Belknap v. Whitmire

72 P. 589 | Or. | 1903

Mr. Justice Bean,

after stating the facts in the foregoing terms, delivered the opinion.

1. Although the complaint alleges that the professional services rendered by the plaintiff, and the goods, wares, and merchandise furnished by his assignors, were necessaries suitable to the station and condition in life of the defendants and their mother, the action cannot be regarded as one brought for necessaries furnished to and upon the contract of a minor. If they are liable on such a contract, they must be sued separately for the value of the necessaries furnished to each, instead of which the action is brought against them jointly to recover for services rendered, and goods, wares, and merchandise furnished, to them and their mother. The argument of defendants’ counsel is confined chiefly to a discussion of the question as to when and under what circumstances children may be charged with the support of their indigent parents, and whether they can be held liable on a promise to pay for past support and maintenance voluntarily furnished by third persons. The complaint, however, alleges that the plaintiff’s professional services were rendered, and the goods, wares, and merchandise furnished, by his assignors to the defendants and their mother, “at the special instance and request of defendants, and each thereof,” and that they “then and there promised and agreed to pay the same.” Whatever the liability of a child may be under other circumstances, there can be no question but that he may be charged for goods, wares, and merchandise furnished a parent at his special instance and request, as upon any other contract made by him : Lebanon v. Griffin, 45 N. H. 558; Becker v. Gibson, 70 Ind. 239. At common law there is no legal obligation resting on a child to support his parent, however strong the moral duty may be: Schouler, Dom. Bel. (5 ed.), § 265; Gray, Adm’x v. Spalding, 58 N. H. 345. Hence the law does not infer a promise by him to pay for necessaries furnished to an indigent parent: Edwards and Wife v. Davis, 16 Johns. *281; Lebanon v. Griffin, 45 N. H. 558; Becker v. Gibson, 70 Ind. 239; Stone v. Stone, 32 Conn. 142. But when the support is furnished at his request, he becomes bound therefor, the same as upon any other contract.

2. In this and in many other states children are made liable by statute for the support and maintenance of their parents, when poor and unable to maintain themselves: B. & C. Comp. §§ 2654, 5254. The statutory procedure provided for enforcing the duty thus enjoined is exclusive, and the child can be held liable only in the manner provided. The statute does not authorize a volunteer who has afforded relief to an indigent party to maintain an action therefor against a child of such party as upon an implied contract arising merely from the moral duty which the child owes to support the parent: Gray, Adm'x v. Spalding, 58 N. H. 345; Edwards and Wife v. Davis, 16 Johns. *281; Dawson v. Dawson, 12 Iowa, 512; Condon v. Pomeroy-Grace, 73 Conn. 607 (48 Atl. 756, 53 L. R. A. 696). And it has even been held that the statutory liability is not a sufficient legal consideration to support a promise to pay for past expenditures made by a third person for such purpose: Nine v. Starr, 8 Or. 49; Cook v. Bradley, 7 Conn. 57 (18 Am. Dec. 79); Dawson v. Dawson, 12 Iowa 512; Mills v. Wyman, 3 Pick. 207; Loomis v. Newhall, 15 Pick. 159; Trimble v. Rudy (Ky.), 53 L. R. A. 353, note. Whatever the rule may be upon this last point, the complaint herein is sufficient, because it alleges that the support and maintenance was furnished at the special instance and request of the defendants, and each of them. It therefore states a good cause of action upon contract against the defendant Thomas Whitmire, even if the other defendant, who was a minor, may for that reason avoid her contract: Hamm v. Basche, 22 Or. 513 (30 Pac. 501); Tillamook Dairy Ass’n v. Schermerhorn, 31 Or. 308 (51 Pac. 438).

3. The demurrer, being joint, should have been overruled: Boyd v. Mutual Fire Assoc. (Wis.), 90 N. W. 1087, 1093; Hirshfeld v. Weill, 121 Cal. 13 (53 Pac. 402).

The judgment of the court below is reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion.

Reversed.