Judge v. Barrows

• Decision Date: 11 December 1883
• Citation: Judge v. Barrows, 59 Wis. 115, 17 N.W. 540 (Wis. 1883)
• Parties: JUDGE v. BARROWS.
• Court: Wisconsin Supreme Court

59 Wis. 115

17 N.W. 540

JUDGE

v.BARROWS.

Supreme Court of Wisconsin.

Filed December 11, 1883.

Appeal from circuit court, Racine county.

This is an appeal from a judgment of nonsuit in an action upon an alleged implied contract for the support and maintenance of Maggie Bunce, from October, 1871, when she was about eight years old, to August 15, 1877, when she was about 14 years old. The evidence given in support of the action was a bond given by the defendant to Abiram Bunce, father of Maggie, reciting a consideration of $2,000, wherein and whereby the defendant, in effect, agreed to support and maintain in his house the said Abiram during his life, and also to keep and maintain, or cause to be kept and sufficiently maintained, in his house, with meat, drink, and clothing, the said Maggie, and also to give her a good common-school education, and all other things necessary and convenient. This bond was executed by the defendant, Barrows, and Abiram Bunce, November 18, 1870, and Abiram died in 1874. It appears from the oral evidence that at first Maggie lived for a short time at the house of the defendant; then she lived with Mrs. Perham, a sister of the defendant, for some months; then with Mrs. Campbell; then again with the defendant, whose wife was a sister of Maggie; and finally, through the influence of the plaintiff's wife, who was also a sister of Maggie, and the father, Abiram Bunce, she went to live with the plaintiff, as stated. In October, 1871, an agreement was drawn up between the plaintiff and Abiram Bunce, whereby Abiram agreed that the plaintiff was to have and to hold Maggie as his own child, and the same was written so that had the plaintiff signed it he would have covenanted, promised, and agreed to take, have, and to hold Maggie as his own child. This proposed agreement was signed by A. Bunce, and by Barrows as a witness, only, but the plaintiff never signed it, having declined so to do. There was evidence tending to show that Maggie went to live with the plaintiff with the knowledge and assent of the defendant, and that she remained there during the time stated. The foregoing is the substance of all the evidence.Edwin White Moore, for appellant, Patrick Judge.

Hand & Flett, for respondent, Alvin Barrows.

CASSODAY, J.

It is urged that the bond given by the defendant to Maggie's father for the consideration named put him in loco parentis and made him liable for support under all circumstances which would have made the father liable. Under that assumption it is urged that, had no such bond been given, and Maggie had left her father's house and commenced living with the plaintiff under the same circumstances that she left the defendant's house, then that the father would have been liable for her maintenance and support without any express agreement whatever, but merely upon a contract implied from such circumstances. In support of this proposition, counsel rely upon McGoon v. Irvin, 1 Pin. 526. In that case McGoon was divorced from his wife, and their children, who appear to have been of tender years and in a helpless condition, were, from necessity, left with the mother. Irvin subsequently married the divorced wife, and thereafter brought the action for the support and maintenance of such children against their father, who was bound to support them, though living absent from him and with their mother. DUNN, C. J., stated the ground of liability thus: “And when a parent permits a stranger to maintain, support, and instruct such children, (of tender years and helpless,) in no way objecting to the act, but rather assenting and advising therein, the law will presume that he knows his obligations, accepts the services, and assumes to pay.”

Of course that was said with reference to the facts of that particular case. The children were not living with the father at the time, but necessarily absent from him and with the mother. In such case the law seems to imply an agency on the part of the mother to...