GOODE, J.

We dealt with this case on a former appeal (115 Mo. App. 130). It has been retried and is again before us for the determination of questions not then reviewed. The appellant was an employee of the respondent company under a written contract to expire December 15, 1903, at a salary of $2,000 per annum. His duties were to attend to the sample department of respondent, of which he was given complete charge. It was his business to select samples for the traveling salesmen of the company, which is a wholesale dry goods concern, to use in selling goods to retail merchants. Appellant contends that on December 23, 1903, he was re-engaged by respondent, through its president, Thos. H. McKittrick, for another year at the same compensation and for the same duties stipulated in his previous written contract. On March 1, 1904,„.he was discharged, having been notified in February, that on account of the necessity of retrenching expenses, his services and that of some other employees, would no longer be required. The respondent company contends that its president never re-employed appellant after the termination of his written contract and hence that it had a right to discharge him when it chose. The point with which we are concerned requires an epitome of the testimony of appellant and the counter-testimony of Me*385Kittrick, the president of the company, in reference to the alleged re-employment. Appellant testified that several times prior to the termination of his written contract on December 15, 1903, he had endeavored to get an understanding with McKittrick for another year, but had been put off from time to time; that on December 23d,' eight days after the expiration of said contract, he called on McKittrick,' in the latter’s office, and said to him that as appellant’s written employment had lapsed eight days before, and as there were only a few days between then and the first of January in which to seek employment with other firms, if respondent wished to retain his services longer he must have a contract for another year or he would quit respondent’s service then and there; that he had been put off twice before and wanted an understanding or contract at once so that he conld go ahead without worry; that McKittrick asked him how he was getting along in his department, and appellant said he was very busy as they were in the height of the season getting men out—had about 110 salesmen on the line and others in preparation ; that McKittrick then said: “Go ahead, you’re all right; get your men out and don’t let that worry you;” that appellant took McKittrick at his word and worked until February 15th without any question in his mind. It was on February 15th that he was notified his services would be discontinued on March 1st. McKittrick denied this conversation as related by appellant and said that when accosted by the latter on December 23d, he (McKittrick) was working on his books in order to get out a report for a stockholders’ meeting and when appellant said if he did not get a contract he would leave, that he (McKittrick) said:

“Mr. Embry, I am just getting ready for the stockholders’ meeting to-morrow, I have no time to take it up now; I have told you before I would not take it up *386until I had these matters out of the way; you will have to see me at a later time. I said: ‘Go- hack upstairs and get your men out on the road.’ I may have asked him one or two other questions- relative to the department; I don’t remember. The whole conversation did not take more than a minute.”

Embry also swore that when he was notified he would be discharged, he complained to McKittrick about it, as being a violation of their contract, and McKittrick said it was due to the action of the board of directors and not to any personal action of his and that others would suffer by what the board had done as well as Embry. Appellant requested an instruction to the jury setting out in substance the conversation between him and McKittrick according to his version and declaring that those facts, if found to be true, constituted a contract between the parties that defendant would pay plaintiff the sum of $2,000 for another year, provided the jury believed from the evidence that plaintiff com- . menced said work believing he was to have $2,000 for the year’s work. This instruction was refused but the ■court gave another embodying-, in..substance.appellant’s version of the conversation, and declaring it made a contract “if you (the jury) find both parties thereby intended and did contract with each other for plaintiff’s employment for one year from and including December 23, 1903, at a salary of $2,000 per annum.” Embry swore that on several occasions when he spoke to Mc-Kittrick about employment for the ensuing year, he asked for a renewal of his former contract and that on- December 23d, the date of the alleged renewal, he went into Mr. McKittrick’s office and told him his contract had expired and he wanted to renew it for a year, having always worked under year contracts. Neither the refused instruction nor the one given by the court embodied facts quite as strong as appellant’s testimony, because neither referred to appellant’s alleged state*387ment to McKittrick, that unless he was re-employed he would stop work for respondent then and there. It is assigned for error that the court required the jury, in order to return a verdict for appellant, not only to find the conversation occurred as appellant swore, but that both parties intended by such conversation to contract with each other for plaintiff’s employment for the year from December, 1903, at a salary of $2,000. If it appeared from the record that there was a dispute between the parties as to the terms on which appellant wanted re-employment, there might have been sound reason for inserting this clause in the instruction; but no issue was made that they split on terms; the testimony of McKittrick tending to prove only that he refused to enter into a contract with appellant regarding another year’s employment until the annual meeting of stockholders was out of the way. Indeed, as to the proposed terms Mc-Kittrick agrees with Embry; for the former swore as follows: “Mr. Embry said he wanted to know about the. renewal of his contract; said if he did not have the contract made he would leave.” As the two witnesses coincided as to the terms of the proposed re-employment, there was no reason for inserting the above mentioned clause in the instruction in order that it might be settled by the jury whether or not plaintiff, if employed for one year from December 23, 1903, was to be paid $2000 a year. Therefore it remains to determine whether or not this part of the instruction was a correct statement of the law in regard to what was necessary to constitute a contract between the parties; that is to say, whether the formation of a contract by what, according to Embry was said, depended .on the intention of both Embry and McKittrick. Or, to put the question more precisely, j did what was said constitute a contract of re-employ- j j ment on the previous terms irrespective of the inten- j1 tion or purpose of McKittrick? Judicial opinion and elementary treatises abound in statements of the rule *388that to constitute a contract there must he a meeting of the minds of the parties and both must agree to the same thing in the same sense. Generally speaking this may be true; but it is not literally or universally true. That is to say, the inner intention of parties to a conversation subsequently alleged to create a contract, cannot either make a contract of what transpired or prevent one from arising, if the words used were sufficient to constitute a contract. In so far as their intention is an influential element, it is only such intention as the words or acts of the parties indicate; not one secretly cherished which is inconsistent with those words or acts. The rule is thus stated by a text-writer and many 'decisions are cited in support of his text: “The primary object of construction in contract law is to discover the intention of the parties. This intention in express contracts is, in the first instance, embodied in the words which the parties have used and is to be deduped therefrom. This rule applies to oral contracts, as well as to contracts in writing, and is the rule recognized by courts of equity.” [2 Paige, Contracts, sec. 1104.] So it is said in another work: “Now this measure of the contents of the promise will be found to coincide, in the usual dealings of men of good faith and ordinary competence, both with the actual intention of the promisor and with the actual expectation of the promisee. But this is not a constant or a necessary coincidence. In exceptional cases a promisor may be bound to perform something which he did not intend to promise, or a promisee may not be entitled to require that performance which he understood to be promised to him.” [Walds-Pollock, Contracts (3 Ed.), 309.] In Brewington v. Mesker, 51. Mo. App. 348, 356, it is said that the meeting of minds which is essential to the formation of a contract, is not determined by the secret intention of the parties, but by their expressed intention, which may be wholly at variance with the former. In Machine Co. v. Criswell, 58 Mo. App. 470, an *389instruction was given on the issue of whether the sale of a machine occurred, which told the jury that an intention on the part of the seller to pass the title and of the purchaser to receive and accept the machine for the purpose of making it his own, was essential to a sale, and if the jury believed such intention did not exist in the minds of both parties at the time and was not made known to each other, then there was no sale notwithstanding the delivery. In commenting on this instruction the court said:

“The latter clause of the instruction is erroneous and misleading. It is true that in every case of purchase the question of sale or no sale is a matter of intention; but such intention must always be determined by the conduct, acts and express declarations, of the parties and not by the secret intention existing in the mind or minds of the contracting parties. If the validity of such a contract depended upon secret intentions of the parties, then no oral contract of sale could be relied on with safety. [58 Mo. loc. cit. 473.]”

In Smith v. Hughes, L. R. 6 Q. B. 597, 607, it was said:

“If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he intended to agree to the other party’s terms.”

And that doctrine was adopted in Phillip v. Gallant, 62 N. Y. 256.

In 9 Cvc. 245, we find the following text:

“The law imputes to a person an intention corresponding to' the reasonable meaning of his words and acts. It judges his intention by his outward expressions and excludes all questions in regard to his unexpressed intention. If his words or acts, judged by a *390reasonable standard, manifest an intention to agree in regard to the matter in question, that agreement is established, and. it is immaterial what may be the real but unexpressed state of his mind on the subject.”

Even more pointed was the language of Baron Bramwell in Brown v. Hare, 3 Hurlst. & N. *484, *495:

“Intention is immaterial till it manifests itself in an act. If a man intends to buy, and says so to the intended seller, and he intends to sell and says so to the intended buyer, there is a contract of sale; and so there would, be if neither had the intention.”

In view of those authorities we hold that though McKittrick may not have intended to employ Embry by what transpired between them according to the latter’s testimony, yet if what McKittrick said would have been taken by a reasonable man to be an employment, and Embry so understood it, it constituted a valid contract of employment for the ensuing year.

The next question is whether or not the language used was of that character; namely, was such that Embry, as a reasonable man, might consider he was re-employed for the ensuing year on the previous terms, and act accordingly. We do not say that in every instance it would be for the court to pronounce on this question, because, peradventure, instances might arise in which there would be such an ambiguity in the language relied on to show an assent by the obligor to the proposal of / the obligee, that it would be for the jury to say whether , a reasonable mind would take it to signify acceptance of , the proposal. [Belt v. Goode, 31 Mo. 128; Davies v. Baldwin, 66 Mo. App. 577.] In Lancaster v. Elliott, 28 Mo. App. 86, 92, the opinion, as to the immediate point, reads:

“The interpretation of a contract in writing is always a matter of law for determination by the court, and equally so, upon like principles, is the question what acts and words, in nearly every case, will suffice to con*391stitute an acceptance by one party, of a proposal submitted by the other, so that a contract or agreement thereby becomes matured.”

The general rule is that it is for the court to construe the effect of writing relied on to make a contract and also the effect of unambiguous oral words. [Belt v. Goode, supra; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451; Norton v. Higbee, 38 Mo. App. 467, 471.] However, if the words are in dispute, the question of whether they were used or not is for the jury. [Belt v. Goode, supra.] With those rules of law in mind, let us recur to the conversation of December 23d between Embry and McKittrick as related by the former. Embry ', was demanding a renewal of his contract, saying he had : been put off from time to time and that he .had only a few days before the end of the year in which to seek employment from other houses, and that he would quit then and there unless he was re-employed. McKittrick inquired how he was getting along with the department and Embry said they (i. e., the employees of the department) were very busy getting out salesmen; whereupon McKittrick said: “Go ahead, you are all right; get your men out and do not let that worry you.” We think no reasonable man would construe that answer to Embry’s demand that he be employed for another year, otherwise than as an assent to the demand, and that Embry had the right to rely on it as an assent. The natural inference is, though we do not find it testified to, that Embry was at work getting samples ready for the salesmen to use during the ensuing season. Now when he was complaining of the worry and mental distress he was under because of his uncertainty about the future, and his urgent need,either of an immediate contract with respondent, or a refusal by it to make one, leaving him free to seek employment elsewhere, McKittrick must have answered as he did for the purpose of assuring appellant that any apprehension was needless, as appellant’s services would *392be retained by tbe respondent. Tbe^answer was unainbiguous, and we rule that if tbe conversation was according to appellant’s version and be understood be was employed, it constituted in law a valid, contract of reemployment, and tbe court erred in making tbe formation of a contract depend on a finding that both parties intended to make one. It was only necessary that Embry, as a reasonable man, bad a right to and did so understand.

Some other rulings are assigned for error by tbe appellant, but we will not discuss them because we think they are devoid of merit.

The judgment is reversed and tbe cause remanded.

All concur.

*116GARRETT, J.

This appeal presents an issue of contract formation. Defendants represented plaintiff in an arbitration. Dissatisfied with the result, plaintiff contacted defendants’ malpractice insurer, the Professional Liability Fund (PLF), regarding possible claims against defendants. Bunker, plaintiffs president, and Schafer, the adjuster on behalf of the PLF, exchanged several emails discussing a settlement. When plaintiff later brought this action, defendants moved for summary judgment, arguing that a binding settlement agreement had been reached. The trial court agreed, granted defendants’ motion, and entered a judgment of dismissal. We affirm.

The issue on appeal turns entirely on the interpretation of correspondence that began on August 15, 2012, when Bunker first emailed Schafer. Bunker sent Schafer an email stating that she believed she was “entitled to something” as a result of how defendants had represented plaintiff during an arbitration. Her email included this text:

“I would like to discuss with you the option of a settlement. If there is a relatively reasonable but comparatively small amount of money that we could agree on to settle this matter I believe it would be mutually beneficial.”

In a letter to Bunker dated August 20,2012, Schafer wrote, “If you are interested in trying to resolve the claim for ‘a comparatively small amount of money,’ then I suggest you make a specific proposal that the PLF might consider.”

On August 21, Bunker emailed back, “This is in response to your letter I received today. I am willing to settle this and move on for $40,000.”

In a letter dated August 23, Schafer wrote the following:

“This will respond to your August 21, 2012 email proposing a settlement of $40,000.

“The PLF, on behalf of Kent & Johnson, will pay Bridge City Family Medical Clinic, P.C., the total sum of $10,000 in return for Bridge City’s and your release of [defendants]. In addition, Kent & Johnson offer to release Bridge City and you from claims for reimbursement of $5,506.25 paid *117by Kent & Johnson to Judicial Dispute Resolution, LLC on Bridge City’s behalf after Bridge City failed to pay that bill. For your information, enclosed is a copy of Judicial Dispute Resolution’s July 13, 2011 invoice and Chris Kent’s October 13, 2011 letter to you. If settlement on these terms is acceptable, I will prepare the necessary Mutual Release.

“I want to remind you that the PLF is [defendants’] professional liability carrier. Our interests are adverse to yours and to those of Bridge City. I encourage you and Bridge City to obtain your own independent legal advice before you agree to any settlement or sign any settlement documents.”

On August 27, Bunker sent Schafer a short email stating, “This will respond to your letter dated August 23, 2012 proposing a settlement of $10,000.1 am willing to meet you in the middle and settle this matter immediately for $20,000.”

Schafer responded to Bunker with a letter dated August 28:

“This will respond to your August 27, 2012 email to me proposing a settlement of $20,000.

“The PLF, on behalf of Kent & Johnson, will pay Bridge City Family Medical Clinic, PC the total sum of $13,500 in return for Bridge City’s and your release of [defendants]. In addition, Kent & Johnson continue to offer to release Bridge City and you from claims for reimbursement of the $5,506.25 paid by Kent & Johnson to Judicial Dispute Resolution, LLC.

“If these terms are acceptable, please confirm and I will draft an appropriate settlement document.”

On August 29, Bunker emailed her response to Schafer, rejecting the $13,500 offer:

“This is in response to your letter I received today dated 8/28/12. Your first counter offer of $10,000 was 25% of what I originally asked you for in my first letter. You point out that Mr. Kent and Ms. Johnson have offered to release me from the $5506.25; however they have already dismissed that claim against me as was noted in a letter to me in October of 2011. In response to your offer of $10,000, I again moved 50% to the middle at $20,000, in *118response you offered to move again about 25% to $13,500. By settling this claim now, nearly a year before the statute of limitations expires, I will be walking away from a claim that potentially may settle in my favor for hundreds of thousands of dollars. As such, I continue to remain torn as to the best course of action. Please meet me close to the $20,000 mark. I am willing to settle for $19,000.”

Schafer replied to Bunker in a letter dated August 30, increasing PLF’s offer to $15,000:

“This will respond to your August 29, 2012 email to me proposing a settlement of $19,000.

“The PLF will pay $15,000 to settle this claim. All of the other terms are the same as my letter to you of August 28, 2012.

“If this is acceptable, I will prepare the Mutual Release for your review.”

In a September 6 reply email, Bunker rejected the latest offer and stuck to the $19,000 number:

“This is in response to your most recent letter dated August 30, 2012 proposing a settlement for $15,000.

“I am still of the mind that I deserve to be compensated fully * * * I originally asked for $40,000, which is a mere pittance comparatively. I continue to be willing to settle this for $19,000.”

The correspondence continued with a September 7 letter from Schafer to Bunker:

“I am in receipt of your September 6, 2012 email renewing your offer to settle the claim against Kent & Johnson for $19,000.

“The PLF and Kent & Johnson accept your offer. Enclosed are duplicate originals of the Mutual Release I have prepared for your review and signature, if it is acceptable. Kent & Johnson have already approved it.

“If the Mutual Release is acceptable, please have it signed by Bridge City Family Medical Clinic, PC and you in the presence of a Notary Public and send one of the originals back to me. I have sent duplicate originals to Kent & Johnson for their signature and return to me and I will provide one to you once the document is fully executed.

*119“I have obtained a check in the amount of $19,000, payable to Bridge City Family Medical Clinic, P.C. We will hold that check until we receive a complete set of signed documents from you and Kent & Johnson. Once we have all the documents signed, we will transmit the settlement check to you. The Mutual Release will not be effective until all the parties have signed it. Signatures in counterpart are authorized in the Mutual Release.

‡ * ‡

“I encourage you to consult with independent counsel of your choice, at your expense, regarding the terms of this Mutual Release. You are under no pressure to sign anything until you have had that opportunity. Whether you consult with outside counsel is up to you, but I want to be sure you have the opportunity if you choose to do so.”

On September 24, having received, no answer to his September 7 letter, Schafer wrote Bunker another letter reminding her that he was waiting for her response. On October 9, still having heard nothing, Schafer wrote the following letter:

“The purpose of this letter is to follow-up on my letter to you of September 24, 2012.

“You made a settlement offer on September 6, 2012, which was accepted by my letter to you of September 7, 2012. The PLF is ready to perform our settlement, and in fact, I have a settlement check in my file in the amount of $19,000, payable to Bridge City Family Medical Clinic, PC. I will send that check to you once the settlement documents are fully executed and in my possession.

“I look forward to receipt from you of the Mutual Release, executed by you and Bridge City Medical Clinic, PC. If there are any specific concerns you have with respect to the terms in the Mutual Release, please let me know. I would like to complete performance of our settlement.”

Three weeks later, on October 30, 2012, plaintiffs attorney sent Schafer a letter stating that plaintiff “asked me to review the proposed settlement agreement as well as her files. She has decided not to settle on the terms set forth in your recent correspondence or, at this time settle.”

*120On November 1, Schafer sent a letter to plaintiffs attorney stating, among other things, that plaintiff

“made a proposal, and we accepted it. Notwithstanding her unwillingness to sign the Mutual Release I sent to her, there is a settlement. If you and she want to discuss modification of the wording of the Mutual Release, I am amendable to those discussions, but this claim was settled, and the PLF and Kent & Johnson are ready, willing, and able to fully perform as agreed. The essential terms of the deal were agreed upon, and the settlement is enforceable.”

Plaintiff subsequently brought this case against defendants, alleging professional malpractice. Defendants moved for summary judgment on the ground that the claim had been settled as a result of the communications between Bunker and Schafer. Defendants also served a request for admission that asked plaintiff to “[a]dmit that as a result of Exhibits A through N [the correspondence between Bunker and Schafer], the claim of plaintiff against defendants was agreed to be settled for a payment of $19,000 by the PLF and the mutual release of claims between defendants and against plaintiff.” Plaintiff denied the request for admission.

The trial court granted defendants’ summary judgment motion and entered a judgment of dismissal. The trial court later entered a supplemental judgment awarding defendants $6,385.50 in attorneys’ fees and $1,030.00 in costs that defendants incurred because of plaintiff’s denial of the request for admission. On appeal, plaintiff assigns error both to the trial court’s grant of summary judgment and to the award of fees and costs. As to the latter, plaintiff contends that, at a minimum, plaintiff had an objectively reasonable belief that no enforceable settlement agreement had been reached.

We first consider whether the trial court correctly granted defendants’ motion for summary judgment. When reviewing an order granting a motion for summary judgment, we view the record in the light most favorable to the nonmoving adverse party, and will affirm if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Dial Temporary Help Service v. *121 DLF Int’l Seeds, 255 Or App 609, 610, 298 P3d 1234 (2013) (citing Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997)). Whether a contract was formed is a question of law. Real Estate Loan Fund v. Hevner, 76 Or App 349, 355, 709 P2d 727 (1985) (citing Quillin v. Peloquin, 237 Or 343, 391 P2d 603 (1964)).

Even when it has not been reduced to a formal writing, a valid contract can be created “by [an] offer and its unqualified acceptance.” Williams v. Burdick, 63 Or 41, 49, 125 P 844, 126 P 603 (1912). To determine whether the parties intended to enter into a binding agreement, Oregon courts “examine the objective manifestations of intent, as evidenced by the parties’ communications and acts.” Hevner, 76 Or App at 354. Those manifestations of intent must show that there has been a “meeting of the minds” as to the contract’s terms and that no material terms remain for future negotiation. Phillips v. Johnson, 266 Or 544, 555, 514 P2d 1337 (1973). Thus, the offer to form a contract “must be certain so that upon an unqualified acceptance the nature and extent of the obligations of each party are fixed and may be determined with reasonable certainty.” Klimek v. Perisich, 231 Or 71, 78-79, 371 P2d 956 (1962). Likewise,

“the acceptance must coincide with and be in the same terms as the offer, and * * * if a new provision is suggested the answer is a mere counter-offer, and, until that has been assented to by the one making the offer, there is no meeting of the minds and hence no contract.”

Small v. Paulson, 187 Or 76, 85, 209 P2d 779 (1949).

Plaintiff argues that Bunker never made a clear, unequivocal offer capable of acceptance; rather, she merely expressed a “willingness” to settle. Plaintiff further argues that, even if there was an offer by plaintiff, Schafer’s purported acceptance introduced a new term—the mutual release—that plaintiff never accepted. Plaintiff contends that, as a result, there was never a meeting of the minds between the parties on the material terms of an agreement. Defendants’ view of the case is that plaintiffs initial communication on August 15 expressed a “willingness” to settle, Schafer’s August 20 response invited plaintiff to make a specific offer, and the subsequent six communications were, *122in fact, a negotiation comprising offers and counteroffers. Defendants argue that the mutual release became a material term that plaintiff tacitly accepted by failing to object when Schafer repeatedly included it.

Defendants have the better argument. Bunker’s first email indicated only a desire to “discuss with [Schafer] the option of a settlement.” Schafer then asked Bunker to make a proposal. After that, the nature of the communications changed. Bunker promptly responded with the statement that she was “willing to settle this and move on for $40,000.” A reasonable person in Schafer’s position would have interpreted that statement as an offer to settle the dispute in exchange for a payment of $40,000.

Schafer responded with a counteroffer on August 23 that included two material terms: a payment of $10,000 and the execution of a mutual release. Schafer’s letter was couched unmistakably in the form of an offer of settlement. Bunker’s August 27 response said, “I am willing to meet you in the middle and settle this matter immediately for $20,000.” As with her previous email, Bunker communicated not merely a willingness in principle to settle the dispute, but an unconditional offer to settle immediately for a specific amount. The same can be said of Schafer’s August 28 letter (another unmistakable offer that moved the dollar figure to $13,500 and reiterated the need for a mutual release) and Bunker’s August 29 reply (which proposed $19,000, again without condition). Schafer’s August 30 counteroffer proposed $15,000 and expressly incorporated the other terms set forth in his August 28 letter. On September 6, Bunker declined to come down any further, replying, “I continue to be willing to settle this for $19,000.” On September 7, Schafer accepted.

Plaintiffs attempt to characterize Bunker’s series of communications as no more than a “statement of intention” is unpersuasive. Bunker initially indicated only her desire to pursue a settlement. No response to that email could have resulted in a binding contract. After being asked by Schafer to make a “specific proposal,” however, that is precisely what Bunker did. Her statements that she would settle “immediately” for $40,000, $20,000, and then $19,000 were specific *123offers. The wording and tone of Bunker’s emails indicate that she understood the exchange to be a negotiation toward an actual settlement, not a mere discussion. Moreover, although Schafer’s communications encouraged Bunker to seek independent legal advice, Bunker’s responses never made her offers contingent on review by an attorney (or on any other occurrence).

It is true that Bunker never expressly manifested her assent to the mutual release. But her express assent was not required in order for the mutual release to become a term of the contract, if Schafer would have reasonably understood Bunker to have accepted it. See Kitzke v. Turnidge, 209 Or 563, 573, 307 P2d 522 (1957) (“‘Though assent must be manifested in order to be legally effective, it need not be expressed in words. * * * Even where words are used, a contract includes not only what the parties said, but also what is necessarily to be implied from what they said.’” (Quoting Samuel Williston, 11 Williston on Contracts § 22A (3d ed 1957)) (quotation marks in Williston omitted).

Under these circumstances, Schafer would have understood Bunker to have accepted the mutual release. In every one of his communications, Schafer made it clear that a mutual release would be included. In her responses, Bunker expressed no disagreement or concern regarding a mutual release. It is also significant that, in her August 29 email, Bunker said, “You point out that Mr. Kent and Ms. Johnson have offered to release me from the $5506.25; however they have already dismissed that claim against me as was noted in a letter to me in October of 2011.” That statement demonstrates both that Bunker appreciated that a mutual release was to be included (she had not failed to notice or understand) and that she did not view it as a particularly noteworthy feature of a settlement. As Bunker continued to negotiate only the dollar term of the settlement and made no objection to the mutual release, a reasonable person on the other side of the negotiation would have understood that Bunker had assented to the inclusion of that term. Thus, in Bunker’s final email on September 6, when she reiterated the $19,000 figure, the mutual release had become a term of the offers and counteroffers.

*124Plaintiff also argues that the exchange of correspondence failed to achieve a binding contract because Schafer’s letter of September 7 said that the mutual release “will not be effective until all the parties have signed it.” Plaintiffs argument conflates two distinct ideas. Parties can agree that a contract will not be binding unless and until it is reduced to writing. That is not what happened here. By the terms of Schafer’s correspondence, the release was not to become effective until signed. The contract between the parties was achieved when they reached an accord on the dollar amount and the fact that a release would be executed. Thus, the signing of the release was a condition precedent to the performance of the contract, not to the formation of the contract. See D’Angelo v. Schultz, 110 Or App 445, 450, 823 P2d 997 (1992), rev den, 313 Or 209 (“Assuming that the other elements of a contract are present, a condition precedent is not a condition on which the validity of an acceptance is contingent; it is a condition on which performance is contingent.” (Emphasis in original.)).

We now turn to the issue of fees and costs. Before trial, defendants served a request for admissions pursuant to ORCP 45 that asked plaintiff to “[a]dmit that as a result of Exhibits A through N [the correspondence between Bunker and Schafer], the claim of plaintiff against defendants was agreed to be settled for a payment of $19,000 by the PLF and the mutual release of claims between defendants and against plaintiff.” Plaintiff denied the request for admission. After the trial court granted defendant’s motion for summary judgment, defendants filed a motion pursuant to ORCP 46 C asking that the trial court award defendants the expenses they incurred as a result of plaintiffs denial of the request for admission. Plaintiff filed a memorandum in opposition to defendants’ motion for expenses.1 The trial court awarded defendants their expenses.

ORCP 46 C provides:

“If a party fails to admit the genuineness of any document or the truth of any matter, as requested under Rule 45, and if the party requesting the admissions thereafter *125proves the genuineness of the document or the truth of the matter, the party requesting the admissions may apply to the court for an order requiring the other party to pay the party requesting the admissions the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 45 B or C, or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that such party might prevail on the matter, or (4) there was other good reason for the failure to admit.”

On appeal, plaintiff invokes the third and fourth exceptions to the rule. Plaintiff contends that it had a “reasonable ground” to believe that it might prevail on the issue of whether a binding settlement agreement was reached, and that plaintiff had “other good reason” for its failure to admit. “We review a trial court’s ruling on a request for fees and expenses under ORCP 46 C for errors of law and abuse of discretion.” McConnell v. Sutherland, 135 Or App 477, 486, 898 P2d 254 (1995), rev den, 322 Or 489 (1996). A trial court’s “determination of whether a party reasonably believed it would prevail or had a good reason for failing to admit” is generally discretionary. Gottenberg v. Westinghouse Electric Corp., 142 Or App 70, 77-78, 919 P2d 521 (1996) (citing Adams v. Hunter Engineering Co., 126 Or App 392, 397, 868 P2d 788 (1994)). A trial court “abuses its discretion if it exercises that discretion in a manner that is unjustified by, and clearly against, reason and evidence.” Forsi v. Hildahl, 194 Or App 648, 652, 96 P3d 852 (2004), rev den, 338 Or 124 (2005).

We are not persuaded that the trial court abused its discretion when it determined that plaintiff lacked reasonable grounds to believe that it could prevail on the contract formation issue. The content and tone of the emails are those of a negotiation. Bunker never communicated (or even hinted) to Schafer that she would need to consult with an attorney before agreeing to settlement terms—despite being urged by Schafer, beginning in his first counteroffer, to do precisely that. A fair reading of the record—one that the trial court could certainly have adopted in the exercise of its *126discretion—is that Bunker wanted to achieve a settlement quickly, did so knowingly, and then had second thoughts. By the time she consulted with counsel, however, she had already entered into a binding and enforceable agreement. The trial court was also not compelled to agree that plaintiff could reasonably have viewed the settlement as contingent based on the language about the release. The communications from Schafer spelled out very clearly that what was to be contingent on signing was not the contract but the release. Even if that distinction might not have been appreciated by Bunker at the time that she was acting without representation, plaintiff was represented by counsel by the time that the request for admission was made and denied.

Plaintiff asserts several “other good reason [s]” for its denial of the request for admission. We reject these without further discussion, except to note that, contrary to plaintiffs contention, ORCP 46 C expenses are available both for failures to admit factual matters and for failures to admit legal conclusions based on fact. McConnell, 135 Or App at 486-87 (noting that “ORCP 45 A permits request for admissions ‘of the truth of relevant matters within the scope of Rule 36 B, including facts or opinions of fact, or the application of law to fact’” (brackets and emphasis in original)).

For the foregoing reasons, we conclude that the trial court correctly granted defendants’ motion for summary judgment and awarded their costs and fees pursuant to ORCP 46 C.

Affirmed.

WIEAND, Judge:

On May 17, 1987, Amos Cobaugh was playing in the East End Open Golf Tournament on the Fairview Golf Course in Cornwall, Lebanon County. When he arrived at the ninth tee he found a new Chevrolet Beretta, together with signs which proclaimed: “HOLE-IN-ONE Wins this 1988 Chevrolet Beretta GT Courtesy of KLICK-LEWIS Buick Chevy Pontiac $49.00 OVER FACTORY INVOICE in Palmyra.” Cobaugh aced the ninth hole and attempted to claim his prize. Klick-Lewis refused to deliver the car. It had offered the car as a prize for a charity golf tournament sponsored by the Hershey-Palmyra Sertoma Club two days earlier, on May 15, 1987, and had neglected to remove the car and posted signs prior to Cobaugh’s hole-in-one. After Cobaugh sued to compel delivery of the car, the parties entered a stipulation regarding the facts and then moved for summary judgment. The trial court granted Cobaugh’s motion, and Klick-Lewis appealed.

Our standard of review is well established. A motion for summary judgment may properly be granted only if the moving party has shown that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. *590 Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). Summary judgment should not be entered unless a case is clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983); Dunn v. Teti, 280 Pa.Super. 399, 402, 421 A.2d 782, 783 (1980).

The facts in the instant case are not in dispute. To the extent that they have not been admitted in the pleadings, they have been stipulated by the parties. Therefore, we must decide whether under the applicable law plaintiff was entitled to judgment as a matter of law.

An offer is a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. Restatement (Second) of Contracts § 24; 8 P.L.E. Contracts § 23. Consistent with traditional principles of contract law pertaining to unilateral contracts, it has generally been held that “[t]he promoter of [a prize-winning] contest, by making public the conditions and rules of the contest, makes an offer, and if before the offer is withdrawn another person acts upon it, the promoter is bound to perform his promise.” Annotation, Private Rights and Remedies Growing Out of Prize-winning Contests, 87 A.L.R.2d 649, 661. The only acceptance of the offer that is necessary is the performance of the act requested to win the prize. Id. See also: Robertson v. United States, 343 U.S. 711, 72 S.Ct. 994, 96 L.Ed. 1237 (1952) (“The acceptance by the contestants of the offer tendered by the sponsor of the contest creates an enforceable contract.”); 17 C.J.S. Contracts § 46.

The Pennsylvania cases which have considered prizewinning contests support the principle that an offer to award a prize in a contest will result in an enforceable contract if the offer is properly accepted by the rendition of the requested performance prior to revocation. See: Olschiefsky v. Times Publishing Co., 23 D. & C.2d 73 (Erie 1959) (overruling demurrer to action against newspaper for failure to award prize to winner of puzzle contest); Holt v. *591 Wood, Harmon & Co., 41 Pitt.L.J. 443 (1894) (holding offer to award house to person submitting name selected for new housing development resulted in binding contract). See also: Aland v. Cluett, Peabody & Co., 259 Pa. 364, 103 A. 60 (1918); Palmer v. Central Board of Education of Pittsburg, 220 Pa. 568, 70 A. 433 (1908); Trego v. Pa. Academy of Fine Arts, 2 Sad. 313, 3 A. 819 (1886); Vespaziani v. Pa. Dept. of Revenue, 40 Pa.Cmwlth 54, 396 A.2d 489 (1979).

Appellant argues that it did nothing more than propose a contingent gift and that a proposal to make a gift is without consideration and unenforceable. See: Restatement (Second) of Contracts § 24, Comment b. We cannot accept this argument. Here, the offer specified the performance which was the price or consideration to be given. By its signs, Klick-Lewis offered to award the car as a prize to anyone who made a hole-in-one at the ninth hole. A person reading the signs would reasonably understand that he or she could accept the offer and win the car by performing the feat of shooting a hole-in-one. There was thus an offer which was accepted when appellee shot a hole-in-one. Accord: Champagne Chrysler-Plymouth, Inc. v. Giles, 388 So.2d 1343 (Fla.Dist.Ct.App.1980) (bowling contest); Schreiner v. Weil Furniture Co., 68 So.2d 149 (La.App. 1953) (“Count-the-dots” contest); Chenard v. Marcel Motors, 387 A.2d 596 (Me.1978) (golf tournament); Grove v. Charbonneau Buick-Pontiac Inc., 240 N.W.2d 853 (N.D. Sup.Ct.1976) (golf tournament); First Texas Savings Assoc. v. Jergins, 705 S.W.2d 390 (Tx.Ct.App.1986) (free drawing).

The contract does not fail for lack of consideration. The requirement of consideration as an essential element of a contract is nothing more than a requirement that there be a bargained for exchange. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 541, 526 A.2d 1192, 1195 (1987); Commonwealth Dept. of Transp. v. First Nat’l Bank, 77 Pa. Cmwlth. 551, 553, 466 A.2d 753, 754 (1983). Consideration confers a benefit upon the promisor or causes a detriment to the promisee. Cardamone v. University of Pittsburgh, *592253 Pa.Super. 65, 72 n. 6, 384 A.2d 1228, 1232 n. 6 (1978); General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 167, 199 A.2d 540, 543 (1964). By making an offer to award one of its cars as a prize for shooting a hole-in-one at the ninth hole of the Fairview Golf Course, Klick-Lewis benefited from the publicity typically generated by such promotional advertising. In order to win the car, Cobaugh was required to perform an act which he was under no legal duty to perform. The car was to be given in exchange for the feat of making a hole-in-one. This was adequate consideration to support the contract. See, e.g.: Las Vegas Hacienda, Inc. v. Gibson, 77 Nev. 25, 359 P.2d 85 (1961) (paying fifty cents and shooting hole-in-one was consideration for prize). See also: First Texas Savings v. Jergins, supra (enforcing duty to award prize in free drawing where only performance by plaintiff was completing and depositing entry form).1

*593There is no basis for believing that Cobaugh was aware that the Chevrolet automobile had been intended as a prize only for an earlier tournament. The posted signs did not reveal such an intent by Klick-Lewis, and the stipulated facts do not suggest that appellee had knowledge greater than that acquired by reading the posted signs. Therefore, we also reject appellant’s final argument that the contract to award the prize to appellee was voidable because of mutual mistake.' Where the mistake is not mutual but unilateral and is due to the negligence of the party seeking to rescind, relief will not be granted. Rusiski v. Pribonic, 326 Pa.Super. 545, 552, 474 A.2d 624, 627 (1984), rev’d on other grounds, 511 Pa. 383, 515 A.2d 507; McFadden v. American Oil Co., 215 Pa.Super. 44, 53-54, 257 A.2d 283, 288 (1969).

In Champagne Chrysler-Plymouth, Inc. v. Giles, supra, a mistake similar to that made in the instant case had been made. There, a car dealer had advertised that it would give away a new car to any bowler who rolled a perfect “300” game during a televised show. The dealer’s intent was that the offer would continue only during the television show which the dealer sponsored and on which its ads were displayed. However, the dealer also distributed flyers containing its offer and posted signs advertising the offer at the bowling alley. He neglected to remove from the alley the signs offering a car to anyone bowling a “300” game, and approximately one month later, while the signs were still posted, plaintiff appeared on a different episode of the television show and bowled a perfect game. The dealer refused to award the car. A Florida court held that if plaintiff reasonably believed that the offer was still outstanding when he rolled his perfect game, he would be entitled to receive the car. See also: Grove v. Charbonneau Buick-Pontiac Inc., supra (car dealer required to award prize to participant in 18-hole golf tournament played on nine-hole golf course where it had offered to award a car “to the first entry who shoots a hole-in-one on Hole No. 8” and plaintiff aced the hole marked No. 8 while driving from the seventeenth tee).

*594It is the manifested intent of the offeror and not his subjective intent which determines the persons having the power to accept the offer. Restatement (Second) of Contracts § 29. In this case the offeror’s manifested intent, as it appeared from signs posted at the ninth tee, was that a hole-in-one would win the car. The offer was not limited to any prior tournament. The mistake upon which appellant relies was made possible only because of its failure to (1) limit its offer to the Hershey-Palmyra Sertoma Club Charity Golf Tournament and/or (2) remove promptly the signs making the offer after the Sertoma Charity Golf Tournament had been completed. It seems clear, therefore, that the mistake in this case was unilateral and was the product of the offeror’s failure to exercise due care. Such a mistake does not permit appellant to avoid its contract.

Affirmed.

POPOVICH, J., filed a dissenting opinion.

POPOVICH, Judge,

dissenting:

“Golf ... is ... a game of relaxed recreation and limitless enjoyment for millions and a demanding examination of exacting standards ...” (Robert Trent Jones, Preface of The Golf Course, Geoffrey S. Cornish and Ronald E. Whit-ten, The Rutledge Press, Revised Edition, 1987). In short, golf — as demonstrated by the vast majority of its practitioners who never have and never will score a round at par — is a sport requiring precise skills.

Making a hole-in-one, however, is such a fortuitous event that skill is almost an irrelevant factor. Because of that fact (an element of chance), combined with the payment of an entry fee to the East End Open Golf Tournament (consideration) and the automobile prize (reward), my view is that the necessary elements of gambling are present thus rendering the contract sub judice unenforceable as violat*595ing the Commonwealth’s policy against gambling.1 As our Supreme Court stated eighty-five years ago in Davis v. Fleshman, 245 Pa. 224, 91 A. 489 (1914):

It is equally well settled in this jurisdiction that all mere wagering contracts are illegitimate transaction which the law declares void and which will not be enforced at the insistence of either party to the contract. It will not aid the winner to recover from the loser the amount of the stake, and it will not give assistance to the loser to recover back the amount of the bet after the transaction has been closed. It will leave the parties as it finds them. The law will not attempt to settle disputes arising between gamblers by enforcing their alleged rights arising out of an illegal transaction.

I raise this issue sua sponte since we have no jurisdiction to enforce a contract in violation of public policy. In re Estate of Pedrick, 505 Pa. 530, 534, 482 A.2d 215, 222 (1984) (public policy dictates court must raise “unclean hands” sua sponte); Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985) (propriety of summary judgment raised sua sponte).

By couching this transaction in terms of a unilateral contract, the majority seems to opine that scoring a hole-in-one is an act of skill which a golfer can choose to undertake.2 The truth is quite the opposite.

While every golfer dreams of the day when his ball flawlessly flies into the cup, few ever experience the thrill of a hole-in-one. So few in fact that “aceing” a hole is truly an act of “luck” not skill. Consider the following statis*596tics:3 In 1988, approximately 21.7 million golfers played 434 million rounds of golf with only 34,469 holes-in-one being reported to the United States Golf Association. Golf Digest, using figures amassed since 1952, estimates that a golfer of average ability playing a par-3 hole of average difficulty has a mere 1 in 20,000 chance of aceing the hole.

While the chances increase for a professional golfer, the possibility of a hole-in-one, even for the world’s best players, is still remote. Last year only 22 holes-in-one were recorded during the Professional Golf Association’s tournament schedule.4 With approximately 300 touring professionals playing in 47 tournaments (four rounds per tournament, four par-3’s per round), the odds increased to approximately 1 in 10,000.

However, even at 10,000 to 1, the professional’s chances of aceing a hole are more akin to an act of God than a demonstration of skill. Clearly, the possibility of a hole-in-one is sufficiently remote to qualify as the necessary gambling requirement of an element of chance.

Since all of the elements of gambling are present, I see no reason to enforce this so-called unilateral contract, rather I would find that an unenforceable gambling contract was created. While I recognize that there are a variety of socially acceptable forms of gambling indulged in by the public for the most charitable of purposes and the worthiest of causes, they are nonetheless illicit under Pennsylvania law. Dollar raffle tickets for the benefit of a hospital or a Little League Baseball Association are bought and sold innocuously and routinely, and, yet, raffles constitute unsanctioned gambling. Only recently, under strict control, has bingo, a popular and social form of gambling been legalized. 10 Pa.C.S.A. § 301 et seq. See also 4 Pa.C.S.A. § 325.101 et seq. (horse racing); 72 Pa.C.S.A. § 3761-1 et *597 seq. (state lottery). Millions of citizens spend billions of dollars each year on sports betting in office pools or with the local bookmaker. However, only in one state, Nevada, is it legal so to do.

Thus, when such a rare case as this comes into court, it may be difficult to re-assert a public policy which everyday is violated by common experience, especially, such as here, where there probably was no thought of gambling or “breaking the law.” Nevertheless, we cannot usurp the role of the legislature or turn our heads away from the fundamental substance of this transaction: it is a contract, a contract covering the context of gambling. Hence, it is unenforceable no matter how much condoned or indulged.

Beach, J.

The writing sued on is in the form of a letter from the defendant to the plaintiff accepting an antecedent proposal to buy five cases of glass on terms set forth in the acceptance. The final sentence of the letter is as follows: “You have the option to cancel the above order before shipment.” It is this phrase which gives rise to the claim that the contract is void for want of mutuality. The defendant’s acceptance appears to be unconditional, and the objection is that the plaintiff in making his proposal reserved the right to cancel it at will. If that is so, the demurrer must be sustained. “To agree to do something and reserve the right to cancel the agreement at will is no agreement at all.” Ellis v. Dodge Bros., 237 Fed. Rep. 860, 867.

It might be said at the outset that the objection begs the entire question, for it is not clear that the “above order” as originally made contains any reservation at all, but as the case has been briefed and argued on the assumption that the buyer’s privilege of cancellation at any time before shipment is one of the terms of the contract, we proceed to treat it as such and to enquire whether on that understanding an enforcible *706contract ever came into existence; that is, whether the seller ever had any right, the exercise of which the buyer could not prevent or nullify, to compel the buyer to take the goods and pay for them. If so, there was a promise for a promise, and the contract is valid in law; for the question before us is not whether the contract is mutual in the sense in which that adjective is used to influence the discretion of a court of equity in decreeing specific performance, but whether the seller’s promise to sell was with or without a consideration sufficient in in law to support it. Of course, the right to enforce the buyer’s promise to buy is such a consideration, and if that right existed, even for the shortest space of time, it is enough to bring the contract into existence.

On the face of this contract the buyer must exercise his option “before shipment,” otherwise he is bound to take and pay for the goods. No time of shipment is specified otherwise than by the words “to be shipped within three months.” Hence the seller had a right to ¡ ship at any time within the three months, and a ship- , ment made before receiving notice of cancellation would j put an end to the buyer’s option. The seller’s right of - shipment accrued at the moment the contract was formed, and as he might have shipped at the same time that he accepted, there was one clear opportunity to enforce the entire contract, which the buyer could not have prevented or nullified by any attempted exercise of his option. This is all that is necessary to constitute a legal consideration and to bring the contract into existence. If the defendant voluntarily limited his absolute opportunity of enforcing the contract to the shortest possible time, the contract may have been improvident, but it was not void for want of consideration.

Whether it is so improvident that an equitable defense on that ground ought to prevail, is a question of fact which cannot be raised by demurrer. It should, *707however, be said that, in addition to the one clear opportunity to enforce the contract already pointed out, the defendant has had a continuing right to enforce it during its entire term; for it appears from the complaint not only that the plaintiff never attempted to exercise his option, but that he repeatedly demanded performance. In this connection it is important that the contract is framed on the theory that it remains enforcible by either party unless and until the plaintiff brings home notice of cancellation before shipment.

Referring to the authorities cited, it is of course undoubted that a contract for the sale of goods in which one party retains an unconditional option of cancellation is no contract at all, for the reason that no mutual obligation ever arises. Rehm-Zeiher Co. v. Walker Co., 156 Ky. 6, 160 S. W. 777, cited on the defendant’s brief, and American Agricultural Chemical Co. v. Kennedy, 103 Va. 171, 48 S. E. 868, cited in the note to 13 Corpus Juris, 337, are cases of this kind.

In Nicolls v. Wetmore, 174 Iowa, 132, 156 N. W. 319; Velie Motor Co. v. Kopmeier Motor Car Co., 194 Fed. Rep. 324, and Ellis v. Dodge Bros., 237 Fed. Rep. 860, the contracts in suit presented a double aspect. Regarded as contracts for the purchase and sale of motorcars, they were held void for the want of any promise by the maker to sell, and regarded as executory contracts of agency, they were held to be terminable at the option of either party. This was correct, because the agency was not expressed to continue for a definite time or for the accomplishment of a stated purpose. Willcox & Gibbs Sewing Machine Co. v. Ewing, 141 U. S. 627, 12 Sup. Ct. 94.

There is error, the judgment is set aside and the cause remanded for further proceedings according to law.

In this opinion the other judges concurred.

Kellogg, J.

The evidence given upon the trial sanctions the following statement of facts: John Petterson, of whose last will and testament the plaintiff is the executrix, was the owner of a parcel of real estate in Brooklyn, known as 5301 Sixth avenue. The defendant was the owner of a bond executed by Petterson, which was secured by a third mortgage upon the parcel. On April 4th, 1924, there remained unpaid upon the principal the sum of $5,450. This amount was payable in installments of $250 on April 25th, 1924, and upon a like monthly date every three months thereafter Thus the bond and mortgage had more than five years to run before the entire sum became due. Under date of the 4th of April, 1924, the defendant wrote Petterson as follows: “ I hereby agree to accept cash for the mortgage which I hold against premises 5301 6th Ave., Brooklyn, N. Y. It is understood and agreed as a consideration I will allow you $780 providing said mortgage is paid on or before May 31, 1924, and che regular quarterly payment due April 25, 1924, is paid when due.” On April 25, 1924, Petterson paid the defendant the installment of principal due on that date. Subsequently, on a day in the latter part of May, 1924, Petterson presented himself at the defendant’s home, and knocked at the door. The defendant *88demanded the name of his caller. Petterson replied: “ It is Mr. Petterson. I have come to pay off the mortgage.” The defendant answered that he had sold the mortgage. Petterson stated that he would like to talk with the defendant, so the defendant partly opened the door. Thereupon Petterson exhibited the cash and said he was ready to pay off the mortgage according to the agreement. The defendant refused to take the money. Prior to this conversation Petterson had made a contract to sell the land to a third person free and clear of the mortgage to the defendant. Meanwhile, also, the defendant had sold the bond and mortgage to a third party. It, therefore, became necessary for Petterson to pay to such person the full amount of the bond and mortgage. It is claimed that he thereby sustained a loss of $780, the sum which the defendant agreed to allow upon the bond and mortgage if payment in full of principal, less that sum, was made on or before May 31st, 1924. The plaintiff has had a recovery for the sum thus claimed, with interest.

Clearly the defendant’s letter proposed to Petterson the making of a unilateral contract, the gift of a promise in exchange for the performance of an act. The thing conditionally promised by the defendant was the reduction of the mortgage debt. The act requested to be done, in consideration of the offered promise, was payment in full of the reduced principal of the debt prior to the due date thereof. “ If an act is requested, that very act and no other must be given.” (Williston on Contracts, sec. 73.) “ In case of offers for a consideration, the performance of the consideration is always deemed a condition.” (Langdell’s Summary of the Law of Contracts, sec. 4.) It is elementary that any offer to enter into a unilateral contract may be withdrawn before the act requested to be done has been performed. (Williston on Contracts, sec. 60; Langdell’s Summary, sec. 4; Offord v. Davies, 12 C. B. [N. S.] 748.) A bidder at a sheriff’s sale may revoke his bid at any time before the property *89is struck down to him. (Fisher v. Seltzer, 23 Penn. St. 308.) The offer of a reward in consideration of an act to be performed is revocable before the very act requested has been done. (Shuey v. United States, 92 U. S. 73; Biggers v. Owen, 79 Ga. 658; Fitch v. Snedaker, 38 N. Y. 248.) So, also, an offer to pay a broker commissions, upon a sale of land for the offeror, is revocable at any time before the land is sold, although prior to revocation the broker performs services in an effort to effectuate a sale. (Stensgaard v. Smith, 43 Minn. 11; Smith v. Cauthen, 98 Miss. 746.) An interesting question arises when, as here, the offeree approaches the offeror with the intention of proffering performance and, before actual tender is made, the offer is withdrawn. Of such a case Williston says: “ The offeror may see the approach of the offeree and know that an acceptance is contemplated. If the offeror can say ‘ I revoke ’ before the offeree accepts, however brief the interval of time between the two acts, there is no escape from the conclusion that the offer is terminated.” (Williston on Contracts, sec. 60-b.) In this instance Petterson, standing at the door of the defendant’s house, stated to the defendant that he had come to pay off the mortgage. Before a tender of the necessary moneys had been made the defendant informed Petterson that he bad sold the mortgage. That was a definite notice to Petterson that the defendant could not perform his offered promise and that a tender to the defendant, who was no longer the creditor, would be ineffective to satisfy the debt. “An offer to sell property may be withdrawn before acceptance without any formal notice to the person to whom the offer is made. It is sufficient if that person has actual knowledge that the person who made the offer has done some act inconsistent with the continuance of the offer, such as selling the property to a third person.” (Dickinson v. Dodds, 2 Ch. Div. 463, headnote.) To the same effect is Coleman v. Applegarth (68 Md. 21). Thus, it clearly appears that the defendant’s offer was *90withdrawn before its acceptance had been tendered. It is unnecessary to determine, therefore, what the legal situation might have been had tender been -made before withdrawal. It is the individual view of the writer that the same result would follow. This would be so, for the act requested to be performed was the completed act of payment, a thing incapable of performance unless assented to by the person to be paid. (Williston on Contracts, sec. 60-b.) Clearly an offering party has the right to name the precise act performance of which would convert his offer into a binding promise. Whatever the act may be until it is performed the offer must be revocable. However, the supposed case is not before us for decision. We think that in this particular instance the offer of the defendant was withdrawn before it became a binding promise, and, therefore, that no contract was ever made for the breach of which the plaintiff may claim damages.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Lehman, J.

(dissenting). The defendant’s letter to Petterson constituted a promise on his part to accept payment at a discount of the mortgage he held, provided the mortgage is paid on or before May 31st, 1924. Doubtless by the terms of the promise itself, the defendant made payment of the mortgage by the plaintiff, before the stipulated time, a condition precedent to performance by the defendant of his promise to accept payment at a discount. If the condition precedent has not been performed, it is because the defendant made performance impossible by refusing to accept payment, when the plaintiff came with an offer of immediate performance. “ It is a principle of fundamental justice that if a promisor is himself the cause of the failure of performance either of an obligation due him or of a condition upon which his own liability depends, he cannot take advantage of the failure.” (Williston on Contracts, *91section 677.) The question in this case is not whether payment of the mortgage is a condition precedent to the performance of a promise made by the defendant, but, rather, whether at the time the defendant refused the offer of payment, he had assumed any binding obligation, even though subject to condition.

•The promise made by the defendant lacked consideration at the time it was made. Nevertheless the promise was not made as a gift or mere gratuity to the plaintiff. It was made for the purpose of obtaining from the defendant something which the plaintiff desired. It constituted an offer which was to become binding whenever the plaintiff should give, in return for the defendant’s promise, exactly the consideration which the defendant requested.

Here the defendant requested no counter promise from the plaintiff. The consideration requested by the defendant for his promise to accept payment was, I agree, some act to be performed by the plaintiff. Until the act requested was performed, the defendant might undoubtedly revoke his offer. Our problem is to determine from the words of the letter read in the light of surrounding circumstances what act the defendant requested as consideration for his promise.

The defendant undoubtedly made his offer as an inducement to the plaintiff to “ pay ” the mortgage before it was due. Therefore, it is said, that “ the act requested to be performed was the completed act of payment, a thing incapable of performance unless assented to by the person to be paid.” In unmistakable terms the defendant agreed to accept payment, yet we are told that the defendant intended, and the plaintiff should have understood, that the act requested by the defendant, as consideration for his promise to accept payment, included performance by the defendant himself of the very promise for which the act was to be consideration. The defendant’s promise was to become binding only when fully performed; and part of the consideration to be furnished *92by the plaintiff for the defendant’s promise was to be the performance of that promise by the defendant. So construed, the defendant’s promise or offer, though intended to induce action by the plaintiff, is but a snare and delusion. The plaintiff could not reasonably suppose that the defendant was asking him to procure the performance by the defendant of the very act which the defendant promised to do, yet we are told that even after the plaintiff had done all else which the defendant requested, the defendant’s promise was still not binding because the defendant chose not to perform.

I cannot believe that a result so extraordinary could have been intended when the defendant wrote the letter. “ The thought behind the phrase proclaims itself misread when the outcome of the reading is injustice or absurdity.” (See opinion of Cardozo, Ch. J., in Surace v. Danna, 248 N. Y. 18.) If the defendant intended to induce payment by the plaintiff and yet reserve the right to refuse payment when offered he should have used a phrase better calculated to express his meaning than the words: “I agree to accept.” A promise to accept payment, by its very terms, must necessarily become binding, if at all, not later than when a present offer to pay is made.

I recognize that in this case only an offer of payment, and not a formal tender of payment, was made before the defendant withdrew his offer to accept payment. Even the plaintiff’s part in the act of payment was then not technically complete. Even so, under a fair construction of the words of the letter I think the plaintiff had done the act which the defendant requested as consideration for his promise. The plaintiff offered to pay with present intention and ability to make that payment. A formal tender is seldom made in business transactions, except to lay the foundation for subsequent assertion in a court of justice of rights which spring from refusal of the tender. If the defendant acted in good faith in making his offer to accept payment, he could not well *93have intended to draw a distinction in the act requested of the plaintiff in return, between an offer which unless refused would ripen into completed payment, and a formal tender. Certainly the defendant could not have expected or intended that the plaintiff would make a formal tender of payment without first stating- that he had come to make payment. We should not read into the language of the defendant’s offer a meaning which would prevent enforcement of the defendant’s promise after it had been accepted by the plaintiff in the very way which the' defendant must have intended it should be accepted, if he acted in good faith.

The judgment should be affirmed.

Cardozo, Ch. J., Pound, Crane and O’Brien, JJ., concur with Kellogg, J.; Lehman, J., dissents in opinion, in which Andrews, J., concurs. '

Judgments reversed, etc.

ORMOND, J.

The inclination of my mind, is, that the loss and inconvenience, which the plaintiff sustained in breaking up, and moving to the defendant’s, a distance of sixty miles, is a sufficient consideration to support the promise, to furnish her with a house, and land to cultivate, until she could raise her family. My brothers, however think, that the promise on the part of the defendant, was a mere gratuity, and that an action will not lie for its breach. The judgment of the Court below must therefore be reversed, pursuant to the agreement of the parties.

Cornish, C. J.

The defendant, Mrs. Sarah D. P. Hodgkin, on the eighth day of February, 1915, was the owner of certain real estate, her home farm, situated in the outskirts of Lewiston. She was a widow and was living alone. She was the mother of six adult children, five sons, one of whom, Walter, is the co-defendant, and one daughter, who is the co-plaintiff. The plaintiffs were then residing in Independence, Missouri. Many letters had passed between mother and daughter concerning the daughter and her husband returning to the old home and taking care of the mother, and finally, on February 8, 1915, the mother sent a letter to the daughter and her husband which is the foundation of this bill in equity. In tins letter she made a definite proposal, the substance of which was that if the Brackenburys would move to Lewiston, and maintain and care for Mrs. Hodgkin on the home place during her life, and pay the moving expenses, they were to have the use and income of the premises, together with the use of the household goods, with certain exceptions, Mrs. Hodgkin to have what rooms she might need. The letter closed, by way of postscript, with the words: “you to have the place when I have passed away.”

Relying upon this offer, which was neither withdrawn nor modified, and in acceptance thereof, the plaintiffs moved from Missouri to Maine late in April, 1915, went upon the premises described and entered upon the performance of the contract. Trouble developed after a few weeks and the relations between the parties grew most disagreeable. The mother brought two suits against her son-in-law on trifling matters and finally ordered the plaintiffs from the place but they refused to leave. Then on November 7, 1916, she executed and delivered to her son, Walter C. Hodgkin, a deed of the premises, reserving a life estate in herself. Walter, however, was not a bona fide purchaser for value without notice but took the deed with full knowledge of the agreement between the parties and for the sole purpose of evicting the plaintiffs. On the very day the /leed was executed he served a notice to quit upon Mr. Brackenbury, as pre*401h'mina,ry to an action of forcible entry and detainer which was brought on November 13, 1916. This bill in-equity was brought by the plaintiffs to secure a reconveyance of the farm from Walter to his mother, to restrain and enjoin Walter from further prosecuting his action of forcible entry and detainer and to obtain an adjudication that the mother holds the legal title impressed with a trust in favor of the plaintiffs in accordance with their contract.

The sitting Justice made an elaborate and carefully considered finding of facts and signed a decree, sustaining the bill with costs against Walter C. Hodgkin and granting the relief prayed for. The case is before the Law Court on the defendants’ appeal from this decree.

Four main issues are raised.

1. As to the completion and existence of a valid contract.

A legal and binding contract is clearly proven. The offer on the part of the mother was in writing and its terms cannot successfully be disputed. There was no need that it be accepted in words nor that a counter promise on the part of the plaintiffs be made. The offer was the basis, not of a bilateral contract, requiring a reciprocal promise, a promise for a promise, but of a unilateral contract requiring an act for a promise. “In the latter case the only acceptance of the offer that is necessary is the performance of the act. In other words the promise becomes binding when the act is performed.” 6 R. C. L., 607. This is elementary law.

The plaintiffs here accepted the offer by moving from Missouri to the mother’s farm in Lewiston and entering upon the performance of the specified acts, and they have continued performance since that time so far as they have been permitted by the mother to do so. The existence of a completed and valid contract is clear.

2. The creation of an equitable interest.

This contract between the parties, the performance of which was entered upon by the plaintiffs, created an equitable interest in the land described in the bill in favor of the plaintiffs. The letter of February 8, 1915, signed by the mother, answered the statutory requirement that “there can be no trust concerning lands, except trusts arising or resulting by implication of law, unless created or declared by some writing signed by the party or his attorney.” R. S. (1903), Chap. 75, Sec. 14. No particular formality need be observed; a letter or other memorandum is sufficient to establish a trust provided its terms and the relations of the parties to it appear *402with reasonable certainty. Bates v. Hurd, 65 Maine, 181; McClellan v. McClellan, 65 Maine, 500. The equitable interest-of the plaintiffs in these premises is obvious and they are entitled to have that interest protected.

3. Alleged breach of duty on the part of the plaintiffs.

The defendants contend that, granting an equitable estate has been established, the plaintiffs have failed of performance because of their improper and unkind treatment of Mrs. Hodgkin, and therefore have forfeited the right to equitable relief which they might otherwise be entitled to. The sitting Justice decided this question of fact in favor of the plaintiffs and his finding is fully warranted by the evidence. Mrs. Hodgkin’s temperament and disposition, not only as described in the testimony of others but as revealed in her own attitude, conduct and testimony as a witness, as they stand out on the printed record, mark her as the provoking cause in the various family difficulties. She was “the one primarily at fault.”

4. Adequate relief at law1.

The defendants finally invoke the familiar rule that the plaintiffs have á plain and adequate remedy at law and therefore cannot ask relief in equity.

The answer to this proposition is that this rule does not apply when the court has been given full equity jurisdiction or has been given special statutory jurisdiction covering the case. Brown v. Kimball Co., 84 Maine, 492; Farnsworth v. Whiting, 104 Maine, 488; Trask v. Chase, 107 Maine, 137. The court in equity in this State is given special statutory jurisdiction to grant relief in cases of trusts, R. S., (1903), Chap. 79, Sec. 6, paragraph IV, and therefore the exception and not the rule must govern here.

The plaintiffs are entitled to the remedy here sought and the entry must be,

Appeal dismissed.

Decree of sitting Justice affirmed ■ with costs against Walter C. Hodgkin.

*372THE COURT.

Plaintiffs appeal from a judgment refusing to grant specific performance of an alleged contract to make a will. The facts are not in dispute and are as follows:

The plaintiff Caro M. Davis was the niece of Blanche Whitehead who was married to Rupert Whitehead. Prior to her marriage in 1913 to her coplaintiff Prank M. Davis, Caro lived for a considerable time at the home of the Whiteheads, in Piedmont, California. The Whiteheads were childless and extremely fond of Caro. The record is replete with uncontradicted testimony of the close and loving .relationship that existed between Caro and her aunt and uncle. During the period that Caro lived with the Whiteheads she was treated as and often referred to by the Whiteheads as their daughter. In 1913, when Caro was married to Prank Davis the marriage was arranged at the Whitehead home and a reception held there. After the marriage Mr. and Mrs. Davis went to Mr. Davis’ home in Canada, where they have resided ever since. During the period 1913 to 1931 Caro made many visits to the Whiteheads, several of them being of long duration. The Whiteheads visited Mr. and Mrs. Davis in Canada on several occasions. After the marriage and continuing down to 1931 the closest and most friendly relationship at all times existed between these two families. They corresponded frequently, the record being replete with letters showing the loving relationship.

By the year 1930 Mrs. Whitehead had become seriously ill. She had suffered several strokes and her mind was failing. Early in 1931 Mr. Whitehead had her removed to a private hospital. The doctors in attendance had informed him that she might die at any time or she might linger for many months. Mr. Whitehead had suffered severe financial reverses. He had had several sieges of sickness and was in poor health. The record shows that during the early part of 1931 he was desperately in need of assistance with his wife, and in his business affairs, and that he did not trust his friends in Piedmont. On March 18, 1931, he wrote to Mrs. Davis telling her of Mrs. Whitehead’s condition and added that Mrs. Whitehead was very wistful. “Today I endeavored to find out what she wanted. I finally -asked her if she wanted to see you. She burst out crying and we had great difficulty in getting her to stop. *373Evidently, that is what is on her mind. It is a very difficult matter to decide. If you come it will mean that you will have to leave again, and then things may be serious. I am going to see the doctor, and get his candid opinion and will then write you again. . . . Since writing the above, I have seen the doctor, and he thinks it will help considerably if you come.” Shortly thereafter, Mr. Whitehead wrote to Caro Davis further explaining the physical condition of Mrs. Whitehead and himself. On March 24, 1931, Mr. Davis, at the request of his wife, telegraphed to Mr. Whitehead as follows: “Tour letter received. Sorry to hear Blanche not so well. Hope you are feeling better yourself. If you wish Caro' to go to you can arrange for her to leave in about two weeks. Please wire me if you think it advisable for her to go.” On March 30, 1931, Mr. Whitehead wrote a long letter to Mr. Davis, in which he explained in detail the condition of Mrs. Whitehead’s health and also referred to his own health. He pointed out that he had lost a considerable portion of his cash assets but still owned considerable realty, that he needed someone to help him with his wife and some friend he could trust to help him with his business affairs and suggested that perhaps Mr. Davis might come to California. He then pointed out that all his property was community property; that under his will all the property was to go to Mrs. Whitehead; that he believed that under Mrs. Whitehead’s will practically everything was to go to Caro. Mr. Whitehead again wrote to Mr. Davis under date of April 9, 1931, pointing out how badly he needed someone he could trust to assist him, and giving it as his belief that if properly handled he could still save about $150,000. He then stated: “Having you [Mr. DavisJ here to depend on and to help. me regain my mind and courage would be’ a big thing. ’ ’ Three days later, on April 12, 1931, Mr. Whitehead again wrote, addressing his letter to “Dear Frank and Caro”, and in this letter made the definite offer, which offer it is claimed was accepted and is the basis of this action. In this letter he first pointed out that Blanche, his wife, was in a private hospital and that “she cannot last much longer . . . my affairs are not as bad as I supposed at first. Cutting everything down I figure 150,000 can be saved from the wreck.” He then enumerated the values placed upon his various properties and then *374continued “my trouble was caused by my friends “taking advantage of my illness and my position to skin me

“Now if Frank could come out here and be with me, and look after my affairs, we could easily save the balance I mentioned, provided I dont get into another panic and do some more foolish things.

“The next attack will be my end, I am 65 and my health has been bad for years, so, the Drs. dont give me much longer to live. So if you can come, Caro will inherit everything and you will make our lives happier and see Blanche is provided for to the end

“My eyesight has gone back on me, I cant read only for a few lines at a time. I am at the house alone with Stanley [the chauffeur] who does everything for me and is a fine fellow. Now, what I want is some one who will take charge of my affairs and see I dont lose any more. Frank can do it, if he will and cut out the booze.

“Will you let me hear from you as soon as possible, I know it will be a sacrifice but times are still bad and likely to be, so by settling down you can help me and Blanche and gain in the end. If I had you here my mind would get better and my courage return, and we could work things out.”

This letter was received by Mr. Davis at his office in Windsor, Canada, about 9:30 A. M. April 14, 1931. After reading the letter to Mrs. Davis over the telephone, and after getting her belief that they must go to California, Mr. Davis immediately wrote Mr. Whitehead a letter, which, after reading it to his wife, he sent by air mail. This letter was lost, but there is no doubt that it was sent by Davis and received by Whitehead, in fact the trial court expressly so found. Mr. Davis testified in substance as to the contents of this letter. After acknowledging receipt of the letter of April 12, 1931, Mr. Davis unequivocally stated that he and Mrs. Davis accepted the proposition of Mr. Whitehead and both would leave Windsor to go to him on April 25th. This letter of acceptance also contained the information that the reason they could not leave prior to April 25th was that Mr. Davis had to appear in court on April 22d as one of the executors of his mother’s estate. The testimony is uncontradicted and ample to support the trial court’s finding that this letter was sent *375by Davis and received by Whitehead. In fact under date of April 15, 1931, Mr. Whitehead again wrote to Mr. Davis and stated “Your letter by air mail received this a. m. Now, I am wondering if I have put you to unnecessary trouble and expense, if you are making any money dont leave it, as things are bad here. ... You know your business and I dont and I am half crazy in the bargain, but I dont want to hurt you or Caro

“Then on the other hand if I could get some one to trust and keep me straight I can save a good deal, about what I told you in my former letter.”

This letter was received by Mr. Davis on April 17, 1931, and the same day Mr. Davis telegraphed to Mr. Whitehead “Cheer up—we will soon be there, we will wire you from the train.”

Between April 14, 1931, the date the letter of acceptance was sent by Mr. Davis, and April 22d, Mr. Davis was engaged in closing out his business affairs, and Mrs. Davis in closing up their home and in making other arrangements to leave. On April 22, 1931, Mr. Whitehead committed suicide. Mr. and Mrs. Davis were immediately notified and they at once came to California. From almost the moment of her arrival Mrs. Davis devoted herself to the care and comfort of her aunt, and gave her aunt constant attention and care until Mrs. Whitehead’s death on May 30, 1931. On this point the trial court found: “from the time of their arrival in Piedmont, Caro M. Davis administered in every way to the comforts of Blanche Whitehead and saw that she was cared for and provided for down to the time of the death of Blanche Whitehead on May 30, 1931; during said time Caro M. Davis nursed Blanche Whitehead, cared for her and administered to her wants as a natural daughter would have done toward and for her mother”.

This finding is supported by uncontradicted evidence and in fact is conceded by respondents to be correct. In fact the record shows that after their arrival in California Mr. and Mrs. Davis fully performed their side of the agreement.

After the death of Mrs. Whitehéad, for the first time it was discovered that the information contained in Mr. Whitehead ’s letter of March 30, 1931, in reference to the contents of his and Mrs. Whitehead’s wills was incorrect. By a duly witnessed will dated February 28, 1931, Mr. White*376head, after making several specific bequests, had bequeathed all of the balance of his estate to his wife for life, and upon her death to respondents Geoff Doubble and Rupert Ross Whitehead, his nephews. Neither appellant was mentioned in his will. It was also discovered that Mrs. Whitehead by a will dated December 17, 1927, had devised all of her estate to her husband. The evidence is clear and uncontradicted that the relationship existing between Whitehead and his two nephews, respondents herein, was not nearly as close and confidential as that existing between Whitehead and appellants.

After the discovery of the manner in which the property had been devised was made, this action was commenced upon the theory that Rupert Whitehead had assumed a contractual obligation to make a will whereby “Caro Davis would inherit everything”; that he had failed to do so; that plaintiffs had fully performed their part of the contract; that damages being insufficient, quasi specific performance should be granted in order to remedy the alleged wrong, upon the equitable principle that equity regards that done which ought to have been done. The requested relief is that the beneficiaries under the will of Rupert Whitehead, respondents herein, be declared to be involuntary trustees for plaintiffs of Whitehead’s estate.

It should also be added that the evidence shows that as a result of Frank Davis leaving his business in Canada he forfeited not only all insurance business he might have written if he had remained, but also forfeited all renewal commissions earned on past business.. According to his testimony this loss was over $8,000.

The trial court found that the relationship between Mr. and Mrs. Davis and the Whiteheads was substantially as above recounted and that the other facts above stated were true; that prior to April 12, 1931, Rupert Whitehead had suffered business reverses and was depressed in mind and ill in body; that his wife was very ill; that because of his mental condition he “was unable to properly care for or look after his property or affairs ’ ’; that on April 12, 1931, Rupert Whitehead in writing made an offer to plaintiffs that, if within a reasonable time thereafter plaintiffs would leave and abandon their said home in Windsor, and if Frank M. Davis would abandon or dispose of his said *377business, and if both the plaintiffs would come to Piedmont in the said county of Alameda where Rupert "Whitehead then resided and thereafter reside at said place and be with or near him, and, if Prank M. Davis would thereupon and thereafter look after the business and affairs of said Rupert Whitehead until his condition improved to such an extent as to permit him so to do, and if the plaintiffs would look after and administer to the comforts of Blanche Whitehead and see that she was properly cared for until the time of her death, that, in consideration thereof, Caro M. Davis would inherit everything that Rupert Whitehead possessed at the time of his death and that by last will and testament Rupert Whitehead would devise and bequeath to Caro M. Davis all property and estate owned by him at the time of his death, other than the property constituting the community interest of Blanche Whitehead; thatshortiy prior to April 12, 1931, Rupert Whitehead informed plaintiffs of the supposed terms of his will and the will of Mrs. Whitehead. The court then finds that the offer of April 12th was not accepted. As already stated, the court found that plaintiffs sent a letter to Rupert Whitehead on April 14th purporting to accept the offer of April 12th, and also found that this letter was received by the Whiteheads, but finds that in fact such letter was not a legal acceptance. The court also found that the offer of April 12th was “fair and just and reasonable, and the consideration therefor, namely, the performance by plaintiffs of the terms and conditions thereof, if the same had been performed, would have been an adequate consideration for said offer and for the agreement that would have resulted from such performance; said offer was not, and said agreement would not have been, either harsh or oppressive or unjust to the heirs at law, or devisees, or legatees, of Rupert Whitehead, or to each or any of them, or otherwise”.

The court also found that plaintiffs did not know that the statements made by Whitehead in reference to the wills were not correct until after Mrs. Whitehead’s death, that after plaintiffs arrived in Piedmont they cared for Mrs. Whitehead until her death and “Blanche Whitehead was greatly comforted by the presence, companionship and association of Caro M. Davis, and by her administering to her wants”.

*378The theory of the trial court and of respondents on this appeal is that the letter of April 12th was- an offer to contract, but that such offer could only be accepted by performance and could not be accepted by a promise to perform, and that said offer was revoked by the death of Mr. Whitehead before performance. In other words, it is contended that the offer was an offer to enter into a unilateral contract, and that the purported acceptance of April 14th was of no legal effect.

The distinction between unilateral and bilateral contracts is well settled in the law. It is well stated in section 12 of the American Institute’s Restatement of the Law of Contracts as follows:

“A unilateral contract is one in which no promisor receives a promise as consideration for his promise. A bilateral contract is one in which there are mutual promises between two parties to the contract; each party being both a promisor and a promisee.”

This definition is in accord with the law of California. (Christman v. Southern Cal. Edison Co., 83 Cal. App. 249 [256 Pac. 618].)

In the ease of unilateral contracts no notice of acceptance by performance is required. Section 1584 of the Civil Code provides, “Performance of the conditions of a proposal, ... is an acceptance of the proposal.” (See Cuthill v. Peabody, 19 Cal. App. 304 [125 Pac. 926]; Los Angeles Traction Co. v. Wilshire, 135 Cal. 654 [67 Pac. 1086].)

Although the legal distinction between unilateral and bilateral contracts is thus well settled, the difficulty in any particular case is to determine whether the particular offer is one to enter into a bilateral or unilateral contract. Some cases are quite clear cut. Thus an offer to sell which is accepted is clearly a bilateral contract, while an offer of a reward is a clear-cut offer of a unilateral contract which cannot be accepted by a promise to perform, but only by performance. (Berthiaume v. Doe, 22 Cal. App. 78 [133 Pac. 515].) Between these two' extremes is a vague field where the particular contract may be unilateral or bilateral depending upon the intent of the offerer and the facts and circumstances of each case. The offer to contract involved in this case falls within this *379category. By the provisions of the Restatement of the Law of Contracts it is expressly provided that there is a presumption that the offer is to enter into a bilateral contract. Section 31 provides:

“In case of doubt it is presumed that an offer invites the formation of a bilateral contract by an acceptance amounting in effect to a promise by the offeree to perform what the offer requests, rather than the formation of one or more unilateral contracts by actual performance on the part of the offeree.”

Professor Williston in his Treatise on Contracts, volume 1, section 60, also takes the position that a presumption in favor of bilateral contracts exists.

In the comment following section 31 of the Restatement the reason for such presumption is stated as follows:

“It is not always easy to determine whether an offerer requests an act or a promise to do the act. As a bilateral contract immediately and fully protects both parties, the interpretation is favored that a bilateral contract is proposed.”

While the California cases have never expressly held that a presumption in favor of bilateral contracts exists, the cases clearly indicate a tendency to treat offers as offers of bilateral rather than of unilateral contracts. (Roth v. Moeller, 185 Cal. 415 [197 Pac. 62]; Boehm v. Spreckels, 183 Cal. 239 [191 Pac. 5]; see, also, Wood v. Lucy, Lady Duff-Gordon, 222 N. Y. 88 [118 N. E. 214].)

Keeping these principles in mind we are of the opinion that the offer of April 12th was an offer to enter into a bilateral as distinguished from a unilateral contract. Respondents argue that Mr. Whitehead had the right as offerer to designate his offer as either unilateral or bilateral. That is undoubtedly the law. It is then argued that from all the facts and circumstances it must be implied that what Whitehead wanted was performance and not a mere promise to perform. We think this is a non sequitur, in fact the surrounding circumstances lead to just the opposite conclusion. These parties were not dealing at arm’s length. Not only were they related, but a very close and intimate friendship existed between them. The record indisputably demonstrates that Mr. Whitehead had confidence in Mr. and Mrs. Davis, in fact that he had lost all confidence in *380everyone else. The record amply shows that by an accumulation of occurrences Mr. Whitehead had become desperate, and that what he wanted was the promise of appellants that he could look to them for assistance. He knew from his past relationship with appellants that if they gave their promise to perform he could rely upon them. The correspondence between them indicates how desperately he desired this assurance. Under these circumstances he wrote his offer of April 12th, above quoted, in which he stated, after disclosing his desperate mental and phjosical condition, and after setting forth the terms of his offer: “Will you let me hear from you as soon as possible—I know it will be a sacrifice but times are still bad and likely to be, so by settling down you can help me and Blanche and gain in the end.” By thus specifically requesting an immediate reply Whitehead expressly indicated the nature of the acceptance desired by him—namely, appellants’ promise that they would come to California and do the things requested by him. This promise was immediately sent by appellants upon receipt of the offer, and was received by Whitehead. It is elementary that when an offer has indicated the mode and means of acceptance, an acceptance in accordance with that mode or means is binding on the offerer.

Another factor which indicates that Whitehead must have contemplated a bilateral rather than a unilateral contract, is that the contract required Mr. and Mrs. Davis to perform services until the death of both Mr. and Mrs. Whitehead. It is obvious that if Mr. Whitehead died first some of these services were to be performed after his death, so that he would have to rely on the promise of appellants to perform these services. It is also of some evidentiary force that Whitehead received the letter of acceptance and acquiesced in that means of acceptance.

Shaw v. King, 63 Cal. App. 18 [218 Pac. 50], relied on by respondents is clearly not in point. In that case there was no written acceptance, nor was there an acceptance by partial or total performance.

For the foregoing reasons we are of the opinion that the offer of April 12, 1931, was an offer to enter into a bilateral contract which was accepted by the letter of April 14, 1931. Subsequently appellants fully performed *381their part of the contract. Under such circumstances it is well settled that damages are insufficient and specific performance will be granted. (Wolf v. Donahue, 206 Cal. 213 [273 Pac. 547].) Since the consideration has been fully rendered by appellants the question as to mutuality of remedy becomes of no importance. (6 Cal. Jur., sec. 140.)

Respondents also contend the complaint definitely binds appellants to the theory of a unilateral contract. This contention is without merit. The complaint expressly alleges the parties entered into a contract. It is true that the complaint also alleged that the contract became effective by performance. However, this is an action in equity. Respondents were not misiva. No objection was made to the testimony offered to show the acceptance of April 14th. A fair reading of the record clearly indicates the case was tried by the parties ojL the theory that the sole question was whether there was a contract—unilateral or bilateral.

For the foregoing reasons the judgment appealed from is reversed.

Rehearing denied.