promoted;18 unless, from the nature of the corporation, it is under some duties or liabilities to the public.49

PARTNERSHIP.-A partnership has capacity to purchase all goods within the scope of the partnership business, and this power may be exercised by any one of the partners as the agent of all.. All the partners together may make purchases outside of that scope and will be estopped from denying their capacity.50

Likewise, any partner as agent for all may make sales within the scope of the partnership and all acting together may make sales of any and all of its property.51

VOLUNTARY ASSOCIATIONS.-A voluntary association is an unincorporated association of natural persons for some purpose other than making a profit, and has no capacity as such to buy or sell, aside from the capacity of its individual members. The members are not agents for each other; to be held liable, a member must have authorized or ratified a purchase of sale.52

AGENCY.-A principal having capacity may authorize an agent to buy or sell. The principal is liable only when he authorizes or ratifies the contract.58

THE MASTER OF A VESSEL has implied authority, in case of actual necessity, to sell the ship and cargo.54

NECESSARIES.

AN INFANT is liable for the reasonable value of necessaries actually furnished to him, upon either his express contract or one implied by law.55 The liability is limited to the reasonable value of the necessaries.56

49. 1 Mechem on Sales, § 141; 2 Page on Contracts, § 1079; Treadwell v. Mfg. Co., 73 Mass. (7 Gray) 393; Richards v. R. R. Co., 44 N. H. 136.

50. 1 Mechem on Sales, § 145; 2 Page on Contracts, § 937 et seq.; Pease v. Cole, 53 Conn. 53, 60 (giving a full discussion of the distinction between trading and non-trading partnerships).

51. 1 Mechem on Sales, § 144. 52. 2 Page on Contracts, § 1005. 53.2 Page on Contracts, § 960. See sec. 73.

54. Benjamin on Sales, p. 40, cit

ing The Amelie, 73 U. S. (6 Wall.) 18, 26; Post v. Jones, 60 U. S. (19 How.) 150; Gates v. Thompson, 57 Me. 442; Howland v. India Ins. Co., 131 Mass. 239, 255; Myers v. Baymore, 10 Pa. St. 114.

55. Burghart v. Hall, 4 M. & W. 727; Peters v. Fleming, 6 M. & W. 42; Walter v. Everard (1891), 2 Q. B. 369; Burton v. Willin, 6 Houst. (Del.) 522; Hunt v. Thompson, 4 Ill. 179; Price v. Sanders, 60 Ind. 310; Kilgore v. Rich, 83 Me. 305, 12 L. R. A. 859; Stone v. Dennison, 30 Mass. (13 Pick.) 1; Welch v. Olm stead, 90 Mich. 492; Epperson v.

An infant cannot make a binding executory agreement to purchase necessaries.57 To render him liable they must be actually furnished and upon his credit.58 If furnished upon the credit of

Nugent, 57 Miss. 45; Locke v. Smith, 41 N. H. 346; Pardy v. Windlass Co., 20 R. I. 147; Genereux v. Sibley, 18 R. I. 43; Rainwater v. Durham, 2 N. & McC. (S. C.) 524; Smith v. Crohn (Tex. Civ. App.), 37 S. W. 469; 1 Mechem on Sales, § 122 et seq.; Benjamin on Sales, § 23 et seq.; 2 Page on Contracts, § 865 et seq.

1

Nature of Liability.-There has been much dispute as to the ground of this liability. Some courts have put it upon the ground of express contract; Fridge v. State, 3 G. & J. (Md.) 103; Askey v. Williams, 74 Tex. 294; Bradley v. Pratt, 23 Vt. 378; others, on the ground of implied contract. In re Soltykoff (1891), Q. B. 413; Bliss v. Perryman, 2 Ill. (1 Scam.) 484; Ayers v. Burns, 87 Ind. 245; Beeler v. Young, 4 Ky. (1 Bibb.) 519; Bishop on Contracts, § 908, citing Hyer v. Hyatt, 3 Cranch (U. S. C. C.), 276, 12 Fed. Cas. No. 6977; Morton v. Steward, 5 Ill. App. 533; Com. v. Hantz, 2 Pa. (P. & W.) 334; Fairmount, etc., R. R. Co. v. Stutler, 54 Pa. St. 375; Bouchell v. Clary, 3 Brev. (S. C.) 194; while a third class hold that "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 upon an infant too young to understand the nature of a contract at all. Hyman v. Cain, 48 N. C. (3 Jones L.) 111. And where an infant agrees to pay a stipulated price for such necessaries, the party furnishing them recovers not necessarily that price but the fair and reasonable value of the necessaries. Earl v. Reed, 51 Mass. (10 Met.) 387, (leading case); Barnes v. Barnes, 50 Conn. 572; Trainer v. Trumbull, 141

Mass. 527; Keener's Quasi Contracts, p. 20." Gregory v. Lee, 64 Conn. 407, 413.

To the same effect concerning the necessaries furnished a lunatic, is Re Rhodes (1890), L. R. 44 Ch. D. 94, pp. 105-107 C. A.

"An action will lie on an express contract of a minor to pay for necessaries as well as on an implied one, where the contract is of such a nature as to leave the question of consideration open to inquiry." Earle v. Reed, 51 Mass. (10 Met.) 387, 390. Citing Stone v. Dennison, 30 Mass. (13 Pick.) 1.

This is regarded as a leading case and was an action on a note for necessaries against which the statute of limitations had not run as it had against the implied contract for goods sold and delivered.

(13

V.

56. Guthrie v. Morris, 22 Ark. 411; Ayers v. Burns, 87 Ind. 245; Stone v. Dennison, 30 Mass. Pick.) 1; Vent v. Osgood, 36 Mass. (19 Pick.) 572-5; Earle v. Reed, 51 Mass. (10 Met.) 387; Trainer Trumbull, 141 Mass. 527, 530; McCrillis v. Howe, 3 N. H. 348; Locke v. Smith, 41 N. H. 346; Hyman v. Cain, 48 N. C. (3 Jones L.) 111; Dubose v. Wheddon, 4 McCord (S. C.) 221; Bouchell v. Clary, 3 Brev. (S. C.) 194; McMinn v. Richmonds, 14 Tenn. (6 Yerg.) 9; Parsons v. Keys, 43 Tex. 557; Bradley v. Pratt, 23 Vt. 378; 1 Mechem on Sales, §§ 123, 124.

57. Gregory v. Lee, 64 Conn. 407, 25 L. R. A. 618 (lodging); Peck v. Cain, 27 Tex. Civ. App. 38; Pool v. Pratt, 1 Chip. (Vt.) 252, 254; 1 Mechem on Sales, § 126; 2 Page on Contracts, § 865.

58. Gregory v. Lee, 64 Conn. 407.

his parent or a third person, he is not liable, unless, after maturity, he adopts the contract as his.60

The vendor furnishes the goods at his peril.61 If the goods are not in fact necessaries, the infant is not liable, however fair or beneficial the contract, or diligent the vendor. 62 The goods are not necessaries if the infant is already supplied;63 nor if the goods supplied are in excess of his needs.64 But his ability to pay cash is no defense to an action for necessaries furnished upon his credit, if he is not in fact supplied.66 Goods are not necessaries if the infant's parents supply him.67 If the infant lives with his

69

parents, there is a presumption that they have supplied him."s This presumption applies to the mother equally with the father, and notwithstanding the parent is poor.70 The vendor to recover must show that the infant is not supplied with necessaries," or money to provide them ;72 for the parents have the right of determining what is suitable for him,73 but their judgment is not final.74

WHAT CONSTITUTES NECESSARIES.--" Necessaries, when the term is applied to an infant, are those things that are conducive and fairly proper for his comfortable support and education according to his fortune and rank, so that what would be considered necessary in one case would not be so regarded in another. The rule is entirely relative in its operation.'

9975

Lord Coke's rule stated necessaries to consist of "his necessary meat, drinke, apparell, necessary physicke and such other necessaries, and likewise for his good teaching and instruction, whereby he may profit himself afterward."70

68. Perrin v. Wilson, 10 Mo. 451; Britt v. Cook, 34 N. C. (12 Ired. L.) 67; Freeman v. Bridger, 49 N. C. (4 Jones L.) 1; Connolly v. Hull, 3 McCord (S. C.), 6; 1 Mechem on Sales, 129; 2 Page on Contracts, § 870. Contra: Parsons v. Keys, 43 Tex. 557.

69. Atchison v. Bruff, 50 Barb. (N. Y.) 381; Hull v. Connolly, 3 McC. (S. C.) 6; 1 Mechem on Sales, § 129.

70. Hoyt v. Casey, 114 Mass. 396; Goodman v. Alexander, 165 N. Y. 289, 55 L. R. A. 781; Kline v. L'Amoreux, 2 Paige (N. Y.), 419; 1 Mechem on Sales, § 129; 2 Page on Contracts, § 870.

71. Atchison v. Bruff, 50 Barb. (N. Y.) 381; Hull v. Connolly, 3 McC. (S. C.) 6; 1 Mechem on Sales, § 129.

72. Hoyt v. Casey, 114 Mass. 397; Trainor v. Trumbull, 141 Mass. 527; 1 Mechem on Sales, § 129; 2 Page on Contracts, § 870.

73. Hoyt v. Casey, 114 Mass. 397; Hull v. Connolly, 3 McC. (S. C.) 6; Bainbridge v. Pickering, 2 W. Black, 1325; 1 Mechem on Sales, § 129.

74. Trainer V. Trumbull, 141

Mass. 527; 1 Mechem on Sales, § 129.

75. Smithpeters v. Griffin, Admr., 49 Ky. (10 B. Mon.) 259; Tupper v. Cadwell, 53 Mass. (12 Met.) 559; Eppersen v. Nugent, 57 Miss. 45; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274, 278; Hands v. Slaney, 8 T. R. 578; Brayshaw v. Eaton, 7 Scott, 183; 5 Bing. (N. C.) 231; Peters v. Fleming, 6 M. & W. 42; 1 Mechem on Sales, § 130; 2 Page on Contracts, § 866; Benjamin on Sales, § 23. 76. Co. Litt. 172.

"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 reference to his circumstances and condition in life." Strong v. Foote, 42 Conn. 203, 205 (guardian liable for dentist's services).

"An infant can contract so as to bind himself in those cases where it is necessary for him to have those things for which he contracts; or where the contract is, at the time he makes it, plainly and unequivocally for his benefit. Things neces

"Articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed."77

"The most comprehensive statement is that the term includes those things which are suitable and proper for the reasonable comfort, subsistence and education of the particular infant, taking into consideration his circumstances and condition in life."78 They must be personal to the infant, 79 and not merely beneficial to his estate.80 Valid contracts for the benefit of his property can only be made through a guardian.81

one." Burghart v. Hall, 4 M. & W. 727. Citing Peters v. Fleming, 6 M. & W. 42.

Whether the goods belong to the class of necessaries is a question of law for the court,82 and whether they are actually necessary under the circumstances is a question of fact for the jury.83 The sary are those things without which mere ornaments can be useful to no an individual cannot reasonably exist. In the first place, food, raiment and the like. About these there is no doubt. Again, as the proper cultivation of the mind is as expedient as the support of the body, instruction in art or trade or intellectual, moral, and religious information may be a necessary also. Again, as man lives in society, the assistance and attendance of others may be a necessary to his well being. Hence, attendance may be the subject of an infant's contract.

"Then the classes being estab lished, the subject matter and extent of the contract may vary according to the station and condition of the infant himself. His clothing may be fine or coarse, according to his rank, his education may vary according to the station he fills, and the medicines will depend upon the illness with which he is afflicted, and the extent of his probable means when of age. So, again, the natural extent of the attendance will depend on his position in society, and a servant in livery may be allowed to a rich infant.... Articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed." Chapple v. Cooper, 13 M. & W. 252.

Necessaries include articles of "real use, though ornamental; for

Necessaries is a relative term to be construed with reference to the infant's age, state and degree." Barnes v. Toye (1884), 13 Q. B. D. 410; Johnstone v. Marks (1887), 19 Q. B. D. 509 C. A. To the same effect is Eppersen v. Nugent, 57 Miss. 45.

77. Chapple v. Cooper, 13 M. & W. 252; Ryder v. Wombwell, L. R. 4 Ex.

32.

78. Strong v. Foote, 42 Conn. 203; Nicholson v. Spencer, 11 Ga. 607; Davis v. Caldwell, 66 Mass. (12 Cush.) 512; Eppersen v. Nugent, 57 Miss. 45; Jordan v. Coffield, 70 N. C. 110; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274; 1 Mechem on Sales, § 130. Citing Burghart v. Angerstein, 6 C. & P. 690; Dalton v. Gib, 7 Scott, 117; Peters v. Fleming, 6 M. & W. 42; Ryder v. Wombwell, L. R. 4 Ex. 32.

79. Tupper v. Cadwell, 53 Mass. (12 Met.) 559.

80. Mathes v. Dobschuetz, 72 Ill. 438; Price v. Sanders, 60 Ind. 310; Turner v. Gaither, 83 N. C. 357; Middlebury College v. Chandler, 16 Vt. 683.

81. Eppersen v. Nugent, 57 Miss. 45; Dillon v. Bowles, 77 Mo. 603. 82. 2 Page on Contracts, § 866. 83. 2 Page on Contracts, § 866; International Text Book Co. V.