Master Newspaper subscription case establishing an implied-in-fact promise to pay when benefits are knowingly accepted and retained. with this comprehensive case brief.
Austin v. Burge is a staple in first-year Contracts for illustrating how assent can be manifested by conduct and how silence, coupled with knowing retention of a benefit, can create an obligation to pay. The case sits at the intersection of the default rule that silence is not acceptance and the well-recognized exception that acceptance may be implied from conduct when the offeree knows compensation is expected and has a reasonable opportunity to reject the benefit but does not. It is frequently paired with other acceptance-by-conduct cases to show how courts police opportunism and prevent free riders.
Beyond doctrinal formation, the case also demonstrates principles of agency and ratification in household transactions. Even when a defendant disclaims having expressly ordered a subscription, the court looks to the defendant's knowledge, use, and failure to repudiate as manifestations of assent. For students, the opinion offers a crisp application of implied-in-fact contracting, distinguishing it from unjust enrichment and showing how fact patterns in everyday life can produce enforceable obligations without a signed writing or formal words of agreement.
Austin v. Burge, 156 Mo. App. 286, 137 S.W. 618 (Mo. Ct. App. 1911)
The plaintiff, a newspaper publisher, began delivering a newspaper to the defendant’s residence and continued to do so for a substantial period. The record showed that the paper was addressed to the defendant, was regularly brought into the home, and was read by the defendant and his family. The publisher later billed the defendant for the standard subscription price. The defendant refused to pay, asserting that he personally had never ordered the paper and claiming that any initial request was made by his wife without his authorization. He did not, however, notify the publisher to stop delivery during the period in which he knowingly received the paper; nor did he return or reject the issues. Instead, he permitted delivery to continue, and he and his family derived the benefit of the paper. Only after being pressed for payment did he object. The trial court entered judgment for the publisher for the subscription price, and the defendant appealed.
Whether a person who knowingly receives and uses a newspaper delivered to his home, without objection and with reason to know that payment is expected, is liable for the subscription price on an implied-in-fact contract, even if he did not expressly order the paper or if a family member initiated the subscription.
An implied-in-fact contract arises when the parties’ conduct manifests mutual assent and an intent to contract. Acceptance can be inferred from the offeree’s silence coupled with retention and use of benefits when the offeree knows or has reason to know the services or goods are being furnished with the expectation of compensation and has a reasonable opportunity to reject them. Where another purports to act as the offeree’s agent, the offeree’s knowledge of the transaction and acceptance of the benefits can constitute ratification and bind the offeree to the contract.
Yes. By knowingly accepting and using the newspaper without objection for an extended period, the defendant manifested assent and is liable for the subscription price under an implied-in-fact contract; his conduct also ratified any initial order placed by his wife.
The court began with the general principle that silence alone typically does not amount to acceptance. It explained, however, that where one party furnishes goods with the expectation of payment, and the recipient knows the goods are being supplied on that basis and has the ability to reject or stop delivery but does not, the recipient’s conduct in retaining and using the goods constitutes acceptance, from which the law implies a promise to pay. Newspapers are plainly sold on a paid-subscription basis; a reasonable person knows a publisher expects compensation for continuous delivery. The defendant knowingly allowed the paper to be delivered, brought it into the household, and enjoyed its use over time without objection. He took no steps to notify the publisher to discontinue delivery or to return the papers. This pattern of conduct communicated assent just as effectively as words and created an implied-in-fact contract for the subscription price. The court rejected the defendant’s argument that he never personally ordered the paper. Even if the initial request came from the defendant’s wife, the defendant’s knowledge of ongoing delivery and his acceptance and use of the paper ratified her act and bound him. Ratification can be inferred from a principal’s acceptance of the benefits of an unauthorized transaction with knowledge of the material facts. Moreover, the court distinguished cases of unsolicited goods left without the recipient’s knowledge or where the recipient promptly rejects the goods. Liability here did not rest on mere silence but on knowing receipt, use, and failure to repudiate in the face of a continuing benefit. Permitting a subscriber to retain and use a newspaper for months while refusing to pay would sanction opportunism and shift losses unfairly to the publisher. The court therefore affirmed judgment for the publisher for the contract price.
Austin v. Burge is a leading illustration of implied-in-fact assent and the silence-as-acceptance exception: when a recipient knowingly takes the benefits of a transaction where compensation is expected and could reasonably refuse but does not, an enforceable promise to pay arises. The case also shows how ratification binds a party to a contract initiated by another (e.g., a spouse) when the beneficiary knowingly accepts the benefits. For students, Austin provides a practical counterpoint to the default rule that silence is not acceptance, guiding analysis of service and subscription hypotheticals and demonstrating how courts deter free riding in routine commercial dealings.
Implied-in-fact. The obligation arises from the parties’ conduct manifesting mutual assent—knowing receipt, retention, and use of the newspaper in circumstances where payment is expected. Unlike quasi-contract, which imposes liability to prevent unjust enrichment absent assent, Austin rests on inferred agreement from behavior.
No. The default rule is that silence is not acceptance. Austin imposes liability because the defendant knew the paper was being delivered with the expectation of payment, had a reasonable opportunity to reject or stop delivery, and nevertheless retained and used it. Mere passive receipt without knowledge or immediate objection typically does not create liability.
Prompt notice and refusal would undermine any inference of assent. If the recipient promptly rejects the paper and communicates a stop order, there is no acceptance by conduct and therefore no implied promise to pay beyond any already accepted issues, if the jurisdiction recognizes recovery for those.
Only to a point. Even if the spouse lacked authority initially, the recipient’s knowledge of the subscription and acceptance of the benefit ratifies the transaction, binding the recipient. Agency and ratification principles thus reinforce the implied-in-fact analysis.
Many jurisdictions, including federal law on unordered merchandise, allow consumers to treat unsolicited goods as gifts. Austin predates those statutes and involves knowing retention and use of a continuing subscription where payment is expected. Today, if a statute applies and the goods are truly unordered, a consumer may owe nothing; but where the recipient knowingly accepts and continues a paid service or subscription with notice, Austin’s reasoning still supports liability.
State the default rule—silence is not acceptance—then evaluate exceptions: prior dealings, acceptance of benefits with knowledge payment is expected, and exercise of dominion. Apply to facts showing the recipient’s knowledge, opportunity to reject, and retention and use. Conclude with implied-in-fact assent and, where relevant, ratification.
Austin v. Burge teaches that assent need not be spoken to be real. When a recipient knowingly accepts and uses a benefit under circumstances where compensation is expected and can easily be refused, the law treats that conduct as acceptance, implying a promise to pay the going price. The case thus bridges the gap between formal offer-and-acceptance doctrine and the practical realities of everyday transactions like subscriptions and services.
For law students, the opinion is a clean vehicle for organizing analysis: begin with the general rule that silence is not acceptance, identify facts showing knowing retention and use, consider agency and ratification if a third party initiated the deal, and then articulate why those facts support an implied-in-fact contract. Austin’s enduring relevance lies in its clear demonstration that conduct can speak as loudly as words in forming enforceable agreements.