Atchison v. Bruff

50 Barb. 381 | N.Y. Sup. Ct. | 1868

By the Court,

Johnson, J.

Upon the facts found by the referee, the right of the plaintiff to recover for the value of the goods furnished, against the defendant, notwithstanding her infancy, is entirely clear. The goods furnished were necessary clothing, in every way suitable to her condition in life and social position. They were furnished at her request, with the consent of her mother, with whom she resided, and with the expectation and understanding, on her part, and on the part of her mother, that they were to he paid for out of her funds, or her portion of her deceased father’s estate. Under such circumstances the law hinds her to pay the value of the necessaries so furnished. (2 Kent’s Com. 239. 1 Pars, on Cont. 245, marg, 285.)

It is claimed, on the part of the defendant, that, inasmuch as it appears that she lived with her mother, who was her natural guardian after the death of her father, and who had, at all times after her father’s death, exercised due care and protection over her, she was incapable of binding herself, even for necessaries. But this is stating the rule quite too broadly. The rule, as gathered from all the authorities, will be found to be that, when an infant is under the care of a parent or guardian, who has means, and is willing to furnish what is actually necessary, he cannot, without the copsent of such parent or guardian, make a binding contract for articles which, under other circumstances, would be deemed necesaries. (Kline v. L’Amoureux, 2 Paige, 419.) Here the mother consented, not only that the necessaries should be furnished, but that they should be a charge upon the defendant’s funds. The referee also finds that, since the death of her father, the defendant has been mainly supported from her portion of the estate, advanced by the administrator for that purpose from moneys in his hands.

There is nothing to show that the mother is able to support the defendant, and the other children, from her own means. So that the question does not arise here, whether she could be compelled to do so, if she had abundant means, as long as the defendant had sufficient means of her own. It appears from the evidence, however, that the mother, at the time the necessaries were furnished, was married to, and living with, a second husband, and still is. It is well settled that the stepfather is under no obligation to provide for or to support the defendant to any extent, and, of course, the law could not compel the mother to give her shelter, even, at his house. The judgment ordered by the referee is according to the very right of the case, and is not inconsistent with the case made by the complaint, arid the evidence upon the trial. The defendant certainly has no reason to complain that it is too favorable to her.

[Monroe General Term, March 2, 1868.

The judgment must therefore be affirmed.

E. D. Smith, Johnson and J. C. Smith, Justices.]