3 N.Y. 312, Williams v. Hutchinson

Citation:3 N.Y. 312
Party Name:WILLIAMS v. HUTCHINSON.
Case Date:April 01, 1850
Court:New York Court of Appeals

Page 312

3 N.Y. 312

WILLIAMS

v.

HUTCHINSON.

New York Court of Appeal

April 1, 1850

Page 313

COUNSEL

E. Van Buren, for appellant.

I. The step-father is not entitled to the services of the child by her former husband. ( Freto v. Brown, 4 Mass. R. 675; Worcester v. Merchant, 14 Pick. 510; Gay v. Ballou, 4 Wend. 403.) The reason of the rule is that the step-father is not bound to support the child of his wife by a former husband. (See authorities above cited; also

Page 314

Tub et al. v. Harrison, 4 T. R. 118; 4East, 76.)Nor is the mother entitled to the services of her child after marriage. She can not after marriage be compelled to support her children. By her marriage she ceased to have the power of controlling her own actions, and the power of supporting and educating her children. (See cases above cited.

II. An express promise need not be proved, nor need an express promise be implied; where an express promise exists, there is no necessity of an implied promise. An implied promise is one which the law raises, founded upon the justice of the transaction. (Story on Cont. § 12; Greenl. Ev. 102, 108; Guild v. Guild, 15 Pick. 129; Peter v. Steele, 3 Yeates, 250; Cook v. Husted, 12 John. 188.)

III. There is nothing in the case to show that the plaintiff intended to render the services voluntarily; and if there was, it would not conclude him, because he was an infant. An infant can not bind himself by an express agreement, and of course he can do no acts which will repel an implied promise. If he had made an express agreement to work for nothing, it would not bind him; and can he by his acts raise a valid implied agreement which would be void if expressed? The law is his guardian and repudiates all his contracts. "He is not bound to the extent of his contract even for necessaries, he is only liable for what they are worth." (Cro. Eliz. 583.) "A negotiable note given by an infant even for necessaries is void." ( Swasey v. Adm'rs of Van Derheyden, 10 John. 33.) "An infant may avoid a usurious contract entered into by him and recover the money lent under the contract, for money had and received." ( Millard v. Hewlett, 19 Wend. 301; See also, Medbury v. Watrous, 7 Hill, 110.) The plaintiff did not stand "in loco parentis" as against the infant. That relation can only be created by an agreement express or implied. If an infant is incapable of contracting, then he can not contract this relation.

It is true that where a person stands "in loco parentis" he may make himself liable to third persons for necessaries furnished the infant, upon the ground that he holds himself out to the

Page 315

world as standing in that relation, but that does not bind the infant.

J. N. Whiting & T. R. Strong, for respondent.

I. The services for which this action was brought having been rendered while the plaintiff was an infant, living with his mother and his step-father, the defendant, into whose family he had gone upon their marriage, and while he was supported and maintained by the defendant in all respects as the defendant's own children, and there having been no express agreement or understanding that the plaintiff should be paid for his services, this action can not be maintained. Under such circumstances the law will not imply a promise to pay for the services.

The general rules of law in regard to the right to the services of an infant, are, that they belong to the father during his life, and in case of his death, to the mother if she survive him. ( Nightingale v. Withington, 15 Mass. R. 272, 274; Dedham v. Natick, 16 id. 135, 140.) But if the mother marries again, they belong to the infant; ( Freto v. Brown, 4 id. 675; Commonwealth v. Hamilton, 6 id. 273, 275; Worcester v. Merchant, 14 Pick. 510; ) unless he is received into the family of his step-father as a child and supported as such, in which case they belong to the step-father. (Stone v. Carr, 3 Esp. R. 1; and see cases referred to in 5 Barb. 122.) This...

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93 practice notes
  • 302 N.Y. 535, In re Levin's Estate
    • United States
    • New York New York Court of Appeals
    • 11 July 1951
    ...196 Misc. 527; Matter of Parker, 69 Misc. 136; Matter of Burton, 143 Misc. 440; Matter of Hughes, 229 A.D. 614; Williams v. Hutchinson, 3 N.Y. 312; Matter of Lannon, 75 Misc. 66; Matter of Grogan, 82 Misc. 555.) II. In construing a contract, the court will not excise a material portion ther......
  • 168 A. 186 (N.J.Super.Ch. 1933), Burdick v. Grimshaw
    • United States
    • New Jersey Superior Court of New Jersey
    • 12 September 1933
    ...or step-parent, standing in loco parentis to the stepchild, is entitled to his earnings, until his emancipation. Williams v. Hutchinson, 3 N.Y. 312; [113 N.J.Eq. 604] Magnuson v. O'Dea, 75 Wash. 574; 135 P. 640; 48 L.R.A. 327; 46 Corp. Jur. 1340 § 186. This right of the parent or such step-......
  • 72 Misc.2d 364, Eagen v. Robb
    • United States
    • 18 December 1972
    ...At common law a stepfather was under no obligation to support children of his wife by a former marriage. (Williams v. Hutchinson, 3 N.Y. 312 (1850); People v. Fermoile, 236 A.D. 388, 259 N.Y.S. 564 (4th Dept., 1932)). Since the obligation of a stepparent to support a stepchild is imposed by......
  • 258 S.W. 768 (Mo.App. 1924), Brunnert v. Estate of Boeckmann
    • United States
    • Missouri Court of Appeals of Missouri
    • 21 January 1924
    ...is not material. [Davis v. Davis, 9 Car. & P. 87; Ryan v. Lynch, 9 Mo.App. 18; Dunlap v. Allen, 90 Ill. 108; Williams v. Hutchinson, 3 N.Y. 312; Riley v. Riley, 38 W.Va. 283; 11 L.R.A. (N. S.) 873, note., 18 S.E. 569] At any rate before either of such parties, thus living together, can ......
  • Free signup to view additional results
93 cases
  • 302 N.Y. 535, In re Levin's Estate
    • United States
    • New York New York Court of Appeals
    • 11 July 1951
    ...196 Misc. 527; Matter of Parker, 69 Misc. 136; Matter of Burton, 143 Misc. 440; Matter of Hughes, 229 A.D. 614; Williams v. Hutchinson, 3 N.Y. 312; Matter of Lannon, 75 Misc. 66; Matter of Grogan, 82 Misc. 555.) II. In construing a contract, the court will not excise a material portion ther......
  • 168 A. 186 (N.J.Super.Ch. 1933), Burdick v. Grimshaw
    • United States
    • New Jersey Superior Court of New Jersey
    • 12 September 1933
    ...or step-parent, standing in loco parentis to the stepchild, is entitled to his earnings, until his emancipation. Williams v. Hutchinson, 3 N.Y. 312; [113 N.J.Eq. 604] Magnuson v. O'Dea, 75 Wash. 574; 135 P. 640; 48 L.R.A. 327; 46 Corp. Jur. 1340 § 186. This right of the parent or such step-......
  • 72 Misc.2d 364, Eagen v. Robb
    • United States
    • 18 December 1972
    ...At common law a stepfather was under no obligation to support children of his wife by a former marriage. (Williams v. Hutchinson, 3 N.Y. 312 (1850); People v. Fermoile, 236 A.D. 388, 259 N.Y.S. 564 (4th Dept., 1932)). Since the obligation of a stepparent to support a stepchild is imposed by......
  • 258 S.W. 768 (Mo.App. 1924), Brunnert v. Estate of Boeckmann
    • United States
    • Missouri Court of Appeals of Missouri
    • 21 January 1924
    ...is not material. [Davis v. Davis, 9 Car. & P. 87; Ryan v. Lynch, 9 Mo.App. 18; Dunlap v. Allen, 90 Ill. 108; Williams v. Hutchinson, 3 N.Y. 312; Riley v. Riley, 38 W.Va. 283; 11 L.R.A. (N. S.) 873, note., 18 S.E. 569] At any rate before either of such parties, thus living together, can ......
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