This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Lord Coke said, in a rule much quoted since, "an infant may bind himself to pay for his necessary meat, drink, apparel, necessary physick, and such other necessaries, and likewise for his good teaching or instruction whereby he may profit himself afterwards."1 Much of the subsequent law of necessaries is merely an amplification of this short rule. Thus food,2 lodging,3 suitable clothing,4 medical attendance,5 and. nursing in time of sickness,6 and services rendered by a dentist,7 may all be necessaries. A trade education,8 and a common school education,9 have been held to be necessaries; but not a collegiate,10 or a professional education.11 The propriety of denying that a collegiate or a professional education may be a necessary for one not possessed of wealth, considerable social standing, or marked ability, is very doubtful in this country. It places preparation for teaching or for other learned professions on a less favored footing than preparation for a trade or for business life. In this country, at least, all honest occupations should be equally honorable and equally favored by the law. Attorney's services rendered in defending an infant in a criminal action,12 or in a bastardy suit, where imprisonment may result,13 or in any proceeding involving personal liberty,14 or in bringing suit for a female infant for an indecent assault,15 are necessaries. So, in an extreme case, are legal services in prosecuting a suit for breach of promise, where seduction was an aggravation of damages.16 But attorney's fees in defending a foreclosure suit,17 or in searching records and advising the infant of his rights,18 or in recovering land,19 are not necessaries, the law preferring to compel parties to contract with the infant's guardian in matters pertaining to his property. Contrary to the views just expressed, and in accordance with a principle hereafter discussed,20 it has been held that any beneficial legal services which result in advantage to the infant's estate, are necessaries.21 Recognizances,22 and other contracts to procure release from lawful imprisonment23 are treated as necessaries. Since the law discourages an infant from incurring business debts, purchases for purposes of business such as a barber shop and furnishings,24 a horse,25 or food for horses,26 or a wagon to be used in farming,27 or supplies for a plantation,28 are not necessaries. Articles purchased for business are, however, necessaries as far as actually applied to the support of the minor.29 So, as his property is best managed by his guardian, an infant's contracts for the preservation of his property, as for repairs,30 even if required to preserve a dwelling house,31 though occupied by the infant,32 are not necessaries; nor are materials for the construction of a house,33 nor fire insurance.34 But while material used in erecting improvements upon an infant's realty is not looked upon at Common Law as a necessary, equity will subrogate the party who makes the improvements to the increased value of the premises due to such improvement,35 or to the increase in the rental value bridles, whips, fiddles, fiddlestrings, etc., amounting to $111.53½,"47 are not necessaries. In general, whatever would be necessaries if for the infant himself, are necessaries if supplied to his wife and children if he is married,48 or even to his illegitimate children if he is not.49
1 Co. Litt. 172a.
2 Barnes v. Barnes., 50 Conn. 572; Price v. Sanders, 60 Ind. 310; Kil-gore v. Rich, 83 Me. 305; 23 Am. St. Rep. 780; 12 L. R. A. 859; 22 Atl. 176; Trainer v. Trumbull, 141 Mass. 527; 6 N. E. 761; Stone v. Dennison, 13 Pick. (Mass.) 1; 23 Am. Dec. 654; Saunders v. Ott, 1 McCord. (S. C.) 572; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274; Bradley v. Pratt.. 23 Vt. 378.
3 Gregory v. Lee, 64 Conn. 407; 25 L. R. A. 618; 30 Atl. 53; Price v. Sanders, 60 Ind. 310; Kilgore v. Rich, 83 Me. 305; 23 Am. St. Rep. 780; 12 L. R. A. 859; 22 Atl. 176; Trainer v. Trumbull, 141 Mass. 527; 6 N. E. 761; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274.
4 Price v. Sanders, 60 Ind. 310; Stone v. Denison, 13 Pick. (Mass.) 1; 23 Am. Dec. 654; Lynch v. Johnson, 109 Mich. 640; 67 N. W. 908;
Saunders v. Ott, 1 McCord. (S. C.) 572; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274.
5 Price v. Sanders, 60 Ind. 310; Saunders v. Ott, 1 McCord. (S. C.) 572.
6 Werner's Appeal, 91 Pa. St. 222.
7 Strong v. Foote, 42 Conn. 203.
8 Walter v. Everard (1891), 2 Q. B. 369; Pardey v. American Ship-Windlass Co., 20 R. I. 147; 78 Am. St. Rep. 844; 37 Atl. 706.
9 Peters v. Fleming. 6 Mees. & W. 42; Saunders v. Ott, 1 McCord. (S. C.) 572; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274. See the obiter to this effect in Middlebury College v. Chandler, 16 Vt. 683; 42 Am. Dec. 537.
10 Middlebury College v. Chandler, 16 Vt. 683; 42 Am. Dec. 537.
11 Turner v. Gaither. 83 N. C. 357; 35 Am. Rep. 574; Bouchell V. Clary, 3 Brev. (S. C.) 194.
12 Askey v. Williams, 74 Tex. 294; 5 L. R. A. 176; 11 S. W. 1101.
13 Barker v. Hibbard, 54 N. H. 539; 20 Am. Rep. 1G0.
14 McCrillis v. Bartlett, 8 N. H. 569.
15 Crafts v. Carr, 24 R. I. 397; 96 Am. St. Rep. 721; 60 L. R. A. 128; 53 Atl. 275. (The action having resulted successfully.)
16 Munson v. Washband, 31 Conn. 303; 83 Am. Dec. 151. In this case the minor was pregnant and destitute. Her attorney instituted breach of promise proceedings, which were compromised by her marriage with the defendant. The attorney then brought suit against her and her husband for reasonable attorney fees. It was held that he could recover. In Petrie v. Williams, 68 Hun (N. Y.) 589, it was held that a contract by an infant to pay her attorney half the amount recovered for her in a breach of promise suit was not enforceable beyond a reasonable fee.
17 Englebert v. Troxwell, 40 Neb. 195; 42 Am. St. Rep. 665; 26 L. R. A. 177; 58 N. W. 852, including services as guardian ad litem.
18 Cobbey v. Buchanan, 48 Neb. 391; 67 N. W. 176.
19 Phelps v. Worcester, 11 N. H. 51.
20 See Sec. 891.
21 Epperson v. Nugent, 57 Miss. 45; 34 Am. Rep. 434; Searcy v. Hunter, 81 Tex. 644; 26 Am. St. Rep. 837; 17 S. W. 372.
22 State v. Weatherwax, 12 Kan. 463.
23 Buckinghamshire v. Drury. 2 Eden. 60; Clark v. Leslie, 5 Esp. 28.
24 Ryan v. Smith, 165 Mass. 303; 43 N. E. 109.
25 House v. Alexander, 105 Ind. 109; 55 Am. Rep. 189; 4 N. E. 891; Wood v. Losey, 50 Mich. 475; 15 N. W. 557; Rainwater v. Durham, 2 Nott. & McCord. (S. C.) 524; 10 Am. Dee. 637; Grace v. Hale, 2 Humph. (Tenn.) 27; 36 Am. Dec. 296. Contra, Mohney v. Evans, 51 Pa. St. 80.
26 Merriam v. Cunningham, 11 Cush. (Mass.) 40; Mason v. Wright, 13 Met. (Mass.) 306.
27 Paul v. Smith, 41 Mo. App. 275. 28 Decell v. Lewenthal, 57 Miss.
331; 34 Am. Rep. 449.
29 Turberville v. Whitehouse, 1 Car. & P. 94; 12 Price 693.
30 Tupper v. Caldwell, 12 Met. (Mass.) 559; 46 Am. Dec. 704; Horstmeyer v. Connors, 56 Mo. App. 115; Allen v. Lardner, 78 Hun (N. Y.) 603; Phillips v. Lloyd, 18 R. I. 99; 25 Atl. 909.
31 Wallis v. Bardwell, 126 Mass. 366; Tupper v. Caldwell, 12 Met. (Mass.) 559; 46 Am. Dec. 704.
32 Horstmeyer v. Connors, 56 Mo. App. 115.
33 Price v. Jennings, 62 Ind. Ill; Price v. Sanders, 60 Ind. 310; War-nock v. Loar (Ky.), 11 S. W. 43, 88; Freeman v. Bridger, 4 Jones L. (N. C.) 1; 67 Am. Dec. 258; Shumate v. Harbin, 35 S. C. 521; 15 S. E. 270. If the improvement is not authorized by infants who have a homestead interest only, it cannot be charged against their interest. Morris v. Mitchell (Ky.), 39 S. W. 250. Some cases seem to hold the infant liable for reasonable repairs made by his orders. Chapman v. Hughes, 61 Miss. 339.
34 New Hampshire, etc., Co. v. Noyes, 32 N. H. 345. But the insurer cannot avoid the contract. Monaghan v. Ins. Co., 53 Mich. 238; 18 N. W. 797.
35 In McGreal v. Taylor, 167 U. S. 688, money was loaned to pay off prior liens and to erect a building. The court held that the property should be sold and the proceeds applied (1) to reimburse the lender due thereto.36 Articles which are used as a means of diversion, such as a horse and buggy bought by a clerk and not shown to be used in his business,37 or a bicycle,38 as where bought by a female servant,39 or by a girl of seventeen,40 have been held in each case not to be necessaries. But where the use of bicycles was common among persons of the infant's station in life in the surrounding neighborhood, it was held not error to find affirmatively that it was a necessary.41 Life insurance is not a necessary.42 Articles which are mere ornaments or luxuries, as betting books,43 expensive dinners,44 expensive jewelry,45 an expensive chronometer,46 or "liquor, pistols, powder, saddles, for the amounts advanced for liens;
(2) to pay to the infant the value of the realty less the amount of the liens and the value of the building;
(3) to pay to the lender the residue which would represent the present value of the building. This modified, Utermehle v. McGreal, 1 App. D. C. 359, in which the entire loan was ordered repaid first, out of the proceeds of the sale. For a somewhat similar result, though with less clear reasoning, see Rundle v. Spencer. G7 Mich. 189; 34 N. W. 548. In Langdon v. Clayson, 75 Mich. 204; 42 N. W. 805, a similar result was obtained, where the minor had bought land, subject to liens, and afterwards had borrowed money on a mortgage and thereby discharged the liens, by treating the sale of the land by the minor after majority as a ratification of the entire transaction, including the mortgage.
36 In Shumate v. Harbin, 35 S. C. 521; 15 S. E. 270, the party furnishing materials was, however, subrogated to the increased rents due to the improvement to be applied on his debt. The contract, further, was made by the infant's guardian by nature.
37 Rice v. Boyer, 108 Ind. 472; 58 Am. Rep. 53; 7 West. 68; 9 N. E. 420. So as to a buggy, Howard v. Simpkins, 70 Ga. 322.
38 Gillis v. Goodwin, 180 Mass. 140; 91 Am. St. Rep. 265; 61 N. E. 813.
39 Pyne v. Wood, 145 Mass. 558; 14 N. E. 775..
40 Rice v. Butler, 160 N. Y. 578; 73 Am. St. Rep. 703; 47 L. R. A. 303; 55 N. E. 275. In this case the court of appeals assumed, without expressly deciding, that the bicycle was not a necessary.
41 Clyde Cycle Co. v. Hargreaves (Q. B.), 78 Law T. N. S. 296. In this case a minor earning 21 shillings a week bought a racing bicycle for £12 10s., with which he won some racing prizes and which he used on the road somewhat. A road wheel would have cost a little more.
42 Simpson v. Ins. Co., 184 Mass. 348; 68 N. E. 673.
43 Jenner v. Walker, 19 L. T. 398. 44 Brooker v. Scott, 11 Mees. & W.
45 Ryder v. Wombell, L. R. 4 Ex. 32.
46 Berolles v. Ramsey, Holt N. P. 77.