If the formation of a contract required mutual mental assent of the parties, and offer and acceptance were merely evidence of such assent, it would be obviously impossible that a contract should be formed where either party to the transaction died before this assent was obtained. That such assent was at least formerly thought necessary seems probable, and as to death at least this theory still maintains itself.

8 8. E. 743, 3 L. R. A. 94. Bee also Comstock v. North, 88 Miss. 764, 768, 41 So. 374.

95 Comstock v. North, 88 Miss. 764, 41 So. 374; Brown Bros. Lumber Co. v. Freeton Mill Co., 83 Wash. 648, 145 Pac. 964. See also cases on Revocation, supra, 55 56-60, passim.

96 If instead of money an uncertified check were deposited, the offerer need, however, forfeit nothing by revoking the offer, since he could stop payment of the check, and his own promise as drawer of the check being without good consideration, would not be binding. If the check were certified, however, payment of it could not be stopped.

97 See Turner v. Fremont, 170 Fed. 269, 95 C. C. A. 455; Robinson v. Board of Education, 98 111. App. 100; Morgan Park v. Ganan, 136 111. 515, 26 N. E. 1085; Wheaton Building, etc., Co. v. Boston, 204 Mass. 218, 90 N. E. 598; Davin v. Syracuse, 69 N. Y. Misc. 285, 126 N. Y. Supp. 1002. Even though the bid was made under a mistake the result is the same. Baltimore v. Robinson Construction Co., 123 Md. 660, 91 Atl. 682. As to the right to maintain a bill for reformation of the bid see infra, Sec.Sec. 1577-1579.

Accordingly, it is generally held that the death of the offerer,98 or offeree 99 terminates the offer. But in most of the cases so holding, however, it was not important to determine whether lack of notice of the death would make a difference.

On principle under the modern view of the formation of contracts which makes the expression of mutual assent the determining factor, notice of the death should be required to end the offer, since until notice, the apparent effect of the offer continues. Probably a statute would be necessary to bring this result about.1

Insanity of either party would presumably, a century ago, have been treated in the same way as death; but since the middle of the nineteenth century there has been a growing recognition of the capacity of insane persons to make contracts, at least under some circumstances,2 based on the apparent effect of the insane person's conduct and on the ignorance of any impropriety in the transaction by the other party. There can be no doubt that known insanity on the part of either offerer or offeree would terminate an offer.3 But if the insanity were unknown the question would depend on whether the legal incapacity of an insane person to contract is complete.4

98 Dickinson v. Dodds, 2 Ch. D. 463, 475; The Palo Alto, 2 Ware, 343, 350; Paine v. Mutual Life Insurance Co.,51 Fed. 689,2 C. C. A. 459;Grand Lodge v. Farnham, 70 Cal. 158,11 Pac. 592; Pratt v. Baptist Soc., 93 111. 475, 34 Am. Rep. 187; Beach v. First M. E. Church, 96 111. 177; Aitken v. Lang's Adm., 106 Ky. 652, 51 S. W. 154, 90 Am. St. Rep. 263; Basher v. New York L. I. Co., 72 N. H. 561, 58 Atl. 41; Twenty-third St. Church v. Cornell, 117 N. Y. 601, 23 N. E. 177, 6L.R.A. 807; Wallace v. Townsend, 43 Ohio St. 537,3 N. E. 601; Phipps p. Jones, 20 Pa. 260, 59 Am. Dec. 708; Helfenstein's Est., 77 Pa. 328, 18 Am. Rep. 449; Foust v. Board of Publication, 8 Lea, 552. See also Jordan v. Dobbins, 122 Mass. 168, 23 Am. Rep. 305; Browne v. McDonald, 129 Mas. 66. This rule is the same in the civil law. Valery, Contrats par Cornspondarice, Sec.204; Windscheid, Pudektenrecht, 6307 (2); The But-gerliches Gesetdbuch, however, has changed the rule in Germany. It provides,Sec. 1153, "A contract is not prevented from coming into existence by the death or incapacity of the offeror before acceptance, unless the offeror has expressed a contrary intention."

99 Inre Cheshire Banking Co., 32 Ch.

D. 301; Sutherland v. Parkins, 75 111. 338; Mactier v. Frith, 6 Wend. 103, 21 Am. Deo. 262; Newton v. Newton, 11 R. I. 390, 23 Am. Dec. 476.

1 Notice was held unnecessary in Aitken v. Lang's Adm., 106 Ky. 662, 51 S. W. 154; Illinois Roofing, etc., Co. p. Gorton, 19 Pa. Co. Ct. 124; Wallace v. Townsend, 43 Oh. St. 537, 3 N. E. 601, 54 Am. Rep. 829; Michigan State Bank v. Leavenworth Estate, 28 Vt. 209. See also cases cited in previous notes, in this section, and in regard to agents, infra, Sec. 279. But in Bradbury v. Morgan, 1 H. &. C. 249, 250, 255, Bramwell, B., said (the words, however, not being necessary to the decision of the case):" If the guarantee had been in these terms:-'I request you to deliver to A, to-morrow morning goods of the value of 501., and in consideration of your so doing I will pay you,' and before the morning the guarantor died, but the goods were duly delivered; I can see no reason why the personal representative of the guarantor should not be liable." And see Garrett v. Trabue, Davis & Co., 82 Ala. 227, 3 So. 149; Davis v. Davis, 93 Ala. 173, 9 So. 736, where an agent's authority was held not revoked until after notice of his principal's death.