Brogden v Metropolitan Ry Co (1866) 2 App Cas 666
The plaintiff supplied coal to the defendant for many years without an agreement. The defendant sent a draft agreement to the plaintiff who filled in the name of an arbitrator, signed it and returned it to the defendant's agent who then put it in his desk. Coal was then ordered and supplied in accordance with the agreement but after a dispute arose the plaintiff said there was no binding agreement.
It was held that plaintiff's returning of the amended document was not an acceptance but a counter-offer which could be regarded as accepted either when the defendant ordered coal or when the plaintiff actually supplied it.
By their conduct the parties had indicated their approval of the agreement.
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