U.S. Supreme Court
Davis v. Wells, 104 U.S. 159 (1881)
Davis v. Wells
104 U.S. 159
ERROR TO THE SUPREME COURT
OF THE TERRITORY OF UTAH
1. The rule requiring notice by the guarantee of his acceptance of a guaranty and his intention to act under it applies only where, the instrument being, in legal effect, merely an offer or proposal, such acceptance is necessary to that mutual assent, without which there can be no contract.
2. If made at the request of the guarantee, the guaranty becomes the answer of the guarantor to a proposal, and its delivery to the guarantee or for his use completes the communication between them and constitutes a contract. The same result follows where the agreement to accept is contemporaneous with the guaranty and constitutes its consideration. It must be so wherever there is a valuable consideration other than the expected advances to be made to the principal debtor, which, at the time the undertaking is given, passes from the guarantee to the guarantor, and equally so where the instrument is in the form of a bilateral contract, which binds the guarantee to make the contemplated advances or otherwise creates by its recitals a privity between him and the guarantor. In each of these cases, their mutual assent is either expressed or necessarily implied.