Majority
Headnote
1. Infants—Liability for Necessaries—Contract with Guardian.The complaint averred a cause of action upon a promissory note made by the defendant Holmes and indorsed by the defendant Butterfield. At the time the note was made the defendant was an infant over the age of 14 years. The note itself, together with the indorsement thereon, was set out in the complaint; and it averred in connection therewith that the note was given for necessaries supplied to the infant, in the form of board and tuition, at the school conducted by the plaintiffs, and that the education so furnished was such as was suitable to the station in life of the infant; that the necessaries were supplied at the request of the infant and of her guardian, the defendant Butterfield. The answer, among other things, pleaded infancy as a defense to the note. Upon the trial the court held that there could be no recovery upon the promissory note, and that the infant could not be bound upon her executory contract. The court, however, permitted the action to proceed against the infant upon the theory that the complaint averred a cause of action as and for necessaries furnished to the infant, holding that a recovery might be had, if the board and tuition were necessaries, to the extent of their reasonable value; and the court submitted such question to the jury upon that theory. The jury found a verdict in favor of the plaintiffs for the amount represented by the note. The evidence justified a finding that the board and tuition were a necessary of the infant, and that the reasonable value thereof was the sum which the jury found. It is the contention of the defendant infant that the complaint stated a cause of action solely upon a promissory note, and that, as the infant could not be bound by that contract, the complaint as to her should have been dismissed. The complaint is somewhat meager in its statement of a cause of action upon which to charge the infant as and for necessaries furnished, but within the doctrine announced in Goodman v. Alexander, 165 N. Y. 289 , 59 N. E. 145 , 55 L. R, A. 781 , we think the complaint may be regarded as sufficient to present such issue. Reaching this conclusion, we are confronted with the question as to whether a case was made which justified a recovery against the infant for necessaries furnished to her, and, if so, whether reversible
The evidence disclosed that both parents of the infant died when she was of a tender age, and that the infant had resided with the defendant Butterfield, her aunt, who was also her general guardian. The mother of the infant had left some estate, the amount and value of which, under the proofs developed upon the trial, is quite problematical. It appeared that the plaintiffs conducted a young ladies’ boarding school in the city of New York, and that as early as September 2, 1898, the defendant Butterfield was in communication with the plaintiffs in regard to some arrangement which might be made with them for the board arid tuition, of the infant. On this-date the plaintiff Eva R. Murphy acknowledged the receipt of a letter from Mrs. Butterfield relating to such subject. In answer thereto she gave a description of the school, its respectability, etc., and stating:
“With reference to Louise I can tell you that I should be very glad to have her with us in our home. Five hundred dollars can be made to cover the regular school work, including Latin, German or French, Physical Culture and all English branches, also laundry and board. I will make this five hundred cover sitting in church.”
On the 13th of September, 1898, the plaintiff Eva R. Murphy acknowledged the receipt of another letter from Mrs. Butterfield, and in reply thereto stated:
“Your letter brought double pleasure to us. In the first place we are glad to have Louise in our family, and, secondly, your frankness, confidence and sound judgment promise that we shall understand each other, and desire the same things for our joint charge. * * * We shall expect her here September twenty-sixth. If you are in town earlier, of course we shall be glad to have you call and see us and her future school home. I hope that you will decide to come with her, for it would be more satisfactory to you to see how things are.”
It appeared from the testimony of -the plaintiff Murphy that she visited Utica, where the defendants resided, the last of September, 1898. Whether this was before or after the last letter was written, does not clearly appear. She testified that while in Utica she made inquiries of Mr. Townsend, who represented the infant’s estate, as to its amount and value, and she called upon the defendants at the home of Mrs. Butterfield. She was then informed that the father and mother of the infant Holmes were deceased, and that she was living with Mrs. Butterfield, in Utica. In a conversation which she had at the home of Mrs. Butterfield, she told them the information she had received from Mr. Townsend as to the value of the estate, and that on account thereof she was perfectly secure; and they talked with respect to the amount of the board and tuition and the time of payment, and finally the sum of $500 was agreed upon as the tuition. It does not appear during this interview that Miss Holmes said anything. From all that appears, she was a passive listener to the transaction, and the conversation for the most part was conducted by the plaintiff Murphy and Mrs. Butterfield. There is not a scintilla of evidence to show that Miss Holmes, the infant, took any part whatever in the negotiations which resulted in the contract for the board and tuition to be furnished by the plaintiffs.
It follows that the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.
Cases cited
- Goodman v. Alexander 165 N. Y. 289 p. 807
- Wailing v. Toll 9 Johns. 141 p. 809
- Gay v. Ballou 4 Wend. 403 p. 809
- Gray v. Sands 66 App. Div. 572 p. 809