134 A. 718 | N.H. | 1926
By the common law as adopted in this jurisdiction there is no legal liability of a parent to third parties for necessaries furnished a minor child in the absence of an express or implied contract. This principle is established and reaffirmed in well-considered cases. Kelley v. Davis,
The son was but seventeen years of age and was occupying a room with the defendant at a boarding house to which they had removed upon the breaking up of their former home. For some considerable time prior to the plaintiff's services the boy had been unable to work. During the temporary absence of the father the boy was taken very ill, and on the suggestion of his landlady he was taken by the plaintiff to the hospital for emergency treatment, and there remained under his care for one hundred days. The father, upon his return from work the night of the boy's removal to the hospital, and thereafter on Sundays and as often as convenient during each week, visited the boy at the hospital. He wanted to transfer the boy to a "hospital for the poor," but the boy would not consent. The plaintiff continued his treatment, to which the father offered no further objection. Following one of his visits to the hospital, upon the suggestion of the "sisters" in charge, the defendant accompanied another son to the plaintiff's office to request a change in treatment, which request was granted and acted upon. Although he could not speak English, he understood the purpose of his call. The defendant's only objections to paying the plaintiff's bill, which was presented after the treatment, were that he did not make the arrangement to have the son taken to the hospital, that the bill was large, and that he could not afford to pay. He testified that if he had had the money he would have paid *425 the bill. The plaintiff testified that he supposed the father would pay.
In ascertaining the understanding of the parties, their situation, including the relationship of father and son and the moral obligations and natural impulses incident to that relationship, is material and important; not as evidence, in and of itself, of a legal obligation or of an implied contract, but to assist in interpreting the words and conduct of the parties.
Had the defendant been present and accompanied his minor son to the hospital when the situation arose which necessitated the boy's removal and the plaintiff's services, and had he then given the plaintiff directions as to the treatment of the boy, there could be question neither as to the competency, nor as to the persuasive character, of the evidence of the defendant's conduct to support an implied promise to pay the plaintiff for such services. The fact of the father's absence when the emergency requiring treatment arose is not controlling. The defendant's subsequent direction to the plaintiff to change his treatment tended to prove, the defendant's acceptance of, and promise to pay for, the services which the defendant was under a moral obligation to supply. A jury could find that the defendant, under such circumstances, understood that a reasonable person in the position of the plaintiff, having a like realization of the defendant's relationship and natural obligation, would be induced to continue the treatment of the son upon the expectation that the defendant intended to pay therefor. Such treatment being continuous from its inception, the defendant's acceptance of the plaintiff's services had the force of a prior request.
By the modern law of contract, the mere state of mind of the parties — with reference to the "meeting of minds" — is not the essential object of inquiry, the terms of the promise act being determinable by an external and not by an internal standard (3 Wig. Ev. 1971; Woburn Bank v. Woods,
As, on the law and the evidence, an implied promise by the defendant could be found, there must be
Judgment for the plaintiff.
MARBLE, J., did not sit: the others concurred.
