Mutual Consent

Mutual consent Is of the essence of every contract, and therefore it must always exist, in legal contemplation, at the moment when the contract Is made. See Add. Contr. 13. It never, however, is the subject of direct allegation or proof, partly because it Is generally incapable of direct proof, and partly because every contract Is made' by acts performed. Proof of the necessary acts carries with it presumptive proof of mutual consent Thus, if two separate agreements be drawn up, signed and sealed, each of them purporting to be a contract between A. and B., and the parties, intending to deliver one of the instruments, deliver the other by mistake, there is no contract made; Langd. Contr. 193. Where the plaintiff’s acceptance of the defendant’s offer inadvertently made a slight change in a date, there was no contract, because vthere had not been mutual consent; 4 Bing. 653. Mutual consent must extend to the consideration as well as to the promise;' Langd. <;ontr. 82.