Phillips-Boyd Pub. Co. v. McKinnon

ANDERSON, C. J. (1-10) It takes two or more parties to make a valid contract, as there must be a meeting of minds. Therefore, if a guaranty is a mere offer, it must be accepted be [445] fore it becomes binding. When there is a request by the guarantee to the guarantor for guaranty, and the guaranty is made in response to such request, then the contract becomes complete. If the contract is bilateral and completely executed by both parties, reciting on its face that it is executed upon a consideration, though nominal, no acceptance is required for it is a complete contract. If the contract is absolute in form and expresses a consideration, no acceptance is necessary. If, however, it is a mere proposed guaranty, such as a letter of credit, notice of acceptance is generally necessary in order to make it binding upon the guarantor. — Davis v. Wells, 104 U. S. 159, 26 L. Ed. 686; Shows v. Steiner, et al., 175 Ala. 363, 57 South. 700; Manier v. Appling, 112 Ala. 663, 20 South. 978. The parties, however, may in several ways waive the necessity of notice of the acceptance.— 20 Cyc. p. 1411. The right to notice may be waived by the form or conditions of the guaranty, or a waiver may be implied by the terms of the instrument. — Swisher v. Deering, 104 Ill. App. 572. Notification of acceptance is regarded as for the benefit of the person making the offer, and he may dispense with notice to himself if he thinks it desirable to do so, or, if he expressly or impliedly intimates a particular mode of acceptance, it is only necessary for the other person to follow the indicated method of acceptance. If, therefore, the person making the offer expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is sufficient acceptance with notification. — 9 Cyc. 270, 271, and cases cited in note 58. The letter in question contains a clause expressly waiving notice by the addressee to the guarantors of any and all transactions with and extensions of credit to the principal debtor, and the complaint charges a sale and delivery of the articles pursuant to the receipt of the letter, which was an acceptance of the offer, and, notice of same having been waived, the defendant’s plea 5 was bad, and was subject to the plaintiff’s fifth ground of demurrer, which the circuit court erred in not sustaining, and the judgment is reversed, and the cause is remanded. Reversed and remanded. McClellan, Sayre, and Gardner, JJ., concur.