part will be enforced as to the legal part if it can be separated from the illegal; if not, the whole contract is void. Voidable contracts are those which are procured by fraud or duress, or those entered into by persons under disability, such as infants and insane persons.

Such contracts may be ratified, but

contracts which are absolutely void are incapable of ratification.

§ 440. Interpretation of contracts.-Contracts are to be interpreted according to the manifest intention of the parties, words being taken in their popular sense. In construing a written contract, if the language is ambiguous, the whole instrument is to be considered with all the circumstances surrounding the parties at the time it was made. If the contract is expressed in such vague and doubtful terms that the intention of the parties can not be ascertained from reading it, it is void.