and solicit orders, and yet hold the other party to the contract, while he reserves time to himself to see if the contract will be profitable.

"Writ denied.

"A petition for rehearing having been filed, the following response was handed down on September 20, 1919: "An earnest petition to rehear has been filed, and we have re-examined the question with great care. The petition quotes the text of 13 C. J. p. 276, as follows: 'An offer made to another, either orally or in writing, cannot be turned into an agreement because the person to whom it is made or sent makes no reply, even though the offer states that silence will be taken as consent, for the offerer cannot prescribe conditions of rejection, so as to turn silence on the part of the offeree into acceptance.'

"And further: 'In like manner mere delay in accepting or rejecting an offer cannot make an agreement.'

"It is also said that diligent search reveals only one case holding in accord with the court's decision of this case, and that case is Blue Grass Cordage Co. v. Luthy & Co., 98 Ky. 583, 33 S. W. 835, and it is said this case was overruled by the later case of L. A. Becker Co. v. Alvey, 27 Ky. L. Rep. 832, 86 S. W. 974. We have examined both of those cases, and we do not think either is authority on the question at issue. In the first case the contract was admittedly executed, and the suit was for damages for its breach. The second case does not refer to the first, and is upon another branch of contracts. The quotation from C. J. contemplates the case of an original offer, unaccompanied by other circumstances, and does not apply to this case, where the parties had been dealing with each other before the contract, and were dealing in due course at the time.

"It is a general principle of the law of contracts that, while an assent to an offer is requisite to the formation of an agreement, yet such assent is a condition of the mind, and may be either express or evidenced by circumstances from which the assent may be inferred. Hart

ford & N. H. R. Co. v. Jackson, 24 Conn. 514, 63 Am. Dec. 177; 6 R. C. L. 605; 13 C. J. 276; 9 Cyc. 258. And see the cases cited in the notes of these authorities. They all agree that acceptance of an offer may be inferred from silence. This is only where the circumstances surrounding the parties afford a basis from which an inference may be drawn from silence. There must be the right and the duty to speak, before the failure to do so can prevent a person from afterwards setting up the truth. We think it is the duty of a wholesale merchant, who sends out his drummers to solicit orders for perishable articles, and articles consumable in the use, to notify his customers within a reasonable time that the orders are not accepted; and if he fails to do so, and the proof'shows that he had ample opportunity, silence for an unreasonable length of time will amount to an acceptance, if the offerer is relying upon him for the goods.

"The petition to rehear is denied."

Question 57: A business concern sends out a travelling salesman to solicit orders for it, does the travelling salesman have authority to close contracts? Suppose he takes an order and the concerns does not notify the offeror of its rejection, is this failure an evidence of acceptance by it?

(Note to Case 57: On this point the courts are not agreed. See Senner v. Gera Mills, 173 N. Y. Suppl. 265, to the contrary. Also Gould v. Cates Chair Co., 147 Ala. 629. However, one cannot help but feel that from a commercial standpoint the house that sends out its salesman to obtain orders and transmit to it for acceptance or rejection should be bound to notify the orderer within a reasonable time. Otherwise, he is at a great disadvantage. If this house will not accept he must look elsewhere for his purchases. Certainly business men generally expect to have confirmation or rejection, and the law, to serve business needs, ought to impose this duty on the offeree in cases of this kind. Of course it is true generally that a mere failure to reply cannot be construed into an acceptance. There is no rule of law more generally accepted than that. But in the travelling salesmen cases, the commercial house has sent out its salesmen to solicit the offers, and that should certainly impose on it some duty

of affirmative action, either of acceptance or rejection. But probably it would be better to say that the silence was evidence of acceptance, not acceptance itself.

In the case above, the court seems to feel that the provision that the order is not subject to countermand is binding. Of course it is not binding. If the order was a mere offer (as it was) the offeror could withdraw it at any time before acceptance. It is the general rule that travelling salesmen have no authority to close contracts.)

CHAPTER 9.

OFFER AND ACCEPTANCE (2) VALIDITY OF ASSENT THEREIN.

§ 65. (Contracts, Sec. 33.) Introduction.

(Note: Circumstances of an offer and acceptance may make them void or voidable. On the face of the language an offer is made, and there is an acceptance to it. But the atmosphere is beclouded or poisoned. There may have been mistake, fraud, duress or undue influence. I stand by and hear A offer B his car for $500, and hear B accept the offer. I say, "There is a contract." But later B comes to me and tells me that A had threatened him with personal injury unless he accepted. Then I say, "That changes matters.'

We have:

A. Extrinsic circumstances defeating contractual intent.

Circumstances of undue advantage rendering contract voidable.)

A. Extrinsic Circumstances Defeating Contractual Intent.

§ 66. Fraud in the inception or execution.

§ 67. Mistake.

§ 66. Fraud in the inception or execution.

Case 58. Bliss v. N. Y. C. & H. R. R. Co.

Facts: Plaintiff, Bliss, sues the Railroad Co. for dainages arising out of personal injuries. In defense, the Railroad Company produces a receipt signed by Bliss for $17.00 which in terms is a settlement of the claim. Plaintiff testifies that immediately after the accident he went to the superintendent's office. He further testified:

"When I was conducted into the superintendent's office, a gentleman sitting at the desk inquired the cost of my

trousers and hat, and I replied '$12 for the trousers and $5 for the hat.' He told me to take a seat and produced two papers. He passed me one saying, 'This is merely a form' and the second he said was a receipt for the trousers and hat. I signed them and proceeded. I did not read the papers. They were not read to me. I was rattled, dazed, at the time. I first knew of these papers when the trial commenced yesterday. I first knew the contents of these papers in detail when I read them this morning."

Point Involved: Whether there is a contract when the signature to the paper containing the evidence of the alleged contract was procured by fraud as to the contents of the paper.

* 2. The defendant contends that there was no sufficient evidence to be submitted to the jury of fraud on the part of its agent in procuring the release and receipt. The evidence in favor of the plaintiff on this point was, in substance, that in the accident he had received a shock which had finally resulted in serious damage to him; that he bore marks of the direct injury upon his face; that his mind was rattled and dazed at the time; that while he was in this condition, about an hour and a half after the accident, in the office of the defendant's superintendent, the defendant's agent prepared the two papers for him to sign, and passed the release to him,saying, 'This is merely a form,' and said that the second paper was merely a receipt for the trousers and hat; that both of these statements were false; and that he signed both papers without reading them, or knowing their contents. The witnesses for the defense gave a fuller account of what took place at this interview, with particulars which the plaintiff denied to be true, or denied having any remembrance of. The defendant's agent testified that nothing was allowed by way of payments for personal injuries, and that no claim was made for such injuries. Upon this evidence it might