On the other hand, where the offer contemplates a promise as the consideration of the promise of the offeror, it is obvious that words or conduct upon the part of the offeree indicating to the former an agreement to be bound is essential, or at least that the offeree must indicate his intention to be bound by some overt act, not necessarily an act brought to the knowledge of the offeror, but an act which, from the nature and terms of the offer, must have been contemplated by the offeror as an acceptance. Thus, where the defendants wrote to the plaintiff, who had furnished an estimate for fitting up their offices, "Upon an agreement to finish the fitting up * * * in two weeks from date, you can begin at once," but countermanded the offer after the plaintiff had bought lumber and begun work thereon, it was held error to charge the jury that the plaintiff need not indicate to the defendants his acceptance of their offer and that the purchase of the stuff and working on it after receiving the note made a binding contract.51 The offer contemplated the plaintiff's promise or agreement to finish in two weeks as an acceptance, and there was nothing in his conduct that indicated to the defendants his agreement to perform. The offeror may, however, indicate some act by which the offeree may manifest his intention to be bound, the performance of which, without actual communication, shall be sufficient as an acceptance, and when the offeree has thus indicated his intention the contract is complete. It seems that the rule which prevails in regard to contracts by correspondence must rest upon this ground.52
46Bishop v. Eaton, 161 Mass. 496, 37 N. E. 665, 42 Am. St. Rep. 437. See, also, Lennox v. Murphy, 171 Mass. 370, 50 N. E. 644. See "Guaranty," Dec. Dig. (Key-No.) §§ 6, 7; Cent. Dig. §§ 8, 9.
47Davis v. Wells, ante. See "Guaranty" Dec. Dig. (Key-No.) §§ 6, 7; Cent. Dig. §§ 8, 9.
48 15 Halsbury's Laws of Eng. 449. And see Pope v. Andrews, 9 Car. & P. 564; Morrell v. Cowan, 7 Ch. D. 151. See "Guaranty," Dec. Dig. (Key-No.) §§ 6, 7; Cent. Dig. §§ 8, 9.
49 Wilcox v. Draper, 12 Neb. 138, 10 N. W. 579, 41 Am. Pep. 763; Lininger & Metealf Co. v. Wheat, 49 Neb. 567, 68 N. W. 941; Farmers' & Mechanics' Bank v. Kercheval, 2 Mich. 504; Crittenden v. Fiske, 46 Mich. 70, 8 N. W. 714, 41 Am. Rep. 146; Powers v. Bumcratz, 12 Ohio St. 273; (cf. Wise v. Miller, 45 Ohio St 388, 14 N. E. 218); Douglass v. Howland, 24 Wend. (N-Y.) 35; Union Bank v. Coster's Ex'rs, 3 N. Y. 203, 53 Am. Dec. 280; Caton v. Shaw, 2 Har. & G. (Md.) 13; Bright v. McKnight, 1 Sneed (Tenn.) 158; 2 Am. Lead. Cas. 106 et seq. See, also, Manry v. Waxelbaum Co., 108 Ga. 14, 33 S. E 701. See "Guaranty," Dec. Dig. (Key-No.) §§ 6, 7; Cent. Dig. §§ 8, 9.
50 For full discussion, see 5 Col. L. Rev. 215, article by W. P. Rogers, in which it is said: "An examination of the cases below convinces one that the rule requiring notice when the debt is future, as announced by the Supreme Court of the United States, is losing its hold, at least in the states from which these cases are cited" - citing cases from Ohio, New York, Iowa, Virginia, Indiana, Kansas, Michigan, and New Hampshire.