Townsend v. Burnham , 33 N.H. 270 ( 1856 )

Eastman, J.

These goods ‘were furnished to Andrew J. Burnham, the son of the defendant, after he became of age, and were charged to him. Eor aught that appears in the case, the plaintiffs, at the time the goods were delivered, had no acquaintance with, or knowledge of the defendant; and if he is to be charged with their payment, it must be upon the ground that Andrew J. Burnhaifi, as the defendant’s agent, had made him liable therefor.

The fact that the son was more than twenty-one years of age when the articles were delivered, settles the question of the liability of the defendant, upon the ground of necessaries furnished to a minor; though, had he then been in his minority, it would seem to be quite evident that the defendant would not be liable. In order to charge a parent with supplies furnished to his infant child without his direction, some clear and palpable omission of duty on the part of the parent, in not furnishing necessaries, must be shown. Pidgin v. Cram, 8 N. H. 350; Van Valkenburgh v. Watson, 13 Johns. 480. Judging from the statements in this case, there was no such omission of duty on the part of this defendant to furnish all necessary supplies, as to show any liability on that account. Nor would it seem that the articles themselves were necessary for him to have. He states in his testimony that he was well supplied with clothing at the time of this purchase, suitable for a young man in his situation.

But was there any evidence competent to show an authority in Andrew J. Burnham to purchase these goods for his father, or as his agent ? Or any tending to show that there was any undertaking by the defendant, either express or implied, to pay for the same ? We have read the case over carefully several times, and have been unable to find any such evidence. The young man testifies that the defendant refused to allow him to buy anything on his credit, or to run him in debt; and that he never paid any of his debts except by giving him the money to pay them with. The bills of Johnson & Dewey, of Evans, and of Stewart and others, appear all to have accrued subsequently to this transaction; and we do not discover anything in them or in the testimony connected therewith, showing that the defendant had given his son permission to contract debts on his account, or recognizing his son’s acts as binding on the defendant. These bills were all charged to Andrew J. Burnham, as were also the other bills spoken of in the case, as well as the one in suit; and the credits in the various instances were given to him. In no instance were they charged to the father, and in no instance did he acknowledge his liability to pay them.

The case of Martin v. The Great Falls Man. Co., 9 N. H. 51, is an authority upon the question. In that case a clerk of the corporation, by the name of Cutler, borrowed, without authority, a sum of money of the plaintiff, in the name of the corporation, which he converted to his own use ; and it was held that the corporation was not liable, although it was shown that the clerk had, in two or three previous instances, borrowed money of other persons, in the name of the corporation, of which the plaintiff, however, had no knowledge, which was applied to the use of the company and repaid by them. In the course of the opinion the court say that had Cutler, before the time of effecting the loan in question, frequently borrowed money of the plaintiff, and given assurances in the company’s name for repayment, and had the company afterwards discharged the debts without objection, this would have afforded ground for the support of the present action against the company. But the case finds that the loan in question was the only one ever obtained from the plaintiff in the name of the company, by Cutler; and although it is in evidence that Cutler in one or two instances effected loans in the company’s name, of other persons, which were paid by the proper officer of the company, yet it does not appear that these circumstances were known to the plaintiff, and consequently they could form no inducement to him to make the loan in question on the credit of the company. The company never authorized Cutler to pledge their credit, or recognized his contracts.

And in the Boston Iron Company v. Hale, 8 N. H. 363, it was held that where one furnishes an agent with money to make a purchase, and the agent purchases the goods on credit, the principal is not liable to the vendor, notwithstanding the goods have come to his use, unless he had previously allowed the agent to purchase on credit, and thus authorized the vendor to trust him.

In the present case the articles were furnished very soon after the young man came of'age, and the plaintiffs had never credited either him or the defendant with anything before. They had had no dealings with the defendant, either directly or through his son, and there are no facts disclosed in the case which we think have a legal tendency to charge him with the payment of this debt. There must, therefore, be

Judgment on the nonsuit.