Supreme Judicial Court of Massachusetts,
1893.
158
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.