If a bilateral contract were requested it would follow not only that notice of acceptance would be necessary to bind the guarantor, but also that after such notice, the person guaranteed would be bound to enter into the transaction to which tile guarantee related. A more accurate explanation of the rule requiring notice is given in a Massachusetts case. "Ordinarily there is no occasion to notify the offeror of the acceptance of such an offer, for the doing of the act is a sufficient acceptance, and the promisor knows that he is bound when he sees that action has been taken on the faith of his offer. But if the act is of such a kind that knowledge of it will not quickly come to the promisor, the promisee is bound to give him notice of his acceptance within a reasonable time after doing that which constitutes the acceptance. In such a case it is implied in the offer that, to complete the contract, notice shall be given with due diligence, so that the promisor may court treated the necessity of notice as depending on the nature and definition of a contract. "In some instances it has been treated as a rule, inhering in the very nature and definition of every contract, which requires the assent of a party to whom a proposal is made to be signified to the party making it, in order to constitute a binding promise," and see similar expressions in Davis Sewing Machine Co. v. Richards, 115 D. 8. 524, 29 L. Ed. 480, 6 S. Ct. 173 (but see United States etc. Co. v. Keflex, 239 U. 8. 17, 60 L. Ed. 121, 36 Sup. Ct. 12); Barnes Cycle Co. v. feed, 84 Fed. 603 (but see a. c. on appeal, 91 Fed. 481, 33 C. C. A. 646); Ruffer v. Love, 33 111. App. 601; Kathloe v. Holmes, 7 B. Mon. 5, 45 Am. Dec. 41; Lachman v. Block, 47
La. Ann. 505, 17 So. 153, 28 L. R. A. 255; Howe v. Nickels, 22 Me. 175; Winnebago Mills v. Travis, 56 Minn. 480, 58 N. W. 36; Mitchell v. Railton, 45 Mo. App. 273; Kellogg v. Stockton, 29 Pa. 460; Deering v. Mortell, 21 S. Dak. 159, 110 N. W. 86, 16 L. R. A. (N. S.) 352; Witkins v Carter, 84 Tex. 438,19 S. W. 997. This misconception is at the bottom of the rule stated in Cal. Civ. Code, Sec. 2795: "A mere offer to guarantee is not binding until notice of its acceptance is communicated by the guarantee to the guarantor, but an absolute guaranty is binding upon the guarantor without notice of its acceptance." The provision is copied in Okl. Rev. L. (1910), Sec. 1031. See Hays v. Smith, (Okl.), 164 Fac. 470.
16 Bishop v. Eaton, 161 Mass. 496, 499, 37 N. E. 665,42 Am. St. Rep. 437. Cf. Cumberland Glass Co. v. Wheaton, 208 Mass. 420, 94 N. E. 803. See also Singer Mfg. Co. v. littler, 56 Ia. 601, 9 N. W. 905.
So in United States etc. Co. v. Rie-fler, 239 U. S. 17, 24, Holmes, J., in speaking of a contract of indemnity under seal said: " If [the indemnitors] had made only a parol offer in the same terms, the company by becoming surety would have furnished the consideration that would have converted the offer into a contract, but notice is held necessary in Davis Sewing Machine Co. v. Richards, 115 U. S. 524, 29 L. Ed. 480, 6 Sup. Ct. 173."
17 Gamage v. Hutchins, 23 Me. 565; Signourney v. Wetterell, 6 Metc. 553; Ashford v. Robinson, Sired. 114.
18 Holmes v. Schwab, 141 Ga. 44, 80 S. E. 313; Swisher v. Deering, 104 111. App. 672; Valley Nat. Bank v. Cownie, 164 Ia. 421, 145 N. W. 904;
Hughes d. Roberts, etc., Shoe Co., 24 Ky. L. Rep. 2003, 72 S. W. 799; Crittenden v. Fiske, 46 Mich. 70, 8 N. W. 714, 41 Am. Rep. 146; International Text Book Co. v. Mabbott, 159 Wis. 423, 150 N. W. 429.
19Conditions subsequent to the existence of a contract may also exist in bilateral contracts, e. g., the approval of a court when necessary to confirm a judicial sale, or of the Secretary of the Interior when necessary to confirm a contract with Indians. Crosbie v. Brewer, 158 Pac. 388.
20 Douglass v, Reynolds, 7 Pet. 113, 8 L. Ed. 626; Louisville Mfg. Co. v. Welch, 10 How. 461, 13 L. Ed. 497; Cremer v. Higginson, 1 Mas. 323; Wildes v. Savage, 1 Story, 22, 23; Craft v. Isham, 13 Conn. 28; Davis S. M. Co. v. Mills, 55 Iowa, 543, 8 N. W. 356; Singer Mfg. Co. v. Littler, 56 Iowa, 601, 9 N. W. 905; German Sav. Bank v. Drake Roofing Co., 112 Ia, 184, 192, 83 N. W. 960, 51 L. R, A.
in bilateral contracts were required, the proper time for it would be at the outset of the transactions under the guaranty, not at their close.
Again, an exception to the rule discharging the guarantor for lack of notice is made when it appears that the guarantor has not been injured by the delay in giving notice.21 If notice were in truth a requisite for the formation of the contract, the fact that the lack of notice worked no injury, would be immaterial.
5 69b. Notice of allotment of shares.
It has been sugested 22 that the principle under consideration is also applicable to cases where shares are allotted in a new company on application by mail. It has been held that the applicant is bound on notice of the allotment being mailed to him.23 And the sugestion made is that the contract created is unilateral and is completed by the allotment of the shares; the subsequent notice of allotment being a notification that the act requested by the applicant, namely, the allotment of shares, has been complied with. If it is true that the allotment actually makes the applicant a shareholder, this reasoning is sound. If, however, the allotment is merely a vote that the applicant shall become a shareholder in the future the notice of allotment is in effect a promise that the applicant shall later become a shareholder. Apparently the latter is the true construction of the transaction. The allotment does not seem of itself to make the applicant a shareholder, at any rate under the English law; and in 24 the English decisions the contract created is unquestionably treated as a bilateral contract.25
758, 84 Am. St. Rep. 335; Howe v. Nickels, 22 Me. 175; Babcock v. Bryant, 12 Pick. 133; Courtis v. Dennis, 7 Met 610; Clark v. Remington, 11 Met. 361; Paige v. Parker, 8 Gray, 211; Whiting p. Stacey, 16 Gray, 270 (op. Lascelles v. Clark, 204 Man. 362, 90 N. E. 875); Montgomery v. Kd-logg. 43 Miss. 486; Beebe v. Dudley, 26 N. H. 240; Bay v. Thompson, 1 hats. SSL
Bat see contra, Cahussac Samini, 29 Als. 288; Lowe v. Beckwith, 14 B. Mon. 184, 58 Am. Deo. 659.
21Louisville Manufacturing Co. v. Welch, 10 How. 461, 13 L. Ed. 497; German Sav. Bank v. Drake Roofing Co., 112 Ia. 184, 192, 83 N. W. 960; Laohman v. Block, 47 La. Ann. 505, 17 So. 153, 28 L. R. A. 255; Fanners', etc.. Bank v. Kercheval, 2 Mich. 504, 613; Beebe v. Dudley, 26 N. H. 249, 69 Am. Dec 341.
22 Langdell, Summary of Contracts,
23 Harris's Case, L. R, 7 Ch. 587; Household Fire Ins. Co. v. Grant, L. R. 4 Exch. D. 216.