11 Ga. 607 | Ga. | 1852
By the Court.
delivering the opinion.
This is an action brought againstthe defendant and his wife, on a merchant’s account, for goods furnished to the wife before her marriage, and while she was an infant under twenty-one years of age.
The defence set up is, that at the time the goods were furnished by the plaintiff to the defendant’s wife, she had a guardian, who furnished her with such necessaries, &c., as wrere suitable to her rank and condition in life. At the trial, after the evidence had closed, the Court instructed the Jury “ that a guardian had not the same right to judge what w'ere necessaries for his ward, that a parent had for his child; and that in the opinion of the Court, it was not sufficiently proved, that the guardian had furnished his ward with necessaries, suitable to her age and condition : inasmuch as he had not specified the amounts furnished, and what character of articles were furnished; that the Jury were the proper judges of what was necessary and proper and suitable to her station and condition in life; and that the defendant should shew what he did furnish, and let the Jury decide.” Whereupon, the defendant excepted to said charge of the Court, and now assigns the same for error here.
What are the legal duties of parents to their children ? The duties of parents to their children, principally, consists in these particulars : their maintenance, their protection, and their education. 1 Bl. Com. 446. The same author, in speaking of the private relation of guardian and ward, says that it bears a very near resemblance to that of parent and child ; the guardian being only a temporary parent, that is, for so long a time as the -ward is an infant, or under age. 1 Bl. Com. 459. “ The power and reciprocal duty of a guardian and ward, (says Blackstone, Ibid, 462) is the samep’o tempore as that of a father and child, and therefore, I shall not repeat them.” By our own Act of 18th of February, 1799, all guardians are allowed in their accounts, to charge all reasonable disbursements and expenses, suitable to the circumstances of the orphan committed to their care. Prince, 232.
In view then, of the position which a guardian occupies towards his ward, under the law, and the duties and responsibilities which are necessarily devolved upon him, we hold that such guardian of the person and property of his infant ward has the same right to judge what are necessaries, according to his or. her estate and condition in life, that a parent has.
Necessaries are such things as are useful and suitable to the party’s state and condition in life, and not merely such as are requisite for bare subsistence. Peters vs. Fleming, 6 Meson and Welsby’s Rep. 46. Such articles of costly apparel, as might be considered necessary for the son or daughter of a millionaire, would not be so considered, for the son or daughter of one whose pecuniary circumstances were small and limited.
The Court in its charge to the Jury, assumed the proposition that it was incumbent on the defendant to shew, that the guar
It is also a general rule of law, that when a tradesman furnishes an infant with goods on credit, it is incumbent on him to shew that the articles furnished were necessaries, according to the circumstances and condition in life of such infant, before he can recover the price of the goods so furnished. Parents and guardians are the best judges, as to what are necessaries for their children and wards ; and whenever a tradesman furnishes them with articles, in addition to what their parents and guardians have provided them, it is incumbent on such tradesman, to shew a necessity therefor, to entitle him to recover the price of the articles so furnished. The tradesman trusts the infant at his. peril. 2 Kent’s Com. 239. Van Vaulkenburgh vs. Watson, 13 John. Rep. 480. Ford vs. Fothergill, 1 Espinasse Rep. 211. Bainbridge vs. Pickering, 2 W. Blackstone’s Rep. 1325. Cook vs. Deaton, 14 Eng. Com. Law Rep. 232. Connally vs. Hull, 3 McCord’s Rep. 6. Mortara vs. Hall, 6 Simon’s Rep. 465.
In Ford vs. Fothergill, the plaintiff brought an action against the defendant for a coat, waistcoat, and two pair of breeches, which were ordered to be sent to the Grecian Coffee House. Lord Kenyon, Ch. Justice, said, “ Nothing is clearer in the law.
In Bainbridge vs. Pickering, the action was brought to recover the price of certain feathered caps, and other ornamental apparel furnished a young lady by a milliner. In that case, the Court, by Gould, Judge, said: “ If an infant lives with her parent, who provides such apparel as appears to the parent tobe proper, so that the child is not left destitute of clothes or other real necessaries of life, I apprehend that the child cannot bind herself to a stranger, even for what might otherwise be allowed as necessaries, for no man shall take upon him, to dictate to a parent lohat clothing the child shall wear; at what time they shall be purchased, or of whom. All that must be left to the discretion of the father or mother. And as there is not here any pretence but that the child was decently provided for by the mother, I think we should give no countenance to such persons as inveigle young women into extravagance, under the pretext of furnishing them with necessaries, without the previous consent of the parent.”
In Connally vs. Hull, it was held that an infant who lives with, and is properly maintained by her parents, cannot bind herself to a stranger for necessaries; and when daughters lived with their mother, it must be presumed they wore, properly maintained by their parent, until the contrary be proved; for the mother 'being •.the best judge of what is necessary for them, should be consulted before credit be given them. In Van Vaulkenburgh vs. Watson, it was held to be the duty of the parent, to furnish necessaries for his infant children, and if he neglect that duty, and any other person furnishes such necessaries, he is deemed to have
In Cook vs. Deaton, the Court held that if proper clothes are supplied to an infant by his father, any others furnished in addition, cannot be considered as necessaries; and it is the duty of the tradesman, when applied to by an infant for clothes, to make inquiries of his friends before he gives him credit.
In Mantara vs. Hall, it was held that when an infant has an allowance made to him for his support by_ his guardian, a tradesman is not entitled to be paid for articles supplied to the infant on credit, unless he can make out, that having regard to the infant’s circumstances and station, which he is bound to inquire into, the articles were necessaries. In the case under consideration, the record does not disclose whether the defendant’s wife was living with her guardian or not, at the time the articles in the account were furnished by the plaintiff; but the record does shew, that she had a guardian at that time, and that he furnished her u with what he regarded ample and proper for her support, agreeable to her age and condition.” The Court however, instructed the Jury, that in was incumbent on the defendant to shew by evidence, what particular articles were furnished by her guardian to his wife, so that the Jury might judge whether she was furnished with necessaries suitable to her estate and condition. So far from it being incumbent on the defendant to shew by evidence what particular articles were furnished his wife before marriage, by her guardian, in order to defeat the plaintiff’s recovery, the reverse of that proposition is true; as we have already shewn by the authorities. To entitle the plaintiff to recover the price of the articles furnished the infant ward before her marriage, according to the facts disclosed by the record in this case, it was incumbent on him, to shew by evidence, what was her estate and condition, and what particular articles of clothing, See., the guardian did furnish her, so that the Jury might judge whether she was furnished with necessaries, accord
The burden of proving the issue of necessaries furnished an infant, is on the plaintiff. 2 Greenleaf’s Ev. §364. Our judgment in this case, must of course, be restricted to the state of facts disclosed in the record before us; and in reference thereto, we assert and maintain the following propositions: that a guardian of the person and property of an infant ward, has the same right to judge as to what are necessaries for his ward, according to her estate and position in society, that a parent has for his child; that when it appears that such infant ward has a guardian who has furnished her with such necessaries as in his judgment, he regarded ample and proper for her support, according to her age and condition, a tradesman who seeks to recover the price of a bill of articles furnished such infant ward, in addition to those furnished by her guardian, must shew to the satisfaction of the Jury, what is the estate and condition of such infant ward, and must also shew what particular articles of necessity the guardian has furnished for his ward, and that the same are not sufficient for her support and maintainance, according to her estate and position in society ; and that the additional articles so furnished by him, were necessary for such support and maintainance. In such a case, burden of the proof is on the plaintiff and not on the defendant. Let the judgment of the Court below be reversed.