Even where there is no duty to speak, a line of argument, which has not been formally stated in the cases, may be advanced to indicate that mere silence though unaccompanied by any act, may amount to an acceptance if the offeror requested that mode of indicating assent, and assent was intended by the offeree. When an offer is made to one who remains silent, the silence may be due to a variety of causes. It is clear that, whatever may have been the offeree's state of mind, no contract can be made unless the offer stated that the offeror would assume assent in case the offeree made no reply. But if the offer does so state, the offeree's silence is ambiguous, and may doubtless be shown not to have meant assent.95 Certainly the offeree has the right to keep silent if he chooses without thereby becoming charged with a contract. But it is at least possible that he did mean assent, and if in fact this was his meaning, there is good reason for urging that a contract has been formed. It may be replied that mere non-feasance ought not to be sufficient to amount to an acceptance, but clearly non-feasance may be enough to constitute both acceptance and consideration for a unilateral contract. An offer of forbearance is a common illustration of this.96 And the forbearance requested may be forbearance to speak as well as forbearance to do any other act. Where forbearance is requested as consideration for a unilateral contract, it would always be open to proof that the forbearance was given not as an acceptance but from other motives. The situation seems essentially similar where the offer contemplates a bilateral contract, provided the offeree's silence, under the circumstances, might indicate assent to a reasonable man. Such silence would not establish a contract unless the silent offeree meant his silence to indicate assent. But if the two facts concurred that the offeror authorized silence as a means of indicating assent and the offeree so intended it, every requirement for the formation of contracts seems satisfied. It is even possible that if the situation for any reason is such that a reasonable person would construe silence as necessarily indicating assent, one who keeps silent, knowing that his silence will be misinterpreted, should not be allowed to deny the natural interpretation of his conduct, though he has not given rise to the circumstances which make it a natural interpretation.97 His inherent right to do nothing without thereby subjecting himself to liability should give way when it is apparent to him that by a word he can prevent a damaging misconception, even if he is not otherwise a responsible cause of that misconception,98
Gum v. Cann, 40 W. Va. 138, 20 S. E. 910; Boatwick v. Boatwick, 71 Wis. 273, 37 N. W. 405.
93 Hogg v. Laster, 56 Ark. 382, 19 8. W. 975; Stock p. Stolti, 137 111. 349, 27 N. E. 604; Walker v. Taylor, 28 Colo. 233, 64 Pac. 192; Reeves' Estate v. Moore, 4 Ind. App. 492, 31 N. E. 44; MeClure v. Lenz, 40 Ind. App. 56, 80 N. E. 988; Smith v. John-mi, 45 Iowa, 306; Wyley v. Bull, 41 Kan. 206, 20 Pac. 855; Livingston v. Hammond, 162 Mans. 375, 38 N. E. 088; Kirchgaamer v. Rodick, 170 Mass. 543, 49 N. E. 1015 (cf. Wirth v. Kuehn, 191 Mass. 51, 77 N. E. 641); Andrut v. Foster, 17 Vt. 556; Jones v. Campbell (Vt. 1917), 102 Atl. 102; Martin v. Martin's Estate, 108 Wis. 284, 84 N. W. 439, 81 Am. St. Rep. 895. The cases are fully collected in notes to 11 L. R. A. (N. S.) 873, and 133 Am. St. Rep. 248.
94 Hughes v. Dundee Mortgage, etc., Co., 21 Fed. 169; Osier v. Hobbe, 33 Ark. 215; Levy v. Gillia, 1 Pennewill, 119, 39 Atl. 786; Dunlap v. Allen, 90 111. 108; Evans v. Henry, 66 111. App. 144; St. Joseph's Orphan Society v. Wolpert.80Ky. 86; Simon v. Tipton, 21 Ky. Law, 167, 60 S. W. 1106; Ayland v. Rice, 23 La,. Ann. 75; Sanderson v. Brown, 57 Me. 308; Brown v. Tuttle, 80 Me. 162, 13 Atl. 583; Sheperd v. Young, Admr, 8 Gray, 152, 69 Am. Dec. 242; Cicotte v. Church of St. Anne, 60 Mich. 552, 27 N. W. 682; Kerr v. Cuaenbary, 60 Mo. App. 558 (but see Hay v. Walker, 65 Mo. 17); Potter c. Carpenter, 76 N. Y. 157; Pickslay v. Starr, 76 Hun, 10, 27 N. Y. Supp. 616; Swires v. Parsons, 5 Watts & Serg. 357; Gross v. Cadwell, 4 Wash. 670, 30 Pac. 1052. See Kaufman Advertising Agency v. Snellenburgh, 43 N. Y. Misc. 317, 88 N. Y. Supp. 199.
95 See Sec.Sec. 94, 95. 96 See infra, Sec. 135.
97 See for an instance of this sort, infra, Sec. 278. Cf. cases infra, Sec. 93.