he thought might of June 22d, he Opinion of the Court. take the offer. Accordingly, in his letter does not offer to buy Bowman's interest himself, but says: "I think I know a man who will pay the note you gave me, $288.69, and take your interest off your hands. If you are willing to let it go on these terms, which is the same proposition you made me in your office, please telegraph me immediately, and I will try and make the arrangement." Now, while it is true this is not upon its face a proposition to buy Bowman's interest himself, but a mere promise to try and make an arrangement with another party, and a call upon Bowman to let him know whether such a proposition would be accepted if made, in reality we think it should be considered as a proposition made by Patrick himself, for the following reasons: The man he had in mind was Col. Bissell of Leadville, whom he had not yet seen, and whom he had no good reason to believe would take the property. It was a mere conjecture on his part. Before he wrote his next letter, he went on to Leadville, saw Col. Bissell, and "spoke to him in regard to it, and he declined to take it, and declined to take the interest and pay that note, and, as I told Bowman, I was carrying all I could." Notwithstanding this, in his letter of June 27th, he says: "I would also like to have an answer in regard to the proposition I made you about the Col. Sellers, to return you your note and forfeit your share in the contract. There is a party here who will take it." And again on the 28th: "Please let me know what we are to do . about the Col. Sellers, as I am anxious to continue work on that property and see what is there." Now, it does not clearly appear whether he had seen Col. Bissell or not when he wrote these two letters, but in either case the letters were untrue, though they may have been written in good faith, and with the expectation that Col. Bissell would eventually take the interest; but there was no party there who had given him any assurance that he would. Patrick was thereby placed in the position of holding himself out not only as the agent of an unknown principal, but of one whom he had no authority to represent. In such case his contract, though of course not Opinion of the Court. binding upon any one else, is binding upon the agent, at least if the credit be given to such agent. Welch v. Goodwin, 123 Mass. 71; Worthington v. Cowles, 112 Mass. 30; Cobb v. Knapp, 71 N. Y. 348; Blakely v. Bennecke, 59 Missouri, 193; Eichbaum v. Irons, 6 W. & S. 67; Meech v. Smith, 7 Wend. 315; Winsor v. Griggs, 5 Cush. 210; Mechem on Agency, secs. 542, 550, 557. says: In this case there is abundant evidence that the proposition contained in the three letters of June 22d, 27th, and 28th was treated by both parties as the proposition of Patrick himself. In his attempted retraction of July 5th, Patrick says: “I withdraw my offer to return your note for $288.70, dated June 19, 1882, in case you assign your interest in the contract to me." And in his letter of July 16th, Bowman "When I came out of the woods I found your letter of June 22d, waiting my answer, and I telegraphed you on the same day accepting your proposition to surrender to you all my remaining interest in the property adjoining the A. Y. on your surrendering my note." Of this letter Patrick says: "I decided to accept the proposition contained in the letter, and instead of applying to the owners for a new contract I decided to accept the proposition which was contained in Bowman's letter of July 16th. I had a contract prepared such as he indicated he would sign in that letter, and I sent that contract to him by mail after signing it myself." In his letter of August 2d, which was written before the discovery of ore, Patrick enclosed a contract for Bowman to sign, in which his own name is mentioned as grantee, and Bowman in his letter of August 28th also enclosed a draft of his own, in which also Patrick is named as grantee. So, too, in his letter of September 2d, Patrick says: "I sent you from Leadville an agreement concerning the Col. Sellers, in which I agreed to pay that note, $288.70, and you relinquish all rights under the agreement." The matter was finally consummated on October 19th, by a deed direct from Bowman to Patrick of his interest in the mine. Indeed, there is not a word of testimony, except as gathered from the three letters written in June, that the proposition was other than Opinion of the Court. that of Patrick himself. For these reasons we think the offer should be considered as one made by Patrick to take Bowman's interest in the mine, and release him from his liability upon the note. The letter of June 22d, which was addressed to Bowman at St. Louis, was forwarded to Bayfield, Wis., and reached him in the woods at a distance from a telegraph office. He proceeded at once to Ashland, Wis., the nearest telegraph station, and on July 13th telegraphed Patrick as follows: "Yours of June 22d received yesterday; proposition accepted; send note." To this Patrick replied by telegraph, sent both to St. Louis and Ashland, as follows: "Acceptance too late. Proposition was dependent upon immediate acceptance in St. Louis. See my letter of the 5th." In view of the fact that Patrick was informed when in St. Louis, June 19th, that Bowman was about starting for the woods for the summer, and that his letters of June 22d, 27th, and 28th were sent to St. Louis, where he must have known that Bowman had gone, we do not think the acceptance was too late, although it might have been otherwise had the circumstances been such that a prompt reply must have been expected. After having sent this telegram, and before receiving the reply, Bowman left Ashland, and went to St. Paul, where he received the letters of June 27th and 28th, and answered them by his letter of July 16th, renewing his acceptance of the proposition he had already made by telegram. The tone of this letter certainly indicates that he had not received Patrick's telegram of July 15th when he wrote it. Indeed, it is improbable that he should have done so, as one copy of that telegram was sent to St. Louis and another to Ashland, after Bowman had left there. These letters and telegrams, taken together, indicate a complete understanding between these parties that Bowman should sell out his interest in the mine to Patrick on condition that the latter released him from liability upon the note. It is true the letter of June 22d contained no definite proposition, but a mere offer by Patrick to see if he could find a purchaser, and hence Bowman's telegram of July 13th might not Opinion of the Court. be construed as binding Patrick to anything; yet the letter of June 27th did contain, or at least recognize a proposition as coming from Patrick himself, and Bowman's answer thereto of July 16th, construed in connection with his telegram, was a distinct acceptance of such proposition. Nor is this understanding affected by Patrick's attempted revocation of the offer in his letter of July 5th. Bowman denies that he ever received this letter, and as there is no direct evidence that he did, his denial must be accepted as conclusive. Under such circumstances the revocation is of no avail to release either party from the obligations of his contract. The authorities are abundant to the proposition that when an offer is made and accepted by the posting of a letter of acceptance, before notice of withdrawal is received, the contract is not impaired by the fact that a revocation had been mailed before the letter of acceptance. Thus, in the case of Tayloe v. Merchants' Fire Insurance Co., 9 How. 390, in which the point decided was that a contract by correspondence was completed when the party to whom the promise was made placed a letter in the postoffice accepting the terms, Mr. Justice Nelson, in delivering the opinion of the court, said (p. 400): "We are of opinion that an offer under the circumstances stated, prescribing the terms of insurance, is intended, and is to be deemed a valid undertaking on the part of the company, that they will be bound according to the terms tendered, if an answer is transmitted in due course of mail, accepting them; and that it cannot be withdrawn unless the withdrawal reaches the party to whom it is addressed before his letter of reply announcing the acceptance has been transmitted." This case was cited and followed in Byrne v. Van Tienhoven, 5 C. P. D. 344, and Stephenson v. McLean, 5 Q. B. D. 346. Other cases to the same effect are Adams v. Lindsell, 1 B. & Ald. 681; Dunlop v. Higgins, 1 H. L. Cas. 381; Harris' case, L. R. 7 Ch. 587; The Palo Alto, 2 Ware, 343; Wheat v. Cross, 31 Maryland, 99. There is, indeed, in a case of this kind some reason for urging that the party making the revocation should be estopped to claim that his attempted withdrawal was not Opinion of the Court. binding upon himself; but this could not be done without infringing upon the inexorable rule that one party to a contract cannot be bound unless the other be also, notwithstanding that the principle of mutuality thus applied may enable a party to take advantage of the invalidity of his own act. It is quite evident that Bowman himself regarded this as a settlement of his rights under his contract with Patrick, leaving only the details to be arranged between them. His conduct from this time indicates a clear intention on his part to abandon any further interest in the property. It is evident that he intended to make no further claim upon Patrick, and it is equally clear that Patrick could have sustained no further action against him for the expenses of sinking the shaft. Indeed, the testimony leaves it doubtful whether Bowman ever contributed anything more than a nominal amount of money to the enterprise. At the interview in St. Louis on June 19th there seems to have been a settlement had by him. up to May 8th, in which Patrick claimed of him $552.93, three-eighths of the expenses up to May 8th, which was reduced to $288.69, by a credit of some $264.24, claimed by Bowman against Patrick, for which amount, less $264.24, he gave his note. He seems neither to have paid nor settled for any portion of the money expended by Patrick since May 8th, ($603.75,) nor to have given any assurances that the additional liabilities to be incurred would be met by him. He said that he was "hard up;" could not settle the expenses incurred since May 8th; asked Patrick to wait for him as a matter of accommodation; and suggested that only a little work should be done every ten days on the shaft just enough to save a forfeiture of their contract. He not only made no provision for the payment of his note of June 19th, or of the further expenses which he must have known would be required, but apparently took no further interest in the sinking of the shaft, and manifested in his letter of July 16th a willingness to sign any papers Patrick might send him, and subsequently did sign a release of his interest to Patrick. There is much dispute between the parties as to whether Bowman made any inquiries with regard to the progress of the work on October |