Brown v. Deloach , 28 Ga. 486 ( 1859 )

By the Court.

Benning, J.,

delivering the opinion.

Was the court below right in excluding from the jury the defendant’s promise to pay his son’s debt “the next fall,” if the plaintiffs would let the debt lie over till then, and the son should fail to pay it ? We think not.

If the son’s account was contracted by the authority of' the father, it was a contract binding on the father. Anything, then, from which the jury would have been at liberty to infer that the son had been authorized by the father to contract the account, was admissible as evidence to the jury. This promise of the father to pay the account, in certain events, was a thing from which the jury might have inferred that the son had been authorized by him to contract the account, although it was not a thing from which they were bound so to infer. The promise might have been the result of other reasons than a consciousness in the father that he had authorized the creation of the account; as, of a wish to save his son’s credit; of a desire to spare his son’s sensibilities ; of an opinion that the law made him liable to pay the account; but then, as the promise might have been the result of consciousness in him, that he had authorized the creation of the account, the promise was proper matter for the jury — it being the business of a jury, when a fact will bear several different interpretations, to say which one of them it shall bear.

[1.] We think, then, that the exclusion of the promise from the jury was an error.

The ground on which the court put the exclusion, probably, was, that the promise was a promise to answer for the debt of another, and was, therefore, a promise on which an action was forbidden by the statute of frauds. But, if the account was contracted by the authority of the father, the person making the promise, the debt was the father’s debt, and not the son’s; and, therefore, the promise was not a promise to answer for another’s debt, but was a promise to answer for his own debt.

The promise having been excluded from the jury, was the.other evidence sufficient to carry the ease to the jury, and prevent a nonsuit ? That is the next question.

The other evidence, at most, was that of a witness who said, that the son was not twenty-one years old, and that “ the goods were necessaries, and suitable to the condition of the ” “ son.” A bill of the goods was attached to the declaration. It is as follows:

Mr. Seaborn Deloach,

Bought of Brown & McCoy.

1854.

Dee. 27 — 1 plated chain.................................... 4 00

1855.

April 3 — 1 gold pen and silver case.................. 3 50

“ —1 pr. kid gloves, 1 37; May 14,1 alapaca coat, 6 00...................................... 7 37J

“ —1 pair G-a. shoes, 3 00 j 3 yards check linen, 1 50.................................... 4 50

June 16 — 1 valise, 4 00; 2 silk cravats, 2 75......... 6 75

July 5 — 1 pr. white pants, 5 00; Aug. 7, 7 yards ginghams, 1 40.............................. 6 40

“ 15 — 1 gold pen silver case, 2 00; Oct. 1,1 cassimere suit, 22 50........ .24 50

“ 1 pr. boots, 8 00; 3 pr. | hose, 1 12-J........ 9 12J

Nov. 21 — 1 pr. Ga. shoes, 3 50; (24) 2 shirts, 4 00.. 7 50

Dec. 20 — 1 pr. kid gloves, 1 50; 2 collars, 50 ...... 2 00

“ 24 — 1 umbrella.............................. 3 00

|78 65

Here, then, two questions arise ; one, whether a father is bound to pay for necessaries furnished to his minor child, but furnished without his authority; the other, whether such articles as those contained in this bill of goods are necessaries. The English cases seem to answer the first question in the negative. — Baker vs. Keer, 2 Stark. R., 501; Flenk vs. Torlemache, 1 Car. & P., 5; Blackburn vs. Mackay, 1 Car. & P., 1; Roby vs. Abbott, 6 Carr. & P., 286; Clements vs. Williams, 8 Carr. & Pay., 58; Seaborne vs. Maddy, 9 do., 497; Shellon vs. Springett, 20 English Law and Eq., 28; Mortimer vs. Wright, 6 Mees. & Welsb., 482.

And we very much, incline to thinlc that the English cases are in the right. Not that we know of any very general variance in the American cases. Even if a father is bound to furnish his child with necessaries, and fails to do so, that does not impose an obligation on any third person to discharge this duty of the father. If a third person does it, then he does it voluntarily, and'what right have voluntary services to expect more than voluntary compensation. If we may, of our own accord, discharge this duty for others, and- compel them to pay us for it, why may we not, of our own accord, pay their debts, or discharge any of their other duties for them, and compel them to compensate us for so doing ?

But, conceding that a father is bound to pay a third person for necessaries furnished to his child, are such articles as those contained in the above bill of goods necessaries ? Surely not. There is not one of them that can be called a necessary. What are necessaries ? Eood, clothing and lodging, of a cheap style. We may throw in medicine. It is the right of a father, however rich, to bring up his child on a plan of the utmost economy. This right is invaded whenever a third person steps between him and his child, and furnishes the child with such articles as he presumes to deem “ suitable to the child’s condition in life.” The right is outraged when he also requires the father to pay for the articles. — See Simpson vs. Roberts, 1 Esp., 17; Grantz vs. Gill, 2 do., 471.

But granting that any articles which a witness may consider suitable to a child’s condition in life are necessaries to the child, yet that can be true only when the child does not already possess such articles. And there is no evidence in this case that the child did not have a proper supply of such articles as those furnished to him by the plaintiffs in error; and, in the absence of such evidence, it is to be presumed that he did have; for, it is to be presumed, until the contrary be shown, that the father did his whole duty, and, therefore, that he supplied the child with such articles, — if, indeed, to supply the child with them was his duty.

Upon the whole, then, we think that the evidence, when the father’s promise was excluded from it, was not sufficient to support the action, and, therefore, there was nothing in the evidence, as it then stood, sufficient to prevent the court from granting the nonsuit. Still, the granting of the nonsuit was an error, for the reason that the promise was improperly excluded ; which, if it had been admitted, would have been sufficient to carry the case to the jury. We must, therefore, order the case to be reinstated.

Nothing need be said of the last exception — that to the refusal of the court to reinstate the case.

Judgment reversed,