Dicey Lewis, adm'x. of Hardy Lewis, v. James R. Lewis.
-’No one, by paying an account against another, can maintain an action for the amount, without the promise, express or implied, of the original debtor:
Before Richardson, J. at Marion, Feb. Term, 1849.
This was a summary process to recover thirty-three dollars, voluntarily paid by Hardy Lewis, the plaintiff’s intestate, in his lifetime, for the defendant, on account of medical services rendered by Dr. Wm. J. Kellin, to the defendant, at the request of the said Hardy Lewis, who was the father of the defendant. Dr. Kellin was examined as a witness and proved that he had been sent for by Hardy Lewis, to visit his said son, the defendant — that he found the defendant sick with congestive fever, and delirious — that he had, for attending him, a bill, which he charged on his books, (against him, the said defendant,) amounting to about $58 ; that after the defendant recovered, he paid the witness a part, and that Hardy Lewis paid, the witness the balance, which last is the sum sued for in this case — -that the witness looked to Hardy Lewis for payment, as he had sent for him.
It was proved by William. Lewis, a brother of the defendant, that he was under the age of twenty-one years at the time of the aforesaid sickness, when the alleged cause of action arose, but was living apart from his father, teaching school and supporting himself, not working for his father.
'It was also proved that Hardy Lewis required the defendant to refund to him what he had paid Dr. Kellin for him, and said he would not make him title to a certain tract of land, which was intended by the father for him, until the said money should be refunded ; and it was proved, or allowed as proved, that the defendant now had the deed from his father for the said land, but there was no proof of the manner in which he came to be possessed of it, or what consideration moved the father to execute the deed.
It was contended, on the part of the plaintiff, that although the parent is bound to support his children under the age of twenty-one years, whilst they reside with the parent, yet, as the defendant had left his father’s house, at the time of his aforesaid sickness, and was no longer rendering services to him, but working for and supporting himself, the parent was discharged from his obligations to pay his medical bills, or to supply him with necessaries.
It was also contended that the defendant, having adopted and enjoyed the services of the physician, procured for him by his father, was under an implied promise to pay him for what he had expended in procuring such services ; that this, taken with the subsequent payment of a part of the bill, and *531a promise to pay the balance, put the obligation of the defendant beyond doubt, and rendered it complete. The Court, decreed for the defendant, on the grounds,
1st. That the parent was bound to pay for necessary medical attention to his son, being under the age of twenty-one years, and having called in the doctor. If not so bound, then,
2d. That no one is allowed to make himself a creditor of another, by assuming to pay his debt without his request; and the doctor having charged the account to the son, could only recover it of him as for necessaries, and the father having, by his own will, paid the doctor, could not thereby make himself the creditor of his son in place of the doctor.
3d. That the possession of the title to the land by the defendant, implied that he had complied with the condition on which it was to be delivered, to wit: the repayment of the sum paid by the said Hardy Lewis to Dr. Kellin, for the benefit of the defendant: and the possession of the deed unexplained, warrants such inference.
The plaintiff moved the Court of Appeals to set aside the decree of the Court, on the grounds :
1. That although the defendant, was proved to be under the age of twenty-one years, at the time the cause of action arose, yet as he was living apart from his father, the plaintiff’s intestate, at that time, the defendant was bound to pay the claim sued on as for necessaries.
2. That after the defendant had enjoyed and adopted the services of Dr. W. J. Kellin, which constituted the consideration of the said claim, hepromised to pay the same to the plaintiff’s intestate, and did pay a part to Dr. W. J.- Kellin, whose services the plaintiff’s intestate had procured for the benefit of the said defendant, when he was sick and delirious.
3. That this was not a case in which the statute of frauds interposes to protect from liability.
4. That the decree is contrary to law and evidence.
Miller, for the motion.
Harllee, contra.
Richardson, J.
delivered the opinion of the Court.
The defendant, J. R. Lewis, although he paid a part of Dr. Kellin’s bill, was not proved to have made any express promise to his father, Hardy Lewis, to pay the balance.— That was the mere inference of counsel in argument.
The question of the case was, whether the father, (having voluntarily called in the doctor, and having paid him — with this declaration, that he would require his son to refund him the money; and to effect this, that he would not make titles to certain lands, intended for him, until he did so refund the money; but having made the titles to the son, without any explanation how or wherefore,) can now legally claim of his son, to be refunded the balance paid to the doctor 1
*5322 Bail. 56.
If James Lewis had made an express assumpsit to Hardy LewjS; that he would repay the money, his obligation to do so would, perhaps, have been legal, according to the princi-pie laid down in McMorris v. Herndon, and the cases cited by the counsel, from Petersdorf, 736; and 3 Pickering, 201. But the obligation of the son, in this instance, was merely inferential from his position, paying a part, and the declaration of the father to the doctor, that he would make him repay it, by the means pointed out.
The more rational inference was, that James Lewis never intended to pay more than he did pay. On the other hand, it was clear that the father, having expressly called in the doctor, was bound to pay the bill. Especially when he made no demur to the doctor’s claim. This was not a question, whether the father was obliged to pay the doctor ; but whether, having voluntarily paid the bill charged to himself, he could reclaim the money of his minor son; because the son lived apart from him. The question was upon this refunding the father by the son ; not upon' the obligation of the father to pay for the necessaries furnished for the son — which last had been voluntarily admitted by the father, and the money paid.
It was clear, therefore — at least in this instance, that the father was bound to pay the doctor’s bill, as laid down by the presiding Judge. But let it be admitted, secondly, that the son was, in the first instance, liable to the doctor ; yet, it by no means follows that the father, having voluntarily paid such debt for his son, can recover it of him in invitum. The converse is the law. No one, by paying an account against another, can maintain an action for the amount, without the promise, express or implied, of the original debtor. And such a promise in no way appeared.
But the third argument is, itself, conclusive of the whole case. Hardy Lewis declared to the doctor, that he would compel his son to refund, by withholding titles for the land intended for him, until he refunded the money. Thus he held the staff in his own hand: and when it was proved that the titles had been delivered, and no explanation being made, how, when, or wherefore, it was rationally inferrible, that the father had been satisfied, and his claim adjusted, or been abandoned.
It seemed to my understanding, to infer plainly an acquittance of the father’s claim, upon the terms he himself had laid down, to doctor Kellin.
The motion is, therefore, dismissed.
O’Neall, J. — Evans, J. — Wardlaw, J. — and Frost, J. concurred.
Motion refused.