Wesley v. Mallory ( 1874 )

Pardee, J.

The plaintiff, a boarding house keeper, agreed with an elder brother of the defendant, to furnish meals for himself and family at a certain fixed sum per week for the whole. The defendant had no family, and had for some time lived with his brother, with whom he was in business, the brother making no charge for his board. When the arrangement was made with the plaintiif by the brother the names of the members of the family were mentioned to her, but that of the defendant was not mentioned, or, if mentioned. she did not understand that he was to come as a member of the family. He came with the family and took his meals at her table from February 19th, 1872, to July 12th of the same year; to recover payment for which this suit is brought.

Inasmuch as the defendant began to receive board at the plaintiff’s table without causing it to be made known to her that he did so in the character of a member of his brother’s family, we think he came under an implied promise to pay her, within the definition given by Chief Justice Hosmer, who says that an implied contract is that which reason and justice dictate and which therefore the law presumes that a person has contracted to perform, and upon this presumption makes him answerable to such persons as suffer by his non-performance.

There is no error in the judgment complained of.

In this opinion the other judges concurred.