McLaughlin v. McLaughlin

Opinion by

Mr. Chief Justice Sterrett,

This suit was brought to recover six hundred and sixty-four dollars and interest, alleged to be “ due and owing ” to the plaintiffs “ for the support and maintenance of George B. McLaughlin,” defendant’s infant son. It is. not averred in the statement that there was any express contract for the boarding, maintenance, etc., of the child, nor is it averred that said services, etc., were reasonably worth the sum per week claimed therefor. The averment is : “ The said six hundred and sixty-four dollars is estimated by charging the price and sum of three and a half dollars per week for a period of one hundred and eighty-nine weeks and five days, being the time said infant was in charge of the said plaintiffs.” This cannot be regarded as an averment that “ the support and maintenance ” of the infant were reasonably worth the amount claimed therefor. The statement is therefore defective, in that it does not sufficiently set forth a good cause of action. In the absence of any averment of contract relation, whereby the defendant agreed to pay any specific sum, or that the “ support and maintenance ” of his infant child were reasonably worth the amount claimed, or some other sum, the defendant was not bound to answer.

But, assuming that he was, we think his affidavit of defence is quite sufficient to carry the case to the jury. After denying that he ever “ contracted or agreed to pay any board for said child,” the defendant avers that plaintiffs never demanded any, “ but, on the contrary, refused to receive or charge any board,” in consequence of which he, recognizing his obligation to them for their kindness, etc., made presents, etc., to Mary McLaughlin, one of the plaintiffs, far exceeding “ the value of the board of said child as charged in the statement filed.” He further avers “ that, during the time the child was with the plaintiffs he furnished and paid for all of its clothes and other necessaries.” Further comment is unnecessary. We think the learned. court erred in entering judgment for want of a sufficient affidavit of defence.

Judgment reversed and a procedendo awarded.