Austin v. Burge
156 Mo. App. 286, 1911 Mo. App. LEXIS 315, 137 S.W. 618 (1911)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
When a party continues to knowingly accept and use a product or service that they understand is not a gift, their conduct creates a contract implied-in-fact, obligating them to pay for the benefit received, even if they have expressly stated they do not want it.
Facts:
- Defendant's father-in-law subscribed to Plaintiff's newspaper for Defendant for a two-year period and paid for it.
- After the two-year subscription expired, Plaintiff, a newspaper publisher, continued to mail the newspaper to Defendant.
- On two occasions after the initial subscription expired, Defendant paid a bill for the newspaper.
- Each time Defendant paid the bill, he directed Plaintiff to stop sending the newspaper.
- Despite Defendant's requests to stop, Plaintiff continued to send the newspaper via mail.
- Defendant continued to take the newspaper from the post office to his home and read it for several years.
- This continued until Defendant eventually moved to another state.
Procedural Posture:
- Plaintiff, a newspaper publisher, brought an action against Defendant in a trial court to recover the subscription price for a newspaper.
- The trial court entered a judgment in favor of the Defendant.
- Plaintiff appealed the trial court's judgment to the court of appeals.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a person who continues to accept and use a newspaper delivered to them, after their initial subscription has expired and after they have requested its cancellation, create an implied contract obligating them to pay for the subscription?
Opinions:
Majority - Ellison, J.
Yes, a person who continues to accept and use a newspaper under these circumstances creates an implied contract to pay for it. While a person cannot be forced into a contract against their will, their conduct can create contractual relations through necessary implication. Here, Defendant's actions of continuously taking the newspaper from the post office and using it constituted an acceptance of the property. Since there was no indication the newspaper was a gratuity, an obligation to pay for it arose. The court analogized this to receiving and using household supplies one did not order; the use implies an agreement to pay. Citing Fogg v. Atheneum and other precedents, the court affirmed the principle that continued acceptance of a newspaper from the post office creates an implied agreement to pay for the subscription.
Analysis:
This case is a foundational example of a contract implied-in-fact, where mutual assent is demonstrated by conduct rather than words. The court's decision establishes that a party's actions of knowingly accepting a benefit can override their express verbal or written rejection of an offer. This principle is significant because it prevents individuals from enjoying the benefits of a service or product while simultaneously disclaiming the obligation to pay. It solidifies the legal doctrine that one cannot retain a benefit they know is not a gift without being held liable for its value, thereby reinforcing the objective theory of contract formation.
