8 Mass. 194, 33 N.E. 5 (1893)



HOLMES, J. This is an action for the price of eel skins sent by the plaintiff to the defenddant, and kept by the defendant some months, until they were destroyed. It must be taken that the plaintiff received no notice that the defendants declined to accept the skins. The case comes before us on exceptions to an instruction to the jury that, whether there was any prior contract or not, if skins are sent to the defendant, and it sees fit, whether it has agreed to take them or not, to lie back, and to say nothing, having reason to suppose that the man who has sent them believes that it is taking them, since it says nothing about it, then, if it fails to notify, the jury would be warranted in finding for the plaintiff.


Standing alone, and unexplained, this proposition might seem to imply that one stranger may impose a duty upon another, and make him a purchaser, in spite of himself, by sending goods to him, unless he will take the trouble, and bear the expense, of notifying the sender that he will not buy. The case was argued for the defendant on that interpretation. But, in view of the evidence, we do not understand that to have been the meaning of the judge, and we do not think that the jury can have understood that to have been his meaning. The plaintiff was not a stranger to the defendant, even there was no contract between them. He had sent eel skins in the same way four or five times before, and they had been accepted and paid for. On the defendant's testimony, it was fair to assume that if it had been admitted that the skins were over 22 inches in length, and fit for its business, as the plaintiff testified and the jury found that they were, it would have accepted them, and that this was understood by the plaintiff; and, indeed, that there was a standing offer to him for such skins.


In such a condition of things, the plaintiff was warranted in sending defendant skins conforming to the requirements, and even if the offer not such that the contract was made as soon as skins corresponding to terms were sent, sending them did impose on the defendant a duty to about them; and silence on its part, coupled with a retention of the skins for an unreasonable time, might be found by the jury to warrant the plaint' assuming that they were accepted, and thus to amount to an acceptance. The proposition stands on the general principle that conduct which imports an acceptance or assent is acceptance or assent, in the view of the law, what may have been the actual state of mind of the party, a principle sometimes lost sight of in the cases.


Exceptions overruled.