Day v. Caton, Supreme Judicial Court Of MA, 1876 Issue: Did silence constitute an implied assent in this case? Reasoning It is true that just because P built the wall and D knew he building it, and D used it, does not imply that D should pay for it. Furthermore, the fact that P expected to be paid for the wall, is also not sufficient for D to pay. However, when a party stands silent when a service being performed is to their advantage and the other party expects to be paid for the service and says nothing, then he has implicitly accepted the service. If he didn’t want the wall, he should’ve said so, instead of just watching it built. How to interpret silence of a party depends on the circumstances and is a question for the jury to decide. Rule If a party Voluntarily accepts, and Avails himself of valuable services Rendered for his benefit When he has the option to accept or reject A promise to pay for them is inferred Facts P built a wall half on his lot and the another half on D’s lot. P says there was express agreement between them that D would pay for the half when he used the wall. D said: we never talked about it. Exceptions overruled… Affirmed trial court ruling… Jury instructions were correct Held Procedure P sued D for cost of half the wall. Jury found for P. D took exception to jury instructions and appeals verdict. We agreed he’d pay… Even if he didn’t, he saw me built it, he benefited from it – he could’ve said: don’t want it P argues D argues We never even talked about it. Jury should rule based on whether there was an express agreement. My silence shouldn’t mean implied agreement qui tacet consentire videtur: He who keeps silent is assumed to consent; silence gives consent.