Gillett v. Camp

• Decision Date: 31 October 1858
• Citation: 27 Mo. 541
• Parties: GILLETT, Appellant, v. CAMP AND WIFE, Respondents.
• Court: Missouri Supreme Court

27 Mo. 541

GILLETT, Appellant,

v.CAMP AND WIFE, Respondents.

Supreme Court of Missouri.

October Term, 1858.

1. At law there will be no implication of a promise on the part of a stepdaughter to pay her step-father for necessaries furnished by the latter during the minority of the former.

Appeal from Warren Circuit Court.

This was an action by Philo Gillett against Beverly Camp and Elvira Camp, his wife, to recover compensation for money paid and expenses incurred by him in the education and maintenance, before her marriage, of the defendant, Mrs. Camp. At the close of the evidence, the court, at the instance of the defendants, gave the following instructions: “1. If the jury believe that the plaintiff intermarried with the mother of Elvira Camp, and that she, being of tender years, was taken into the family of plaintiff, and remained a member thereof from the time of said marriage up to the death of her mother, in 1847, and that the plaintiff, during said marriage, maintained and supported the said Elvira, the law will not imply a promise on the part of the said Elvira, or her husband, to pay for said maintenance, and the plaintiff cannot recover for such maintenance, unless an express promise of payment has been proved to pay the same. 2. If the jury find that, after the death of the mother of the said Elvira Camp, the plaintiff was appointed guardian of the said Elvira, in the territory of Wisconsin, where the said Elvira resided, and that he so continued to act as her guardian by virtue of his appointment aforesaid, and while as such guardian he expended money for the necessary support, maintenance and education of said Elvira, these expenditures cannot be taken into consideration by the jury, nor can they give a verdict therefor, unless the jury find that the said Elvira, or her husband, have undertaken and agreed to pay the same; these expenditures, as between guardian and ward, not creating a personal obligation on the part of the ward, and being alone chargeable against any funds coming into his hands belonging to said ward.”

The plaintiff took a non-suit, with leave, etc.

S. T. & A. D. Glover, for appellant.

I. The court erred in giving the instructions asked by defendants. (3 Edw. Ch. 40; 9 Ala. 615; 2 Kent. 190; 2 Ashm. 332; 1 Kelly, 475; 1 Taml. 72.)

Wells, for respondents.

I. The law will not imply a promise to pay the step-child for his services; nor will it imply a promise on the part of the child to pay for board, schooling, etc., when the child remains a member of the family of the step-father. (See 22 Mo. 439.)

SCOTT, Judge, delivered the opinion of the court.

This is a suit by a step-father for the expense incurred in supporting and educating his wife's child by a former husband. The old notion in England was, that, inasmuch as the widowed mother was bound to support her minor children, a man, by marrying her, assumed that with all her other obligations, and made himself liable for the support of her children by a former husband. There was no hardship in this, as at common law, by the marriage, all the wife's goods became the property of her husband, and he was entitled to all her earnings. Afterwards, the case of Tubb v. Harrison, 4 Term R. 118, determined that the step-father was not bound for the support and maintenance of his wife's...