Austin v. Burge

Missouri Supreme Court · Contracts

ContractsImplied contractAcceptance by conductNewspaper subscriptionsimplied contractassent by conductacceptance of benefitssubscription price

Facts

Plaintiff published a newspaper in Butler, Missouri. Defendant's father-in-law originally subscribed for the paper to be sent to defendant for two years and paid for that period, after which plaintiff continued mailing the paper to defendant for several more years. On two occasions defendant paid bills for the paper and each time directed that delivery be stopped; for purposes of the case, the court assumed defendant did give those stop orders. Despite that, defendant continued receiving the paper through the mail, taking it from the post office to his home, and reading it until he moved to another state.

Issue

Whether a person who did not originally subscribe for a newspaper becomes liable for its subscription price by implied contract when he continues to receive and read it after delivery continues, even though he previously directed the publisher to stop sending it.

Rule

A person cannot be forced into contractual relations against his will and cannot be made a debtor merely because a publisher sends a newspaper. But if that person continues to accept and use the newspaper under circumstances where he has no right to suppose it is a gratuity, the law implies an agreement to pay the subscription price.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Columbus, Ohio, Pine Street Journal accidentally kept mailing a weekly business newspaper to Nora Feld for eight months after a prepaid gift term ended. Nora knew the paper ordinarily required payment, regularly collected each issue from her mailbox, and read them over breakfast.

Is Nora most likely obligated to pay for the eight months of newspapers?

Explanation. The majority rule is that a person cannot be forced into a contract merely because a publisher sends a newspaper. But if the recipient knowingly continues to accept and use the paper under circumstances giving no right to assume it is a gratuity, the law implies an agreement to pay the subscription price. Nora repeatedly took and read the papers knowing they were not free, so liability would arise by implication. (Derived from Austin v. Burge (n.d.).)