28

Harvey v. Facey
[1893] AC 552

LORD MORRIS: The appellants are solicitors carrying on business in partnership at

Kingston, and it appears that in the beginning of October, 1891, negotiations took place
between the respondent L M Facey and the Mayor and Council of Kingston for the sale of the
property in question …
[O]n the 7th of October, 1891, L M Facey was travelling in the train from Kingston to Porus,
and that the appellants caused a telegram to be sent after him from Kingston addressed to him
‗on the train for Porus,‘ in the following words: ‗Will you sell us Bumper Hall Pen?
Telegraph lowest cash price - answer paid;‘ that on the same day L M Facey replied by
telegram to the appellants in the following words: ‗Lowest price for Bumper Hall Pen £900‘;
that on the same day the appellants replied to the last-mentioned telegram by a telegram
addressed to L M Facey ‗on train at Porus‘ in the words following: ‗We agree to buy Bumper
Hall Pen for the sum of nine hundred pounds asked by you. Please send us your title deed in
order that we may get early possession.‘
… The first telegram asks two questions. The first question is as to the willingness of L M
Facey to sell to the appellants; the second question asks the lowest price … L M Facey
replied to the second question only, and gives his lowest price. The third telegram from the
appellants treats the answer of L M Facey stating his lowest price as an unconditional offer to
sell to them at the price named. Their Lordships cannot treat the telegram from L M Facey as
binding him in any respect, except to the extent it does by its terms, viz, the lowest price.
Everything else is left open, and the reply telegram from the appellants cannot be treated as
an acceptance of an offer to sell to them; it is an offer that required to be accepted by L M
Facey. The contract could only be completed if L M Facey had accepted the appellant‘s last
telegram.
It has been contended for the appellants that L M Facey‘s telegram should be read as saying
‗yes‘ to the first question put in the appellants‘ telegram, but there is nothing to support that
contention. L M Facey‘s telegram gives a precise answer to a precise question, viz, the price.
The contract must appear by the telegrams, whereas the appellants are obliged to contend that
an acceptance of the first question is to be implied. Their Lordships are of opinion that the
mere statement of the lowest price at which the vendor would sell contains no implied
contract to sell at that price to the persons making the inquiry …

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 29

Felthouse v. Bindley
(1862) 11 CB 869

WILLLS J: … The horse in question had belonged to the plaintiff‘s nephew, John Felthouse.
In December, 1860, a conversation took place between the plaintiff and his nephew relative
to the purchase of the horse by the former. The uncle seems to have thought that he had on
that occasion bought the horse for £30; the nephew that he had sold it for 30 guineas
[£31.50]. There was clearly no complete bargain at that time.
On the 1st of January, 1861, the nephew writes, ‗I saw my father on Saturday. He told me
that you considered you had bought the horse for £30. If so, you are labouring under a
mistake, for 30 guineas was the price I put upon him, and you never heard me say less. When
you said you would have him, I considered you were aware of the price‘.
To this the uncle replies on the following day , ‗Your price, I admit, was 30 guineas. I offered
£30; never offered more: and you said the horse was mine. However, as there may be a
mistake about him, I will split the difference. If I hear no more about him, I consider the
horse mine at £30/15s.‘
It is clear that there was no complete bargain on the 2nd of January; and it is also clear that
the uncle had no right to impose upon the nephew a sale of his horse for £30/15s. unless he
chose to comply with the condition of writing to repudiate the offer. The nephew might, no
doubt, have bound his uncle to the bargain by writing to him: the uncle might also have
retracted his offer at any time before acceptance. It stood an open offer: and so things
remained until the 25th of February, when the nephew was about to sell his farming stock by
auction.
The horse in question being catalogued with the rest of the stock, the auctioneer [the
defendant] was told [by the nephew] that it was already sold. It is clear, therefore, that the
nephew in his own mind intended his uncle to have the horse at the price which he had
named, £30/15s. but he had not communicated such his intention to his uncle, or done
anything to bind himself. Nothing, therefore, had been done to vest the property in the horse
in the plaintiff down to the 25th of February, when the horse was sold by the defendant.
It appears to me that…there had been no bargain to pass the property in the horse to the
plaintiff, and therefore that he had no right to complain of the sale.
KEATTNG J: I am of the same opinion … the only question we have to consider is
whether the horse was the property of the plaintiff at the time of the sale on the 25th of
February. It seems to me that nothing had been done at that time to pass the property out of
the nephew and vest it in the plaintiff. A proposal had been made, but there had before that
day been no acceptance binding the nephew.
*****