No. The man does not have to pay the company that secretly took over. A contract is an agreement between specific people or companies. The man had a right to choose who he did business with, and he specifically chose *not* to do business with the first company. Since that company never told him they had taken over, he never agreed to buy ice from them. Using the ice doesn't count as an agreement, because he had no idea he was dealing with the company he had already fired.

No, you don't have to pay the new company because you were never told about the change. It's not fair to expect someone to pay a different company when they thought they were still dealing with the original company they trusted and chose. Everyone has the right to pick who they want to do business with, and you can't force someone to do business with a new company without telling them first. If the defendant had been told about the change, they could have decided to stop getting ice altogether if they wanted to. But because no one told them, they didn't get the chance to make that choice. Just because someone uses a service doesn't mean they agree to pay for it if they didn't know it was coming from a different company than the one they originally agreed to work with.

<opinion type="majority">
<author id="b47-7">Endicott, J.</author>
To entitle the plaintiff to recover, it must show some contract with the defendant. There was no express contract, and upon the facts stated no contract is to be implied. The defendant had taken ice from the plaintiff in 1873, but, on account of some dissatisfaction with the manner of supply, he terminated his contract, and made a contract for his supply with the Citizens’ Ice Company. The plaintiff afterward delivered ice to the defendant for one year without notifying the defendant, as the presiding judge has found, that it had bought out the business of the Citizens’ Ice Company, until after the delivery and consumption of the ice.
The presiding judge has decided that the defendant had a right to assume that the ice in question was delivered by the Citizens’ Ice Company, and has thereby necessarily found that the defendant’s contract with that company covered the time of the delivery of the ice.
There was no privity of contract established between the plaintiff and defendant, and without such privity the possession and use of the property will not support an implied assumpsit. Hills v. Snell, 104 Mass. 173, 177. And no presumption of assent can be implied from the reception and use of the ice, because the defendant had no knowledge that it was furnished by the. plaintiff, but supposed that he received it under the contract made with the Citizens’ Ice Company. Of this change he was entitled to be informed.
<page-number citation-index="1" label="30">*30</page-number>A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture, or write a book, or furnish articles of a particular kind, or when he relies upon the character or qualities of an individual, or has, as in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into. If the defendant, before receiving the ice, or during its delivery, had received notice of the change, and that the Citizens’ Ice Company could no longer perform its contract with him, it would then have been his undoubted right to have rescinded the contract and to decline to have it executed by the plaintiff. But this he was unable to do, because the plaintiff failed to inform him of that which he had a right to know. Orcutt v. Nelson, 1 Gray, 536, 542. Winchester v. Howard, 97 Mass. 303. Hardman v. Booth, 1 H. &amp; C. 803. Humble v. Hunter, 12 Q. B. 310. Robson v. Drummond, 2 B. &amp; Ad. 303. If he had received notice and continued to take the ice as delivered, a contract would be implied. Mudge v. Oliver, 1 Allen, 74. Orcutt v. Nelson, ubi supra. Mitchell v. Lapage, Holt N. P. 253.
There are two English cases very similar to the case at bar. In Schmaling v. Thomlinson, 6 Taunt. 147, a firm was employed by the defendants to transport goods to a foreign market, and transferred the entire employment to the plaintiff, who performed it without the privity of the defendants, and it was held that he could not recover compensation for his services from the defendants.
The case of Boulton v. Jones, 2 H. &amp; N. 564, was cited by both parties at the argument. There the defendant, who had been in the habit of dealing with one Brocklehurst, sent a written order to him for goods. The plaintiff, who had on the same day bought out the business of Brocklehurst, executed the order without giving the defendant notice that the goods were supplied by him and not by Brocklehurst. And it was held that the plaintiff could not maintain an action for the price of the goods against the defendant. It is said in that case that the <page-number citation-index="1" label="31">*31</page-number>defendant had a right of set-off against Brocklehurst, with whom he had a running account, and that is alluded to in the opinion of Baron Bramwell, though the other judges do not mention it.
The fact that a defendant in a particular case has a claim in set-off against the original contracting party shows clearly the injustice of forcing another person upon him to execute the contract without his consent, against whom his set-off would not be available. But the actual existence of the claim in set-off cannot be a test to determine that there is no implied assumpsit or privity between the parties. Nor can the non-existence of a set-off raise an implied assumpsit. If there is such a set-off, it is sufficient to state that, as a reason why the defendant should prevail; but it by no means follows that because it does not exist the plaintiff can maintain his action. The right to maintain an action can never depend upon whether the defendant has or has not a defence to it.
The implied assumpsit arises upon the dealings between the parties to the action, and cannot arise upon the dealings between the defendant and the original contractor, to which the plaintiff was not a party. At the same time, the fact that the right of set-off against the original contractor could not, under any circumstances, be availed of in an action brought upon the contract by the person to whom it was transferred and who executed it», shows that there is no privity between the parties in regard to. the subject matter of this action.
It is, therefore, immaterial that the defendant had no claim in; set-off against the Citizens’ Ice Company.
We are not called upon to determine what other remedy the plaintiff has, or what would be the rights of the parties if' the ice were now in existence. Exceptions overruled* ,,
</opinion>

No. A valid contract is not formed when an offer directed to one party is accepted by a third party without the offeror's knowledge or consent. A party has an absolute right to select and determine with whom they will contract, and another person cannot be substituted without their agreement. Here, there was no express contract between the Plaintiff and Defendant, and one cannot be implied because the Defendant's acceptance of the ice was based on the mistaken belief that it came from the Citizens' Ice Company. Assent cannot be presumed from the use of goods when the user is ignorant of the true supplier's identity. The Defendant was entitled to be informed of the change, which would have given him the right to accept performance from the new party or rescind the contract entirely.

No. I hold that because the defendant was not informed of the change in the party delivering the ice, and continued to believe he was receiving ice from the Citizens' Ice Company, no implied contract can be established between the plaintiff and the defendant. The defendant had a right to be informed of such changes as they affect the assumptions underpinning the original contract. Without such information, the defendant's actions do not constitute acceptance of a new contract. A party has a right to select and determine with whom they will contract, and cannot have another person thrust upon them without their consent. This right extends to situations where a party may have specific reasons for not wishing to deal with a particular entity. If the defendant had been notified of the change before or during the ice delivery, he would have had the right to rescind the contract and decline execution by the plaintiff. However, the plaintiff's failure to provide this crucial information deprived the defendant of this right. The possession and use of the property alone will not support an implied assumpsit without privity of contract. No presumption of assent can be implied from the reception and use of the ice because the defendant had no knowledge that it was furnished by the plaintiff. The implied assumpsit arises from dealings between the parties to the action and cannot arise from dealings between the defendant and the original contractor to which the plaintiff was not a party.

Boston Ice Co. v. Potter

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