P built a wall between his land and that of his neighbor D. D knew of the construction but said nothing. P claimed that he had a contract with D; D would pay P one half the value of a wall that P constructed between their properties. D denied that any express agreement had ever been reached. P sued for damages. D requested the judge to rule that P could only recover upon an express agreement, that if there was no express agreement, but that D knew of P’s building the wall upon land in which D had an equitable interest, D’s rights would not be affected by such knowledge and D’s silence, and subsequent use of the wall would imply not promise to pay. The judge refused such instructions and instead instructed the jury that a promise may be implied from the fact that P with D’s knowledge built the wall and D used it and that if P did the building with the expectation of payment from D and D had reason to know that P was acting under that assumption and allowed P to act without objection, the jury could infer a promise by D to pay P. The jury found for P and D appealed.

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