Contract, What constitutes, Implied in fact. Gas Company. At the trial of an action by a gas company against a customer for the difference between $7 and the amount registered and deposited during a year in an automatic gas meter of the plaintiff, which allowed a certain amount of gas to pass through it each time that twenty-five cents was deposited in a slot, and which was used by the defendant, the defendant's counsel admitted that meter rent was collected and under the law might be demanded by gas companies, and there was evidence tending to show that the meter at the defendant's request had been placed in a house at a summer resort where he used it for a season of about four months; that previous to the year for which the plaintiff sought rent the plaintiff informed the defendant by letter that the plaintiff would enforce the law allowing it "to get $7 from each consumer as a minimum and that if that amount was not paid" the defendant's meter "would be removed and the supply of gas stopped;" that the defendant never expected to have the gas turned on except during the summer season and never requested to have it turned on at any other time; that the defendant did not reply to the plaintiff's notification, but used the meter for getting gas during the summer season only of the year in question. Held, that the jury were warranted in inferring that the defendant assented to receiving gas on the terms of the notice, and that there was nothing in R.L.c. 58, § 12, inconsistent with the making of such a contract.
HAMMOND, J.
Upon the evidence including the admission made at the trial by the defendant through his counsel, the jury might have found that the season for the furnishing of gas by the plaintiff to the summer resort where the defendant's houses were situated did not exceed four months in a year; that during the season of 1908 the plaintiff's meters for the use of which this action was brought were in the defendant's houses at his request or desire; that before the beginning of the year 1908 the defendant duly received a notice from the plaintiff to the effect that the latter would enforce the law allowing it as a gas company "to get $7 from each consumer as a minimum and that if that amount was not paid his meters would be removed and the supply of gas stopped;" that under the circumstances the defendant never expected to have the gas turned on except at the usual annual season of four months, and that he never requested to have it turned on at any other time; that he made no reply to such communication nor asked the plaintiff to take out the meters, but actively used them in procuring gas for his use during the whole season of 1908 without making any protest whatever. As a natural inference from these findings they might further find that the defendant assented to the terms of the notice and that the meters were used by him in compliance therewith; that these terms entered into the contract between him and the plaintiff; and that in accordance with the contract as thus established there were due to the plaintiff the sums named in the third and fourth items. This would make out a case for these items which were the only ones on which the jury held the defendant.
There is nothing in R.L.c. 58, § 12, upon which the defendant relies, inconsistent with the making of such a contract.
Exceptions overruled.