of a writing is not illiterate, "it will not do for him to enter into a contract and when called upon to abide by its conditions, say that he did not read it when he signed it, or did not know what it contained." 83 This principle is not carried so far,

however, as to hold a party who carelessly failed to read a paper which he signed, liable to one who knew of the signer's ignorance and fraudulently induced it or took advantage of it.84 A similar principle is applicable to the offeror's conduct as to the offeree's. If the offeror prepared the writing and failed therein to express his meaning, he no more than the acceptor could evade its effect. Further, where a maker through confidence or neglect intrusts to a third party a blank non-negotiable bond which the latter completes by filling the blanks and delivers to an innocent obligee, the maker is bound by the terms of the completed instrument though filled out in violation of authority.85 Here, however, there has been no real manifestation of assent by the maker. His liability depends rather on estoppel than on expressed mutual assent. Such estoppels have more generally been applied to negotiable paper, than to other writings, but seem fairly applicable to the latter. Even the drawing of negotiable paper without entire blanks, but in such form as to make alteration obviously possible has been held to render the maker liable to a bona fide purchaser. This, however, is disputed, and it

v. Bridges, 43 Okl. 813, 144 Pac. 577; Ames v. Milam, (Okl. 1916), 157 Pac. 941; Foster v. University Lumber Co., 65 Or. 46, 131 Pac. 736; Hyde v. Kirkpatrick, 78 Or. 466, 153 Pac. 41; Greenfield's Estate, 14 Pa. St. 489, 496; Pennsylvania R. Co. v. Shay, 82 Pa. St. 198; Johnston v. Patterson, 114 Pa. St. 398, 6 Atl. 746; Weil v. Quidnick Co., 33 R. I. 58, 80 Atl. 447; Bishop v. Allen, 55 Vt. 423; Sanger v. Dun, 47 Wis. 615, 620, 3 N. W. 388, 32 Am. Rep. 789; Ross Northrup, 156 Wis. 327, 144 N. W. 1124; International Text Book Co. v. Mabbott, 159 Wis. 423, 150 N. W. 429; McMillen v. Strange, 159 Wis. 271, 150 N. W. 434. In Williams v. Leisen, 72 N. J. L. 410, 60 Atl. 1096, the defendant testified, when sued on a written contract for the purchase of books, that the plaintiff's agent told him that he wanted to get some influential citizens to indorse the work and the defendant signed the slip sup

posing that it was merely an indorsement of the work. This was held insufficient to excuse him. That one's eyes are weak, and he is a poor reader, will not exonerate him. McDonald v. McKinney Nursery Co., 44 Okl. 62, 143 P. 191. But in Haskins v. Young, 89 Conn. 66, 92 Atl. 877, the grantee of land was held not bound by an undertaking contained in the deed to assume a mortgage, in the absence of knowledge on his part that the deed contained such a provision. See infra, §§ 90, 95. 84 See infra, §§ 1516, 1577.

85 Gronvold v. Federal Union Surety Co., 212 Fed. 908, 129 C. C. A. 428. See also infra, § 1247.

86 Negot. Inst. Law, Sec. 14. See infra, 1141; 1 Daniel, Neg. Inst., §§ 142, 843.

87 See Union Credit Bank v. Mersey, etc., Board [1899], 2 Q. B. 205.

88 See infra, §1909. 2 Daniel, Neg. Inst., § 1405.

seems clear that no court would apply such a doctrine to non-negotiable contracts.89

§ 36. Offers implied in fact; contracts for services.

An offer need not be stated in words. Any conduct from which a reasonable person in the offeree's position would be justified in inferring a promise in return for a requested act or a requested promise by the offeree, amounts to an offer. The common illustration of this principle is where performance of work or services is requested. If the request is for performance as a favor, no offer to contract is made, and performance of the work or services will not create a contract; but if the request is made under such circumstances that a reasonable person would infer an intent to pay for them (and this is always a question of fact under all the circumstances of the case) the request amounts to an offer, and a contract is created by the performance of the work.90 And even though no request is made for the performance of work or service, if it is known that it is being rendered with the expectation of pay, the person benefited is liable.91 It is a question of fact here whether a reasonable man in the position of the parties would have understood that the services were offered in return for a fair compensation, and that the offer was accepted, or whether they were performed gratuitously or if not that the recipient justifiably supposed so. It is customary to lay down presumptions, as that "with respect to strangers a contract for compensation will be implied unless a contrary situation is exhibited;" whereas as between relatives "a contract alleged to exist must be affirmatively shown." 92

89 Ibid.

90 Kennedy v. Broun, 13 C. B. N. S. 677, 740; Stewart v. Casey [1892], 1 Ch. 104, 115; Spearman v. Texarkana, 58 Ark. 348, 24 S.. W. 883, 22 L. R. A. 855; Clark v. Clark, 46 Conn. 586; Lockwood v. Robbins, 125 Ind. 398, 25 N. E. 455; Coleman v. Simpson, 2 Dana (Ky.), 166; Blaisdell v. Gladwin, 4 Cush. 373; Moore v. Elmer, 180 Mass. 15, 61 N. E. 259; Ten Eyck v. Pontiac, etc., R. Co., 74 Mich. 226, 41 N. W. 905, 3 L. R. A. 378, 16 Am. St.

Rep. 633; Ryans v. Hespes, 167 Mo. 342, 67 S. W. 285; Pangborn v. Phelps, 63 N. J. L. 346, 43 Atl. 977; Raymond v. Sheldon's Est. (Vt.), 104 Atl. 106.

91 Lewis v. Meginniss, 30 Fla. 419, 12 So. 19; Emery v. Cobbey, 27 Neb. 621, 43 N. W. 410; Kiser v. Holladay, 29 Ore. 338, 45 Pac. 759; Miller v. Tracy, 86 Wis. 330, 56 N. W. 866. And see infra, § 91.

92 Ingram v. Basye, 67 Oreg. 257, 135 Pac. 883, 884, and see infra, § 91.

But it is undesirable to lay too much stress on such presumptions. They are mere inferences of fact. Intimate friends sometimes render services gratuitously, and how close must relationship be to make one presumption or another applicable? 93 The question is purely one of fact, varying in every case, but with the burden always on the party who alleges a contract and seeks to enforce it, to prove its existence.94 Family relationship is of course important, as is the fact that one who requested services did not receive the benefit from them. This may justify an inference that he expected any compensation to be sought from the person who received the benefit.95 But circumstances vary in every case, and there should not be any attempt to build up a variety of legal presumptions to meet them.

§ 36a. Other offers implied in fact.

Such liability as that discussed in the preceding section depends not on quasi-contract but upon a real expression of agreement. In this case the person rendering the services makes an offer of them as consideration for a promise to pay and the offer is accepted by receiving them with knowledge that payment is expected; or a request for the services implies in fact an offer to pay for them, which is accepted by rendering the services. Similarly if goods are sent by a seller of a different sort from those ordered, the seller thereby impliedly makes an offer to sell which is accepted if the buyer takes the goods. So if money is paid by one person at the request

* In Hardiman's Adm. v. Crick, 131 Ky. 358, 115 S. W. 236, 133 Am. St. Rep. 248, the relation of a son-in-law and mother-in-law was thought insufficiently close to subject him to a presumption that his services were performed gratuitously. On the other hand, persons bearing no relation to one another who become members of the same family are dealt with as blood relations. See infra, § 91.

"See Harley v. United States, 198 U. S. 229, 25 S. Ct. 634, 49 L. Ed. 1029; Keel v. Larkins, 52 Ala. 493; Godfrey

. Haynes, 74 Me. 96; Pew v. First Nat. Bank, 130 Mass. 391; Wagner v. Edi

son &c. Co., 177 Mo. 44, 75 S. W. 966; Re Bryant, 73 Vt. 240, 50 Atl. 265; Harshberger v. Alger, 31 Gratt. 52; Stansbury v. Stansbury, 20 W. Va. 23; Redmond v. Redmond, 27 U. C. Q. B. 220.

95 Thus physicians requested to render services to third persons have failed to recover from the person requesting that the service be rendered. Meisenbach v. Southern Cooperage Co., 45 Mo. App. 232; Rankin v. Beale, 68 Mo. App. 325; Crane v. Baudouine, 55 N. Y. 256; Smith v. Watson, 14 Vt. 332.

96 Harris v. Lumber Co., 97 Ga. 465, 25 S. E. 519; Garst v. Harris, 177 Mass.

of another, the request, unless the circumstances are such that the inference of a requested gift is possible, implies an offer to repay the money if the requested payment is made.97 For the same reason a request to another to incur liability as by becoming surety, carries with it an implied promise to indemnify.98 The contracts implied in fact arising from offers of the sort mentioned in this section are closely connected in the history of the law with quasi-contracts. Indeed, quasicontracts have largely grown up under the fiction of an implied request which enabled the courts to give the same remedy of indebitatus assumpsit to a plaintiff who had furnished a benefit to the defendant which the latter ought equitably to pay for, as was given to plaintiffs who had entered into a real though not express contract by furnishing consideration at the request of the defendant.

§ 37. An offer when accepted must be capable of creating a definite obligation.

It is a necessary requirement in the nature of things that an agreement in order to be binding must be sufficiently definite to enable a court to fix an exact meaning upon it. If an offer contemplates an acceptance by merely an affirmative answer, the offer itself must contain all the terms necessary for the required definiteness. An offer may, however, contain a choice of terms submitted to the offeree from which he is to make a selection in his acceptance. Such an offer is necessarily indefinite but, if accepted in the way contemplated, the ultimate agreement of the parties is made definite by the acceptance.99 A lack of definiteness in an agreement may concern

72, 58 N. E. 174; Watters v. Glendenning, 87 Wis. 250, 58 N. W. 404.

97 Littleton Savings Bank v. Land Co., 76 Ia. 660, 39 N. W. 201; Armstrong v. Keith, 3 J. J. Marsh. 153, 20 Am. Dec. 131; Wheeler v. Young, 143 Mass. 143, 9 N. E. 531; Rosemond v. Register Co., 62 Minn. 374, 64 N. W. 925; Albany v. McNamara, 117 N. Y. 168, 22 N. E. 931, 6 L. R. A. 212.

98 Infra, § 1274. Any implied obligation there may be to indemnify a surety

who did not become surety at the request of the principal debtor, however, is not contractual but quasi-contractual.

99 Thus in Averill v. Hedge, 12 Conn. 424, the offer was to sell "ten or fifteen tons" of iron. Such an offer would require the offeree to fix the amount he wished. So in Keller v. Ybarru, 3 Cal. 147, an offer to sell as many of the defendant's grapes as the plaintiff wished to buy became a binding con