
    S. H. Shoemaker v. J. S. Roberts and Sarah Roberts, Appellants.
    1 2 Newspaper Subscription: implied contract: Evidence. Cause of action is not stated by complaint for subscription price of a newspaper, alleging that plaintiff became owner of the subscription list which contained the name of defendant, and that the paper was mailed to him at A; it not being alleged that A was his place of residence or that he accepted or received the paper, or that it was sent to the address appearing on the list, or that his name was on the list by his authority.
    Same. To establish an implied contract on the part of a person to whom a newspaper was regularly addressed and mailed, it must affirmatively appear that he received it, or that such a state of facts exists as will raise a presumption that it was received by him, and no such presumption arises in the absence of proof that the address to which the paper was sent was his proper address.
    3 Plea and Proof: residence. Even if the fact that the original notice in an action was' served on defendant at a certain town could be used in aid of the petition, it affords no evidence that defendant’s residence was at such town; the statute with reference to service of notice recognizing no smaller governmental sub-divisions than counties. (Sections 2602, 2604, Code of 1873\
    
      
      Appeal from Hardin District Court. — Hon. D. R. Hind-man, Judge.
    Saturday, October 30, 1897.
    Action at law to recover the subscription price of a certain newspaper alleged to have been sent to J. S. Robert®. The trial court overruled a demurrer to the plaintiff’s petition, and defendants appeal.
    
    Reversed.
    
      J. S. Roberts, J. H. Scales, and W. F. Beck for appellants.
    No appearance for appellee.
   Deemer, J.

The case involves less than one h undred dollars, and comes to us on the following certificate from the trial judge: “I, D. R. Hindman, presiding judge in the above entitled cause, do hereby certify that said cause involves the determination of the following questions of law, upon which it is desirable to have the opinion of the supreme court: (1) Does the fact that the plaintiff, who became the owner of the Hampton Chronicle, a weekly family newspaper, published at Hampton, Iowa, who was also the owner of the subscription list of said paper, among which was the name of the defendant J. S. Roberts, and mailed regularly each week a copy of said paper, with the postage paid, to him, at Ackley, Iowa, from the time plaintiff became the owner, by purchase, of said newspaper and subscription list, viz.: August 10, 1890, up to September 6,1894, create a liability on the part of said j. S. Roberts to pay t'he subscription price of said paper during the time it was so mailed to him, from said August 10, 1890, to September 6, 1894? (2) Where the plaintiff alleges that he is the owner, by purchase, in the year 1890, of the Hampton Chronicle, a weekly family newspaper, with the subscription list of regular subscribers, among which is the name of defendant, and, as such owner, mailed' a copy of said paper each week, with the postage paid, at Hampton, Iowa, addressed to J. S. Roberts', defendant in the action, at Ackley, Iowa, which allegations are admitted by demurrer filed by defendant, do such allegations, including the fact that service of the original notice in the case was made on defendant at Ackley, Iowa, show a liability on the part of the defendant Roberts for subscription to said newspaper?” While the certificate is somewhat involved, we take it that the real inquiry is whether or not the defendant J. S. Roberts is liable, in the absence of an allegation that Ackley was his place of residence, or that he received the paper and had the benefit thereof.

That one who receives a newspaper without objection, and has the benefit thereof, is liable upon an implied contract to pa,y for the same, is conceded. But, to establish such liability, it must be shown affirmatively that defendant received the paper, or such a state of facts must be recited as that the presumption arises that it was received by the person, to whom it was addressed. No such presumption arises in. the absence of proof that the .address to which the paper is sent is the address of him from whom recovery is sought. Liability in such case is based upon the doctrine that when one accepts and receives the beneficial results of another’s labor or services, which he has no reason to suppose were gratuitous, and which he could or not accept at his. option, the law will imply a previous request and a promise to pay. Without proof of the acceptance of benefits, no such implication will obtain. In the case at bar there is no- allegation that Ackley was the defendant’s place of residence, no statement that he accepted or received the paper, no claim that the paper was sent to the same address as appeared upon the subscription list, and no showing that his name was upon the list by his .authority. The fact that the original notice was served upon the defendant at Ackley is of no moment. If such fact could be considered in aid of the pleading, it affords no evidence that Ackley was defendant’s place of residence. The statutes with reference to service of notice recognize no smaller governmental ¡subdivisions than counties. Code 1873, sections 2602, 2604. The questions presented should each be answered in the negative. The judgment is therefore reversed.  