Sequin v. Peterson

45 Vt. 255 | Vt. | 1873

The opinion of the court was delivered by

Redfield, J.

The plaintiff’s minor son, a child eleven years of age, purchased of the defendant cigar-holders and fancy pipes in cases, and paid him therefor, in money, $4.75.

The next day after said purchase, the plaintiff’s wife, and child’s mother, went with the boy to the defendant’s store, tendered back the articles so purchased, and demanded the money paid for them, which the defendant refused. The plaintiff thereupon brought this suit to recover the money thus paid for the smoking equipment furnished his child.

I. The court below adjudged, as a matter of law, that the money paid for this smoking outfit belonged to the plaintiff. There is nothing in the case to indicate that it belonged to any other person. The declaration of the boy that he “worked for Shepard, Davis & Co., and earned it,” is no proof of that fact; besides, if it were so, it would not tend to show that the money was not the property of the plaintiff. As the father is bound to provide for the maintenance of his infant children, so he is entitled to their earnings and the custody of their persons. Benson v. Remington, 2 Mass. 113.

There is no claim that the plaintiff had allowed the son to control his own wages, or contract for himself, as in Varney v. Young, 11 Vt. 258; Tillotson v. McCrillis, Ib. 477; Chilson v. Philips, 1 Vt. 41. The money, then, belonged to the plaintiff, and the defendant hold it without right, against the will of the plaintiff, and to his use.

II. .The defendant claims that there was no proper demand for the money. Conceding that the contract of purchase was voidable, and that the plaintiff would be required to return the articles purchased, and demand the consideration paid, in ordey 'to rescind the contract, we think the tender and demand by”the plaintiff’s wife sufficient..

The mother will be presumed to have the more intimate and special charge of the habits and well-being of her child of such tender years, and the exercise of the parental duty of guarding the child from profligacy and dissipation. And the return of this fancy and foolish outfit for childish dissipation, and demand that the money paid for them should be returned, especially when the husband adopts the act by bringing this suit, should be presumed, in law, and in fact, to have been done with his sanction and authority. But the defendant treated her as authorized to make the demand, and offered to return the money, except a small fraction.

And inasmuch as the plaintiff, by this suit, adopts and ratifies her act, the defendant cannot be permitted, now, by pretending that he omitted to do his duty because he supposed the wife not authorized, to retain the money.

There is another quite satisfactory answer to the defendant’s claim. There were no exceptions taken to this part of the case. The defendant “ asked the court to rule, as a matter of law, that the plaintiff could not recover in Ms own name, the money so paid by the minor son to the defendant.” No question was made as to the sufficiency of the demand.

This court, sitting in error, can only try such errors as are specified and brought up on exceptions. The habit that has sometimes obtained, of “ dragging” a case in this court, as for something lost, to find a fault that was undiscovered and unheeded in the trial of the cause, is ever unavailing to the client, and a deviation from professional propriety and duty. Judgment affirmed.