Mckanna v. Charles H. Merry.

• Citation: 1871 WL 8226,61 Ill. 177
• Parties: JOHN MCKANNA et alv.CHARLES H. MERRY.
• Decision Date: 30 September 1871
• Court: Supreme Court of Illinois

61 Ill. 177

1871 WL 8226 (Ill.)

JOHN MCKANNA et al

v.CHARLES H. MERRY.

Supreme Court of Illinois.

September Term, 1871.

APPEAL from the Circuit Court of JoDaviess county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. LOUIS SHISSLER, for the appellants.

Messrs. SHEEAN & WEIGLEY, for the appellee. Mr. JUSTICE THORNTON delivered the opinion of the Court:

In 1864, Kate Feehan, since intermarried with McKanna, accompanied appellee and wife on a trip from Illinois to California, by water. Her passage money was paid by appellee. Kate was then an infant, and under the control of her guardian, who was desirous that she should attend school for another year, and disapproved of the trip.

The only proof as to the value of her estate is, that it consisted of an undivided one-third of some realty, which, after her marriage, and a few years after the advancement of the money, was sold for $3250.

There is no proof that this trip was necessary for her health, or that it subserved any purpose other than pleasure, or as company for the wife of appellee.

The court gave for appellee the following instruction:

“What are necessaries depends upon the circumstances of the case. If the going of defendant, Kate, to California was prudent and proper, under the circumstances proved, and the plaintiff advanced money necessary to take her there, and the same was for her benefit, then it is for the jury to determine whether such advances of money were for necessaries.”

There is no positive rule by means of which it may be determined what are, and what are not, necessaries. Whether articles are of a class or kind for which infants are liable, or whether certain subjects of expenditure are necessaries, are to be judged of by the court. Whether they come within the particular class, and are suitable to the condition and estate of the infant, is to be determined by the jury as matter of fact. For example, suppose this trip had been to Europe, involving, in time, several years, and an expenditure of thousands of dollars, would any court hesitate to decide that the money thus advanced did not constitute necessaries? Chitty on Con. 141 a. note 2; 1 Parsons Con. 296; Beeler v. Young, 1 Bibb, 519; 1 Am. Leading Cases, 248. The court, in the instruction, merely informed the jury that, if the trip was prudent and proper, and that the money was for her benefit, then the jury must determine whether such advances of money were for necessaries. There was not a particle of proof to enable the jury to determine as to the propriety or impropriety, the prudence or imprudence of the trip, or that the advancement of the money was for the benefit of appellant.

Even if there had been such proof, the instruction was wrong. The court should have defined necessaries in some manner. Blackstone defines necessaries to be ““necessary meat, drink, apparel, physic,” and says that an infant may bind himself to pay “for his good teaching and instruction, whereby he may profit himself afterwards.” The articles furnished, or money advanced, must...