American Contract Law for a Global Age, 2017a

of the description. Again, the description given by the defendant was never expressly
agreed to by the plaintiff. So far as it could be said to have been assented to at all, it
was so only impliedly, by plaintiff’s proceeding to negotiate as to price, which he
evidently did supposing that the lot to which defendant alluded was the one which
had been pointed out to him on the ground. Therefore, under the particular facts of
this case, it may be fairly said that the minds of the parties never really met or agreed
on the words or the terms of the contract, and hence that there never was any binding
agreement.
Order affirmed.
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Review Question 1. Is the decision in Stong v. Lane based on an objective lack
of agreement, and subjective lack of agreement, or both? Are you sure that you
understand the difference?
Review Question 2. The court uses the phrase “latent ambiguity” in to describe
the situation where two parties have different understandings about a contract term.
What exactly is the ambiguity in this case, and why is it “latent”? What kind of
ambiguity is not “latent”?
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OSWALD v. ALLEN
United States Court of Appeals for the Second Circuit
417 F.2d 43 (2d Cir. 1969)
MOORE, Circuit Judge:
Dr. Oswald, a coin collector from Switzerland, was interested in Mrs. Allen's
collection of Swiss coins. In April of 1964 Dr. Oswald was in the United States and
arranged to see Mrs. Allen's coins. The parties drove to the Newburgh Savings Bank
of Newburgh, New York, where two of her collections referred to as the Swiss Coin
Collection and the Rarity Coin Collection were located in separate vault boxes. “After
examining and taking notes on the coins in the Swiss Coin Collection, Dr. Oswald
was shown several valuable Swiss coins from the Rarity Coin Collection. He also took
notes on these coins and later testified that he did not know that they were in a
separate “collection.” The evidence showed that each collection had a different key
number and was housed in labeled cigar boxes.
On the return to New York City, Dr. Oswald sat in the front seat of the car
while Mrs. Allen sat in the back with Dr. Oswald’s brother, Mr. Victor Oswald, and
Mr. Cantarella of the Chase Manhattan Bank’s Money Museum, who had helped
arrange the meeting and served as Dr. Oswald’s agent. Dr. Oswald could speak
practically no English and so depended on his brother to conduct the transaction.
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UNIT 3: MUTUAL ASSENT 41