Henry v. Betts — 1 Hilt. 156

Majority

p. 156

Charles W. Henry v. Frederick B. Betts.

Headnote

No action can be maintained against a father for clothes furnished to his minor child, upon the ground of their being necessaries, where it appears that the child is well provided for by the father. ■ • .

p. 157

But evidence that a minor child ordered clothes of a party, for which his father subsequently paid without^ objectiop^is sufficient to warrant a finding of authority from the parent to the child to incur such obligations, and make such contracts on behalf of the father with the same person.

Appeal by defendant from a judgment of tbe Sixth District Court. The facts are sufficiently stated in tbe opinion of the court.

Gould and Field, for tbe appellant.

Alex. Spaulding, for tbe respondent.

This action is brought for clothes sold by tbe assignor of tbe plaintiff to defendant’s son, be théni being a minor, aged twenty years. Three or four years before, tbe son had ordered and procured clothes of tbe plaintiff, and defendant had paid tbe bills. The defendant never ordered any' himself.

It is also shown that tbe son lives with bis father, who is able to provide for him, and had so provided at this time. It is very clear that the defendant is not liable, upon this evidence, for tbe clothes as necessaries furnished to a child. There is no evidence showing they were necessary, or suited to tbe son’s station in life, or that tbe defendant refused or neglected to provide for tbe son. On tbe contrary, it was admitted that the son was well provided for by the father. This of itself would be an answer to the claim on the ground that it was for necessaries furnished to an infant. Van Valkenburgh v. Watson, 13 J. R. 480 ; Raymond v. Lloyd, 10 Barb. S. C. p. 483 ; Poock v. Miller, ante, p. 108. I am of the opinion, however, that tbe facts proven are sufficient to establish tbe defendant’s liability on another ground. The evidence shows that tbe defendant bad previously permitted his son, when younger and having less discretion for such a purpose, to purchase clothing, and tbe defendant afterwards paid tbe bills. Tbe rule is well settled, that a father is not liable in such a case, unless an authority is proven or may be implied from the circumstances.

p. 158

/•"'’’The justice has found in favor of the plaintiff, and bis finding cannot be disturbed. In Baker v. Keen (2 Starkie’s R. 501), a much less amount of evidence was considered sufficient to warrant tbe jury in finding that sucb implied authority existed. In •that case, merely evidence that the father had placed a son at a /military college, and paid his expenses there, was considered sufficient to warrant the presumption of authority from the , father to order regimentals and other articles for his equipment.

So it has been held that a contract made by a wife for the board of an infant daughter, unknown to her husband, but after-wards paid for by him, although he expressed disapprobation at it, was sufficient to establish the existence of a discretionary nflwer on the part of the wife to contract for this purpose. See Forsyth v. Milne, cited in Story on Contracts, p. 120.

The evidence of previous purchases by the son with the knowledge of the father, and his payment of such bills, was sufficient to warrant an implied authority from the father so to do, and the fact, that such authority was given when the infant was younger and less capable of exercising his judgment than when he made the last purchase, furnishes no evidence to rebut such presumption.

Judgment affirmed.