Both of these propositions are so firmly established by authority that we need not cite the cases in support thereof. The great weight of authority, and the reason of the rule certainly sustains it, is that an infant is not bound by the terms of an express contract for necessaries, and that in no event can a recovery be had for more than their reasonable value. Bishop on Contracts, $908; Beach on Contracts, par. 1368; Locke v. Smith, 41 N. H. 346; Trainer v. Trumbull, 141 Mass. 527, 6 N. E. 761; Gregory v. Lee, 64 Conn. 407, 30 Atl. 53, 25 L. R. A. 618. It is therefore manifest that contracts for necessaries are sustained for the benefit of the infant only, and not for the benefit of the tradesman. See, also, note in Craig v. Van Bebber (Mo.), 13 S. W. 906, 18 Am. St. 643. And, if this be true, it must logically follow that an unexecuted contract for necessaries may be disaffirmed unless it be otherwise provided by statute. Johnson v. Lines, 6 Watts and S. (Pa.) 80, 40 Am. Dec. 543; Pool v. Pratt, 1 D. Chip. 252; Spicer v. Earl, 41 Mich. 191, 1 N. W. 923, 32 Am. Rep. 152; Pollock's Prin. of Contracts, 53, and note F. For the necessaries which have been furnished to him the infant is bound to pay because of the benefit received, but when the unfurnished things contracted for are no longer necessary the reason for the rule ceases, and with it the infant's liability, if he chooses to disaffirm the contract. Were the rules otherwise, a contract for necessaries to be supplied in the future might be enforced to the great injury of the infant because of a change in his condition which rendered the things no longer necessaries. The statute, in so far as it relates to contracts of this class, is simply declaratory of the common law, and must be held to intend nothing more than that an infant is bound for necessaries actually provided him. The rule may be an unjust one in some cases, but it will generally protect the tradesman as well as the infant, and it is, we believe, in accord with principle and authority.

The judgment is reversed.

DENTAL WORK IS A NECESSARY

STRONG V. FOOTE

42 Conn. 203 (1875)

PARDEE, J. In suits against minors, instituted by persons who have rendered services or supplied articles to them, the term "necessaries" is not invariably used in its strictest sense, nor is it limited to that which is requisite to sustain life, but includes whatever is proper and suitable in the case of each individual, having references to his circumstances and condition in life.

The defendant applied to the plaintiff for relief from pain and the prevention of its recurrence; he, finding the cause in the defendant's decaying and neglected teeth, immediately began the work of relief and repair, and continued the same from time to time during a period of six weeks, until its completion. It was necessary for the preservation of the teeth and the charge therefor is reasonable in amount. In view of the circumstances of this defendant, we have no hesitation in saying that the services are within the legal limitations of the word "necessaries".

The teeth upon inspection disclosed their condition to the plaintiff; he could see that they had been neglected and were decaying; and the record does not reveal any effort or intention even on the part of the guardian to repair or preserve them.

Again, friends of the defendant in New Haven had twice previously taken him to the plaintiff for dental services, for which bills had been made out in his name, and had been paid, his guardian furnishing the money without warning or objection to the plaintiff. These acts on the part of the defendant and his guardian rendered it unnecessary that the plaintiff should have instituted an inquiry as to a guardianship over the defendant, before performing these last services, as a pre-requisite for a recovery in this suit, the work being necessary to meet an unsupplied want. Davis v. Caldwell, 12 Cush. (Mass.) 512; Brayshaw v. Eaton, 7 Scott 187; Dalton v. Gibbs, 7 Scott 117; 2 Greenleaf on Evidence 366. There is no error in the judgment complained of.

LIABILITY OF MINOR AS LESSEE

GREGORY V. LEE

64 Conn. 407, 30 Atl. 53 (1894)

The case was tried before a justice of the peace in New Haven, where the plaintiff had judgment. The defendant took an appeal to the Court of Common Pleas in New Haven County, where the court sustained defendant's demurrer to the plaintiff's reply and rendered judgment for the defendant. Plaintiff alleged this was error and appealed.

J. TORRANCE. "The complaint in this case alleges that on the first of June, 1892, the defendant being a student in Yale College, entered into a contract with the plaintiff by which he leased a room for the ensuing college year of forty weeks, at an agreed rate of ten dollars per week, payable weekly, and immediately entered into possession of said room and has neglected and refused to pay the rent of said room for the ten weeks ending February 7, 1893."

It thus appears that the defendant, a minor agreed to hire the plain tiff's room for forty weeks at $10 per week, and that he entered into

possession and occupied it a part of said period; that he gave up and quit possession of the room and refused to fulfill said agreement, on the 20th of December, 1892, paying in full for all the time he had occupied it; that he has never occupied it since, but has been paying for and occupying a suitable room elsewhere.

Under the facts stated, it must be conceded that this room, at the time the defendant hired it, and during the time he occupied it, came within the class called "necessaries," and also that to him during said period it was an actual necessary, for lodging comes clearly within the class of necessaries; and the room in question was a suitable and proper one, and during the period he occupied it was his only lodging room. "Things necessary are those without which an individual cannot reasonably exist. In the first place, food, raiment, lodging, and the like. About these there is no doubt." Chapple v. Cooper, 13 Mees. & W. 252; 1 Swift Dig. 52.

So long, then, as the defendant actually occupied the room as his sole lodging room it was clearly a necessary to him, for the use of which the law would compel him to pay; but as he paid the agreed price for the time he actually occupied it, no question arises upon that part of the transaction between these parties.

The question now is whether he is bound to pay for the room after December 20, 1892. The obligation of an infant to pay for necessaries actually furnished to him does not seem to arise out of a contract in the legal sense of that term, but out of a transaction of a quasi-contractual nature; for it may be imposed on an infant too young to understand the nature of a contract at all. Hyman v. Cain, 2 Jones (N. Car.) III. And where an infant agrees to pay a stipulated price for such necessaries, the party furnishing them recovers not necessarily that price, but only the fair and reasonable value of the necessaries. Earle v. Reed, 10 Met. (Mass.) 387; Barnes v. Barnes, 50 Conn. 572. Trainer v. Trumbull, 141 Mass. 527, 6 N. E. 761; Keener Quasi-Cont., p. 20. This being so, no binding obligation to pay for necessaries can arise until they have been supplied to the infant; and he cannot make a binding executory agreement to purchase necessaries. For the purpose of this case, perhaps, we may regard the transaction which took place between these parties in September, 1892, either as an agreement on the part of the plaintiff to supply the defendant with necessary lodging for the college year, and on the part of the defendant as an executory agreement to pay an agreed price for the same from week to week; or we may regard it as what, on the whole, it appears the parties intended it to be a parol lease, under which possession was taken, and an executory agreement on the part of the defendant to pay rent. If we regard it

in the former light, then the defense of infancy is a good defense; for in that case the suit is upon an executory contract to pay for necessaries which the defendant refused to take, and never has had, and which, therefore, he may avoid. If we regard the transaction as a lease under which possession was taken, executed on the part of the plaintiff, with a promise or agreement on the part of the defendant to pay rent weekly, we think infancy is equally a defense.

As a general rule, with but few exceptions, an infant may avoid his contracts of every kind, whether beneficial to him or not, and whether executed or executory. Riley v. Mallory, 33 Conn. 201. The alleged agreement in this case does not come within any of the recognized exceptions to this general rule.

"An infant lessee may also avoid a lease, although it is always available for the purpose of vesting the estate in him so long as he thinks proper to hold it. As to his liability for rent, or the performance of the stipulations contained in the lease, he is in the same situation, with respect thereto, as in case of any other contract; for he may disaffirm it when he comes of age, or at any time previous thereto, and thus avoid his obligation." Tayl. Landl. & Ten., p. 96. In this case the defendant gave up the room and repudiated the agreement so far as it was in his power to do so, in the most positive and unequivocal manner. The plea of infancy, then, under the circumstances must prevail.

.

There is no error.

AN INFANT MAY DISAFFIRM A PROMISE OF MARRIAGE

RUSH V. WICK

31 Ohio St. 521 (1877)

Action for breach of a marriage promise. Defense, that at the time the promise was made defendant was an infant under the age of twentyone years. Demurrer to this defense overruled.

BY THE COURT. The demurrer was rightfully overruled. A contract to marry, made by an infant, stands upon the same footing as respects his rights to repudiate it, as any other executory contract that may be avoided by him. The case comes within the general rule, that the contract of an infant is voidable at his election. The fact that under the statute (67 Ohio L. 6) an infant may be joined in marriage at the age of eighteen, if a male, and sixteen, if a female, having first obtained the assent of the father, or in case of his death or incapacity, of the mother or guardian, does not affect the right to refuse to perform the contract.

The right to avoid or disaffirm the contract of an infant grows out of his supposed incapacity to protect himself from improvident bargains and relations. And there can be no case where the right to avoid or disaffirm is of more vital concern to his future welfare than where he has made an improvident marriage engagement. The infant's right to avoid such engagement or contract is affirmed by the following authorities. Holt v. Ward, 2 Strange 937; Cannon v. Alsbury, 1 A. K. Marshall (Ky.) 56; Hunt v. Peake, 5 Cow. (N. Y.) 475; Williard v. Stone, 7 Cow. (N. Y.) 22; Warwick v. Cooper, 5 Sneed (Tenn.) 659; Pool v. Pratt, 1 Chip. (Vt.) 252; Bac. Ab., title Infancy and Age, 135; 1 Chitty on Con. 222; Shouler's Dom. Rel. 535; Mackpherson on Infants 121.

AN INFANT IS LIABLE FOR NECESSARIES FOR HIS FAMILY

CANTINE V. PHILLIPS

5 Harr. (Del.) 428 (1854)

This was an action of assumpsit by a father-in-law, against the representatives of a deceased son, for board and other necessaries furnished his wife (plaintiff's daughter) and her child and nurse. There were also charges for board of the son-in-law.

The case turned on the question, whether an assumpsit was implied in law under the circumstances, as between parties bearing this relation to each other. It was twice tried, and resulted finally in a verdict for

the defendant.

BY THE COURT. Assumpsit by a father against the estate of his son-in-law, for the board and lodging of the daughter and her child and servant, and also of the son-in-law himself.

It is alleged that James W. Phillips, having married the daughter of Cantine, did, at various times and for considerable periods live in the family of the wife's father; for which a compensation is demanded in this action.

1. On the part of the defendant it is contended that no action can be sustained on such a claim, founded on any implied engagements to pay board. That as between father and daughter, or daughter's husband, living in the father's house, no contract can be implied for the payment of board.

The court assents to this proposition. Persons in such a near connection as father and children do not usually live together upon a footing of obligation to account with and pay for attentions and services, or board and lodging. When the parties intend to live in that way,