Perrin v. Wilson , 10 Mo. 451 ( 1847 )

Scott, J.,

delivered the opinion of the Court.

This was an action for goods sold, begun in a justice’s court, and was taken to the Court of Common Pleas, where, on a trial, the defendants obtained a judgment.

The wife of the defendant was a minor in St. Louis, under the care of her father, who was a resident of Louisiana. The articles furnished were dresses, millinery, &c., and were not unsuited to the condition in life of the minor. The father refused to pay the account, and Wilson afterwards intermarrying with the minor, this suit was brought against them jointly.

There is no doubt that a husband is liable for the debts due by the wife before coverture; and there is as little that a father is responsible for necessaries furnished to his infant child, and that the infant itself may be liable. But this principle is subject to some important qualifications, founded as well on a regard for the rights of the father, as on policy and sound wisdom. It would be monstrous that a milliner, artist, grocer or merchant, under pretence of furnishing an infant with necessaries, should step in between the parent and his child and say what is and what is not necessary for it. The father deems an article unnecessary and refuses to supply it to his child: shall another say that it is necessary and that it shall be furnished ? In the case of Bainbridge vs. Pickering, 2 W. Black, 1325, it was said by Gould, that if an infant lives with her parent, who provides such apparel' as appears to the parent to be 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 what 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. 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 pretence of furnishing them with necessaries, without the previous consent of the parent.

The father is bound to support his children, while they remain a part of his family. Perhaps if he fail to furnish them with clothes and goods necessary for the support of life, or if he cruelly and carelessly turn them out of doors, any one who, under such circumstances, would furnish such necessaries, may maintain an action against the father, upon the presumption of an assent on his part. The intendment of law is, that a child lives with its father, and that he performs his duty to his children. Walling vs. Toll, 9 John. 140. The tradesman who credits an infant, does it at his peril. He must show affirmatively that the provisions furnished were necessary, and if he give no proof, the verdict must be for the defendant. Story on Con., 40. The term “necessaries” implies that they were furnished ymder such circumstances as rendered the parent or infant liable. It is not enough to show that they were such things as children in like condition in life are usually supplied with, but it must appear that they were furnished under such a state of circumstances as created an obligation on the parent or infant to pay for them. If, while a child is under the care of a parent, it could subject either itself or its parent to the payment of accounts for articles deemed necessaries by an interested tradesman, the control over their children, intrusted by law to parents, and which is so necessary to their own welfare, would be greatly impaired. In this case, there is not only no evidence that the father did not furnish the defendant’s wife with necessaries, but it appears affirmatively that she was under his care; and being under his cafe/the presumption is, that she was furnished by him; and under such circumstances, she could not have made herself liable; so long as the parent continues to maintain and support his child, the child cannot become liable for necessaries. Angel vs. McLellan, 16 Mass., 31.

The other Judges concurring, the judgment below will be affirmed.