An apparent exception to the rule that performance of the act without notification of acceptance completes the contract is found in the cases which hold that an offer to guaranty future advances to be made or credit to be extended to a third person, and the like, does not ripen into a contract upon the making of the advances or extending the credit, but that notice of acceptance by the guarantee is essential.44 These cases have been put upon the untenable ground that the acceptance of the offeree must be signified to the offeror to make a binding contract, and also upon the ground that the requirement of notice is reasonable, as enabling the guarantor to know the nature and extent of his liability, to guard himself against losses which might otherwise be unknown to him, and to avail himself of appropriate means to compel the other parties to discharge him from future liabilities.45 The doctrine is recognized as an exception to the rule governing ordinary contracts and is said to be implied in contracts of guaranty either by reason of the custom of merchants or by the inherent nature of the transaction.46 Even where applied, however, it is subject to certain limitations.47 And it is wholly rejected in England 48 and in certain jurisdictions in this country,49 in which it is held that performance of the act, such as an advance of money, which was to constitute the consideration for the promise, is a sufficient acceptance of the offer.50
40 Finch v. Mansfield, 97 Mass. 89; Smith v. Edwards, 156 Mass. 221, 30 N. E. 1017; Kelsea v. Manufacturing Co., 55 N. J. Law, 320, 26 Atl. 907, 22 L. R. A. 415; Boit v. Maybin, 52 Ala. 252; Sarbecker v. State, 65 Wis. 171, 26 N. W. 541, 56 Am. Rep. 624. See Brogden v. Railway Co., 2 App. Cas. 660. See "Contracts," Dec. Dig. (Key-No.) § 22; Cent. Dig. §§ 82-92, 104,-lO8.
41 Post, p. 47. 42 Ante, p. 18. 43 Ante, p. 19.
44 Edmondston v. Drake, 5 Pet. (U. S.) 624, 8 L. Ed. 251; Adams, Cunningham & Co. v. Jones, 12 Pet. 207, 9 L. Ed. 1058; Davis v. Wells, 104 U. S. 159, 26 L. Ed. 686; Davis Sewing Machine Co. v. Richards, 115 U. S. 524, 6 Sup. Ct 173, 29 L. Ed. 480; Acme Mfg. Co. v. Reed, 197 Pa. 359, 47 Atl. 205, 80 Am. St. Rep. 832; De Cremer v. Anderson, 113 Mich. 578, 71 N. W. 1090; German Sav. Bank v. Roofing Co.. 112 lowa, 184, 83 N. W. 960, 51 L. R. A. 758, 84 Am. St. Rep. 335 (full citation of cases). See "Guaranty," Deo. Dig. (Key No.) §§ 6, 7; Cent. Dig. §§ 8, 9.
45 Davis v. Wells, supra. See "Guaranty," Dec. Dig. (Key-No.) §§ 6, 7; Cent. Dig. §§ 8, 9.