and I will see that it is paid," wrote the defendant. The court, in sustaining the exceptions of the defendant to the judgment of the trial court for the plaintiff, said:

"It was an offer which was to become effective as a contract upon the doing of the act referred to. It was an offer to be bound in consideration of an act to be done, and in such a case the doing of the act constitutes the acceptance of the offer and furnishes the consideration. Ordinarily there is no occasion to notify the offerer 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 know that a contract has been made. But where the promise is in consideration of an act to be done, it becomes binding upon the doing of the act so far that the promisee cannot be affected by a subsequent withdrawal of it, if within a reasonable time afterward he notifies the promisor. In accordance with these principles, it has been held in cases like the present, where the guarantor would not know of himself from the nature of the transaction whether the offer has been accepted or not, that he is not bound without notice of the acceptance, seasonably given after the performance which constitutes the consideration." 23 (Italics by the author.)

The defendant, therefore, could withdraw his offer and suffer no liability, even if it had been acted upon, if no notice of its acceptance had been given him.

§ 86. Weight of American authority. Distinguishing facts enable many cases to be reconciled; but there is some conflict. The weight of American authority is that the guarantor of future credits of a third person is not bound unless the obligee

28 Bishop v. Eaton (1894) 161

Mass. 496, 37 N. E. 665.

notifies the guarantor that the credit has been extended,24 or unless the guarantor possesses that information already.2

§ 87. Is the obligee required to notify the guarantor both of the extension of credit and that principal has defaulted? In those jurisdictions which consider the guarantor's liability does not begin until he has been notified of its acceptance, must a second notice be given him that the principal has defaulted? For instance, if A writes B that he, A, will guarantee purchases made by C from B during a certain time, must B, in order to bind A, reply in the ordinary method that his offer is accepted, and when C makes his purchases, must B again notify A of the amount of the purchases, and then again after C's default, is A entitled to notice of the default?

Intimating that such second notice is necessary in the Federal courts, though admitting it to be unnecessary in England, the Supreme Court of the United States has said:

"The rule requiring this notice within a reasonable time after the acceptance is absolute and imperative in this court, according to all the cases; it is deemed essential to an inception of the contract; he is, therefore, advised of his accruing liabilities upon the guarantee, and may very well anticipate, or be charged with notice of, an amount of indebtedness to the extent of the credit pledged. Still, it may be reasonable that he should be advised of the actual amount of liability, when the transactions are closed; and, if any loss happens in consequence of the omission to give the notice within a reasonable time, the fault is attributable to the laches of the creditor, and must fall on him."

"This intermediate notice required in this court does not appear to be a necessary step to charge the guarantor according to the English cases, as notice of acceptance and intention to act upon the guarantee is regarded as sufficient, until the debt becomes due and payable; then reasonable notice of the default of the principal to pay must be given;

24 See article on "Notice of Acceptance in Contracts of Guaranty'' by the late Dean W. P. Rogers of the Cincinnati Law School in (1905) 5 Col. Law Review 215, in which

many of the cases are analyzed. Also, see Scribner v. Rutherford (1885) 65 Ia. 551, 22 N. W. 670. 25 Thompson v. Glover (1879) 78 Ky. 193, 39 Am. Rep. 220.

as otherwise, if loss or damage should happen in consequence of the omission, it would operate as a discharge to that extent.' 26

§ 88. Conclusion as to notice of acceptance. Much of the conflict will be dissipated by confining the language of the court to the kind of a guaranty under consideration. The defendant may have proposed to guaranty an uncertain future credit of a third person, which would require acceptance, or he may have made an absolute guaranty of a known credit, which would not need notice of acceptance, in the absence of stipulations requiring it. It may be a direct or a collateral guaranty. If the former, notice of acceptance would hardly be in the minds of the parties, in case the terms were certain. If the guaranty be a collateral one, and the terms uncertain, notice of acceptance within a reasonable time would be required to bind the guarantor. The kind of a guaranty will determine the necessity for notice of its acceptance by the promisee.27

§ 89. Effect of guarantor's death on guaranty for a definite period. Unanimity of view does not exist as to the effect of the surety's death upon a continuing guaranty. There is no question that his estate is liable for any breach of his principal's contract made prior to his death. But may the obligee bind the surety's estate by continuing to deal with the principal?

Upon the theory that the guarantor has made a continuing offer, and each advance by the obligee is an acceptance of it, the Massachusetts court decided that the guarantor's offer could not continue after his death; therefore, the obligee had nothing to accept. The guaranty there acknowledged consideration paid, and provided that "until written notice shall have been given,' the guaranty could not be terminated. In spite of the entirety of the consideration acknowledged, and the lack of notice of the guarantor's death by the plaintiff, the court said:

we are of opinion that the death of the guarantor operates as a revocation of it, and that the person

26 The Louisville Mfg. Co. V. Welch (1850) 10 How. 461. See discussion of this point by Dean W. P. Rogers (1905) 5 Col. Law Review 215, 223–225.

27 See editor's notes in 16 L. R.

A. (N. S.) 353-354; Standard Sewing Machine Co. v. Church et al. (1902) 11 N. Dak. 420, 92 N. W. 805; (1920) Williston on Contracts, Vol. I. Secs. 69-70.

holding it cannot recover against his executor or adminis-
trator for goods sold after the death. Death terminates
the power of the deceased to act, and revokes any authority
or license he may have given, if it has not been executed or
acted upon.
His estate is held upon any contract upon
which liability exists at the time of his death, although it
may depend upon future contingencies. But it is not held
for a liability which is created after his death, by the exer-
cise of a power or authority which he might at any time
revoke."' 28

Some American authority denies the release of the guarantor's estate for subsequent advances where the obligee is ignorant of his death.29

The prevailing English view seems to be that in case of a continuing guaranty, if it is agreed the guarantor may withdraw on giving notice, his estate is released for defaults of the principal occurring after his death, where the obligee has actual notice of his decease, though no formal notice is given by his executor or administrator.80

28 Jordan et al. V. Dobbins, Adm'x (1877) 122 Mass. 168, 23 Am. Rep. 305. Following the Massachusetts view is the case of Aitken et al. v. Lang's Adm'r et al. (1899) 106 Ky. 652, 51 S. W. 154, 90 A. S. R., 263, in the opinion of which it is said: "This notice might not be received for a long time, as the real and personal representatives of the deceased might be ignorant of the guaranty, and in the meantime the estate might be bankrupted. In our opinion, as the guaranty was terminable at the will of the guarantor, when that will no longer existed, by reason of death, it was thereby revoked."'

See discussion of the Massachusetts view in Gay et al. v. Ward, Adm'x (1895) 67 Conn. 147, 34 Atl. 1025, 32 L. R. A. 818.

29 Menard et al. v. Scudder et al. (1852) 7 La. Ann. 385, 391.

80''If, indeed, under the testator's will, the executor has the option of continuing the guarantee, then from the absence of any specific notice of withdrawal, the bank may, perhaps, in spite of notice of the death, properly assume, as against the estate, that the guarantee is not to be determined. But if the executor has no option of the sort, then, in my opinion, the notice of the death of the testator and of the existence of a will is constructive notice of the determination as to future advances of the guarantee. The bank from that moment are aware that the person who could during his lifetime have discontinued the guarantee by no

§ 90. Revocation of the undertaking. A surety or guarantor who undertakes responsibility for a principal's performance for a definite time, without reserving the right to terminate the guaranty, is liable for the principal's failure to perform for the entire period, unless discharged in some other manner. This is a contract, based upon an entire consideration. Like any other contract not based upon personal qualifications to perform, recovery may be had for its breach. Apparently his estate is bound by the agreement, although the surety or guarantor does not mention his heirs, executors or administrators, but it is clear his estate is liable if the heirs, executors and administrators are mentioned.81 The same rule applies where the surety stipulates that a public official, appointed or elected for a definite period, shall faithfully perform the duties of his office during his term. He cannot withdraw by giving notice,

tice cannot any longer be a giver of notices; that his estate has passed to others, who have trusts to fulfil, and it is easy for them to ascertain what those trusts are. If these trusts do not enable the executor to continue the guarantee then the bank has constructive notice that the guarantee is withdrawn.' Coulthart v. Clementson et al. (1879) 5 Q. B. D. 42. Approved in Ascherson v. Tredegar Dry Dock & Wharf Co., Ltd. (1909) L. R. 2 Ch. 401, 78 L. J. R. Ch. 697.

For excellent discussions of the effect of the offerer's death upon his offer see the articles by Professor J. L. Parks of the University of Missouri in (1925) 23 Mich. Law Rev. 475 and by Dean M. L. Ferson of the University of North Carolina in (1926) 10 Minn. Law Review 373.

31 The Supreme Court of Illinois in Estate of Rapp v. The Phoenix Insurance Co. (1885) 113 Ill. 390, 55 Am. Rep. 427, quoted this language with approval, though, because

"'heirs, executors and administrators" were expressly bound, it was not necessary to the decision of the case: "On the other hand, the general rule unquestionably is, that all contracts entered into by one, not of a personal character, are equally binding upon himself, and his legal representatives after his decease. This general rule is well stated in Chitty on Contracts (10th Am. ed.), p. 101. The author says: 'It is a presumption that the parties to a contract bind not only themselves, but their personal representatives. Executors, therefore, are held to be liable on all contracts of the testator which are broken in his lifetime, and, with the exception of contracts in which personal skill or taste is required, on all such contracts broken after his death; and such parties may likewise sue on a contract, although they be not named therein.''' See Royal Insurance Co. v. Davies (1875) 40 Ia. 469, 20 Am. Rep. 581; Spring v. Leahy (1926) Mass. 150 N. E. 843.