Thorp v. Bateman

Cooley, C. J.

Bateman brought suit against Thorp, claiming to recover for the board and support of an. infant daughter of Thorp, who had lived in his family. The case made by Bateman was substantially this: that his wife was the grandmother of Thorp’s daughter, and the latter was taken into Bateman’s family when she was a very young child, where she remained and was supported by Bateman for several years under an agreement that she should live' there until she became of legal age; that Mrs. Bateman having died, Thorp came and took his daughter away against the will of Bateman, and without making any compensation, thereby depriving the latter of the benefit he might have derived from the labor of the daughter after-wards. The action was grounded ou an implied assumpsit, and the plaintiff in the court below was allowed to recover.

It can hardly be pretended that in the absence of an express arrangement, Thorp would have been liable to pay for his daughter’s board and support. The presumption always is when a child is thus taken into a family, that neither support nor services are expected to be compensated, except as the one compensates the other; in other words, that the child comes in as a member of the family, and for the time being occupies substantially the same position as would a member of the family by nature.

This being the rule, the present action cannot be maintained. The fact that there had been an express understanding which was violated, is of no importance in this case. If any reliance is placed upon the breach of that, suit should *70 have been brought upon it: its existence and the breach thereof cannot be the foundation for an implied assumpsit, of a wholly different character. If it was never understood betweeh the parties that Thorp was to pay for the support •of the daughter in Bateman’s family, the fact is conclusive in this suit.