Storrs, J.
The misunderstanding, by the plaintiffs, of the offer which was made by the defendants, in regard to the quantity of laths, which the latter proposed to have transported, and which was in form assented to by the former, pre*517vented that meeting of the minds of the parties, that aggregatio mentium, which was essential, in order to constitute a contract between them; and such assent no more bound the plaintiffs, than if the offer had been made by the defendants, in a language which the plaintiffs did not understand, through an interpreter, who had falsely translated its terms. In order to constitute a contract, it is necessary that the parties should assent to it, and, as is well expressed by Mr. Parsons, in his treatise on contracts, p. 399 ; “they must assent to the same thing in the same sense.” ^The proposition of ^ one party must be met by an acceptance of the other, which 1 corresponds-with it,)which cannot be the case when the pro- 1 position is misunderstood by the party to whom it is made. On this point, there does not appear to have been any controversy on the trial. But the defendants claimed that the-act of transporting the laths by the plaintiffs, after they discovered the mistake that had occurred in making the contract, and while they were conscious that the defendants had no knowledge of the mistake, constituted, in law, or was conclusive evidence of, an assent by the plaintiffs to the terms of the contract, as understood by the defendants to have been agreed to, and that the plaintiffs were therefore precluded from setting up that there was any such mistake. The plaintiffs insisted that the forwarding of the laths neither constituted, as matter of law, nor was conclusive evidence of, such an assent, but that it was, in connection with all its-circumstances, only evidence to be submitted to, and considered by, the jury, on the question whether the plaintiffs assented to the defendants’ terms. The court below charged the jury in conformity with the claim of the defendants. In this we think there was error. If, for the present purpose, we concede, as the parties appear to have done on the trial, that there would be no legal objection to the consummation of the contract by the plaintiffs, by an assent, on their part, to the terms offered by the defendants, given after the parties had terminated their negotiation respecting it, and finally *518separated, without any further treaty on the subject, we are of opinion that, whether there was such an assent, was from its nature, in this case, a question of fact merely, to be determined by the jury, on all the evidence before them. An assent to an offer, which is requisite to the formation of an agreement, is an act of the mind; and is either express, or evidenced by circumstances, from which such assent may be inferred. In the present case, it was neither proved, nor claimed, that there was any express assent; but certain facts, including the forwarding of the property by the plaintiffs, and the circumstances attending such forwarding, were proved, from which it was proper to reason that an assent was given to the defendants’ offer by the plaintiffs; and such reason was to be submitted to the jury, whose province it was to determine their weight. These facts and circumstances, however, were not, as evidence, entitled to any specific, or artificial effect; they were to be considered simply with reference to their natural weight, like ordinary circumstantial testimony. We are aware of no rule of evidence, or principle of policy or justice, which gives them any greater force. The fact that the plaintiffs forwarded the property, if unexplained, would certainly, as evidence, be a strong one on the question of assent; but to hold it to be conclusive on that point might produce great injustice, since it was obviously one which, from its nature, was susceptible of an explanation, which would clearly repel the claim that it was intended to evince such assent. As the judgment complained of must be reversed for the error in the charge below on this point, it is unnecessary to consider any of the other errors assigned.
The superior court is advised that there is error in the judgment complained of.
In this opinion, the other Judges, Ellsworth and Hinman, concurred.