
    Theodore V. Ketchem, Respondent, v. Frank E. Marsland, Appellant.
    (Supreme Court, Appellate Term,
    November, 1896.)
    1. / Parent and child — Liability of parent for services rendered to . child at request of temporary custodian.
    A person to whom the temporary custody of an infant' is committed by its parent has authority to pledge the credit of the parent for actual necessaries for the child or for the relief of sudden and urgent necessity, but has no power to contract at his expense for the performance of dental services in filling and regulating the child’s teeth.
    2. Agency — Ratification.
    A ratification of acts of an agent in excess of his authority may be inferred from the retention by the principal, without objection, of bills Z rendered for the services contracted for by the agent.
    Appeal by the defendant from a judgment for the plaintiff, rendered by the District Court in. the city of ¡New York for the Eighth Judicial District.
    Action for the fair and reasonable value of the plaintiff’s services as a dentist, rendered to the defendant’s infant daughter, at the request of another who was intrusted with the temporary custody of the infant.
    
      William A. Abbott, for appellant.
    Samuel Scoville, for respondent.
   Bischoff, J.

The action is for the fair and reasonable value of services rendered by the plaintiff as a dentist, in filling and regulating the position of the teeth of the defendant’s infant daughter, while she was temporarily residing apart from her parents, with their assent, during the summer of the year 1892, in the care of one. Mrs. Beecher, at whose direct request this dental service was alleged to have been performed.

As to the rendition and value of the services, the evidence, although in conflict, fairly supports the recovery, and the main inquiry must be with regard to the defendant’s liability, as principal, for Mrs. Beecher’s act in contracting the indebtedness under the circumstances.

Mrs. Beecher was not a general agent of the defendant in the matters pertaining to the maintenance of his child; she was a temporary custodian only, and while her duties imported an: agency to pledge the defendant’s credit for the relief of sudden and urgent necessity,, that agency did not extend to the requirement of such services as those in suit, since, as appears, they were not absolutely called for at the particular time, and were of a nature such as the parent, not the temporary custodian, was to contract for, if found to be desirable.

There was evidence (the testimony of the' child) showing the actual service performed to have been the extracting of a tooth in relief of a toothache, but while such service would naturally have been reasonably within Mrs. Beecher’s agency to require, the plaintiff mates no claim for it and denies any recollection of the circumstances such as thus testified to.

That Mrs. Beecher had implied power to charge the defendant upon contracts for services rendered in relief of the child’s necessity, while she may have exceeded this power with regard to the actual services in suit, is clear from a consideration of the obligations arising from the relation of- parent and child, and such is the expression of authority.

“A parent is under a natural obligation to furnish necessaries for his infant children; and if the parent neglects that duty, any other person who supplies such, necessaries is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent.” Van Valkinburgh v. Watson, 13 Johns. 480.

Of course the assumption to supply in reliance upon the parent’s credit is justified within close limits. As per Gould, J.: “Mo man shall take upon him to dictate to a parent what clothing the child shall wear, at what time they shall be purchased, or of whom; all that must be left to the discretion of the father or mother.” For such necessaries as the parents should provide, but of which the incidents to the provision are within rightful parental discretion, there must be a clear and palpable omission of duty in the matter of the provision upon the parent’s part, in order to authorize any other person to act for and charge the expense to the parent. Van Valkinburgh v. Watson, supra.

¡Necessaries with which another may supply the minor child • upon the faith of another’s implied or apparent authority' to pledge the parent’s credit therefor must be such services or such commodities as' of which the child stands in immediate need under circumstances rendering the previous assent of the parent unreasonable or inexpedient to seek. In such a case the person procuring the supply is the agent of the parent ex necessitate. Story on Agency, § 142; Clark on Contracts, 715; 1 Am. & Eng. Ency. of Law (2d ed.), 948, note 4; Bergh v. Warner, 1 Am. St. Rep. 362.

Conceding, then, that Mrs. Beecher’s act in requesting the plaintiff to perform the services in suit was in excess of her implied powers, yet, having the care of the child, she had some powers, as agent, to bind the defendant for actual necessaries, and, with this in mind, we proceed to the further, question in the case; that of the defendant’s ratification of this originally unauthorized act.

At the beginning of the year 1893 the plaintiff sent a bill to the defendant for these services and received no answer, either in approval or dissent, and during the ensuing three years, or more, up to the time of the commencement of this action, several communications of his to the defendant, with regard to his claim, met with no’ better response. Was not a ratification to be inferred from such silence? Clearly, the answer must "be" in the affirmative. Mrs. Beecher was not a mere interméddler without shadow of right to bind the defendant such as might have justified his ignoring a claim based upon her assumed agency in his ¡behalf. She had been'accorded the care and custody of his child with" certain implied duties'to perform for the infant’s well being, and the procuring of' certairi. "necessaries, should circumstances require, was-one of these duties.

Granted that the services performed by the plaintiff were .not such as the defendant became liable for, in the first instance, through the agent’s act merely, yet this was because the agent, being authorized to contract for some services, was not authorized as to these. She exceeded her .actual powers while clothed with some, and but for the principal’s subsequent assent, express or implied, he would not have been bound.

Under the circumstances of the case the defendant’s subsequent assent appeared from his failure to dissent during this extensive period succeeding his knowledge of the facts. He was bound to disavow Mrs Beecher’s act within a reasonable time after notice (1 Am. & Eng. Ency. of Law [2d ed.], 1203, cases collated in note 2); and whether or not his delay was unreasonable was a question of fact. Id. 1205. “Where an agency actually exists the mere acquiescence of the principal may well give rise to the presumption of an intentional ratification' of the act.” Story on Agency, § 256.

“When the relation of principal and agent does, in fact, exist, although in the particular transaction the agent has exceeded his authority, an intention -to ratify will always be presumed from the silence of the principal who has received a letter informing him of what has been done on his account.” 1 Livermore on Agency, 50. The author last quoted does not incline to the view that a ratification should be implied from a party’s silence after notice of an act done on his account by a stranger who has totally assumed the agency, but adjudications are not .wanting in support of it. To say that silence is no evidence of it (ratification) is to say that there can be no implied ratification of an unauthorized act, or at least to tie up the. possibility of ratification to the accident of prior relations. Heither reason nor authority justifies such a conclusion. A man who. sees what has been done in his name and for his benefit, even by an intermeddler, has the same power to ratify and confirm it that he would have to make a similar contract for himself; and if the power to ratify be conceded to him the fact of ratification must be provable by the ordinary means.” Phila., etc., R. R. Co. v. Cowell, 28 Penn. St. 329; 70 Am. Dec. 128. “ Whether silence operates as presumptive proof of ratification of the act of a mere volunteer must depend upon the particular circumstances of the case. If these circumstances are such that the inaction or silence of the party sought to be charged as principal would be likely to cause injury to the person giving credit to and relying upon such assumed agency, or to induce him to helieve that such agency did, in fact, exist, and to act upon such belief to his detriment, then such silence or inaction may be considered as a ratification of the agency.” Heyn v. O’Hagen, 60 Mich. 157; see, also, Saveland v. Green, 40 Wis. 438; Triggs v. Jones, 46 Minn. 277; Kelly v. Phelps, 57 Wis. 425. The rule, as evolved by thé adjudications, is stated to be (1 Am. & Eng. Ency. of Law [2d ed.], 1209), that, “ although the relation of the parties as principal and agent is an important consideration, yet in the case of a mere stranger or volunteer the silence of the alleged principal, when fully informed • of the unauthorized' act, is evidence of a ratification, though far less strong.” Citing Union Gold Mining Co. v. Rocky Mountain Nat. Bk., 2 Col. 248; Foster v. Rockwell, 104 Mass. 127; Harrod v. McDaniels, 126 Mass. 415; Ladd v. Hilderbrant, 27 Wis. 135; 9 Am. Rep. 445.

In the case at bar we are not required to go so' far as to decide that one may become bound, upon a failure to disavow, within a reasonable time, for the act of a mere volunteer assumed to be done in the former’s name, since here the ratification attaches to an existing agency which had been exceeded, and' the reasons upon which the rules as to implied ratification are founded may readily be found existent in this case.

Judgment affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment, affirmed; with costs.  