Noah Haynes Swayne

“ We herewith hand you bonds. Please close the transaction and telegraph us immediately. The party selling these bonds is waiting here to get the money for them. This same gentleman is an entire stranger to us, therefore, will you be kind enough to satisfy yourself that the bonds are all right. We desire them sold without any recourse on us. ”

“ If the examination the plaintiffs were requested to make showed clearly that the bonds were not counterfeit, then there could be no risk, whether the sale was with or without warranty of genuineness. In connection with these views, it is to be observed that while the bonds and draft were sent on pursuant to the original contract, which is distinctly recognized, it is not said in the letter in plain terms, such as would naturally have been used if such had been the intent of the writers. We will sell only at your risk as to genuineness. ”

“ Where a loss must fall on one of two innocent persons, it must be borne by him whose conduct occasioned it.
In the case at bar, defendants notified plaintiffs that the bonds came to them from strange hands, that they had never before handled any of them, that they were unwilling to take any risk, and would only sell without recourse as to genuineness; consequently, they requested the plaintiffs to 'please examine them,' and, upon upon being found correct, telegraph immediately (Centrals all O.K.) . ”

“ The sum total is, you have made a mistake, and we are ready to assist you all we can to defend your claim, if you have any. We now refer you to our last letter, in which we informed you that we would rather you would begin action immediately, in order to have things settled and the suspense removed. What we have written we will enter as evidence, and has been written with consent of Commercial Bank, as they are fair and honorable. ”

“ But conceding for the purposes of this opinion that the letter did contain such a proposition or annunciation as is insisted upon, then the inquiry arises whether it was so understood and agreed to by the plaintiffs.
There can be no contract without the mutual assent of the parties. This is vital to its existence. There can be none where it is wanting. It is as indispensable to the modification of a contract already made as it was to making it originally. Where there is a misunderstanding as to any thing material, the requisite mutuality of assent as to such thing is wanting ”

“ It shows that we acted prudently and with care. It is true, you may say, you received the bonds before the letter; but even and more so should you have examined them, and informed us. You are aware that New York is the market to detect all irregularities in the bonds spoken of, and you could easily have discovered, had you not been careless. Now, you plainly see our position. The Commercial Bank will not take them back from us, unless they are compelled to do so ”

“ The fifteen bonds were delivered to defendants by Nichols, cashier of Commercial Bank, May 25, and were by defendants forwarded by express on the same day to the Bank of North America, New York, with a draft on plaintiffs for $15,375, the bonds to be delivered by the bank to plaintiffs on payment of the draft. ”

“ The question presented for our determination is whether the facts found are sufficient to support the judgment. Those facts are neither voluminous nor complicated.
On the 24th of May, 1871, Newman & Havens, bankers, of Leavenworth, telegraphed to Nichols, the cashier of the Commercial Bank of St. Louis, to 'get rate for $15,000 California Central Pacific Railroad bonds, delivered to-morrow.' The defendants offered '100 1/2.' Newman & Havens accepted by a telegraphic despatch. ”

“ Nichols handed this letter to defendants May 25, with the bonds, and proposed that the defendants should take said bonds without recourse. Defendants refused to take the bonds without recourse, but said they would do this; viz., would give to the Commercial Bank their (defendants') check for the agreed amount, $15,075, with the understanding that this check was not to be charged up by the Commercial Bank, where defendants kept their accounts, until defendants had sent the bonds to New York and learned that the bonds were ('O. K.') correct. ”

“ Plaintiffs having acted on the letter of May 25, and accepted the delivery tendered, thereby waived a different performance. Shields v. Pettee, 2 Sandf. 262; Reed v. Randall, 29 N. Y. 358.
Acceptance is a question for the jury, Corning v. Colt, 5 Wend. 256; and, having been found as a fact by the court below, its finding is conclusive.
Plaintiffs, by accepting the performance tendered, put it out of the power of defendants to make other performance.
A party whose acts prevent the performance of a condition cannot avail himself of such non-performance as a ground of action. His acts estop him. ”