higher education in college,19 or for a profession, 20 or a fiveyear-course of instruction at a corrrespondsnce school 21 has been held not to be. In regard to all forms of education, however, except the most rudimentary, the question must depend upon the infant's circumstances and station in life 22 Whether the nature of a contract is such that it can, under any circumstances, be regarded as a contract for necessaries, is a question of law; 23 but if the court decides that under some circumstances such a contract might be for necessaries, it then becomes a question of fact for the jury whether it was so in the particular case.24 § 242. What are not necessaries. Under ordinary circumstances the purchase of a house is not necessary, 25 nor work and materials for the building of a house, 26 nor fire insurance,27 nor life insurance. 28 Clothing 'course in stenography costing $35 was necessary for a girl of seventeen years" would depend entirely upon that particular infant's condition in life which her previous education and attainments had prepared or fitted her to occupy. 19 Middlebury College v. Chandler, 16 Vt. 683, 42 Am. Dec. 537; Gayle v. Hayes' Adm., 79 Va. 542. 20 Turner v. Gaither, 83 N. C. 357, 35 Am. Rep. 574; Bouchell v. Clary, 3 Brev. 194. 21 International Text Book Co. v. Connelly, 206 N. Y. 188, 99 N. E. 722, 42 L. R. A. (N. S.) 1115. In this case the infant was under the care of a guardian able and willing to supply him with support and training suitable to his condition. 22 Peters v. Fleming, 6 M. & W. 42; Mauldin v. Southern Shorthand University, 126 Ga. 681, 55 S. E. 922. 23 McKanna v. Merry, 61 Ill. 177; Garr v. Haskett, 86 Ind. 373; Merriam v. Cunningham, 11 Cush. 40; Lynch v. Johnson, 109 Mich. 640, 67 N. W. 908; Decell v. Lewenthal, 57 Miss. 331, 34 Am. Rep. 449; Glover v. Ott, 1 McCord, 572. 24 Maddox v. Miller, 1 M. & S. 738; Peters v. Fleming, 6 M. & W. 42; Mauldin v. Southern Shorthand University, 126 Ga. 681, 55 S. E. 922; Merriam v. Cunningham, 11 Cush. 40; Lynch v. Johnson, 109 Mich. 640, 67 N. W. 908; Decell v. Lewenthal, 57 Miss. 331, 34 Am. Rep. 449; Cobbey v. Buchanan, 48 Neb. 391, 67 N. W. 176. 25 This is clear from the fact that repairs on a house belonging to an infant, though essential to the preservation of the property, have been held not necessary. Tupper v. Cadwell, 12 Metc. 559, 46 Am. Dec. 704; Wallis v. Bardwell, 126 Mass. 366; West v. Gregg's Adm., 1 Grant, 63. And see the following note. 26 Price v. Sanders, 60 Ind. 310, 314; Price v. Jennings, 62 Ind. 111; Wornack v. Loar, 11 Ky. L. Rep. 6, 11 S. W. 438; Horstmeyer v. Connors, 56 Mo. App. 115; Allen v. Lardner, 78 Hun, 603; Freeman v. Bridger, 4 Jones L. 1; Phillips v. Lloyd, 18 R. I. 99, 25 Atl. 909. 27 New Hampshire Fire Ins. Co. v. Noyes, 32 N. H. 345. 28 Simpson v. Prudential Ins. Co., of unusual elegance is clearly not essential; 29 nor is jewelry, 30 but exceptional clothing may be treated as necessary on the marriage of an infant.31 Such food as confectionery and fruit, 32 liquors 33 and tobacco 34 obviously are not necessaries, nor is a horse,35 a carriage," a bicycle," or, ordinarily, traveling expenses.38 "The law does not contemplate that a minor shall open a shop and become a trader, or the proprietor of a business which involves the making of a variety of contracts." Therefore, articles essential for the conduct of a business in which the infant is engaged are not necessaries, 39 but the judge from whom the preceding words are quoted adds, "If they had been hand tools to a reasonable amount, such as are ordinarily provided by a journeyman, and necessary for use in his trade or business, the case would be different." 40 184 Mass. 348, 68 N. E. 673, 63 L. R. A. 741, 100 Am. St. Rep. 560. 29 Makarell v. Bachelor, Cro. Eliz. 583; Lefils v. Sugg, 15 Ark. 137; Gayle v. Hayes' Adm., 79 Va. 542, 547. 30 Ryder v. Wombwell, L. R. Ex. 32. 31 Garr v. Haskett, 86 Ind. 373; Sams v. Stockton, 14 B. Mon. 232; Jordan v. Coffield, 70 N. C. 110, 113. 32 Brooker v. Scott, 11 M. & W. 67. Compare Wharton v. Mackenzie, 5 Q. B. 606. 33 Glover v. Ott, 1 McCord, 572. 34 Bryant v. Richardson, L. R. 3 Ex. 93, note. 35 Beeler v. Young, 1 Bibb, 519; Gayle v. Hayes' Adm., 79 Va. 542, 547; Skrine v. Gordon, 9 Ir. Rep. C. L. 479. Compare cases cited in the preceding section. 36 Howard v. Simpkins, 70 Ga. 322; Heffington v. Jackson, 43 Tex. Civ. App. 560, 96 S. W. 108. "Pyne v. Wood, 145 Mass. 558, 14 N. E. 775; Gillis v. Goodwin, 180 Mass. 140, 61 N. E. 813, 91 Am. St. Rep. 265; Rice v. Butler, 160 N. Y. 578, 55 N. E. 275, 47 L. R. A. 303, 73 Am. St. Rep. 703. Otherwise in Eng land. Clyde Cycle Co. v. Hargreaves, 78 L. T. 296. 39 38 McKanna v. Merry, 61 Ill. 177. See Breed v. Judd, 1 Gray, 455, 458. Ryan v. Smith, 165 Mass. 303, 43 N. E. 109. To the same effect see Whittingham v. Hill, Cro. Jac. 494; Dilk v. Keighley, 2 Esp. 480; Sanger v. Hibbard, 104 Fed. 455, 43 C. C. A. 635; Lein v. Centaur Motor Co., 194 Ill. App. 509; House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189; Decell v. Lewenthal, 57 Miss. 331, 34 Am. Rep. 449; Rainwater v. Durham, 2 Nott & McC. 524, 10 Am. Dec. 637; Chabot v. Paulhus, 32 R. I. 471, 79 Atl. 1103; Wallace v. Leroy, 57 W. Va. 263, 110 Am. St. Rep. 777, 50 S. E. 243. See also Covault v. Nevitt, 157 Wis. 113, 146 N. W. 1115, 51 L. R. A. (N. S.) 1092. But otherwise under the statutes of some States. Ullmer v. Fitzgerald, 106 Ga. 815, 32 S. E. 869; Jimmerson v. Lawrence, 112 Ga. 340, 37 S. E. 371; Re Brice, 93 Fed. Rep. 942 (Iowa). And see Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209. 40 Ryan v. Smith, 165 Mass. 303, 43 N. E. 109. There has been considerable litigation upon the question whether a contract by an infant for legal services is a contract for necessaries. It has generally been held that such services rendered in protection of ordinary rights of property are not necessaries.11 as a guardian should be appointed to take charge of such matters. But payment for legal services rendered for an infant's personal relief or protection is recoverable; as for defending him against a charge of crime, 42 or for bringing an action for a tort to the person, 43 or for obtaining his discharge from imprisonment.44 And where an attorney is employed by a guardian or guardian ad litem to protect the infant's property his "estate may be made liable for a reasonable attorney's fee, if the services rendered were for the manifest benefit of the infant, and necessary for the protection of valuable rights belonging to him." 45 § 243. Money advanced for the purchase of necessaries. It was ruled by Buller, J., at Nisi Prius in 1783 that money lent, though lent for the express purpose of enabling an infant to purchase necessaries, and actually expended in accordance 41 McIsaac v. Adams, 190 Mass. 117, 76 N. E. 654, 112 Am. St. Rep. 321; Dillon v. Bowles, 77 Mo. 603; Houck v. Bridwell, 28 Mo. App. 644; Englebert v. Troxell, 40 Neb. 195, 58 N. W. 852, 26 L R. A. 177, 42 Am. St. Rep. 665; Cobbey v. Buchanan, 48 Neb. 391, 67 N. W. 176; Phelps v. Worcester, 11 N. H. 51; New Hampshire Mutual Fire Ins. Co. v. Noyes, 32 N. H. 345; Barker v. Hibbard, 54 N. H. 539, 20 Am. Rep. 160; Watts v. Houston (Okl.), 165 Pac. 128; Thrall v. Wright, 38 Vt. 494. But some decisions hold that services reasonably required for the defence of property rights are necessaries. Sutton v. Heinzle, 84 Kans. 756, 115 Pac. 560, 34 L. R. A. (N. S.) 238; Slusher v. Weller, 151 Ky. 203, 151 S. W. 684; Nagel v. Schilling, 14 Mo. App. 576; Searcy v. Hunter, 81 Tex. 644, 17 S. W. 372, 26 Am. St. Rep. 837. And in Helps v. Clayton, 17 C. B. (N. S.) 553, a charge for the services of a solicitor who prepared a married settlement for an infant was held recoverable. 42 Barker v. Hibbard, 54 N. H. 539, 20 Am. Rep. 160; Askey v. Williams, 74 Tex. 294, 11 S. W. 1101, 5 L. R. A. 176. 43 Munson v. Washband, 31 Conn. 303, 83 Am. Dec. 151; Hickman v. McDonald, 164 Ia. 50, 145 N. W. 322; Crafts v. Carr, 24 R. I. 397, 53 Atl. 275, 60 L. R. A. 128, 96 Am. St. Rep. 721; Ex parte Smithson, 108 Tenn. 442, 67 S. W. 864; Hanlon v. Wheeler (Tex. Civ. App.), 45 S. W. 821. Cf. Phelps v. Worcester, 11 N. H. 51; Thrall v. Wright, 38 Vt. 494. 44 People v. Mullin, 25 Wend. 698. 45 Owens v. Gunther, 75 Ark. 37, 40, 86 S. W. 851, citing:-Munson v. Washband, 31 Conn. 303, 83 Am. Dec. 151; Epperson v. Nugent, 57 Miss. 45, 47 with this purpose cannot be recovered, 46 "as the plaintiff thereby put it in the defendant's power to misapply the money." The same rule has been stated in a few cases in this country. There are also early English cases touching the matter but these, though cited by the American decisions, fully involve the point in one instance only, and in that single instance the decision is contrary to the rule for which the case is cited.48 If the question arose in equity, it was early 34 Am. Rep. 434; Jones v. Yore, 142 Mo. 38, 43 S. W. 384; Barker v. Hibbard, 54 N. H. 539, 20 Am. Rep. 160. 46 Probart v. Knouth, 2 Esp. 472, note. 47 Lein v. Centaur Motor Co., 194 Ill. App. 509; Beeler v. Young, 1 Bibb, 519, 521; Swift v. Bennett, 10 Cush. 436, 438; Bradley v. Pratt, 23 Vt. 378, 386. But see Randall v. Sweet, 1 Denio, 460, 461. 48 The early decisions are Rearsby and Cuffer's Case, Godb. 219; Darby v. Boucher, 1 Salk. 279; Earle v. Peale, 1 Salk. 386; Ellis v. Ellis, 3 Salk. 197. In Rearsby and Cuffer's Case, a prohibition was granted prohibiting the Court of Requests from entertaining a suit for money which the plaintiff had laid out for necessaries for the defendant, "because as it was said he might have an action of debt at the common law, upon the contract for the same, because they were things for his necessary livelihood and maintenance." In Darby v. Boucher the case was thus put: "One lends an infant money, who employs it in paying for necessaries, whether in that case the infant be liable, and it was held clearly by the Chief Justice that the infant is not liable, for it is upon the lending that the contract must arise, and after that time there could be no contract raised to bind the infant, because after that he might waste the money, and the infant's applying it afterward for necessaries will not by matter ex post facto entitle the plaintiff to an action." It is to be noticed that it is not stated in this case that the money was lent for the purpose of buying necessaries. In Earle v. Peale a replication to a plea of infancy that the money was lent for necessaries was held bad. The court said: "He may buy necessaries, but he cannot borrow money to buy, for he may misapply the money, and, therefore, the law will not trust him but at the peril of the lender who must lay it out for him, or see it laid out, and then it is his providing, and his laying out so much money for necessaries for him." In this case the question which the court was primarily considering was that of liability for money lent for necessaries and not used for that purpose-not that of liability for money both lent and spent for necessaries. This further appears from another report of the case in 10 Mod. 67, where the court says: "In this case the lending for such a purpose is only put in issue, which might be maintained without showing how the money was actually laid out; that if the fact was so, the plaintiff should have declared for money so laid out, and not so lent." The only case where the question of money both lent and spent for necessaries was clearly passed upon is the last of those cited above, Ellis v. Ellis. In this case (also reported in 12 Mod. 197, Comb. 482, 1 Ld. Raym. 344) it was held that "an infant is chargeable for money lent, if it is laid out settled and is well established that the infant is liable.49 In jurisdictions, therefore, where equitable rules are applicable to all actions, recovery must be allowed. 50 Moreover, if a surety for an infant's liability for necessaries pays the claim, he may recover from the infant what he has paid,51 and similarly the infant has been held liable for money paid at his request to satisfy a debt for necessaries.52 Finally, if the money is actually applied by the lender himself to the purchase of necessaries for the infant it is well settled that the infant is liable.53 If, therefore, the creditor cannot recover at law for money lent to an infant and expended by him for necessaries, the reason must be purely technical. No sound technical reason exists. If the infant's liability for necessaries is quasi-contractual the principles governing the case ought to be based on the enrichment of the infant and his duty as a matter of justice to reimburse the person to whom this enrichment is owing. Judged by these principles there is no valid distinction to be made between a case where the creditor bought the necessaries for the infant and a case where he allowed the infant to do so with money lent for the purpose. The same result follows if the infant's liability for necessaries be regarded as contractual. Contracts for necessaries on this assumption differ from other contracts for necessaries, according to his degree, but all that is at the peril of the lender." This decision was decided before Earle v. Peale, though the report of it in Salkeld's and Modern Reports is subsequent, but there is nothing in Earle v. Peale which can be regarded as overruling Ellis v. Ellis. There are no recent English decisions on the point in courts of law. In Bateman v. Kingston, 6 L. R. Ir. 328, the lender was not allowed to recover on an interestbearing note though the money had been expended by the infant for necessaries, but the difficulty the court found was to allow recovery on an interest-bearing note, irrespective of what the consideration for it was. See Re Soltykoff, [1891] 1 Q. B. 413. 49 Marlow v. Pitfield, 1 P. Wms. 558; Thurston v. Nottingham Soc., [1903] A. C. 6; Price v. Sanders, 60 Ind. 310; Hickman v. Hall's Adm., 5 Litt. 338, 342; Watson v. Cross, 2 Duvall, 147, 149; Bradley v. Pratt, 23 Vt. 378, 386. See also Ostrander v. Quin, 84 Miss. 230, 36 So. 257, 105 Am. St. Rep. 426. 50 Price v. Sanders, 60 Ind. 310. 51 Conn v. Coburn, 7 N. H. 368, 26 Am. Dec. 746; Haines' Adm. v. Tarrant, 2 Hill (S. C.), 400. See also Ayers v. Burns, 87 Ind. 245, 248, 249, 44 Am. Rep. 759; Dial v. Wood, 9 Baxt. 296. 52 Randall v. Sweet, 1 Denio, 460; Equitable Trust Co. v. Moss, 149 N. Y. App. Div. 615, 134 N. Y. S. 533. 53 See cases supra, and Clarke v. Leslie, 5 Esp. 28; Re Clabbon, [1904] 2 Ch. 465. |