## Facts

- John G. Day held an equitable interest in Lot 29 in Boston; Asa H. Caton held an equitable interest in adjoining Lot 27, then vacant.
- In 1871, Day built a brick party wall along the boundary, placing approximately one half of the wall on Lot 27.
- Day claimed Caton expressly promised to pay one half the wall’s value when Caton later used it in building on Lot 27.
- Caton denied any conversation or agreement regarding the wall.
- Day sued in contract to recover the value of one half of the wall.
- At trial, Caton requested instructions that Day could recover only on an express agreement and that Caton’s silence and later use could not create an implied promise.
- The trial judge refused those requests and instructed that a promise could be inferred if Day built with an expectation of payment, Caton had reason to know of that expectation, and Caton allowed the work to proceed without objection.
- The jury returned a verdict for Day; Caton filed exceptions challenging the instructions.

## Issues

1. Whether a jury may infer an implied-in-fact promise to pay for part of a party wall absent proof of an express agreement when the defendant knowingly permits construction to proceed under circumstances indicating the builder expects payment.
2. Whether silence and inaction can constitute acceptance when the defendant has reason to know the plaintiff is acting with an expectation of compensation and the circumstances call for objection if the defendant does not assent.

## Decision

- The Supreme Judicial Court of Massachusetts overruled Caton’s exceptions and left the verdict for Day undisturbed.
- The court approved the instruction that a promise to pay may be inferred from conduct where the plaintiff builds with an expectation of payment, the defendant has reason to know of that expectation, and the defendant permits performance without objection.
- The court rejected Caton’s proposed rule that recovery required proof of an express agreement.

## Legal Principles

- A contract implied in fact may be found from the parties’ conduct and surrounding circumstances, even without direct proof of an express agreement.
- Silence is ordinarily not acceptance, but silence may be treated as assent when the offeree has reason to know the other party expects payment and the circumstances fairly impose a duty to speak to avoid an inference of consent.
- A defendant’s knowing acquiescence in valuable work performed for the defendant’s immediate benefit, when the defendant has an opportunity to object but does not, may support an inference of a promise to pay.
- Whether conduct and silence justify inferring assent and an implied promise is generally a question of fact for the jury.

## Conclusion

The court held that the jury could infer an implied promise to pay for one half of the party wall because Day could have built with an expectation of payment, Caton could have had reason to know that expectation, and Caton could have allowed the work to proceed without objection in circumstances calling for protest if he did not intend to pay.


Day v. Caton, 119 Mass. 513 (1876)