Cork insulation; a complete illustrated textbook on cork insulation ...

516 CORK INSULATION
Legality— In general, no contract is legal, and can not be enforced
in the courts, that involves an agreement to perform an act that is:
(1) Forbidden by statutory law.
,2) Contrary to the rules of common law.
(3) Opposed to public policy.
It will not be necessary for us to elaborate upon the first and
second, but in connection with the third there is a class of agreements
frequently entered into by the principals to all engineering
contracts that are often construed in the courts as against the public
policy. An agreement that provides that matters which may arise
between the parties shall be referred to an arbitrator or arbitrators
—such as the engineer or architect— is not binding, and either party
may have recourse to the courts notwithstanding it'.
Agreement— In order that a contract shall be binding on both parties
to an agreement, it must have been understood and accepted by
both in the very same sense. However clear the agreement may appear
to be on its face, if evidence can be introduced to show that it
was not mutually understood in the same sense, it can not in general
be enforced. The inference must not be drawn, however, that all
claims of having misunderstood the plain and express provisions of
a written contract will relieve the party making such claim from
liability under it. That is to say, the mental agreement is evidenced
by the language used in expressing such agreement and the law will
presume that such words were understood, provided only that their
meaning is plain and evident to the court.
A person or corporation making an offer, bid or proposal whether
orally, by messenger, by mail, by telegraph, or by public advertisement,
must allow a reasonable time for its acceptance, provided no
time limit is stated in the proposal or provided meanwhile it is not
withdrawn. Any proposal may be withdrawn at any time before it
is accepted, unless a consideration has been paid for the privilege
of acceptance for a definite time. It is presumptuous to say what
the law will consider a reasonable time. Such time period might depend
upon the nature of the transaction and the construction of the
particular court. For that reason a majority of corporation letterheads,
used in quoting prices, contain this printed clause: "All quotations
subject to immediate acceptance or withdrawal without no-
tice."
Whenever a proposal made by one party is accepted by another
with any kind of qualification or change of the conditions or wording
of the original proposal, such an acceptance is simply the making
of a counter proposal to the first party; and does not constitute an
agreement until such first party has in turn assented fully to the en-
^ Since this was originally written, some states have passed commercial arbitration
laws fostered by the American Arbitration Association, which legalize arbitration by
prior agreement, under certain conditions.