Holt v. Baldwin

CurkibR, Judge, delivered the opinion of the court. The plaintiff sues to recover the purchase money of a horse sold to the defendant’s minor son. The petition shows, for substance, that a minor son of the defendant was engaged in the military service of the State, with his father’s consent and approbation ; that a horse wras necessary for the use of the son in his employment; and that the son, under the authority of the father, purchased the horse in question, and took possession of him, and that his father, the defendant, subsequently ratified the transaction, and promised to pay the plaintiff the sum agreed upon as the purchase money of the horse. These facts are somewhat scatteringly detailed in the petition, but they are sufficiently stated to show a go.od, and, at the same time, but one cause of action. The defendant’s motion in arrest was therefore properly overruled. The defendant’s answer denies the principal matters alleged in the petition, and avers that the defendant furnished- his son with [267] everything necessary to his circumstances and condition. Upon these issues a trial was had by jury. At the instance of the plaintiff, the court instructed the jury as follows : “If the jury find from the evidence that the defendant, after the sale of said horse to his minor son, ratified the act and promised to pay for said horse, they will find for the plaintiff.” Aside from an instruction in relation to the quantum of damages, this was the only instruction given in the case. It is radically defective. It assumes as a matter of law what should have been left to the jury to determine as a question of fact. The instruction assumes and declares the liability of the defendant upon the sole ground of his supposed subsequent ratification and promise, leaving out of view entirely the question of the son’s agency in the transaction. If the defendant was liable at all, it was because he had authorized the purchase, either expressly or by implication. Whether there was any such express or implied authority was a matter for the jury to inquire into, and not for the court to assume as a matter of law. The fact of a subsequent ratification and promise was legitimate and persuasive evidence to go to the jury, from which they might have found'that the purchase was made by the son as the defendant’s agent, acting under authority either expressed or implied. (Brown v. Deloach, 28 Ga. 486.) “The moral obligation of a father to support his child does not make him legally liable to pay his child’s debts; and to charge a father on his son’s contracts, the same circumstances must be shown as to charge an uncle, a brother, or any third person. The son need not, however, have an express authority to bind his parent; for an authority may be implied under certain circumstances. and it is always a question for the jury whether the circumstances are sufficient for that purpose.” (Tyler on Inf. and Cov. 106, § 64.) The general doctrine on this subject is that the “ only ground upon which an infant can bind others by his contract is that of an express or implied agency.” (Id.) All the instructions asked by the defendant were refused by the court, and properly. The second instruction asked amounts to a demurrer to the petition; and the petition, as we have seen, was [268] sufficient. Each of the remaining instructions leaves out of view the question of agency — the important and controlling element in the controversy — and were unwarranted for that reason. The judgment, however, in consequence of the misdirection of the jury, as already explained, must be reversed and the cause remanded. The other judges concur.