Wife v. Spencer

• Decision Date: 31 July 1852
• Docket Number: No. 71.,71.
• Citation: 11 Ga. 607
• Parties: Duncan L. Nicholson and Wife, plaintiffs in error. vs. Benjamin E. Spencer, defendant in error.
• Court: Georgia Supreme Court

11 Ga. 607

Duncan L. Nicholson and Wife, plaintiffs in error. vs. Benjamin E. Spencer, defendant in error.

No. 71.

Supreme Court of the State of Georgia

JULY TERM, 1852.

Debt, in Stewart Superior Court. Tried before Judge Iverson, April Term, 1852.

Benjamin E. Spencer brought suit against Duncan L. Nicholson, and Mary A., his wife, upon a merchants's account for goods &c, furnished Mrs. Nicholson before marriage, and when she was an infant. The defendants pleaded that Mrs. Nicholson was furnished with ample necessaries by her guardian, and the articles charged were not necessaries.

The plaintiffs proved that the articles were furnished; that the infant had a considerable estate, and that the articles were such as were usually furnished young ladies of fortune. Isaac W. Stokes, one of the plaintiff's witnesses, who was a merchant, states that he could not say all the articles charged in the account were necessaries; that he considered some of them extravagant, even for young ladies of property. The defendants proved by the guardian, that " he furnished her with what he regarded ample and proper for her support, agreeable to her age and condition."

The presiding Judge charged the Jury, " that a guardian had not the same right to judge what were necessaries for his ward, that a parent had for his child." To which charge defendants excepted.

The Court also charged, "that in the opinion of the Court, it was not sufficiently proven that the guardian had furnished the ward with necessaries, suitable to her age and condition, inasmuch as he had not specified the amounts furnished, and what character of articles were furnished; but that the Jury were the proper judges of what were necessary and proper and suitable to her station and condition in life, and that the defendants should show what he did furnish, and let the Jury decide." To which charge defendants excepted.

The Jury found a verdict for the plaintiff; whereupon the defendants moved for a new trial, on the ground of error in the Court, in charging as above specified, and that the verdict was contrary to law and evidence. The rule nisi was granted, returnable at the next term. At the next term the motion was continued; and at the next term thereafter, viz., April Term, 1852, when the same came on to be heard, counsel for the motion moved to amend the rule, by adding the following grounds:

1. That Mary A. Nicholson was, at the. time of the commencement of this suit, an infant within the age of twenty-one years.

2. The discovery of new and material evidence, since the trial, viz: that Sarah Howel furnished said Mary A. Nicholson, with a considerable amount of clothing and other necessaries, in addition to those furnished by her guardian, as proven at the trial.

This last ground was supported by the affidavit of Duncan L. Nicholson.

The Court held, that the rule nisi could not be amended, and this decision is assigned as error.

On hearing the original motion for a new trial, the Court refused to make the rule absolute. And to this decision defendants excepted.

And upon these several exceptions, error has been assigned.

John A. Tucker, for plaintiff in error.

B. K. Harrison, for defendant in error.

By the Court.—Warner, J. delivering the opinion.

This is an action brought against the defendant and his wife, on a merchant's account, for goods furnished to the wife before her marriage, and while she was an infant under twenty-one years of age.

The defence set up is, that at the time the goods were furnished by the plaintiff to the defendant's wife, she had a guardian, who furnished her with such necessaries, &c, as were suitable to her rank and condition in life. At the trial, after the evidence had closed, the Court instructed the Jury " that a guardian had not the same right to judge what were necessaries for his ward, that a parent had for his child; and that in the opinion of the Court, it was not sufficiently proved, that the guardian had furnished his ward with necessaries, suitable to her age and condition: inasmuch as he had not specified the amounts furnished, and what character of articles were furnished; that the Jury were the proper judges of what was necessary and proper and suitable to her station and condition in life; and that the defendant should shew what he did furnish, and let the Jury decide." Whereupon, the defendant excepted to said charge of the Court, and now assigns the same for error here.

This being a question of much practical importance, we have given to it our best consideration, in order that the principles of law which govern transactions between infants and tradesmen, may be understood. The first proposition which the Court below asserted in its charge to the Jury, is, that a guardian of an infant has not the same right to judge what are necessaries for his ward, that a parent has for his child. Who is a guardian, as contemplated by our law? A guardian of the person is one who has been lawfully invested with the care of the person of an infant, whose father is dead, and is considered as standing in the place of the father. A guardian of the estate is one who hasbeen lawfully invested with the power of taking care and managing the estate of an infant. 1 Bouvier\'s Law Dictionary, 616. It is most usual in this State, to appoint the same individual, guardian of both the person and property of the infant, and such we take the guardian of the defendant\'s wife to have been.

What are the legal duties of parents to their children? The duties of parents to their children, principally, consists in these particulars: their maintenance, their protection, and their education. 1 Bl. Com. 446. The same author, in speaking of the private relation of guardian and ward, says that it bears a very near resemblance to that of parent and child; the guardian being only a temporary parent, that is, for so long a time as the ward is an infant, or under age. 1 Bl. Com. 459. "The power and reciprocal duty of a guardian and ward, (says Blackstone, Ibid, 462) is the same pro tempore as that of a father and child, and therefore, I shall not repeat them." By our own Act of 18th of February, 1799, all guardians are allowed in their accounts, to charge all reasonable disbursements and expenses, suitable to the circumstances of the orphan committed to their care. Prince, 232.

In view then, of the position which a guardian occupies towards his ward, under the law, and the duties and responsibilities which are necessarily devolved upon him, we hold that such guardian of the person and property of his infant ward has the same right to judge what are necessaries, according to his or her estate and condition in life, that a parent has.

What are to be considered necessaries, in the legal acceptation of that term?

Necessaries are such things as are useful and suitable to the party's stale and condition in life, and not merely such as are requi-site for bare subsistence. Peters vs. Fleming, 6 Meson and Welsby's Rep. 46. Such articles of costly apparel, as might be considered necessary for the son or daughter of a millionaire, would not be so considered, for the son or daughter of one whose pecuniary circumstances were small and limited.

The Court in its charge to the Jury, assumed the proposition that it was incumbent on the defendant to shew, that the guar-dian of his wife had furnished her with the necessary clothing, &c, by specifying the particular articles which he did furnish, so that the Jury might judge thereof. We think the Court erred in its views of the law, applicable to this class of cases. It is made the duty of the parent or guardian, as we have already shewn, to provide for the maintainance, protection, and education of their children and infant wards; and the presumption of the law is, that they have respectively done so, according to their circumstances and condition in life. The general rule of law is, that when a person is required to do a certain act, the...