Bailey v. . Rutjes

86 N.C. 517

• Court: Supreme Court of North Carolina
• Decided: February 5, 1882
• Status: Published

Opinion

Ruffin, J.

The action is one for goods sold and delivered, and as said by His Honor, in order to maintain it, the plaintiff must show a contract, express or implied, on the part of the defendants to pay him for the lumber furnished. As the case discloses no facts going to show the existence of any express contract, at least prior to the date of the delivery, we are driven to conclude that the verdict was, or may have been, controlled by that part of the instructions which had reference to the implied contract.

The defendants complain of this, and we think justly so, because it made the case to turn, not upon the agreement of the parties, but upon the reasonable belief of one of them. To constitute any contract, there must be a proposal by one party and an acceptance by the other, resulting in an obligation resting upon one or both; or in other words there must be a promise. Pollock on Contracts 5.

The fact then that the plaintiff expected (however reasonably) the defendants to pay him for the timber, could certainly not be sufficient of itself to establish the existence of a contract, on their part to do so. Brunhild v. Freeman, 77 N. C., 128; Taft v. Dickinson, 6 Allen, 553; Pendleton v. Jones, 82 N. C., 249.

It must be shown further, that in some way, they assented to be charged either in terms or by conduct from which the law will infer their assent.

It is unquestionably true, that if in the absence of all express understanding, one stands by in silence (and much more if he actively encourages) and sees work done, or material furnished for work upon premises belonging to him. and of which he must necessarily get the benefit, and after-wards he does accept and enjoy it, a promise to pay the value thereof maybe inferred, and ordinarily will be; and the inference under the circumstances will be purely one of fact, viz., whether the party’s conduct has been such that a reasonable man might understand from it, that he meant to recognize the benefit as one conferred on himself, and to pay for it. In such a case, there can be no difficulty in making such an inference against the party, since the premises being his, the benefit of the labor done, or the material furnished must necessarily result to him, and withal, he had the opportunity and the power to countermand it, if he would.

But in the case at bar, the defendants, if their testimony is to be believed, had leased the premises to Rutjes for five years, and he had undertaken to have the improvements made, which called for the use of the lumber furnished by the plaintiff. They were therefore absolutely without the power, either to give or to withhold their sanction to its delivery and use, and ought not to be required to pay for it, unless they knew, or had reason to believe that the plaintiff was looking to them for pay for his lumber, and allowed him to deliver it under that expectation and without objection on their part. Day v. Cayton, 119 Mass., 513; Wells v. Banister, 4 Mass., 514. And it was in its failure to call the attention of the jury to this view of the case, that the error of the charge, as we conceive, consists. The instruction given should have been that if the defendants knowing that the plaintiff expected them to pay for the lumber acted in such wise as to create a reasonable belief on his part, that they would do so, and thereby induced him to deliver it, then the jury might infer a promise on their part, to pay for it.

In the present form of the action the question is, whether there was a subsisting contract between the parties in re gard to the lumber, or not, and the doctrine of equitable estoppel has no application to the case.

If not originally liable by reason of a contract of some sort, the defendants cannot be made so because of their having resumed possession of the premises with its. improvements, upon the surrender of their tenant.

It is true they thus derive some advantage from the materials furnished by the plaintiff, but that cannot be avoided, as it is impossible for them to reject, or restore to the plaintiff that benefit without a surrender of their own property; and this the law does not require them to make. Pollock on Contracts, 29. Nor under such circumstances would a promise to pay, made after the lumber had been furnished and used, be binding on them, since it would be purely gratuitous and as such would, make no contract.

For the reasons suggested, this court is of the opinion that the defendants are entitled to have the cause tried by another jury ; and this renders it unnecessary that we should consider other points made as to the evidence received and its effect, as they may not again arise.

Error. Venire de novo.