Perkins v. Westcoat

• Decision Date: 22 May 1893
• Citation: 3 Colo.App. 338,33 P. 139
• Parties: PERKINS v. WESTCOAT.
• Court: Colorado Court of Appeals

33 P. 139

3 Colo.App. 338

PERKINS v. WESTCOAT.

Court of Appeals of Colorado

May 22, 1893

Appeal from district court, Arapahoe county.

Action by Mary A. Westcoat against Daniel E. Perkins, administrator of the estate of Ella E. Perkins, deceased. From a judgment for plaintiff, defendant appeals. Reversed.

Morrison & Fillius and Thomas Mitchell, for appellant.

W.J Edwards, for appellee.

THOMSON J.

This is an action at law, brought by Mary A. Westcoat, to recover from Daniel E. Perkins, administrator of the estate of Ella E. Perkins, deceased, the value of food, lodging, clothing, etc., furnished by the plaintiff to Ella E. Perkins between the 19th day of June, 1876, and the 13th day of May, 1890, less Ella's share of the income of an estate left by her father, which was collected by the plaintiff and credited to Ella. There seems to have been no dispute as to the material facts of the case, which are these: Ella E. Perkins was the daughter of the plaintiff. The husband of plaintiff and father of Ella E.C. Westcoat, died intestate in April, 1875, leaving as his sole heirs at law Ella E. Westcoat, W.E. Westcoat, a son, and the plaintiff. He died seised of real estate valued at $2,060, and possessed of some personal property, which was all consumed in payment of the debts of the estate and the expenses of administration. The real estate was left intact. At the death of E.C Westcoat, his daughter, Ella, was 10 years old. In 1880, when she was about 15 years of age, she was married to the defendant, Daniel E. Perkins. The fruit of this marriage was a daughter, born in 1881. From the death of her father Ella lived with her mother, the plaintiff, until her marriage in 1880, when her husband was added to the family, and both lived with the plaintiff until some time in the year 1881 when the husband went to Middle Park, where he has since lived. Ella, and her daughter, after her birth, lived with the plaintiff until May 31, 1890, when Ella joined her husband with her child. She died in July, 1890, and her husband, the defendant, was appointed administrator of her estate. The defendant contributed nothing to the support of his wife or child during the whole time that they lived with the plaintiff. The plaintiff furnished maintenance to her daughter, Ella, and to the child after its birth, from the time of the death of E.C. Westcoat to the time when Ella joined her husband in Middle Park. Judgment was given for the plaintiff, from which the defendant appeals to this court.

The court in which the cause was tried seems to have proceeded upon the theory that because Ella E. Westcoat had inherited and was the owner of an estate the fact of her support and maintenance by her mother created a personal liability against her, or implied a promise on her part to pay the reasonable value of such support and maintenance. This is the theory upon which the several instructions given and which we shall notice hereafter, are based, and upon its soundness or unsoundness depends the disposition to be made of the case here. Although the complaint does not distinguish between the period before and that after the daughter's marriage, but treats the whole as one entire and continuing transaction, yet we conceive that such a distinction exists and in endeavoring to ascertain the law applicable to the case we shall give each a separate consideration. From her father's death to her marriage Ella was an infant living with her mother. The general doctrine is that the executory contracts of infants are voidable, and not binding upon them unless ratified after they reach their majority. But there are some exceptions, among which are contracts for necessaries under certain circumstances, and which, when so made, are neither void nor voidable, but are obligatory, and cannot be disaffirmed. While an infant lives under the roof of his parents, by whom he is supplied with such necessaries, he can make no contract which will be binding upon him. It is when he is absent from home, not under the care of a parent or legal protector, that he will be held to his contracts, express or implied, for necessaries; and this because, if such contracts were subject to the general rule, and he were, therefore, deprived of credit, he might be unable to obtain food or clothing, though possessing the means by which he could, after a short time, pay for them. This exception is for the benefit of the infant himself. But where the infant resides with the parent, and the parent supplies him with necessaries, not only is there no implied agreement on the part of the infant to pay for his support, but, if one were expressly made, we do not think he ...