#### Nancy C. Miller v. Davis & McKinney.

Sales to Minor—When Parent Liable Therefor.

Where a dealer sells goods to a minor without authority from the parent, he can not recover for the same from the parent, even though the goods may be regarded as necessaries, unless it appears that the parent has refused to supply the child with the needed articles.

[Opinion filed December 12,1892.]

Appeal from the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding.

Mr. Charles S. Harris, for appellant.

Mr. J. L. Welles, for appellees.

*448Me. Justice Lacey.

This was a suit originally commenced before a justice by the appellees against appellant to recover for a bill of goods furnished the minor daughter of the appellant, while the latter, without appellant’s consent, was residing away from home. After trial and judgment in the justice court the case was appealed to the Circuit Court and there tried before the court and a jury, resulting in a verdict and judgment in favor of the appellees for the sum of $11.

It appears from the evidence that appellees were dry goods retail merchants doing business in Maquon, and that Dell, the fifteen-year-old daughter of appellant, purchased a bill of dry goods from the appellees on her own account, which was known to the appellees, to the amount of the recovery, or more than that. At the time, the girl was living away from home, having left, as she testified, because her mother, then a widow, was about to marry Dan G. Miller, her present husband, her name then being Tucker, and the girl did not like Miller and did not want her mother to marry him, and that she had heard of improper relations between Miller and her mother. It appears "clear enough that the minor needed the articles and that they were suitable to her condition in life. But the evidence fails to show that the appellant either drove her daughter from home or refused to supply her clothing and necessaries as far as her means allowed, or that she went away with her consent. On the contrary she testified that her daughter left home against her will, and that if she had stayed at home she would have “ clothed her all right; ” that if she had needed goods appellant would have bought them, and if she hadn’t needed them she would have made her take them back if she had known of the purchase. The appellant also testified that she never gave the appellees any authority to sell goods to her children. The evidence fails to show that appellant had either driven the minor away from home or had refused to supply her wants.

In this attitude of the case, the court, against the objection and exception of the appellant, gave to the jury the following instruction, viz.: “ 1. The court instructs the jury *449for the plaintiffs that if you believe from the preponderance of the evidence that the plaintiffs furnished the goods to the minor daughter of defendant and said goods were necessaries as wearing apparel, then your verdict must be for tho plaintiff for the amount of said bill, and this even though you believe from the evidence the defendant never authorized the plaintiffs to let her daughter have said góods.”

This was clearly erroneous. It is a well established doctrine in this State, thatK 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;53 and “ where the father has supplied his minor son with necessaries or is ready to supply them, he can not be bound by a contract which the son may make with a third party, although the goods purchased may be regarded as necessaries.33 Johnson v. Smallwood, 88 Ill. 73. The above instruction eliminates from the jury all question as to whether the appellant, either expressly or impliedly, promised to pay for the goods or in any way authorized the appellees to sell them to the minor. It is immaterial, according to the above instruction, whether the minor was driven away from home or not, or whether she had justifiable cause to leave, or whether appellant was ready and willing to supply the minor’s wants. The instruction authorized a recovery from the mere fact of the minority, the furnishing the goods by appellee to the minor, and that they were necessary, without regard to any authority from the parent, express or implied. It does not matter that other instructions were given that properly laid down the law, or that such proper instructions were given on the part of the appellant. The above instruction covered the entire case and was erroneous. The jury may have followed it instead of another proper one, and no instruction informed the jury that the instruction complained of was not to be followed. It was very explicit in directing appellees’ right to recover on the hypothesis given.

The judgment of the court below is reversed and the cause remanded.

Judgment reversed mid remanded.