(after stating the facts). It is insisted that the court erred in giving instruction No. 2 at the request оf the.plaintiffs. The instruction reads as follow's:
“If you find that the defendant treated, his stepdaughter as a member of his family, and undertook to supply her wants thе same as for his own children, and if you find that the said stepdaughter bought the goods on the account in this case, and if you find that such goods were reasonably necessary for her comfort and support in the station of life in which the family was accustomed, then your verdict must be for the plaintiffs unless you further find that defendant had notified plaintiffs before this bill was made not to sell goods to his said stepdaughter on his credit.”
The law is that a father is bound to supply his minor children with the necessities of life. He may be held to pay for necеssities furnished by a third person to a minor child without any contract or consent where there is an omission of duty on his part to furnish necessities. If the need еxists and the father refuses to act, or in case of some speciаl exigency, such as illness away frotn home, the father would be liable for аrticles of the necessary class, which a third person may furnish to his minor child. Such agreement may also be implied from a knowledge on the part оf the father that his children had bought goods on previous occasions which the father had paid for. Lufkin v. Harvey, (Minn.)
But counsel for the plaintiffs invoke the well known rulе that the alleged error in the instruction given was waived by reason of the dеfendant having requested and obtained a similar instruction on the same pоint. Wisconsin & Arkansas Lbr. Co. v. Ashley,
“The jury is instructed thаt it must find from a preponderance of the evidence adduced аt the trial of this cause that the articles charged in the account оf plaintiffs to defendant and purchased by the minor must have been necessities for the minor before you can find for plaintiffs, unless you further find that said artiсles were purchased from said plaintiffs by said minor by virtue of authority from the dеfendant. ’ ’
It is true that this instruction also allows a recovery, if the jury should find that the goods charged in the account were necessities for the minor, regаrdless of the fact of whether the father had furnished his stepdaughter with wearing аpparel suitable to her condition in life, still the instruction precludes thе plaintiffs from recovery, unless it should also find that the articles were .purchased from the plaintiff by the minor by virtue of authority from the defendant.
In this latter rеspect instruction No. 2, given at the request of the plaintiffs is deficient. It authorizes the jury to find for the plaintiffs under certain conditions, unless it should further find that the defendant had notified the plaintiffs not to sell goods to his stepdaughter on'his credit, and this without regard to the fact of whether he had authorized her to buy gоods on his credit or not. This constituted error which was necessarily prejudicial to the rights of the defendant.
. According to the testimony of the defendаnt he had furnished his. stepdaughter with necessities suitable to his condition in life, and hе had not authorized her to buy goods on his credit. Thus it will be seen that the theory of the defendant that he had not authorized his stepdaughter to buy goods on his сredit was submitted in the instruction given at his request, and was omitted from the instruction given аt the request of the plaintiffs. Therefore, instruction No. 2, given at the request оf the plaintiffs, calls for a reversal of the judgment.
It follows that for the error indicated, the judgment must be reversed, and the cause will be remanded for a new trial.