Varney v. Young , 11 Vt. 258 ( 1839 )

The opinion of the court was delivered by

Bennett, J.

It is well settled law, that a father is not bound to pay for necessaries furnished to his minor son, unless an actual authority be proved, or the circumstances be sufficient to imply one. There must be proof of a contract express or implied, a prior authority, or a subsequent recognition of the claim. 2 Kent’s Com. 192. Chittyon Con. 117. Blackburn v. Mackay, 1 Car. & Payne’s R. 1 Huck v. Tollemache, id. 5. Wilkins v. Wells, 3 do. 231. In the case now before the court, the defendant, at the request of the plaintiff, had relinquished to the son, by a written instrument, all claim for his services, authorizing him to contract for himself, and stating that he would pay no debts incurred by the son, and this was delivered to the plaintiff, at his request, prior to the son’s sickness. Under these circumstances, the son was in the service of the plaintiff under a contract tween them that the plaintiff should pay him his wages, and the plaintiff’s account was charged to the son, and the son called upon by the plaintiff for the settlement of it after he left him, and a proffer to apply on this account such sum as was due the son on his wages. It is undoubtedly true that a father may, by an agreement with his minor child, relinquish to the child the right which he would otherwise have to his services, and authorize those who employ him to pay him his wages. Jenny v. Alden, 12 Mass. R. 375. 3 Pick. R. 201. 9 Cowen’s R. 92. 6 Conn. R. 547. In such case, the contract which the son shall make with a third person is conclusive upon the father. Chilson v. Philips, 1 Vt. R. 41. It is apparent that the credit was given to the son, and there is no ground for an implied contract on the part of the father that he would pay this account. It is found, indeed, by dhe auditor, that in May, 1835, the defendant engaged a Mr. Kqrn to see that his son was taken care of in case of sickness, and he would pay the expenses ; and that Kern, during the sickness of the son, called to see him at the plaintiffs house, and requested the plaintiff to see that he had all necessary care taken of him, and told him the defendant would be accountable to him for the same. But it is to be remarked, that the defendant had before this, and at the time he authorized the son to contract with the plaintiff in his own behalf, given him notice that he would pay no.debts incurred by the son; and the auditor does not find that the son was sustained on the credit of the father, but the whole case shows ■ the reverse. The son was made the debtor, and so treated by the plaintiff, and he is unquestionably liable. We cannot, from the facts reported, hold the father liable. The judgment is, therefore, affirmed.