Cobbey v. Buchanan

• Decision Date: 06 May 1896
• Parties: COBBEY v. BUCHANAN.
• Court: Nebraska Supreme Court

48 Neb. 391

67 N.W. 176

COBBEY

v.BUCHANAN.

Supreme Court of Nebraska.

May 6, 1896.

Syllabus by the Court.

1. It is the settled law of this state that a cause is to be tried in the appellate court upon

the same issues that were presented in the court from which the appeal was taken, with the exception of new matter arising after the first trial. Darner v. Daggett, 53 N. W. 608, 35 Neb. 695, followed.

2. Generally the doctrine of estoppel in pais is not applicable to infants.

3. For a representation made by an infant as to his being of age to estop him from asserting infancy as a defense, the representation must have been fraudulently made by the infant, and believed in, relied on, and acted upon by the other party; and the facts claimed to constitute such an estoppel must be pleaded.

4. Necessaries for which an infant is liable are such things as are necessary to his support, use, and comfort, comporting with his condition and circumstances in life. Price v. Sanders, 60 Ind. 310, followed.

5. The meaning of the term “necessaries” cannot be defined by a general rule applicable to all cases. The question is a mixed one, of law and fact, to be determined in each case from the particular facts and circumstances of such case. Englebert v. Troxell, 58 N. W. 852, 40 Neb. 195, followed.

6. At the request of an infant an attorney examined the public records, and advised the infant as to his rights to certain property inherited from his deceased father. Held, that the services rendered by the attorney were not necessaries.

7. An infant was, by a judgment of court, duly committed to the reform school. Before his term expired he was released on parol, during good behavior. He violated his parol, and was taken into custody by the sheriff for the purpose of being returned to the reform school. He then employed an attorney, who sued out a writ of habeas corpus, and tested the sheriff's authority to return him to the reform school. Held, in a suit by the attorney against the infant for services rendered him in the habeas corpus case, that the court did not err in submitting to the jury the question as to whether the services rendered by the attorney were necessaries.

Error to district court, Gage county. Babcock, Judge.

Action by J. E. Cobbey against Elmer Buchanan. There was a judgment for defendant, and plaintiff brings error. Affirmed.

J. E. Cobbey and Rickards & Prout, for plaintiff in error.

L. M. Pemberton, for defendant in error.

RAGAN, C.

Before the county judge of Gage county, sitting as a justice of the peace, J. E. Cobbey sued Elmer Buchanan to recover for certain professional legal services which he alleged he had rendered Buchanan, at his request, of the reasonable value of $50. An appeal was taken to the district court from the judgment of the county judge, where the case was again tried, resulting in a judgment of dismissal of Cobbey's action, to reverse which he prosecutes to this court a petition in error.

1. The answer filed by Buchanan in the district court, so far as material here, interposed two defenses: (1) A general denial; and (2) a plea of infancy. Cobbey filed a motion in the district court to strike from the answer of Buchanan the defense of infancy, and the overruling of this motion is the first assignment of error argued here. It is insisted that the defense of infancy was not interposed before the county judge, and could not, therefore, be interposed in the district court. It is the settled law of this state that a cause is to be tried in the appellate court upon the same issues that were presented in the court from which the appeal was taken, with the exception of new matter arising after the first trial. Darner v. Daggett, 35 Neb. 695, 53 N. W. 608, and cases there cited. But in the case at bar Buchanan filed no answer, or “bill of particulars,” as it is called in section 951 of the Code of Civil Procedure, before the county judge; and, so far as the record shows, Cobbey did not require that he should file one. Buchanan, then, before the county judge, was at liberty to interpose any defense he saw fit, and, for anything we know, did interpose before the county judge the defense of infancy. There was nothing in the record transmitted from the county judge to the district court to advise the latter as to what issues were tried before the county judge, and therefore the district court did not err in overruling the motion of Cobbey to strike out the defense of infancy set up by Buchanan in his answer filed in the district court.

2. The second assignment of error argued is that the district court erred in refusing to give to the jury the following instruction: “The jury are instructed that if you believe from the evidence that the defendant employed the plaintiff to perform the services for which this action is brought, and at the same time represented to the plaintiff that he had arrived at the age of twenty-one years, then you are instructed that you may consider such statements, and such declaration may be considered by you, in determining his age at the time such employment was made.” The court did not err in refusing to give this instruction. (1) The instruction was asked upon the ground that, if Buchanan had represented himself to be of age, such representation on his part estopped him from asserting the defense of infancy. This is not the law. As a general rule, the doctrine of estoppel in pais is not applicable to infants. Wieland v. Kobick, 110 Ill. 16;Schnell v. City of Chicago, 38 Ill. 383. In Sims v. Everhardt, 102 U. S. 300, the supreme court said: “The question is whether acts and declarations of an infant during infancy can estop him from asserting the invalidity of his deed after he has attained his majority. In regard to this there can be no doubt founded either upon reason or authority. Without spending time to look at the reason, the authorities are all one way. An...