An offer need not be stated in words. Any conduct from which a reasonable person in the offeree's position would be justified in inferring a promise in return for a requested act or a requested promise by the offeree, amounts' to an offer. The common illustration of this principle is where performance of work or services is requested. If the request is for performance as a favor,, no offer to contract is made, and performance of the work or services will not create a contract; but if the request is made under such circumstances that a reasonable person would infer an intent to pay for them (and this is always a question of fact under all the circumstances of the case) the request amounts to an offer, and a contract is created by the performance of the work.90 And even though no request is made for the performance of work or service, if it is known that it is being rendered with the expectation of pay, the person benefited is liable.91 It is a question of fact here whether a reasonable man in the position of the parties would have understood that the services were offered in return for a fair compensation, and that the offer was accepted, or whether they were performed gratuitously or if not that the recipient justifiably supposed so. It is customary to lay down presumptions, as that "with respect to strangers a contract for compensation will be implied unless a contrary situation is exhibited;" whereas as between relatives "a contract alleged to exist must be affirmatively shown."92
90 Kennedy v. Broun, 13 C. B. N. 8. 677, 740; Stewart v. Casey , 1 Ch. 104, 115; Spearman v. Texarkana, 58 Ark. 348, 24 S. W. 883, 22 L. R. A. 855; Clark v. Clark, 46 Conn. 586; Lockwood p. Rabbins, 125 Ind. 398, 25 N. E. 455; Coleman v. Simpson, 2 Dana (Ky.), 166; Blaisdell v. Gladwin, 4 Cush. 373; Moore v. Elmer, 180 Muss. 15, 61 N. E. 259; Ten Eyck v. Pontiac, etc., R. Co., 74 Mich. 226, 41 N. W. 905, 3 L. R. A. 378, 16 Am. St
Rep. 633; Ryans p. Hespes, 167 Mo. 342, 67 S. W. 285; Pangborn p. Phelps, 63 N. J. L. 346, 43 Atl. 977; Raymond p. Sheldon's Est. (Vt.), 104 AtL 106.
91 Lewis v. Meginniss, 30 Fla. 419, 12 So. 19; Emery p. Cobbcy, 27 Neb. 621, 43 N. W. 410; Kiser p. Holladay, 29 Ore. 338, 45 Pac. 759; Miller p. Tracy, 86 Wis. 330, 56 N. W. 860. And see infra, Sec. 91.
92Ingram p. Basye, 67 Oreg. 267, 135 Pac. 883, 884, and see infra, Sec. 91.
But it is undesirable to lay too much stress on such presumptions. They are mere inferences of fact. Intimate friends sometimes render services gratuitously, and how close must relationship be to make one presumption or another applicable? 93 The question is purely one of fact, varying in every case, but with the burden always on the party who alleges a contract and seeks to enforce it, to prove its existence.94 Family relationship is of course important, as is the fact that one who requested services did not receive the benefit from them. This may justify an inference that he expected any compensation to be sought from the person who received the benefit.95 But circumstances vary in every case, and there should not be any attempt to build up a variety of legal presumptions to meet them. Sec. 36a. Other offers implied in fact.
Such liability as that discussed in the preceding section depends not on quasi-contract but upon a real expression of agreement. In this case the person rendering the services makes an offer of them as consideration for a promise to pay and the offer is accepted by receiving them with knowledge that payment is expected; or a request for the services implies in fact an offer to pay for them, which is accepted by rendering the services. Similarly if goods are sent by a seller of a different sort from those ordered, the seller thereby impliedly makes an offer to sell which is accepted if the buyer takes the goods.96 So if money is paid by one person at the request of another, the request, unless the circumstances are such that the inference of a requested gift is possible, implies an offer to repay the money if the requested payment is made 97 For the same reason a request to another to incur liability as by becoming surety, carries with it an implied promise to indemnify98 The contracts implied in fact arising from offers of the sort mentioned in this section are closely connected in the history of the law with quasi-contracts. Indeed, quasi-contracts have largely grown up under the fiction of an implied request which enabled the courts to give the same remedy of indebitatus assumpsit to a plaintiff who had furnished a benefit to the defendant which the latter ought equitably to pay for, as was given to plaintiffs who had entered into a real though not express contract by furnishing consideration at the request of the defendant.
93 In Hardiroan's Adm. p. Crick, 131 Ky. 358, 115 S. W. 236, 133 Am. St Rep. 248, the relation of a son-in-law and mother-in-law was thought insufficiently close to subject him to a presumption that his services were performed gratuitously. On the other hand, persons bearing no relation to one another who become members of the same family are dealt with as blood relations. See infra, Sec. 91.
94 See Barley p. United States, 198 U. S. 229, 25 8. Ct, 634, 49 L. Ed. 1029; Keel p. Larkins, 52 Ala. 493; Godfrey v. Havnes, 74 Me. 96; Few v. First Nat. Bank, 130 Maw. 391; Wagner v. Edison Ac. Co., 177 Mo. 44, 75 S. W. 966; Re Bryant, 73 Vt. 240, 60 Atl. 265; Harshberger v. Alger, 31 Gratt. 52; Stansbury v. Stansbury, 20 W. Va. 23; Redmond v. Redmond, 27 U. C. Q. B. 220.
95 Thus physicians requested to render services to third persons have failed to recover from the person requesting that the service be rendered. Meisenbach v. Southern Cooperage Co., 45 Mo. App. 232; Rankin v. Beale, 68 Mo. App. 325; Crane p. Baudouine, 55 N. Y. 256; Smith p. Watson, 14 Vt. 332.
96 Harris p. Lumber Co., 97 Ga. 465, 25 S E. 619; Garet v. Harris, 177 Mass.