As simple contracts can be formed only by an expression of assent of the parties to the terms of the promise and to the consideration for it, it is ordinarily necessary for one of the parties to propose to the other the promise which he will make for a certain consideration, or to state the consideration which be will give for a certain promise; that is, a proposal or offer is necessary. An acceptance of the proposal or offer completes the expression of assent. It is conceivable that the requisite assent may be expressed without an offer or acceptance. Thus the case has been supposed 5 that a third person suggests the terms of a contract between A and B in the presence of both of them and they both say simultaneously "we agree." There seems no reason to doubt that a contract would be formed.

3 Les Bridge District Gas Co. v. Malvern [1917], 1 K. B. 803; O' Don-nell v. Clinton, 145 Mas. 461, 463, 14 N. E 747; Phillip v. Gallant, 62 N. Y. SB; Stroock Plush Co. v. Talcott, 150

N. Y. App. D. 343,134 N. Y. S. 1052, and see infra, Sec.Sec. 90-90c.

4 Grossman v. Schenker, 209 N. Y. 466, 100 N. E. 39.

5 Wald's Pollock on Contracts {3d ed.), 6.

Such cases must, however, be rare. In other eases which have been put there seems no difficulty in finding an offer and an acceptance. Thus where both parties sign a written agreement, the first signer necessarily proposes that the writing shall represent the bargain between the parties. In bargains between an indefinite number of persons who one after another accept certain rules or terms, the first person who does this is necessarily making an offer to others to join in the transaction on the same terms. Each subsequent person who enters into the transaction is both an acceptor and an offeror,-an acceptor as to those who have previously entered into the arrangement, an offeror as to those who may do so in the future. It is not necessary to insist that assent must always be expressed by means of offer and acceptance; but cases where it is not thus expressed are so rare that for the purposes of general discussion they may be disregarded; if they arise they can easily be reduced to fundamental principles.

It must, however, be borne in mind that two expressions of willingness to make the same bargain do not constitute a contract unless one is made with reference to the other. Thus- if C should say to A "Are you willing to sell your horse to B for $100?" and A should reply "Yes," and C should thereupon go to B and say "Are you willing to buy A's horse for $100? " and B should say "Yes;" no contract would be formed between A and B. They have expressed their assent to the same proposition, but neither has made a promise to the other, and it is requisite that there should be assent to a promise from one party to the other.6 When both parties are present,

6 Id Potter v. Hollister, 45 N. J. Eq. 508, 513, 18 Atl. 204, the court said: "It is indispensable to the making of a contract that there shall be communication between two minds-there must be a proposal by one and an acceptance by the other-two minds must meet and mutually assent-but where the written communication is exclusively between the principal and his agent, and is simply intended by the principal as a delegation of power or instruction to his agent, and the principal gives his agent no authority to deliver his letter to the other party, it is impossible to say, without an abuse of language, that the letter is evidence of a contract made by the principal with the other party." So in Jersey City v. Harrison, 72 N. J. L. 185, 180, 62 Atl. 765, the court said: "A proposition for a contract to be competent to be accepted, must be communicated to the party with whom the contract is proposed. It will not be sufficient that the latter acquire knowledge of it the statement by a third person of the terms of the promise, when assented to by the parties to the proposed contract, indicates a promise from one to the other of them, but this is because the assent of each is manifest to the other. This result would not follow if the parties were not to ether. For the same reason, offers sent by mail by each party, in ignorance of a corresponding offer sent by the other party, do not form a contract although in fact identical in terms.7