Bliss v. Hoyt's Estate,

Read

Notebook

| Vt. | May 15, 1898

Thompson, J.

From all the evidence and circumstances in the case, the referee found there was an implied promise on the part of Benjamin Hoyt, the intestate, in his life, to pay the plaintiff for the board and services for which she seeks to recover in this action. To this finding, the defendant excepted in the court below on the ground that the referee should have found the facts and submitted them to the court to say whether, as a matter of law, they constituted an implied promise. This is the only exception taken to this finding of the referee, in the county court, and the only

*536exception thereto passed upon by that court. Hence, the only question for this court to decide is whether an implied contract is solely a question of law to be determined by the court on the facts found, or a question of fact to be determined by the trier from the evidence. The terms, express contract and contract implied in fact, are used to indicate not a distinction in the principles of contract, but a difference in the character of the evidence by which a simple contract is proved. The source of the obligation in each case is the intention of the parties. Keener on Quasi Cont. 5. A contract implied in fact is implied only in this, that it is to be inferred from the conduct, acts, or relation of the parties, instead of being inferred from their spoken words. Johnson v. B. & M. R. R., 69 Vt. 524. Such a contract is a question of fact to be determined by the jury or referee, and not by the court.

The term, contract implied in law, denotes not the evidence by which a plaintiff’s claim is established, but the source of the obligation. Keener on Quasi Cont. 5. It is a quasi contract, created by the law without the intent of the parties, and often against their intention. This is illustrated by the case of one receiving money paid him by mistake, or the case of one obtaining money fraudulently, in either of which cases, the law creates a promise on his part to pay the money to the party from whom it was obtained. In other word, the law in such a case treats the parties just as if there were a promise in fact to pay.

The case at bar does not involve a contract implied in law, but one implied in fact.

It has been argued that the evidence does not tend to support this finding of the referee, but no exception was taken to it on this ground, and this objection cannot be now made in this court.

Judgment af/imred and to be certified to the probate court.