Supreme Judicial Court of Massachusetts, 1893.
Facts: The plaintiff sent some eel skins to the defendant. The defendant kept them without saying anything or paying for them and they were destroyed. The plaintiff sued for the price of the skins and prevailed at trial. The defendant appealed, claiming that it was incorrect to instruct the jury that silence could be construed as acceptance, such that the plaintiff could win the suit.
Issue: Can silence on the part of the defendant be taken as a sign of acceptance?
Rule: A course of previous dealing between the parties can create the expectation with the offeror that the silence of the offeree implies acceptance.
Analysis: Holmes says that under the circumstances sending the eel skins and not hearing anything back from the defendant created the reasonable expectation that they had been accepted. This defendant was in the business of buying eel skins and did so regularly. The plaintiff and defendant both knew this, so it was reasonable for the defendant to either speak up or accept the skins by default. Holmes says that contract formation is based on objective mutual assent, which is to say that any conduct that “looks like, smells like, quacks like” an acceptance is an acceptance in the eyes of the law.
Conclusion: The verdict of the trial court is upheld.