Day v. Caton

119 Mass. 513 (1876)



The fact that a party expects to be paid for work done is not sufficient of itself to establish the existence of a contract, when the question between the parties is whether one is made. It must be shown that, in some manner, the party sought to be charged has assented to it. If a party, however, voluntarily accepts and avails himself of valuable services rendered for his benefit, when he has the option whether to accept or reject them, even if there is no distinct proof that they were rendered by his authority or request, a promise to pay for them may be inferred. His knowledge that they were valuable, and his exercise of the option to avail himself of them, justify this inference. When one stands by in silence and sees valuable services rendered upon his real estate by the erection of a structure, such silence, accompanied with the knowledge on his part that the party rendering the services expects payment therefor, may fairly be treated as evidence of an acceptance of it, and as tending to show an agreement to pay for it.


The owner of lot 29 built a party wall on the property line with lot 27. The owner of lot 29 alleged that the owner of lot 27 agreed to pay one half the value when he used it for his own building. The owner of lot 27 denied this agreement. The owner of lot 29 brought an action against the owner of lot 27 to recover half of the value of the wall. The judge instructed the jury that it could infer a promise to pay part of the value of the wall if the party knew that the other party expected payment and allowed him to act without objecting. The jury returned a verdict in favor of the owner of lot 29. On the appeal of the owner of lot 27, the court overruled the exceptions and affirmed the decision of the trial court. 


Did the trial court err in its jury instruction inferring defendant's promise to pay by allowing plaintiff to act without objection?




The court determined that silence in the face of the actions of another party rendering services which were valuable to the silent party may be evidence of an acceptance and an agreement to pay for it, that the trial judge properly instructed the jury, and that the issue of the inference of acceptance was properly an issue for the jury.

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