Lebanon v. Griffin , 45 N.H. 558 ( 1864 )

Bell, C. J.

It must be regarded as settled, that there is, at common law, no legal obligation to support a parent. Reeves, (Dom. Rel. 284,) says "the statute of this State (Connecticut) makes it the duty of parents to support their children, and grand-parents, their grand-children, children, their parents, and grand-children, their grand-parents.” This statute imposes on such relatives obligations unknown to the common law.

This question arose in the case of Edwards v. Davis, 16 Johns. 281, where it was held, that "there is no common law obligation, by which a child is liable to support an infirm and indigent parent; but the liability of the child is created solely by the statute, and therefore the law does not imply a promise from the child to pay for necessaries, furnished without his request to an indigent parent, and the natural obligation can only be enforced in the mode pointed out by the actand Spencer, J. said: “The liability of a child to support its parents, who are infirm and destitute, or aged, is wholly created by statute, and it has been truly said that the statute imposes on such relatives duties unknown to the common law.” Reeves, Dom. Rel. 284; 1 Black. Com. 448. In Rex v. Munden, 1 Stra. 190, Pratt, C. J., said with the concurrence of the court: “By the law of nature a man was bound to take care of his own father and mother, but there being no temporal obligation to enforce that law of nature, it was found necessary to establish it by act of parliament;"’ and he adds what equally applies in the present case: “Now the duty of a child of sufficient ability to maintain its poor and destitute parents, being an imperfect one, not enforced by the common law, and the statute having prescribed the manner in which it is to be enforced, and the extent of the liability, the statute remedy is the only one to be resorted to. Then, the consequence necessarily follows, that no one, who has afforded relief to indigent persons, from motives of humanity, or from any other consideration, can maintain a suit upon an implied contract, against the children of such parents, arising merely from the duty which such a person owes to its parents to support them.”

It was urged on the argument, that “the court would intend a request from the moral duty operating on the child.” But the court held otherwise, and that the facts negatived the idea of a request. Kent, (2 Com. 208,) after stating the New York statute, says, this is the only legal provision made, (for the common law makes none,) to enforce a plain obligation of the law of nature. 16 John. 281; 1 Stra. 190.

The promise of a son to pay for past expenditures in relief of an indigent parent, is not binding in law. Mills v. Wyman, 3 Pick. 207; Cook v. Bradley, 7 Conn., 57; S. P. 1 Bouv. Inst. sec. 328; 1 Walk. Am. Law, 260, sec. 109. It is otherwise by the civil code of Louisiana, Art. 245,and by the code Napoleon, secs. 205-7.

The declaration in this case clearly does not show a cause of action within the statute, the notice required by the statute not being alleged. Blit the declaration, in each of its counts, alleges that the relief and supplies were furnished by the plaintiffs at the request of the defendant. If an express request can be shown, there does not seem to us to be any doubt that the defendant would be liable; and such proof would be competent and admissible under either of these counts. If the plaintiffs should be unable to prove an express request before the supplies were furnished, they must fail in their action.

In Ehle v. Judson, 24 Wend. 96, it was held that a mere moral or conscientious obligation, unconnected .with a prior legal or equitable claim, is not a sufficient consideration to support a promise; and Bronson, J., said: "Services voluntarily rendered, though they may be beneficial, impose no legal obligation upon the party benefited. Bartholomew v. Jackson, 20 Johns. 28. The service must be rendered on request, Dunbar v. Williams, 10 Johns. 259; and, in counting upon a past consideration, a request must in general be alleged. Comstock v. Smith, 7 Johns. 87; Parker v. Crane, 6 Wend. 647. It is not necessary that there should be direct evidence of a request. This, like most other facts, may be established by presumptive evidence, and the beneficial character of the services, though not enough, when standing alone, may be very important in a chain of circumstances tending to establish the presumption. 1 Saund. 264, n. 1; 14 Johns. 378, 188. It has been said that a moral obligation is a sufficient considération to support an express promise. Stewart v. Eden, 2 Cain. 150; 14 Johns. 378; Lee v. Muggeridge, 5 Taun. 37 . But this must'be taken with some qualification. The moral obligation to pay a debt, barred by the statute of limitations .or an insolvent’s discharge, or to pay a debt contracted during infancy or coverture, will be a good consideration for an express promise, but a merely moral or conscientious obligation, unconnected with any prior legal or equitable claim, is not enough. 3 B. & P. 249, n; Smith v. Ware, 13 Johns. 257; Lawes’ Pl. Asst. 54; 16 Johns. 283. But here the defendant was under no legal obligation whatever. Nothing had been done at his request, or for his benefit. The plaintiff has often failed upon an express promise in much stronger cases than this. Hunt v. Bate, Dyer, 272; Frear v. Hardenbergh, 5 Johns. 272; Smith v. Ware, 13 Johns. 257.”

In Mills v. Wyman, 3 Pick. 207, it was held that the general position, that a moral obligation is a sufficient considération for an express promise, is to be limited, in its application, to cases where a good or valuable consideration has once existed. Thus, where a son, who was of full age, had ceased to be a member of his father’s family, was suddenly taken sick among strangers, and, being poor and in distress, was relieved by the plaintiff, and afterwards the father wrote to the plaintiff pro m~ ising to pay him the expenses incurred, it was held that such promise would not sustain an action.

So, in Loomis v. Newhall, 15 Pick. 159, it was held that the liability of a father, under the statute, to support his son, who is unable to support himself, does not accrue until proceedings have been had pursuant to the statute. Consequently, furnishing supplies to the son, before such proceedings have been had, is not a benefit to the father, so as to constitute a legal consideration for his promise, made after the supplies were furnished, to pay for them. If supplies were furnished to defendant’s son gratuitously, a verbal promise would be valid, so far as the statute of frauds is concerned, for it would not be the debt of another. The judge says, there is no evidence in the case, from which a jury would be warranted in finding that the plaintiff made the supplies to the son at the father’s request, and, unless such request were proved, and the credit were given to the father originally, he would not be legally liable to pay for them.

We regard the decision in Russell v. Dyer, 43 N. H. 396, as settling the question, that where a party relies upon the provisions of a statute, on which alone his claim or right depends, he must show a compliance with the terms and conditions of the statute. It is not enough that he shows he did all that was in his power to comply with them. See authorities there cited.

According to the practice, which has for a long time existed in this State, both in the language of charters, and in- the general laws, as well as in legal proceedings, a town corporation is described as "the town of L.” and not, as in some other jurisdictions, "the inhabitants of the town of L.” The description of the plaintiffs is manifestly defective. In the case of public corporations created by public laws, the court is officially to take notice of the corporate character, and, by our law, "no writ, declaration, * or other proceeding in the courts, or course of justice, shall be abated, quashed, or reversed, for any error or mistake, where the person or ease may be rightly understood by the court, and courts may on motion order amendment in any such case.” We cannot fail to see that the town of Lebanon is the party intended to be described as the plaintiff, and, on motion, the error may be corrected by an amendment. Berry v. Osborn, 28 N. H. 284; Adams v. Wiggin, 42 N. H. 553; Winnipisseogee, &c., v. Young, 40 N. H. 429.

We are unable to see that it is at all material to the plaintiff’s claim, that the defendant is not an inhabitant of the State, nor that the pauper has no legal settlement in Lebanon. The duty of the overseers of the poor is to relieve all persons in their town, who stand in need, whether they have a settlement there or not. Rev. Stat. ch. 66, sec. 1. And the duty of relations to support their relatives within the prescribed degrees, is unqualified, except by the course of proceeding prescribed by the law. lb. sec. 8, &c.

The demurrer is overruled. Plaintiff has leave to amend.