But the relations between the parties may have been such as to have justified the offeror in expecting a reply.85 Or the offeree may have come under a duty either to return money or property in his possession belonging to the
84Barton v. London ft N. W. By. Co., 24 Q. B. D. 77; Baltimore ft L. By. Co. a. Steel Rail Supply Co., 123 Fed. 656, 59 C. C. A. 419; Titcomb v. United States, 14 Ct. Cl. 263; Hobba v. Massasoit Whip Co., 168 Mass. 194, 33 N. E. 496; Grice v. Noble, 69 Mich. 515, 523, 26 N. W. 688; Preacott v. Jones, 69 N. H. 305, 41 Atl. 352; Drucker v. Oppenheimer, 165 N. Y. S. 284; Camahan Mfg. Co. v. Beebe-Bowles Co., 80 Oreg. 124, 166 Pac. 584; Royal Insurance Co. p. Beatty, 119 Pa. 6,12 Atl. 607, 4 Am. St. Rep. 622; Berg Co. v. Thomas ft Son Co., 256 Pa. 584, 100 Atl. 951; Butkdge v. Greenwood, 2 Dessaus, 389, 401; Ray-eor v. Berkeley Co., 26 S. C. 610, 2 S. E. 119.
In Preacott v. Jones, supra, the court said: "It is well settled that 'a party cannot, by the wording of his offer, turn the absence of communication of acceptance into an acceptance, and compel the recipient of his offer to refuse it at the peril of being held to have accepted it.' Clark, Cont. 31, 32. 'A person is under no obligation to do or say anything concerning a proposition which he does not choose to accept. There must be actual acceptance or there is no contract.' More v. Insurance Co., 130 N. Y. 637, 547, 29 N.
E. 757. And to constitute acceptance, 'there must be words, writen or spoken, or some other overt act.' Bish. Cont., s. 329, and authorities cited." See also. Wiedemann v. Walpole,  2 Q. B. 534.
85In Hobbs v. Massasoit Whip Co., 168 Mass. 194, 33 N. E. 495, goods had been sent four or five times before the occasion in question and had been accepted and paid for by the buyer. The testimony warranted the conclusion that there was a standing offer to the seller for all goods of a certain description which the seller should ship. The court held that a duty was imposed on the buyer to act in regard to goods sent by the seller, and that the buyer's silence coupled with the retention of the goods for more than a reasonable time might be found by the jury to warrant the seller in assuming that they were accepted. In Drucker v. Oppenheimer, 165 N. Y. 8. 284, the defendants, after previous negotiations with the plaintiffs sent them duplicate signed written drafts of a contract. The plaintiffs altered certain dates, kept one copy and returned the other with their signature to the defendants, who put it in their safe and made no reply. The court held that the retention of the paper without objection offeror,86 or to accept an offer for its purchase. In such a case, silence and failure to return the property will amount to an assent to buy it. The most frequent illustration of this is in contracts or offers to sell on approval. The approval of the buyer is in terms made a condition precedent to the transfer of the title. But, if the buyer retains the goods beyond a reasonable time, this of itself operates as an assent to take title.87 Similarly when property is sent to another though not ordered but under such circumstances that the latter knows that payment is expected, the silent acceptance of the property is in effect an assent to the offer of sale implied by the sending of the property .88 A common illustration of this principle is where newspapers or periodicals are sent to one who has not subscribed to them, or whose subscription has ceased.89 But it is necessary for the plaintiff to prove that could not amount, to an acceptance. But this seems open to question.
86 Preferred Accident Ins. Co. v. Stone, 61 Kans. 48, 58 Pac. 986.
87Moss p. Sweet, 16 Q. B. 493; Re Downing Paper Co., 147 Fed. 868; Mowbray v. Cady, 40 Iowa, 604, 606; Tomer v. Machine Co., 97 Mich. 166, 56 N. W. 366; Columbia Rolling Mill Co. v. Beckett Foundry Co., 55 N. J. L. 391, 26 Atl. 888; Butler v. School District, 14S Pa. St. 351, 24 Atl. 306; Washington v. Johnson, 7 Humph. 468. See also Hickman v. Schimp, 100 Pa. St. 16; Keeler v. Jacobs, 87 Wis. 645, S3 N. W. 1107; cp. Hunt v. Wyman, 100Mass. 198,200; Wartman v. Breed, 117 Mass. 18; Springfield Engine Stop Co. v. Sharp, 184 Mass. 266, 68 N. E. 224; Kabn v. Klabunde, 50 Wis. 235, C N. W. 888. Retention after an inconclusive expression of disapproval for the remainder of the period originally given for trial will not, however, operate as an acceptance of the property. Ellis v. Mortimer, 1B.&P.N.R. 257. In Wheeler v. Klaholt, 178 Mass. 141, SB N. E. 756, the principle seems to have been pressed too far. There, puds were sent on the supposition that a bargain had been made but the parties disagreed and if any contract had been made it was subsequently repudiated by them both. Thereafter the plaintiffs, the sellers, requested the defendants to send cash draft by return mail or return the goods at once. Nothing more was heard by the plaintiffs until more than a month later when they were notified by the railroad company that the goods had been returned. The court held that the jury were warranted in finding that the neglect of the duty to return, implied an acceptance of the alternative offer to sell. It is difficult to find, however, any duty to return. Doubtless the defendants were bound to surrender the goods on request, but if it be assumed as a fact that the goods had been sent without an agreement on the part of the defendant either to keep or return them, it seems hard to discover any ground for imposing a duty for prompt return upon the defendant.
88Harris v. Lumber Co., 97 Ga. 465, 25 N. E. 519; Garst v. Harris, 177 Mass. 72, 58 N. E. 174; Walters v. Glenden-ning, 87 Wis. 250, 58 N. W. 404. See also Pignataro v. Gilroy, (1919] 1 K. B. 459.
89 In the following cases, one who the periodical was actually received by the defendant.90 For the same reason there may often be a duty to speak in order to escape the inference of a promise to pay for beneficial services which are rendered to another with this consent, whether the consent is implied from a request or merely from his acquiescence. The ordinary implication is that the services are to be paid for at their fair value.91 This inference is not usually drawn, however, where services are rendered another by a near relative, especially if he is living as a member of the same family.92 Even though there is no blood relation between the thus received papers or periodicals was held to be liable. Weatherby v. Ban-ham, 5 C. & P. 228; Austin v. Burge, 156 Mo. App. 286, 137 S. W. 618; Fogg v. Portsmouth Athenaum, 44 N. H. 115, 82 Am. Dec. 191; Goodland v. LeClair, 78 Wis. 176, 47 N. W. 268. See also Legal News Pub. Co. p. George C. Kniapei Cigar Co., (Minn. 1919), 172 N. W. 317.
90 Shoemaker v. Roberts, 103 Iowa, 681, 72 N. W. 776. Proof of proper mailing is, however, evidence that it was received. Legal News Pub. Co. v. George C. Knispel Cigar Co., (Minn. 1919), 172 N. W. 317.
91 Hughes v. Dundee Mortgage, etc., Co., 21 Fed. 169; Hood v. League, 102 Ala. 228, 14 So. S72; Tyson p. Thompson, 195 Ala. 230, 70 So. 649; Lewis v. Megumie, 30 Fla. 419, 12 So. 19; Hunt v. Oeborn, 40 Ind. App. 646, 82 N. E. 933; Weston v. Davis, 24 Me. 374; Wadleigh v. Katahdin Pulp A Paper Co., 116 Me. 107, 100 Atl. 150; Emery v. Cobbey, 27 Neb. 621, 43 N. W. 410; Hill v. Carr, (N. H. 1917), 101 Atl. 525; Riser v. Holladay, 29 Or. 338, 45 Pac. 759; Ingram v. Basye, 67 Or. 267,136 Pac. 883; Mover's Appeal, 112 Pa. St. 290, 3 Atl. 811; Jones v. Campbell, (Vt. 1917), 102 Atl. 102; Miller v. Tracy, 86 Wis. 330, 56 N. W. 866; Wojahn v. Nat. Union Bank, 144 Wis. 646, 129 N. W. 1068.
92Lessley v. Pond, (Ala. 1917), 75 So. 298; Hogg v. Laster, 56 Ark. 382,
19 S. W. 975; Crane v. Derrick, 157 Cat. 667, 109 Pac. 31; Walker v. Taylor, 28 Colo. 233, 64 Pac. 192; Hudson v. Hudson, 90 Ga. 581, 16 8. E. 349; Howard v. Randolph, 134 Ga. 691, 68 S. E. 586, 29 L. R. A. (N. S.) 294; Freeman v. Freeman, 65 111. 106; Collar v. Patterson, 137 111. 403, 27 N. E. 604; Neish v. Gannon, 198 111. 219, 64 N. E. 1000; People v. Porter, 287 111. 401, 123 N. E. 59; Hill v. Hill, 121 Ind. 255, 23 N. E. 87; McGarvy v. Roods, 73 Iowa, 363, 35 N. W. 488; Wyley v. Bull, 41 Kans. 206, 20 Pac 865; Farley v. Stacy, 177 Ky. 109, 197 S. W. 636; Armstrong's Adm. v. Shannon, 177 Ky. 547,197 S. W. 950; Mar-pie v. Morse, 180 Mass. 608, 62 N. E. 966; Harris v. Smith, 79 Mich. 54, 44 N. W. 169, 6 L. R. A. 702; Lillard v. Wilson, 178 Mo. 146, 77 S. W. 74; Bell v. Rice, 60 Neb. 647, 70 N. W. 26; Page v. Page, 73 N. H. 305,61 Atl. 366; Disbrow v. Durand, 54 N. J. L. 343, 24 Atl. 545, 33 Am. St. Rep. 678; Williams v. Hutchinson, 3 N. Y. 312, 53 Am. Dec. 301; Stallings v. Ellis, 136 N. C. 69, 48 S. E. 648; Ingram v. Basye, 67 Oreg. 257, 135 Pac. 883; Houck's Executors v. Houck, 99 Pa. St. 552; Dash v. Inabinet, 53 S. C. 382, 31 S. E. 297; Gorrell v. Taylor, 107 Term. 568, 64 S. W. 888; Andrus v. Foster, 17 Vt. 556; Jackson's Admr. v. Jackson, 96 Va. 165, 31 8. E. 78; Hodge v. Hodge, 47 Wash. 196, 91 Pae. 764, 11 L. R. A. (N. S.) 873; parties, if the services are rendered by one who has been adopted as a member of the household, there will also ordinarily be no inference of a promise to pay.93 It should be observed, moreover, that the rendition of services is an ambiguous act. It may be for other reasons than membership in a common family, the intention of the person rendering them to do so gratuitously and, if so, no recovery can be had.94 It is better to deal with each case as one of fact, the question being whether an inference of a promise is fairly warranted by the facts; but it is at least clear as matter of law that silence and total inaction of the defendant may operate as assent to the formation of a contract. Generally taking the benefit of the services will involve some action on his part indicating assent, but a situation is perfectly possible where though he has knowledge of them, he neither speaks nor acts.