Roberts v. Kelley

The opinion of the court was delivered by Ross, J. On the facts found by the referees, the plaintiff’s charges may be considered under two general classes: first, those for money advanced, and bills paid for repairs and alterations on the house owned by the defendant’s wife ; and second, those for property furnished which went for the general support of defendant’s family. I. In regard to the first class, it is found that the defendant’s wife is the daughter of the plaintiff; that the plaintiff proposed to [100] go with his wife to the defendant’s and board ; that defendant’s wife thereupon desired to make some repairs and alterations on her house ; that for this purpose the plaintiff let defendant have $200, and paid various bills for material and labor which accrued in making the repairs and alterations ; that the defendant was insolvent, and known to be so by the plaintiff; that the defendant never promised to pay the plaintiff for any of these charges ; and that plaintiff expected payment therefor in whole or in part by board in the defendant’s family, and if not fully paid in board, he expected the balance to be paid by the defendant’s wife. It is thus found that the defendant made no express promise to pay the plaintiff for these charges. It is not found that the money was advanced nor the bills paid at the defendant’s request. All these charges went for the permanent improvement of the defendant’s wife’s real estate, in which, under the provisions of s. 18, c. 71, Gen. Sts., he had little, if any, beneficial interest. That section not only protects such real estate, but also the rents, issues, and products, and all moneys and obligations arising from its sale, from being taken on the husband’s, debts. Section 17 gives her the right to dispose of the same by will. Hence, it cannot be said that any of these charges went for the defendant’s benefit. It is also found, substantially, that they were made on the credit of the wife so far as they remain unpaid by the board of the plaintiff and his wife. The charges not having been made at the request, nor for the benefit, nor on the credit, of the defendant, the law will not presume or imply a promise on his part to pay them to the plaintiff, or, in other words, compel their payment by him, as it would if he had so promised when the charges accrued. Where no express promise exists, the plaintiff must show the existence of such a state of facts that the law will imply a promise, or enforce payment, notwithstanding the non-existence of such a promise by the defendant. Such a promise will be implied, or payment enforced as though the promise existed, where the consideration of the charges enures to the benefit of the defendant with his knowledge and acquiescence, or under such circumstances that the law presumes that the defendant requested the performance of the acts which occasioned the charges. But the law will [101] not ordinarily presume a request when the consideration does not at all enure to the benefit of the defendant, nor imply a promise unless the acts are done upon his credit. The expectation of the plaintiff that the balance of these charges above the amount of the board, would be paid by the wife, prima facie negatives that the indebtedness sought to be recovered accrued on the credit of the defendant. It is not distinctly found that they accrued on the credit of the wife and on her promise to pay them. If this fact had been found, it alone would have been decisive against the right of the plaintiff to recover them from the defendant. If the plaintiff had chosen the wife as his debtor, he could not after-wards make the defendant his debtor, even by showing that his acts occasioning the charges were beneficial to him, and were done with his knowledge. Carter v. Howard, 39 Vt. 106; Bugbee v. Blood, 48 Vt. 497. All the facts reported, when considered together, are more consistent with the hypothesis that the charges were made on the credit of the wife than that they were made on that of the defendant. The money was advanced, the repairs and alterations made, at the request of the wife, for the benefit of her property, and with the expectation that she would pay any balance not paid by the board of the plaintiff and his wife. Whether the facts reported will enable the plaintiff to charge in equity the wife’s property with the payment of these charges, we have no occasion to consider. It is enough that they do not show that the defendant is liable for their payment, so far as they remain unpaid by the board of the plaintiff and his wife. II. The second class of charges were furnished for the support of the defendant’s family, and were delivered to him. He was under a duty to support his family. They went, therefore, to his benefit. Having received the articles charged, and used them for his benefit, the law implies a promise on his part to pay for them. The result is that the judgment of the County Court is reversed, and judgment rendered on the report for the plaintiff to recover for the wood, hay, grain and sugar, amounting to $74.10, and interest from May 20, 1874.