Newmarket Manuf'g Co. v. Coon
| Decision Date | 04 January 1890 |
| Parties | NEWMARKET MANUF'G CO. v. COON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S.K. Hamilton, for plaintiff.
John P Sweeney and Hollis R. Bailey, for defendant.
The defendant's testator had taken and used stone belonging to the plaintiff in the construction of a building for which he was a subcontractor, the plaintiff's contract for the erection of the building having been made with Currier & Kilham. The jury had been instructed, in terms not objected to by either party, upon the general features of the case and upon express and implied contracts, when, at the close of the charge, the defendant requested an instruction that "the plaintiff must show that there was an agreement between Mr. Coon and the plaintiff to pay for those stones,--a meeting of the minds of the parties on such an agreement." Upon this request the court instructed "If by that is meant an express agreement, of course that is not necessary; but, so far as an implied contract is concerned, it must be made to appear that the circumstances were such, and the relation of the parties such, that the jury will imply an agreement to pay for them, and that the minds of the parties met on that proposition." To this instruction the plaintiff excepted.
It does not clearly appear from the bill of exceptions upon what ground the claim of the plaintiff, as a matter of contract was based at the trial. It contends, however, that this instruction was equivalent to saying that, unless there was an actual meeting of minds of the parties upon an agreement to pay for the stone taken, there must be a verdict for the defendant. We do not so understand the instruction. It does require them to find that the relation and circumstances were such that they would imply an agreement, and imply that the minds of the parties met on that proposition. This was correct. While there are cases in which the law will imply a promise to pay on the part of one who has a legal duty to pay, even against his positive assertion that he will not pay, no such case was presented by the evidence. Earle v. Coburn, 130 Mass. 596. When one receives valuable property from another, with his consent, or valuable service, knowing that he is expected to pay therefor, the law will imply a promise so to do, and he is not allowed to show that he secretly purposed never to pay for such property or service. In...
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