Bent v. Manning , 10 Vt. 225 ( 1838 )

The opinion of the Court was delivered by

Redfield, J.

1. The defendant’s first objection to the report is not well founded, in point of fact. It is found by the auditor, in terms, that defendant did agree with plaintiff to furnish necessaries to his son, while he should remain with him.

2. The report does not find that the credit was given to the son, but on the contrary, to the father. The son, as might have been expected, acted in the capacity of agent for his father, in making the contract, after the first year, and in stating the account. The father was notified, and did not disclaim the contract. And even up to the time of his son leaving the. plaintiff’s employ, he did not pretend that the contract made by his son was on the son’s account.

3. It is contended that, because the plaintiff furnished to the son some articles not necessary, he is, therefore, not entitled to recover for those furnished, which were necessary. We know of no good reason why any such penalty should be inflicted upon the plaintiff.

4. It is found by the auditor, that the money, allowed by him, was expended in necessaries, and for the expenses of the journey which he took at his father’s request, and for the expenses of which the defendant must of course be liable, whether necessary or not. The better authority at common law is, that an infant, himself, is not liable, at law, for money lent, although expended in the purchase of necessaries, Probart v. Knouth, 2 Esp. 472, and 10 Petersdorff, 543, in notes. Sed contra, Ellis v. Ellis, 12 Modern, 197. But in chancery, the lender of the money may be subrogated to the rights of the seller of the goods, even as against the infant. 1 P. Wms. 558, 482. 1 Ves. 249. And as against the father, the distinction between a liability at law and in chancery, has never been taken. It is indeed questionable, whether our courts might not now consider money, to a certain extent, necessary to be furnished a minor, under some circumstances.

5. The objection to the manner of the auditor’s stating the account does not seem to be of any importance. The copy of plaintiff’s account accompanies the report. The auditor finds that all the items charged were delivered, and that an account equal to that allowed was for necessaries for the son, and came within the terms of defendant’s contract, as stated by the auditor. It was for the auditor to find what articles, and what amount were for necessaries, under the circumstances and condition of the son. It could answer no good purpose that he should state each item of charge by him considered necessary. He, after all, and not the court, is to determine, whether it were necessary. This he might as well do in gross as by particulars. It is not indeed within the rule requiring the items of an account to accompany the report. But that, in this case, is done, and this court are surely not inclined to go beyond that rule. It is not intended to say that the court have nothing to do with the question, whether the items of account are of a name and quality coming within the denomination of necessaries, as food, clothing, washing, medicine, education, &c. for this is exclusively a question of law, and this the court had ample means of deciding, by being furnished with a copy of the account. All that is to be considered as decided here is, that the jury are to judge, or the auditor, (as the case may be,) to what extent the articles are necessary. Maddox v. Miller, 1 M. & S. R. 738. 10 Petersdorff, 540, and notes.

Judgment of the county court affirmed.