certain property. He handed this document to one T. E. Baril, a representative of the plaintiff, for delivery to the latter. On the 25th of August, the plaintiff deposes, he t'. wrote a letter of acceptance which, duly addressed to the defendant, he gave to his son to post and which was mailed ' f the same day. The defendant denies receipt of this letter. On the 6th of September the plaintiff received from the defendant, mailed the previous day, a letter withdrawing the offer of the 14th of August. Evidence was given designed to raise a presumption of actual receipt by the defendant of the plaintiff's acceptance in due course of mail, i.e., on the 26th of August. The present action is to compel the defendant purchaser to carry out the transaction.
Other questions arise as to undisclosed encumbrances affecting the property and the sufficiency and terms of the deed tendered to the purchaser for acceptance and as to the power of the court to amend the deed so tendered to make it conform to the plaintiff's offer. But these it is not now necessary further to consider.
The courts below, while they undoubtedly cast serious doubt on the defendant's denial of the receipt of the plaintiff's acceptance, refrained from making a finding on this question of fact, no doubt deeming it unnecessary because they regarded the judgment of this court in Magann v. Auger (1) as determining that the mailing of the plaintiff's letter of acceptance to the defendant constituted communication of it to him.
With great respect this is an erroneous view of the scope and effect of the decision of this court. That case was one of contract by correspondence, i.e., the offer was sent by mail and that was held to constitute a nomination by the sender of the post office as his agent to receive the acceptance for carriage to him. The civil law of Quebec was held to be the same in this regard as the law of England (p. 193).
But this decision has no application to a case where the offer is communicated, as here, not by mail, but by another means. To make a contract the law requires communication of offer and acceptance alike either to the person for whom each is respectively intended, or to his authorized agent.