As has been said (ante, Sec. 54), while the acceptance of the goods or services by one who knows or has reason to believe that he is expected to pay for them will be held to indicate an intention to pay, it may happen that, because of a mistake as to the identity of the offerer, no contractual relation is established. In such a case the fact that it is impossible to return in specie that which was received does not justify a refusal to pay for it, and unless the person conferring the benefit is guilty of officiousness, restitution in value should be enforced.1
The well-known case of Boston Ice Co. v. Potter2 is an interesting one in this connection. The action was for ice sold and delivered. It appeared "that the defendant, in 1873, was supplied with ice by the plaintiff, but, on account of some dissatisfaction with the manner of supply, terminated his contract with it; that the defendant then made a contract with the Citizens' Ice Company to furnish him with ice; that some time before April, 1874, the Citizens' Ice Company sold its business to the plaintiff, with the privilege of supplying ice to its customers;" that for one year thereafter the plaintiff supplied ice to the defendant, which ice was accepted and used by the defendant; and that the defendant received no notice of the sale of the Citizens' Ice Company's business and the assignment of its contracts to the plaintiff until after all the ice had been delivered. The court held that the plaintiff could not recover, and Endicott, J., in the course of his opinion, said:
1 See John Weber & Co. v. Hearn, 1900, 49 App. Div. 213; 63 N. Y. Supp. 41, (Defendant thought he was dealing with a partnership, though in fact dealing with a corporation. Recovery on contract.); Brightman Bros. v. Griffin & Co., 1908, 70 Atl. 1057 (R. I.), (Plaintiffs were doing business under two firm names).
2 1877, 123 Mass. 28, 30; 25 Am. Rep. 9.
"A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture, or write a book, or furnish articles of a particular kind, or when he relies upon the character or qualities of an individual, or has, as in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into. If the defendant, before receiving the ice, or during its delivery, had received notice of the change, and that the Citizens' Ice Company could no longer perform its contract with him, it would have been his undoubted right to have rescinded the contract and to decline to have it executed by the plaintiff. But this he was unable to do, because the plaintiff failed to inform him of that which he had a right to know. If he had received notice and continued to take the ice as delivered, a contract would be implied."
This raises an interesting question in quasi contracts. If A renders a benefit to B with the intention of charging for it, and B, reasonably believing that he is dealing with C, accepts the benefit with the intention of paying for it, does the fact that A is a person with whom B for some reason does not wish to deal, justify B in refusing, when he learns the truth, to make restitution? Before considering this question, however, it may be noted that it was not necessarily involved, apparently, in Boston Ice Co. v. Potter. A contract to supply ice, such as the one in that case, is clearly assignable by the seller.1 And since the doctrine that one "has a right to select and determine with whom he will contract" applies only to the formation of contracts and in no way affects their assignability, the buyer must recognize the assignee whether he wishes to deal with him or not. Had the plaintiff, then, framed its pleadings upon the theory that it was the assignee of the Citizens' Ice Company - sueing in the name of the assignor as was at that time required in Massachusetts 2 - it would have been entitled to judgment. It thus appearing that the plaintiff had a valid and enforceable contract right to compensation for the ice supplied by him, there was no occasion for raising a quasi contractual obligation.3 If, however, either the contract between the Citizens' Ice Company and Potter, or the assignment to the Boston Ice Company, had for any reason been void, the case would have presented the precise question stated above and now to be considered.
Two doctrines have been invoked to support the view that B is under no obligation to make restitution:
1. That one "has the right to select and determine with whom he will contract and cannot have another thrust upon him without his consent."
2. That officiousness in the plaintiff is a defense to a claim of quasi contractual liability.
The former doctrine is that relied upon by the court in Boston Ice Co. v. Potter. It is vigorously urged by Professor Keener, as follows: "To have allowed a recovery . . . in the Boston Ice Company v. Potter would have been, to use the language of Lord Mansfield in Stokes v. Lewis [1785, 1 Term R. 20], to have allowed a recovery against the defendant 'in spite of his teeth' and would have been entirely destructive of the doctrine that a man has the right to select his creditor."4 But it is putting the doctrine too broadly to say that a man has a right to select his creditor - using the term in its ordinary meaning. If that were true, as Professor Costigan has said, it "would be entirely destructive of the law of quasi contracts; for a plaintiff is never selected by the defendant as his quasi contract creditor."1 And while it is true that one has a right to determine with whom he will contract, that is obviously a doctrine which applies only to the formation of geninue contracts. It is, in fact, only another way of saying that genuine contracts rest upon mutual assent.
1 Woodward, "Assignability of Contract," 18 Harv. Law Rev. 23.
2 See Foss v. Lowell, etc., Bank, 1873, 111 Mass. 285.
3 See article by Professor Costigan in 7 Columbia Law Rev. 32, in which the case of Boston Ice Co. v. Potter is thoroughly analyzed and considered.
4" Quasi-Contracts," pp. 360, 361.
The latter doctrine - that the plaintiff's officiousness is a defense to a claim of quasi contractual liability - while not referred to in Boston Ice Co. v. Potter, is suggested by Professor Keener in his discussion of that case.2 It is, of course, a recognized doctrine of quasi contract that an officious intermeddler, though he enrich another, may be denied restitution (post, Sec. 196). But the mere fact that A is persona non grata, or that for some other reason B does not wish to deal with him, is insufficient, without other evidence, to convict A of officious meddling. Knowledge of B's feeling, on the part of A, must also be shown, and even then the proof may not be conclusive. Let it be supposed, for example, that A is aware of B's feeling, but confers the benefit in performance of a contract, believed to be valid, between B and C, of which he is the assignee. Is A guilty of officiousness? Under some circumstances, no doubt, it would be an impertinence for A to acquire by assignment a contract with B, who, to his knowledge, does not wish to deal with him. Under other circumstances, as for instance where the assignment of the contract is involved in the sale of a business or is taken in satisfaction of a debt, the act would be entirely free from impropriety. Rarely, it is believed, would it be fair to regard the purchase and performance of the contract by A as conduct so inexcusably officious as to justify B in refusing to make restitution.
It may be argued that whether or not A's purchase of the contract is reprehensible, he is plainly delinquent in failing to notify B of the fact that he has replaced the original contractor, C. This point is the one relied upon by Professor Keener to support his conclusion that the plaintiff in Boston Ice Co. v. Potter was officious. "This case differs from the case of Boulton v. Jones,"1 he says, " in that the plaintiff knew that the defendant did not desire to deal with him, and was, therefore, officious in supplying him with ice without notifying him of that fact."2 But what is there to suggest to A, under the circumstances, that he owes a duty to reveal the fact? When it is remembered that he believes himself to be the assignee of a valid contract, and consequently that B cannot avoid dealing with him even if informed of the assignment, it will be seen that he would feel no obligation whatever to give B such information. Moreover, if, as might well be, his concealment of the fact were prompted by consideration for the feelings of B, he would deserve commendation rather than blame.3
1 7 Columbia Law Rev. 45 n.
2 ."Quasi-Contracts," p. 360.