59 Vt. 505 | Vt. | 1887
Lead Opinion
The opinion of the court was delivered by
The plaintiff’s claim, shortly stated, is this; that in order to entitle the deféndant to be treated as having stood in loco parentis to .him, he must have had the legal custody of his. person, and have been bound to support, protect, and educate him during the time in question, which he did not have and was not bound to do ; that the defendant took him from the asylum into his family of his own motion, without authority, and could not force a quasi family relation upon him, being .an infant, so as to now shield himself from paying what his services were worth above what he received by way of support at his hands ; that defendant can stand, therefore, only upon the ground of an agreement, express or implied; that no. express agreement appears, and that, as plaintiff was incapable by reason of infancy of contracting, the law will not imply an agreement against him, as it will not imply a promise against one incapable of making a valid one; that he was clearly not a visitor in defendant’s family, but was 'either a boarder or a servant there, and that, whichever he was, he is .entitled to recover.
But it is not true that in order to entitle the defendant to be treated as having stood in loco, parentis to the plaintiff he must at the time have had the legal custody of his person, and have been bound to support, protect, and educate him; and Blackstone and Kent, cited to that proposition, do not sustain it,
In Manvell v. Thomson, 2 C. & P. 303, an uncle who had brought up a niece, but of whom the case does not show he had legal custody, was held to stand in loco parentis to her; and, on showing the smallest degree of service, was allowed to recover damages for her seduction, the same as a father.
And in Irwin v. Dearman, 11 East, 23, the plaintiff, who had taken into his family and bred up for several years the daughter of a deceased friend, was allowed to recover damages for her seduction ultra the mere loss of service; on the ground that he stood in loco parentis to her.
So in Haggerty v. McCanna, 25 N. J. Eq. 48, a step-father, having voluntarily assumed the care and support of his step
It is further contended that because the plaintiff was an infant, therefore the defendant could not stand in the relation, of a parent to him, and thereby subject him to the legal .consequences of that relation, because he could not have bound himself in the premises by an express contract with the defendant, and hence cannot be deemed to have assented by implication to that relation and its consequences. But this is not so ; for an infant can bind himself by an express contract for necessaries, and if by an express contract, then by an implied contract as well; and surely food and shelter, care and nurture, in the defendant’s home, were necessaries for the plaintiff in his circumstances. Thus, in Stone v. Dennison, 13 Pick. 6, an infant contracted specially to serve the defendant till of age for his board, clothes and education; and it was held that,he could not repudiate the contract and recover for his services because they were shown to be worth more than the stipulated compensation. The case was put upon the ground, that .the contract was for necessaries.
In Williams v. Hutchinson, 3 N. Y. 310, the assent of an infant to an arrangement to waive the right to claim wages, for his services was implied from the parental relation the defendant sustained to him when they were rendered.
We take it to be sound law, that whenever one stands in the relation of a parent to an infant who needs his care and support, and faithfully discharges the duties of that relation, there being no express contract to the contrary, nor any circumstances showing a different understanding or expectation of the parties, there can be no recovery for services on the one hand, nor for care and support on the other, though one happens to be worth more than the other.
This case comes clearly within this principle, and therefore the plaintiff cannot recover.
Judgment affirmed.
Dissenting Opinion
I do not agree with my brethren in the disposition of this case. The plaintiff, when eight years oí age, was taken by the defendant and kept as a member of his family until he was nineteen years old, when he voluntarily left the defendant. The latter stood to the plaintiff in loco parentis. No contract was ever made by the parties. Will the law imply one? I think so. The care, support and education furnished the plaintiff were certainly necessities for which he might expressly contract, or for which he might be bound by an implied promise. But while the law implies a promise on the part of the infant to pay for all that the necessaries furnished are worth, will it, in this case, imply one to pay two hundred dollars in addition ? I think not. An infant is not bound by any contract as to the price of necessaries for which he may be liable. Kent, the learned commentator, says (2nd vol., 240):
‘ ‘ In all cases of contracts for necessaries the real consideration may be inquired into.- 'The infant is not bound to pay for the articles furnished more than they were really worth to him as articles of necessity, and, consequently, he may not be bound to the extent of his contract; nor can he be precluded by the form of the contract from inquiring into the real value of the'necessaries furnished.”
The contract is a personal one, voidable by the infant or his representative only. 2 Kent Com. 237. A party dealing with an infant is bound by the terms of the contract, and where the relation of pai’ent and child in fact exists, a stranger cannot object that the one standing in loco parentis has not the legal custody of the infant. Such are the cases cited from 2 C. & P. 303, and 11 East, 23. And in Keane v. Boycott, 2 H. Bl. 511, the court refer to the correct principle when it says : “For this is the case of a stranger and a wrong-doer interfering between the master and servant, and now seeking to take advantage of the infant’s privilege of avoiding his contracts, a privilege which is personal to the infant, and which no one can exercise for him.”
In the case of The King v. Wigston, 3 B. & C. 487, it was held that an infant apprentice could not dissolve the relation of master and apprentice; but in England there are many statutes relating to apprenticeships, and I apprehend that that case was ruled under one of them, for in an early case at common law, Gylbert v. Fletcher, Cro. Car. 179, where an action was brought against an apprentice for departing from his service without license, within the time of his apprenticeship, it was pleaded that at the time of making the indenture he was within age, whereupon it was demurred. After argument, it was by ‘ ‘ All the court resolved that although an infant may voluntarily bind himself apprentice, and if he continue apprentice for seven years, may have the benefit to use his trade, yet neither at the common law, nor by any words of 5 Eliz., c. 4, shall the covenant or obligation of an infant for his apprenticeship bind him. But if he misbehave himself the master may correct him in his service, or complain to a justice of peace to have him punished according to the statute. But no remedy lieth against an infant upon such covenant, and therefore it was adjudged for the defendant.”
At all events, I think the latter case the better law. I see no more reason for holding that an infant may bind himself as to the price he shall pay for his bringing up than I do in holding that he may bind himself as to the price of specific articles of necessity, which, confessedly, he cannot do. No injustice to the quasi parent is done by the rule I contend for; he is
ITow does the case at bar differ in principle from those of contracts by infants, to serve for a certain term, who quit before the term of service is performed ?
In such cases it has always been held that the infant may recover what, under all the circumstances, his services were worth, taking into consideration any injury the other party may have sustained by the avoiding the contract. Rob. Dig. 390, s. 21. By this rule I think the plaintiff may recover the whole sum reported.
