Parmelee v. Smith

Walker, J. It is insisted that it is error to render judgment on a verdict in an action of assumpsit which finds the defendant guilty, and assesses the plaintiff’s damages. The verdict is not strictly formal and technical, but is it substantially sufficient to support the judgment ? As a general rule, a verdict, although not formal, will be held sufficient if the court can, from its language, ascertain what was found, and it is in substance responsive to the issue tried, and it will be put in form so as to serve the justice of the case. In this case it is apparent that the jury intended to find, and supposed they had found, the issue of assumpsit for the plaintiff. And although not in form, it substantially finds that the defendants did promise, and had failed to pay, as alleged in the declaration. When they “ find the defendants guilty,” and assess the plaintiff’s damages the verdict could only refer to the alleged promise and failure to pay, for which they were sued, and is, we think substantially a sufficient finding. Had the attention of the court been called to the verdict, the clerk would have been required to reduce it to form, and by doing so, no error would have been committed. But no objection was taken to the verdict on the motion for a new trial, in the coui’t below, and the objection comes too late when made for the first time in this court. Schlenker v. Risley, 3 Scam. R. 483. The refusal of the court below to give this instruction, is assigned as error: “ If the jury believe, from the evidence, that the plaintiff is the mother of the witness, Kate Smith, and the clothing and apparel in question had been furnished by the plaintiff, and given to and put into the possession of the said Kate, to be kept by her, for her use as her own, and were so in the use of said Kate, at the time of delivering the same to the defendants, and that the plaintiff was not present, at the time of such delivery, and was not carried by the defendants, or agreed to be carried by them, then the plaintiff cannot maintain this action for the loss of the same articles, although the jury also believe that the said Kate was a minor at the time of such delivery.” This instruction is based upon the hypothesis, that wearing apparel furnished by the parent to his child, for its support, becomes the absolute property of the latter. That a minor may hold .property by donation, by devise, or by legacy, there can be no doubt. But the property to become vested in the minor; must be given with the intention, and for the purpose of having "that effect. If only given for a limited or specific purpose, it cannot be otherwise appropriated. So the use alone, may be given for a temporary purpose, with the right of resuming its possession at pleasure. And the .intention with which it was given, may be shown by circumstances. When parents furnish their minor children with clothing, it is not that they shall have the absolute, unlimited control of it, to sell, give away, or destroy at pleasure, but it is, that they may enjoy the use of it during the will of the parent. The right of property and possession still remains in the parent, and its possession may be resumed at any time, when desired. The duty of a parent to support his minor child, most clearly gives the right to control the means which he may see proper to employ. And in discharging that obligation, the means he may employ still remain his, and when employed for that end, they do not thereby become the property of the child. Not only the wearing apparel thus furnished, but the services and earnings of the minor child, belong to the parent. His obligation to support his offspring, entitles him to these, and it is inseparable from the duty, and it has existed, and been fully recognized in all conditions of society, and in every stage of the civilization of our race. The duty of supporting the idle and prodigal child, without the power of controling the means, has never been recognized either as a moral or 1 egal duty. We have been referred to no adjudged case which sustains the position contended for, and it is believed that none exists. But property given to a minor by the parent or any other person, with the intention that the ownership of the child should be absolute, would be governed by different principles. The evidence in this -case shows that the property sued for, was the wearing apparel and school books, used by the child for the usual and ordinary purposes. There is no evidence in the record, tending to show, that those articles were not furnished by the appellee, and the child having left the home of her mother on this occasion, the presumption is that they had been furnished by the mother. And if the daughter was under the control of, and resided with her mother, she must be presumed to own the property, and have had the right of reducing it to her actual possession at will, and the child in placing the property in the hands of appellant to transport to the place desired, only acted as the agent of the mother, and she was entitled to recover for its loss. The instruction was properly refused, and no error is perceived in the record. The judgment of the court below is affirmed. Judgment affirmed.