Capps v. Smith et al.

JOHN CAPPS, impleaded, &c., appellant, v. JOHN SMITH et al., appellees.

Appeal from Sangamon.

To an action of debt against two, upon two promissory notes, one of the defendants, B, pleaded that at the time of making the notes, A was indebted to the plaintiffs in the sum of $1587.69, and as security for the payment thereof, by A, the plaintiff's held a mortgage executed by A, to secure the sum of $2101.24, on real estate, duly recorded; and that at the time of making the two notes, B executed the same, and one other note for the same amount, as surety only for the said defendant A, and at the special instance and request of the plaintiffs, and on the express condition that the plaintiffs would assign or transfer said mortgage to the defendant B, as his security for signing said notes; and that was the only consideration for the execution of said notes by the defendant B, to the plaintiffs. “That the plaintiffs have not hitherto transferred or assigned said mortgage to the defendant, in accordance with the condition aforesaid, and that the consideration of said notes, as to defendant B, has wholly failed": Held, that the plea was a valid defence to the action against B.

The rule is well settled, that where the undertakings of the parties to a contract are mutual, one in consideration of the other, and no time is fixed for their performance, they are to be regarded as dependent contracts, which neither party can enforce, without averring and proving a performance, or at least an offer to perform, on his part.

THIS cause was heard in the Court below, at the July term, 1840, before the Hon. Samuel H. Treat. Judgment was rendered for the plaintiffs, for $958.46 debt, and $183.50 damages, upon demurrer to the plea of the defendant, the present appellant.

S. STRONG, for the appellant.

S. T. LOGAN, for the appellee.

WILSON, Chief Justice, delivered the opinion of the (old) Court: (1)

The plaintiffs below, John and William Smith, filed their petition in the Court below, on two promissory notes, for $529.03 each, executed to them by Jabez Capps and John Capps. Process was served on John Capps only, who appeared and pleaded two pleas, nil debet, and a special plea. By agreement of the counsel, it is understood that the plea of nil debet is to be considered as withdrawn, and a demurrer having been sustained by the Court to the special plea, the question thereby raised is, as to the legal effect of such plea, which is in substance as follows: That at the time of making said notes, to wit, on the 16th of December, 1835, Jabez Capps was indebted to the plaintiffs in the sum of $1587.69, and as security for the payment thereof, by Jabez Capps, the plaintiffs then and there had and held a mortgage executed by Jabez Capps, on the 29th of May, 1832, to secure the sum of $2101.24, on real estate, duly recorded; and that at the (1) LOCKWOOD, Justice, was not present at the argument of this cause, and gave no opinion.

Capps v. Smith et al.

time of making the two notes in the petition mentioned, John Capps executed the same, and one other note of the same amount, as surety only for the said defendant, Jabez Capps, and at the special instance and request of the plaintiffs, and on the express condition that the plaintiffs would assign or transfer said mortgage to the defendant, John Capps, as his security for signing said notes; and that was the only consideration for the execution of said notes by the defendant, John Capps, to the plaintiffs. That the plaintiffs have not hitherto transferred or assigned said mortgage to defendant, in accordance with the condition aforesaid, and that the consideration of said notes, as to defendant, John Capps, has wholly failed.

By the plaintiffs it is contended, that the contract, as contained in the notes, is complete, and cannot be invalidated, otherwise than by impeaching the consideration of the notes, and that this cannot be done, inasmuch as there is a sufficient consideration between the principals, which has not failed. It is also contended, that the contract is not violated by the plaintiffs, because no time was fixed within which the mortgage was to be assigned.

Without controverting the position, that, as a general rule, the surety to a note is liable where a consideration has passed to the principal, it is sufficient to observe, that the execution of the notes by the defendant, Jabez Capps, is only part of an entire contract, in which John Capps is a principal party, on the one side, and the plaintiffs on the other. By the terms of this agreement, as set out in the plea, the defendant, John Capps, is to execute his notes to the plaintiffs, as the security of Jabez Capps, and the plaintiffs, as an inducement, and in consideration therefor, are to assign to him a mortgage, which they hold on the property of Jabez Capps. These undertakings are mutual and dependent, one being the consideration for the other.

The object of the plaintiffs seems to have been to exchange the security afforded by the mortgage, for that afforded by the name of John Capps; but having got the security they desired, they now seek to enforce the collection of the notes given by the defendant, and still retain the mortgage which was to be given as the consideration therefor, and allege the completion of the defendant's part of the contract, by executing the notes, as an exemption from a compliance with theirs. As the parties stand, the plaintiffs have the double security of the mortgage and the notes of the defendant, while he is without any security or indemnity for the liability which he has incurred. This inequality of condition is alike opposed to the principles of justice, and the agreement of the parties. The contract for the execution of the notes, and the assignment of the mortgage, is an entire one, and neither its mutuality, nor the reciprocity of its obligations, are impaired by the multiplicity of its parts, or the fact that some of them are oral, and others written; but all the stipulations of the parties are to be taken into view, and

Hunt v. Thompson.

construed with reference to each other, and the intention thus ascertained carried into operation.

This is the general rule of construction, where the intention of the parties is doubtful; but the intention of the parties in this case, as to the acts to be performed by each, is not left to be ascertained by construction; they are clearly expressed; and no reason is perceived why one should be compelled to perform his part of a mutual agreement, without a performance on the part of the other. Nor is the time of performance more ambiguous than the acts to be done; for the rule is well settled, that where the undertakings of the parties to a contract are mutual, one in consideration of the other, as in this case, and no time is fixed for their performance, they are to be regarded as dependent contracts, which neither party can enforce without averring and proving a performance, or at least an offer to perform, on his part.

As to Jabez Capps, the plaintiffs' title to recover is undisputed; but the plea of John Capps, being admitted by the demurrer, constitutes a good defence to the action against him. The decision of the Court, upon the demurrer, must, therefore, be reversed, and the cause remanded for further proceedings.

Judgment reversed.

SAMUEL HUNT, appellant, v. JOHN THOMPSON, appellee.

Appeal from Morgan.

A parent is under a natural obligation to provide for the maintainance of his infant child, but there is no rule of municipal law enforcing this duty.

An express promise, or circumstances from which a promise by the father can be inferred, are indispensably necessary to bind the parent for necessaries furnished his infant child, by a third person.

A child, by voluntarily abandoning the home of his father, or remaining abroad, against his consent, forfeits his claim to support, and those who credit him, even for necessaries, must look to him for payment; and it is no excuse that such persons were not aware that the child was acting contrary to the will of the father; for it is the duty of those who give credit to an infant, to know his precise situation, at their peril.

Semble, That where by the command of the father, his son remains abroad until additional clothes become necessary, and he neglects to provide them; an authority, in one who should supply his omission of duty, might well be presumed.

THIS cause was heard in the Morgan Circuit Court, before the Hon. Wr. Thomas, without a jury, at the July term, 1840. Judgment was rendered for the defendant, and the plaintiff appealed to this Court.

J. BERDAN and M. McCONNEL, for the appellant.

W. BROWN, for the appellee.

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68a 123

Hunt v. Thompson.

WILSON, Chief Justice, delivered the opinion of the (old) Court:

This is an action against the father, for clothes furnished his infant son, under the following circumstances, as appears from the bill of exceptions. In the fall of 1838, the son, with the approbation of his father, who resided in Kentucky, came to Jacksonville, in this State, upon a visit to his friends in that vicinity. He was suitably provided with apparel for the occasion; but before the next spring, to which time he prolonged his visit, his clothes became considerably worn, and some of them too small, and the plaintiff made him a suit of clothes, for which this action is brought. It also appears, that the youth did not live with his friends, but took boarding at a tavern in Jacksonville, and contracted this and other debts, which his friends considered extravagant, and of which they informed his father, who immediately gave notice, by letters, that he would not pay his son's debts; but it does not appear that the plaintiff in the Court below had notice of this fact. Heretofore the father had always furnished his son with clothes suitable to his circumstances, which were easy.

Upon this evidence, the case was submitted to the decision of the Court, without the intervention of a jury, and judgment was given against the plaintiff; to reverse which this appeal is prosecuted.

That a parent is under an obligation to provide for the maintainance of his infant children, is a principle of natural law; and it is upon this natural obligation alone, that the duty of a parent to provide his infant children with the necessaries of life rests; for there is no rule of municipal law enforcing this duty. The claim of the wife upon the husband, for necessaries suitable to his rank and fortune, is recognised by the principles of the common law, and by statute. A like claim, to some extent, may be enforced in favor of indigent and infirm parents, and other relatives, against children, &c., in many cases; but, as a general rule, the obligation of a parent to provide for his offspring, is left to the natural and inextinguishable affection which Providence has implanted in the breast of every parent. This natural obligation, however, is not only a sufficient consideration for an express promise by a father to pay for necessaries furnished his child, but when taken in connexion with various circumstances, has been held to be sufficient to raise an implied promise to that effect. But either an express promise, or circumstances from which a promise by the father can be inferred, are indispensably necessary to bind the parent for necessaries furnished his infant child by a third person.

In this case, it is not pretended that the defendant gave any express authority for, or sanction to the contract with the plaintiff. What, then, are the circumstances from which such authority can be inferred? Certainly not from the bare circumstance that the

Hunt . Thompson.

son was in want of the clothes, and that they were suitable to the fortune and condition in life of the father. To sanction such a doctrine, would, in numerous instances, which can be readily imagined, subject a parent to the payment of the debts of a prodigal son, contracted without his approbation, and even against his will. Where the child lives with the parent, who takes upon himself the office of ministering to his necessities, even though his provision should be inadequate, yet he would not be liable to another who might supply the deficiency, because the undertaking of the parent excludes the idea of authority in another, and the law will not sanction the interference of a stranger with parental authority or economy. And if the son is not to be regarded as a member of his father's family, while staying at Jacksonville, then in order to render the father liable for clothes furnished him, it should be shown that his prolonged residence, which rendered the clothes necessary, was at the instance of the father; for a child, by voluntarily abandoning the home of his father, or remaining abroad against his consent, forfeits his claim to support, and those who credit him, even for necessaries, must look to him for payment; and it is no excuse that such persons were not aware that the child was acting contrary to the will of the father; for it is the duty of those who give credit to an infant, to know his precise situation, at their peril. If it had been proved that it was by the command of the defendant, that this son remained abroad until additional clothes became necessary, and he neglected to provide them; an authority in one who should supply his omission of duty, might well be presumed, as the necessity was occasioned by his own act. But no such exercise of authority, on the part of the father, is shown; nor is it reasonable to presume, that because he allowed a son between 15 and 18 years of age, to visit his friends, that he gave him authority to take boarding at a tavern, for five or six months, and until he should outgrow his clothes, or wear them out, and then purchase others at will. The fact that the defendant had previously provided his son with sufficient apparel, and that he was not informed of any deficiency at the time referred to, not only exhonerates him from the imputation of a dereliction of duty, but affords a strong presumption that it was not with his approbation that his son remained abroad until he became destitute of clothes. Another circumstance against the imputation of authority to furnish the son with clothes, on the credit of his father, is, that so soon as he was informed of the conduct of his son, by his friends, who considered it extravagant and improper, he notified them that he would not be answerable for his debts.

It is the acts of the parent, and not those of the infant, that are to be looked to as affording a presumption of authority that will render him liable; and the acts of the defendant, not having been such as to justify an inference of authority from him to the plaintiff,

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