Opinion
June, 1902.
James Flynn, for appellant.
John A. Balestier, for respondent.
The defendant's infant son and a lady, some time his sister-in-law, were boarded and lodged, with his knowledge, in the house of the plaintiff, who brings this action for one (the last) week's care of the child and attendant, an extra bed procured at his instance and a bowl with plumbing broken in the room. Judgment upon all went for the defendant who contended that the agreement for board and lodging had not been made by him personally but by the person, whilom his sister-in-law, with whom he had an arrangement; that though he asked to have the bed provided he did not directly promise to pay therefor, when asked if he would; and that it was not duly proven that his boy broke the bowl and damaged the plumbing. As the plaintiff was not privy to or even aware of the personal arrangement that the sister-in-law should pay the board out of the stipend — it does not appear that the defendant paid this even to her for the time in question — and if the lad was harbored and fed with the defendant's knowledge according to his wishes and requirements, he was bound to pay therefor, unless someone else did. Concerning his obligation to pay for the extra bed, the plaintiff's testimony is too clear to be quite set off by the evasive statements of the defendant. Any doubt about this or liability for the broken bowl may be cleared up — perhaps by the testimony of the boy himself — upon a new trial, which must be had since the plaintiff was entitled to a verdict for the necessaries furnished to the defendant's offspring.
Judgment reversed, with costs, to abide the event.
GILDERSLEEVE, J., concurs.
The plaintiff, a boardinghouse keeper, claiming that the defendant had engaged board at her house for his infant son, brought this action to recover for one week's unpaid board, also for a washbowl claimed to have been destroyed by the boy, and for a bed purchased for his use. The defendant denied the agreement to pay board and sought to evade payment by proving that he paid to his sister-in-law, who had charge of the child, a certain sum each month, out of which she agreed to pay all the expenses of the boy. Upon such proof the trial court dismissed the complaint. There was no proof in the case that the plaintiff had knowledge of the agreement alleged to exist between the defendant and his sister-in-law, and as the defendant knew that the plaintiff was furnishing board to his child, he being primarily liable therefor, the plaintiff should have had a judgment for the value of one week's board at least.
I, therefore, concur with Mr. Justice MacLean in the disposition of the case as indicated in his opinion.
Judgment reversed, with costs, to abide event.