Swain v. Tyler

The opinion of the court was delivered by Redfield, Ch. J. The only question here is, whether the plaintiff can recover for medical attendance upon defendant’s minor son, who was at the time at his house sick, the defendant having given him leave to act for himself, and having made publication of the fact, and that he would not thereafter pay any debts of the son. The report states that the plaintiff’s charges were for necessary services rendered the son upon the credit of the defendant, and in good faith charged to him at the time. The father (knew of the services being rendered, and made no objection, but did not, as the auditor says, assent to their being done on his credit, either expressly or impliedly, in fact. Under these circumstances the only question is, whether the law implies a promise to pay — we think it does, on the general ground, {hat while one’s minor children remain a part of his family and lousehold, and receive necessaries, with the knowledge of the fathr and without objection, on his part, it is the same thing as if he received them himself, or his wife received them. There was nothing in the case known to plaintiff to raise any doubt of the defendant’s being bound to pay, and expecting to pay, as there is when the patient is not a child, or is of age. In such cases the father is not expected, as a matter of course, where he makes no objection, to assent to the services. He may intend to pay, or he may not. If the father, for any reason had taken it into his head, that he would not have the plaintiff attend upon his son, or not upon his credit, and the plaintiff had persisted, or had performed the services upon the credit of the son, and then attempted to charge the father, the case might merit a different consideration; but here it seems to us nothing exists to raise a doubt, that the plaintiff was fairly justified in performing the services, on the credit of defendant, and in supposing the defendant so understood the matter at the time. The County Court seemed to have so viewed the matter, and this judgment is affirmed.