An intention to accept the terms of the offer as valid is ordinarily an essential element of a valid acceptance. Communication of acceptance is necessary. For want of both of these elements failure or omission to reject an offer is not the equivalent of an acceptance.1 Failure

2 Minton v. Smith Piano Co., 36 D. C. App. 137, 33 L. R. A. (N.S.) 305; Mooney v. Daily News Co., 116 Minn. 212, 133 N. W. 573.

1 Graff v. Buchanan, 46 Minn. 254, 48 N. W. 915; Powers v. Rude, 14 Okla. 381, 79 Ac. 89.

2 Powers v. Rude, 14 Okla. 381, 79 Ac. 89.

3 Graff v. Buchanan, 46 Minn. 254, 48 N. W. 915. [While this offer probably lapsed, the decision was not placed on that ground.]

4 Harris v. Smith, 79 Mich. 54, 6 L. R. A. 702, 44 N. W. 169.

1 Alabama. Gould v. Cates Chair Co,. 147 Ala. 629, 41 So. 675.

Delaware. Weishut v. Layton, 5 Boyce (28 Del.) 364, 93 Atl. 1057.

District of Columbia. Metzler v. Harry Kaufman Co., 32 D. C. App. 434: Curtis v. American Case & Register Co., 38 D. C. App. 115.

Illinois. Regan v. Regan, 192 111. 589, 61 N. E. 842.

Kansas. J. I. Case Plow Works v. Thorne, 102 Kan. 849, 172 Ac. 38.

Kentucky. Cincinnati Equipment Co. v. Big Muddy River Consol. Coal Co., 158 Ky. 247, 164 S. W. 794; Kentucky to return a written offer does not amount to an acceptance thereof.2 Mere silence is not an acceptance unless the parties have agreed in advance that failure to reject shall be regarded as an acceptance.3 Accordingly, the offeror is not bound, even if the offeree is thus lead to believe that he has a contract, as long as the offeror does nothing to mislead the offeree,4 and, even if the offeror and offeree are willing to treat the contract as binding from the moment of non-acceptance, the rights of third persons can not be affected injuriously by such transaction.5 A subsequent letter which attempts to fix the quantity of goods to be sold, upon which the parties have not, as yet, agreed, is in effect a new offer; and the failure of the adversary party to reply to such letter can not be regarded as an acceptance of such proposition.6 A statement by a son, one of several children, to his mother in answer to Her request, that he would return to her farm to live, that he would not go back to it again to repair it for people who had not done any work on it, followed by his return, does not show acceptance of his offer to manage the farm and support her for life if she would leave him the farm in severalty at her death.7 So where A made an offer to B, which B did not reject because he was too weak and sick to talk, such failure to reject is not an acceptance.8 In some of these cases the offer was communicated, but the intent to accept was lacking. In others the offer was not communicated; and there could not, therefore, be any intent to accept.

It has been suggested that where the offeree is apparently attempting to accept the offer, but there is a variance between the offer and the acceptance, the offeror should notify the offeree if he regards such variance as immaterial; and that if the offeror does not thus reject such counter-offer, he is to be regarded as acquiescing therein.9 No reason appears for requiring an answer to a counter-offer under penalty of being regarded as accepting it.

Portland Cement & Coal Co. v. Steckel, 164 Ky. 420, 175 S. W. 663.

Michigan. Holmes v. Holmes, 120 Mich. 412, 89 N. W. 47; Fuller, etc., Co. v. Houseman, 114 Mich. 275, 72 N. W. 187.

Minnesota. Hanson v. Nelson, 82 Minn. 220, 84 N. W. 742.

New Hampshire. Prescott v. Jones, 69 N. H. 305, 41 Atl. 352.

Oregon. Carnahan Mfg. Co. v. Beebe-Bowles Co., 80 Or. 124, 156 Ac. 584.

2 Cincinnati Equipment Co. v. Big Muddy River Consolidated Coal Co., 158 Ky. 247, 164 S. W. 794.

3 England. Felthouse v. Bindley, 11 C. B. (N.S.) 869.

Kansas J. I. Case Plow Works v. Thome, 102 Kan. 849, 172 Ac. 38.

Michigan. Thomasma v. Carpenter, 175 Mich. 428, 45 L. R. A. (N.S.) 543, 141 N. W. 559.

Minnesota. Hanson v. Kelson, 82 Minn. 220, 84 N. W. 742.

Pennsylvania. Royal Ins'. Co. v. Beatty, 119 Pa. St. 6, 12 Atl. 607.

4 As a contract of insurance: Prescott v. Jones, 69 N. H. 305, 41 Atl. 352.

5 As in an attempted contract of sale: Felthouse v. Bindley, 11 C. B. (N.S.) 869.

6 Jordan Bros. Co. v. Walker, 154 Mich. 394, 117 N. W. 942.

7 Regan v. Regan, 192 111. 589, 61 N. E. 842.

8 Hanson v. Nelson, 82 Minn. 220, 84 N. W. 742.

Even if the party making the offer prescribes that a failure to answer shall be regarded as an acceptance, such failure does not amount to an acceptance.10

The party to whom the offer is made may, however, have agreed in advance that his silence shall be equivalent to an acceptance; and this agreement may be understood from the conduct of the parties. In such a case, retaining a letter applying for shares, or retaining property offered for sale,11 may amount to an acceptance. If the offeree has accepted an advance payment when the offer was made, his failure to refund such payment at the time fixed for accepting such offer or returning such payment, has been said to attempting to aeeept the offer. but there is a variance between the amount to an acceptance at the election of the offeror.12