6 In Munson v. Washband, 31 Conn. 303 (1863), it was held that a female infant might employ an attorney to prosecute one who had seduced her, and would be bound to pay for his services and expenditures.
7 N. H. M. F. Ins. Co. v. Noyes, 32 N. H. 345.
1 Whittingham v. Hill, Cro. Jac. 494; Latt v. Booth, 3 Car. & Kir. 292; Rundel v. Keeler, 7 Watts, 237; Whywall v. Champion, 2 Str. 1083; Tupper v. Cadwell, 12 Met. 562; Dilk v. Keighley, 2 Esp. 480. But see Breed v. Judd, 1 Gray, 459, in which it is said by the court, " we suppose an infant, who had learned the trade of a carpenter, might be charged with a chest of tools necessary to do his labor as a journeyman; or a laborer with his pickaxe and spade. If the going to California to labor was, in view of the plaintiff's situation and condition in life, a reasonable and prudent step, it would be difficult to say that he might not be charged with the expenses of the outfit." See also Coates v. Wilson, 5 Esp. 152.
2 Tupper v. Cadwell, 12 Met. 562. Mr. Justice Dewey says, "It has sometimes been contended that it was enough to charge the party, though a minor, that the contract was one plainly beneficial to him in a pecuniary point of view. That proposition is by no means true, if, by it, it be intended to sanction an inquiry, in each particular case, whether the expenditure, or articles contracted for, were beneficial to the pecuniary interests of the minor. The expenditures are to be limited to cases where, from their very nature, expenditures for such purposes would be beneficial; or, in other words, they must belong to a class of expenditures which are in law termed beneficial to the infant. What subjects of expenditure are included in this class is a matter of law, to be decided by the court. The further inquiry may often arise, whether expenditures, though embraced in this class, were necessary and proper, in the particular case; and this may present a question of fact. It is, therefore, a preliminary question to be settled, whether the alleged liability arises from expenditures for what the law deems ' necessaries,' and unless that be shown, it is not competent to introduce evidence to show that, in a pecuniary point of view, the expenditure was beneficial to the minor, as that is irrelevant."
3 Turberville v. Whitehouse, 1 C. & P. 94.
4 Bac. Abr. Infancy and Age, I. 1; Bent v. Manning, 10 Vt. 225. 5 Dorrell v. Hastings, 28 Ind. 478 (1867).
§ 131. But an infant cannot bind himself either by parol contract or deed, to pay a sum certain, even for necessaries; for he is not to be precluded by the form of his contract from his right of estimating the actual worth of the articles supplied, beyond which he is not bound.3 Thus, an infant has been held not to be liable on an account stated,4 nor on a bill of exchange accepted,5 nor on a promissory note given for necessaries, unless he ratify them upon coming of age.6 Indeed, in all the modern decisions, there is a strong tendency manifested to treat all the contracts of infants, which are not unquestionably and absolutely injurious to the infant, as merely voidable and not void. This, in truth, seems to be by far the more equitable doctrine, since while it affords entire protection to the infant, it also, by enlarging his capacity, operates as a benefit to him, and at the same time operates less to the injury of the adult.
1 Earle v. Peale, 1 Salk. 386; Darby v. Boucher, 1 Salk. 279; Probart v. Knouth, 2 Esp. 472, n. 1; Com. on Cont. 161; Bac. Abr. Infancy and Age, I. 1. " The law knows of no contracts, but what are good or bad at the time of the contract made, and not to be one or other, according to a subsequent contingency." Earle v. Peale, 10 Mod. 67.
2 2 Evans's Pothier on Obl. 26; Marlow v. Pitfeild, 1 P. Wms. 558; Reeve, Dom. Rel. 330. See Clarke v. Leslie, 5 Esp. 28; Randall v. Sweet, 1 Denio, 460.
3 Bac. Abr. Infancy, I. 1; Mitchell v. Reynolds, 2 Kent, Comm. 466e; 10 Mod. 85; Earle v. Reed, 10 Met. 387; Dubose v. Wheddon, 4 M'-Cord, 221.
4 Wood v. Witherick, Noy, 87; Latch, 169; Trueman v. Hurst, 1 T. R. 40; Bartlett v. Emery, 1 T. R. 42, note (a); Ingledew v. Douglas, 2 Stark. 36. But see Williams u. Moor, 11 M. & W. 256, in which an infant is held to be responsible on an account stated.
5 Williamson v. Watts, 1 Camp. 552. 6 Ante, § 58.
§132. It was formerly held that an infant was bound by his single bill for necessaries, and that an action of debt would lie on such an obligation. But this instrument is now almost wholly disused in England, and it has been doubted whether the rule is now law.1 An infant's penal bond has also been held to be void, though given for necessaries; but this does not destroy the simple contract, upon which the infant still re-remains liable, because the bond never had any force.2
§ 133. In the next place, as to the liability of the father in respect to the contracts of his infant child.3 The liability of the father being founded upon the legal presumption that his child is his authorized agent, it is essential that the articles supplied or service rendered to the infant should appear to have been with the assent and by authority of the father.4 It is not,
1 Chitty on Cont. 150; 20 Am. Jur. 285.
2 Co. Litt. 172 a; Ayliff v. Archdale, Cro. Eliz. 920; Bac. Abr. Infancy and Age, I. 1; Hunter v. Agnew, 1 Fox & Smith, 15.
3 Though this is properly a branch of the law of agency, it is more convenient to consider the subject here.
4 In Baker v. Keen, 2 Stark. 501, Abbott, C. J., said: "A father would not be bound by the contract of his son, unless either an actual authority were proved, or circumstances appeared from which such an authority might be implied. Were it otherwise, a father, who had an imprudent son, might be prejudiced to an indefinite extent; it was therefore necessary, that some proof should be given that the order of a son was made by the authority of his father. The question, therefore, for the consideration of the jury was, whether, under the circumstances of the particular case, there was sufficient to convince them that the defendant had invested his son with such authority. He had placed his son at the military college at Harlow, and had paid his expenses whilst he remained there. The son, it appeared, then obtained a commission in the army, and having found his way to London, at a considerable distance from his father's residence, had ordered regimentals and other articles suitable to his equipment for the East Indies. If it had appeared in evidence that the defendant had supplied his son with money for this purpose, or that he had ordered these articles to be furnished elsewhere, the circumstance might have rebutted the presumption of any authority from the defendant to order them from the plaintiff. Nothing, however, of this nature bad been proved, and since the articles themselves were necessary for the son and suitable to that situation in which the defendant had placed him, it was for the jury to say, whether they were not satisfied, that an authority had been given by the defendant." In Fluck v. Tollemache, 1 C. & P. 5, the infant was a cadet of fifteen years of age, to whom the plaintiff had supplied clothes, and the father, on the bill being sent to him, refused however, necessary that an express assent or authorization should be given by the father; it will be implied from the cirto pay it. Burrough, J., said to the jury: "An action can only be maintained against a person for clothes supplied to his son, either when he has ordered such clothes, and contracted to pay for them; or when they have been at first furnished without his knowledge, and he has adopted the contract afterwards; such adoption may be inferred from his seeing his son wear the clothes, and not returning them, or making, at or soon after the time when he knows of their being supplied, some objection. Here, the only knowledge that it appeared the defendant had of the transaction, was being asked for the money; he then repudiated the contract altogether. It would be rather too much, that parents should be compellable to pay for goods that any tradesman may, without their knowledge, improvidently trust their sons with."So, also, the same rule was held in Blackburn v. Mackey, 1 C. & P. 1, and Rolfe v. Abbott, 6 C. & P. 286; Clements v. Williams, 8 C. & P. 58; Seaborne v. Maddy, 9 C. & P. 497; Shelton v. Springett, 11 C. B. 452; 20 Eng. Law & Eq. 281, andMortimore v. Wright, 6 M. & W. 482. Lord Abinger said: "I am clearly of opinion that there was no evidence for the jury in this case, and that the plaintiff ought to have been nonsuited. The learned judge was anxious, as judges have always been in modern times, not to withdraw any scintilla of evidence from the jury; but he now agrees with the rest of the court, that there ought to have been a nonsuit. In the present instance, I am the more desirous to make the rule absolute to that extent, in order that there may be no uncertainty as to the law upon this subject. In point of law, a father who gives no authority, and enters into no contract, is no more liable for goods supplied to his son, than a brother, or an uncle, or a mere stranger would be. From the moral obligation a parent is under to provide for his children, a jury are, not unnaturally, disposed to infer against him an admission of a liability in respect of claims upon his son, on grounds which warrant no such inference in point of law." "With regard to the case in the Court of King's Bench, of Law v. Wilkin, if the decision is to be taken as it is reported, I can only say that I am sorry for it, and cannot assent to it. It may have been influenced by facts which do not appear in the report; but as the ease stands, it appears to sanction the idea that a father, as regards his liability for debts incurred by his son, is in a different situation from any other relative; which is a doctrine I must altogether dissent from. If a father does any specific act from which it may reasonably be inferred that he has authorized his son to contract a debt, he may be liable in respect of the debt so contracted; but the mere moral obligation on the father to maintain his child, affords no inference of a legal promise to pay his debts; and we ought not to put upon his acts an interpretation which abstractedly, and without reference to that moral obligation, they will not reasonably warrant. In order to bind a father in point of law for a debt incurred by his son, you must prove that he has contracted to be bound, just in the same manner as you would prove cumstances of the case, and wherever he has actual knowledge of a contract entered into by his child and does not expressly object, the law implies an assent thereto. Thus, if articles be delivered for the son at the father's house, or if he see his son wearing clothes which he himself has not purchased, it would be sufficient to render him liable prima facie, although he may refute such a presumption.1 And under some circumstances he may be liable for necessaries supplied to his son by order of his wife.2 So, also, where similar contracts have been previously made by the child, and assented to by the father, such fact would furnish a presumption of liability on the part of the father which he must rebut by plain evidence to the contrary, - as, for instance, that he prohibited the tradesman in the actual case,-or he will be held liable.3 But whether the such a contract against any other person; and it would bring the law into great uncertainty, if it were permitted to juries to impose a liability in each particular case, according to their own feelings or prejudices." See also Thayer v. White, 12 Met. 343; Gordon v. Potter, 17 Vt. 350; Edwards v. Davis, 16 Johns. 284; Pidgin v. Cram, 8 N. H. 353; Rolfe v. Abbott, 6 C. & P. 287; Urmston v. Newcomen, 4 Ad. & El. 899; Seaborne v. Maddy, 9 C. & P. 497; Finch v. Finch, 22 Conn. 411; Hunt v. Thompson, 3 Scam. 180; Owen v. White, 5 Porter, 435; Clements v. Williams, 8 C. & P. 58; Blackburn v. Mackey, 1 C. & P. 1; Turquand v. Dawson, 1 C. M. & R. 710, note; Mortimore v. Wright, 6 M. & W. 482; Van Valkinburgh v. Watson, 13 Johns. 480; Gordon v. Potter, 17 Vt. 348; Varney v. Young, 11 Vt. 258; Benson v. Remington, 2 Mass. 113; Town-send v. Burnham, 33 N. H. 270.