Bowley v. Fuller

• Decision Date: 14 December 1921
• Citation: 115 A. 466
• Parties: BOWLEY v. FULLER.
• Court: Maine Supreme Court

115 A. 466

BOWLEY

v. FULLER.

Supreme Judicial Court of Maine.

Dec. 14, 1921.

Exceptions from Supreme Judicial Court, Knox County, at Law.

Action by Raymond T. Bowley against John Fuller. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.

Argued before CORNISH, C. J., and HANSON, DUNN, MORRILL, and DEASY, JJ.

Edward C. Payson, of Rockland, for plaintiff.

Elisha W. Pike, of Rockland, for defendant.

CORNISH, C. J. Assumpsit on an account annexed for the storage of hay, from November 1, 1919, to April 26, 1920. It appears from the bill of exceptions and the charge of the presiding justice which is made a part thereof that the plaintiff became lessee on certain premises on October 24, 1919. The defendant had been and at that time was in occupation of the premises, but he moved away four days later, on October 28, 1919, leaving, however, two bins of hay stored in the barn. This was left because the defendant gave the plaintiff an option to purchase this hay at a certain price, the option to continue for two months. The plaintiff did not see fit to purchase, however, and the option expired leaving the defendant still the owner of the hay, which remained in the barn until April 26, 1920.

The plaintiff claims that no agreement was made at the beginning as to the exact price of storage, while the defendant contends that in consideration of the option of purchase the plaintiff agreed that the defendant could have the storage without compensation until the next July. This was the first issue of fact to be decided by the jury, and this controversy they must have determined in favor of the plaintiff; otherwise, the defendant would have secured a verdict in his favor.

The jury were instructed that if they accepted the plaintiff's version on this issue he was entitled to a fair compensation under an implied contract, and to this ruling no exception was taken. This covered the period from the expiration of the option until about March 15, 1920. On March 11, 1920, the plaintiff notified the defendant by letter that if he did not remove the hay by March 15th he should charge the defendant $1 per day for the storage after that date. To this the defendant made no reply, and he took no steps to remove the hay. The court instructed the jury that after the receipt of that letter the defendant was entitled to a reasonable time in which to remove the hay, but if the hay was not removed within that reasonable time, the duration of which was left to the jury to determine, the plaintiff was entitled to recover $1 per day as demanded. To this instruction the defendant excepted.

On March 30, 1920, the plaintiff, again wrote the defendant stating that if he did not remove his hay on or before April 1st, the rate of storage would be increased to $2 per day after that date. The defendant made no answer and removed no hay. The court gave the same instruction with reference to the $2 as with reference to the $1 demand, and exception to this ruling was also taken. Upon these two exceptions, which involve but one and the same legal question, the case is before the law court.

The plaintiff's contention is that while the price of storage prior to March 15, 1920, should be fixed by the jury at a reasonable rate under an implied contract, that defendant's silence gave assent to the plaintiff's proposed increase to $1 and again to $2 per day, and that the defendant was bound thereby as under a perfected express contract.

The defendant answers that no express contract at any figure was made, because there was no acceptance on his part, and that the most that the plaintiff can recover is a reasonable compensation under an implied contract during the entire period for which he was liable.

In our opinion it cannot be said as a matter of law that an express contract was completed. Plaintiff's letters constituted nothing more than an offer communicated to the defendant. In order to perfect the contract and bind the defendant there must have been an acceptance by him. Rut he neither accepted nor rejected the offer. He did nothing which could be construed into an acceptance. He simply remained silent. He was under no obligation to speak or to act, and under those circumstances silence and inaction cannot be converted into acceptance.

The amount of storage to be paid rested entirely in contract. When the letters were written there was a subsisting implied contract which obligated the defendant to pay a reasonable sum. There was no existing obligation on the defendant to pay the increased demand, and it could not be inferred as a matter of law from merely allowing the hay to remain in the barn because the continuing liability for rent could be referred to that subsisting contract, and in the absence of any new contract, would be referred to it. Raysor v. Berkeley Co. Ry. & L Co., 26 S. C. 610, 2 S. E. 119. A mere failure to reject cannot be converted into an acceptance unless the offeree has agreed in advance that such silence should be so construed or there was some legal duty resting upon him to that effect. There was no such preliminary agreement here and no such duty. Even if the plaintiff had attempted in his offer to make silence on defendant's part a constructive acceptance, the law would not permit it. The governing principles are summarized as follows:

"Acceptance of an offer may often be inferred from silence as when goods sent to another without request are used or dealt with as his own. Silence alone does not give consent, even by estoppel, for there must not only be the right but the duty to speak before the failure so to do can estop a person from afterward setting up the truth. It is otherwise of course if the relation of the parties, their previous dealings or other circumstances are such as to impose a duty to speak. An offer made to another either orally or in writing cannot be turned into an agreement because the person to whom it is made or sent makes no reply, even though the offer states that silence will be taken as consent for the offerer cannot prescribe conditions of rejection so as to turn silence on the part of the offeree into acceptance." 13 C. J. p. 276, § 74.

Another author states the rule thus:

"A party...