Carney v. Barrett

4 Or. 171 | Or. | 1871

By the Court,

McArthur, J.:

Commercial communication with infants has been productive of much litigation, and hence we find abundant authority to guide us to a correct conclusion in the case now in hand.

The evidence shows that after the expiration of the contract between the plaintiff and the defendant, the plaintiff allowed the defendant’s minor son, Arthur, to board and lodge at his hotel for a period of twelve weeks, notwithstanding the defendant informed him that he would not be responsible for said son’s board and lodging, and the plaintiff, assuming the legal liability of the defendant therefor, seeks to recover reasonable compensation for the entertainment furnished.

In general, a father is not liable on a contract made by his minor child, even for necessaries furnished, unless an actual authority is proved or the circumstances be sufficient to imply one. (Varney v. Young, 11 Vermont, 258; Hunt v. Thompson, 3 Scammon, 179; Angel v. McLellan, 16 Mass. 28; Van Valkinburgh v. Watson, 13 Johns. 480; Owen v. White, 5 Porter, 435; Gordon v. Potter, 17 Vermont, 350; Raymond v. Loyl, 10 Barbour, 483.)

Actual authority is not claimed, but it is urged that the circumstances of the case raise the implication of the defendant’s liability for the necessaries furnished.

The most favorable construction for the plaintiff that can be put upon the testimony flatly negatives any such implication.

Prom all the facts in the case, we are of opinion that after the expiration of the contract between the plaintiff and defendant, and after the notification of the defendant, he would not be responsible for the further entertainment of his son. It was the duty of the plaintiff to have closed his doors to the son, unless indeed he relied upon the son’s capacity and intention to compensate him. Under some circumstances a disregard of this duty has been deemed good ground for an action of damages against the innkeeper for harboring the infant. (Everett v. Sherfey, 1 Iowa, Clark, 356, 364; 2 Hilliard on Torts, 520.)

In the case in hand the father was under no obligation to remove the son, as he would have been had the son been a lunatic, a helpless invalid, or an infant of tender years, and placed at the hotel by the father’s authority, or under circumstances sufficient to imply his authority. Instead of being a lunatic, a helpless invalid or an infant of tender years, it seems that the son Arthur was at the time a youth bordering upon the verge of manhood and in perfect health, so as to be able to support himself by his own industry. This fact affords additional reason why the defendant should not be held liable for his maintenance. As the general instructions of the Court below were based upon conclusions at variance with our views as just indicated, they were, therefore, erroneous.

The refusal to give the jury several special instructions requested by the appellant’s counsel, upon the ground that they were presented too late under a rule of Court, is charged as error. It appears that a rule has been formally adopted by the Circuit Court of the State of Oregon for the county of Multnomah, requiring counsel in a cause, when they desire special instructions to be given to the jury, to present the same in writing to the Judge before the last address of counsel to the jury. The power and authority of the Court to make such rule is denied by counsel, hence the refusal to give the desired instructions is charged as error. Under our system all Courts have certain inherent powers to be exercised for the purpose of methodically disposing of all cases brought before them. They can establish such rules in relation to the details of business as shall best serve' this purpose, having proper regard for the rights of parties litigant as guaranteed and recognized by tbe Constitution and tbe laws. This principle is recognized in 3 Binney, 417, and 2 Sergeant & Bawle, 253, the decisions in which cases are approvingly referred to in 2 Need’s Blackstone, 439-40. We cannot discover that it conflicts with any provision of our Code. Indeed, we think it a salutary rule, and one well calculated to suppress that loose system in submitting special instructions which has heretofore prevailed to a greater or less degree in all the Courts of the State, to the annoyance and embarrassment of both the bar and the bench.

The Court below, at the request of the respondent’s counsel, instructed the jury that “if the father placed the minor in possession of the premises, the possession was that of the father and not of the son—the son being the agent of the father so far.” The application of the principles of the law of agency to cases of this kind is recognized in some instances and to a limited extent in many English and in some American cases. (1 Parsons on Contracts, 300.) In this case, however, the instruction was calculated to mislead the jury, for the evidence shows that the appellant, after the expiration of the second week, called upon the respondent and distinctly told him that he would not pay or be responsible for the board and lodging of his son at the hotel any longer. The contract between the respondent and appellant expired at the end of the second week. Up to and including that time the appellant was willing to pay for his son’s entertainment; beyond that time he was not, and so informed the respondent. It was then the duty of the innkeeper, as already indicated, to have closed his doors to the defendant’s son and refused him all further entertainment, unless he expected payment at the hands of the son himself.

Judgment reversed.