There is no implied contract that a surety shall be paid by his principal for the use of his name; but the law allows the parties to make an express contract to that effect. Perrine v. Hotchkiss, 58 Barb. 77 (1870).
1 Pendleton v. Empire Stone Dressing Co., 19 N. Y. 13; Hodges v. Rutland & Burlington Railroad Co., 29 Vt. 220; James v. O'Driscoll, 2 Bay, 101; Lee v. Lee, 6 Gill & Johns. 309; Defrance v. Austin, 9 Penn. St. 309; Bartholomew v. Jackson, 20 Johns. 28.
2 See post, § 891,1330, and cases cited.
3 Savage v. Whitaker, 15 Me. 24.
4 Per Lord Kenyon, 8 T. R. 614; Forster v. Taylor, 3 Camp. 49.
§ 13. So, also, if a man having a title to certain property silently permit another to deal with that property as his own, in all transactions between such person and others, acting in the confidence that the property belonged to him, the true owner would be bound. Thus, if a man stand by and knowingly see his own property sold, and either encourage the sale, or do not forbid it, the law implies a contract between him and the vendee, and accredits the actual seller as his agent; and this rule obtains on the clear ground, that if one of two innocent persons must suffer a loss, and a fortiori, where one has misled the other, he who has been the cause of the loss ought to bear it.3 But in all cases, the circumstances must be such as unequivocally to imply a contract between the parties, and evidence may be given to rebut such a presumption.
§ 14. So, also, the mere silence of a person may create an implied liability, where it was his duty to speak in case he intended not to assume a personal responsibility, and especially where his silence afforded a material inducement to the contract. Thus, where A., wishing to buy a harness, invited C. to accompany him to a harness-maker, and there induced the harness-maker to sell him the harness on credit, by an assurance, in C.'s presence, that if he did not pay, C. would, - and A. having made default, C. paid the money and brought his action against A. to recover the amount paid,- it was held, that as C. stood by and tacitly assented to A.'s promise of payment, he must be taken to have given him an express authority; and C. having acted thereon, the law would imply a promise from A. to repay the money.1
1 Roll. Abr. 24, 31.
2 Caldwell v. Harding, 1 Lowell, 326 (1869). The published time-tables of a railroad company also constitute a contract on behalf of the company with those who act upon them that the trains run as therein stated. Dentou v. Great Northern Railw. Co., 5 El. & Bl. 860 (1856). Post, § 970.
3 Teasdale v. Teasdale, Sel. Ch. Cas. 59; 1 Story, Eq. Jur. § 385; Storrs v. Barker, 6 Johns. Ch. 166, 169; Wendell v. Van Rensselaer, 1 Johns. Ch. 354; Heane v. Rogers, 9 B. & C. 586; Graves v. Key, 3 B. & Ad. 318, note a; Pickard v. Sears, 6 Ad. & El. 474. See Nicholson v. Hooper, 4 M. & Cr. 179.
§ 15. So, also, although a merely voluntary and unauthorized payment of the debt of a third person ordinarily raises no implied promise on the part of such person to repay it,2 yet there are certain cases, where the debt was legally obligatory, and the payment was by compulsion of law, in which the law will import a request from the original debtor and a promise of repayment.3 Thus, where a carriage belonging to the plaintiff was sent to the defendant, a coach-maker, to be repaired, and while in his possession it was distrained by his landlord for rent due from the defendant, and the plaintiff was forced to pay the rent in order to redeem his carriage, it was held, that he might reclaim the money so paid in an action of assumpsit against the defendant.4 The same rule was held in a case where a sub-tenant was forced under a threat of distress to pay a ground-rent to the original lessor, which was due to his immediate landlord.5 And where an executor paid a legacy in full, having inadvertently omitted to deduct the legacy duty required by act of Parliament, it was held that the legatee was responsible therefor.6
§ 16. A fortiori, where there is a special privity of contract, as in the case of sureties, or joint and several debtors, or indorsers and acceptors of a negotiable security, a payment by one raises an implied promise of contribution by the others,7
1 Alexander r. Vane, 1 M. & W. 511.
2 Bancroft v. Abbott, 3 Allen, 524; Richardson v. Williams, 49 Me. 558; South Scituate v. Hanover, 9 Gray, 420; England v. Marsden, Law R. 1 C. P. 529 (1866); distinguishing Exall v. Partridge, 8 T. R. 308.
3 Exall v. Partridge, 8 T. R. 308; ' Sapsford v. Fletcher, 4 T. R. 511; Fisher v. Fallows, 5 Esp. 171; Hales v. Freeman, 4 Moore, 21; Foster p. Ley, 2 Bing. N. C. 269; Sutton v. Tatham, 10 Ad. & El. 27; Brown v. Hodgson, 4 Taunt. 189; Longchamp v. Kenny, 1 Doug. 137.
4 Exall v. Partridge, 8 T. R. 308. See also Morrill v. Derby, 34 Vt. 440; Gleason v. Dyke, 22 Pick. 390; Sargent v. Currier, 49 N. H. 310 (1870).
5 Sapsford v. Fletcher, 4 T. R. 511.
6 Hales v. Freeman, 4 Moore, 21.
7 Fisher v. Fallows, 5 Esp. 171; Exall v. Partridge, 8 T. R. 308. In this case Lord Kenyon says, "Some propositions have been stated to which unless the sum paid is only the share of the person paying.1 So if an agent settles an account with his principal, in which the principal is charged with a payment by the agent of a debt due from the principal to a third person, when the same has not been paid, the law raises an implied contract between the agent and such third person to pay the debt, and the latter may maintain an action against him therefor.2 But if one of two adverse claimants to the same fund receives it in his own name and for himself, the other cannot recover it of him, as being received to his use, though justly entitled to it. The law raises no implied contract in such a case to pay it over to the party who had the better claim.3 .
§ 17. Whenever there is a uniform usage 4 in a particular trade, the parties are presumed to have contracted in reference thereto, unless it be expressly excluded by them, or unless it be inconsistent with the actual terms of their agreement.5 It must, however, be a general usage, or a universal custom, which is brought home to the knowledge of the party defendant, or it must be the special course or habit of dealing of one of the parties, recognized and assented to by the other, or no such presumption will arise.1 In such cases, the usage is understood to form a portion of the contract, and to exclude a rule of law inconsistent with it. Thus, an established usage in the Bridgeport Bank not to send packages of money or checks to New York, by the mail, but by the captain of the steamboat, once a week, of which usage the party giving the check was informed, was held to be sufficient evidence of an agreement between the parties not to insist on the usual rule of law regarding the transmission of checks.2 In case a general usage is set up as modifying a contract, it must be proved to exist by instances, and cannot be supported by evidence of opinion merely.3 But whenever a particular course of dealing has been uniformly adopted between two parties, any contract made between them will be presumed to be made on the basis of such usage.4 Thus, if in a particular branch of trade it be uniform usage to sell upon a certain credit, a contract of sale, in which nothing is said as to the terms of payment, will be supposed to be made upon such credit.5 But a distinction must be noticed between a general usage and the customary act of a party. There is no implied contract, for instance, that a gas company shall continue to supply its customers, in the absence of any statutory duty of that character, merely because they have been accustomed to do so.6