It is contended on the part of the defendant, that the plaintiff is not entitled to recover, for the reason, that during the time the services were rendered for which the action is brought, the plaintiff lived with the defendant as *126a member of his family, was clothed and schooled by him, and treated in all respects as he treated his own children; that the defendant stood in loco parentis to the plaintiff while the services in question were being rendered, and that it would not be in accprdance with the understanding of the parties, and would be against public policy, to allow a recovery under such circumstances.
I have not been able to find a case where this express point has been decided. It has been repeatedly decided, and I think with great propriety, that where parties competent to contract, enter into an arrangement by which one becomes a member of the family of the other, under circumstances to forbid the idea of a promise or contract for pecuniary compensation, no action will lie to recover such compensation for services rendered during the existence of such arrangement, whatever the value of such services may have been. (Robinson v. Cushman, 2 Denio, 149. Andrews and wife v. Foster, 17 Verm. Rep. 556. Fitch v. Peckham’s Ex’rs, 16 Id. 150. Swiss v. Parsons, 5 Watts & Serg. 357, 513. Weir v. Weir, 3 B. Monroe, 645.) In these and all the cases I have met with, the parties to the arrangements out of which the supposed legal liability to pay for the services rendered arose, were adults during the time the services were rendered, and perfectly competent to bind themselves by contract, or to consent to any' arrangement upon which the law would imply a contract or agreement to pay, or not to pay, for services rendered, or to waive, either in express terms or by implication, any legal right which would otherwise vest.
In the present case, the plaintiff was a son of the defendant’s wife by a former husband; and it is conceded that the defendant was neither bound to support him nor entitled to his services. The services in question were rendered during the plaintiff’s minority, and we are to assume they were worth to the defendant the amount which the referees have reported, over and above the value or expense of his boarding, clothing, 6 c. It would therefore seem, upon plain principles of equity and justice, that the defendant ought to pay this balance— *127Upon what principle should he be excused 1 He has had the plaintiff’s services, and why should he not render an equivalent ? The rule of law applicable to the family relation, and to persons standing in loco parentis, is invoked in his behalf; and it is said that as no accounts were kept between the parties, and no agreement on the part of the defendant to pay for these services has been proved, no promise to pay, under the circumstances of the case, can be presumed. Even if it were proved that no express promise was made, it does not follow that the law will not imply one. Promises are implied in consequence of the nature of the transaction. An express promise in such a case, is out of the question. It is where there is no express promise that the law will sometimes imply one. When there is an express promise there is no need of an implied one. An implied promise does not mean that an actual express promise is presumed, but that the law will imply, or intend, or assume a promise for the party, where none has been expressly made, in cases where reason and justice dictate that he should do the thing which the law thus implies he has agreed to do.
The rule of law referred to, "as applicable to persons standing in the family relation, must be, and I think is, based upon the understanding or agreement of the parties to such arrangement. The arrangement itself is an agreement, and supposes parties capable in law of entering into it. But an infant cannot bind himself by either an express or implied promise or contract. This is the general rule, and I am aware of only one exception to it, and that is, his liability to pay for necessaries. This exception cannot aid the defendant, because the referees have allowed his claim for boarding and clothing and schooling, and the amount reported due is only for the excess of the value of the plaintiff’s services after deducting such claim of the defendant. The reason why contracts with infants, except for necessaries, are void or voidable, is the indulgence the law has seen fit to give them, who are supposed to want judgment and discretion in their contracts and transactions with others, and the care it takes of them in preventing them from being imposed upon or overreached by persons of more years *128and experience. It will not be contended that a valid and binding promise will be implied in the case qf an infant, where if the promise had been expressly proved, it would have been void,
If the doctrine in question be applicable to the case of an infant, I do not see but it mqst pover every imaginable case, where the relationship is once established. There are undoubtedly cases where a young man qf sixteen years is capable of doing the labof of a man. Suppose such a case, and where the party takes his position in the family of his employer; makes it his home there as one of the family; is fed and clothed in the same manner, an¡i from the same source, as the employer himself; no agreement made, and no accounts kept; and he serves his employer faithfully for five years and until he becomes of age, and the jury should be of the opinion 'that his services were worth $10 a month during the whole time, over and above his clothing and boarding and all other benefits received by him, shall he, by reason of his supposed assent to such family arrangement, be denied when he comes of age, the large balance of $600 which is justly his due? Suppose in the same case the infant, at the age of twenty, becomes permanently disabled by the loss of a limb or a chronic disease ; the other party is not bound to take care of or provide for him a single day, but may leave him to be cared for by public charity; and according to the doctrine contended for, he is not accountable for the $480 which, at the time the disability commenced, he was in equity and justice bound to pay. The case of an adult is entirely different. His assent to the arrangement might and would be implied.
There are cases holding that a man is liable to strangers for necessaries furnished an infant where the former stands in loco parentis to the infant, without reference to his legal liability to support him; but they rest upon the ground that the party has suffered the relation to be formed and to continue publicly, and that strangers have a right to infer either such a relation as would constitute a legal liability to support the infant, or an implied authority to the infant to contract in his *129name. In such a case, the party could put an end to his liability to pay for any supplies in future, by dissolving the relation assumed, and turning the infant away.
Gay v. Ballou, (4 Wend. 403,) is a strong case in favor of this report. The action was brought to recover for the maintenance of the defendant while an infant, for the period of more than three and an half years, and for necessaries furnished during that time. It appeared that the plaintiff married the defendant’s mother in December, 1819, when the defendant, being about seventeen years of age, went to reside with the plaintiff, and continued with him until May, 1823, at which time, his mother having shortly before died, he left the plaintiff’s house. The cause was tried before referees, who made a report in favor of the plaintiff of $186,91. The court held that the plaintiff was entitled to recover for the necessaries furnished the defendant while an infant and while so residing with him as a part of his family; Sutherland, J. who delivered the opinion, holding that although it was claimed that an express promise had been proved after the defendant became of age, yet that it was unnecessary, for, as the claim was for necessaries furnished, he was liable upon an implied promise to pay for them. If the infant’s services in that .case had been worth more than the necessaries furnished, it is difficult to perceive why he would not have been allowed to recover the excess. Indeed I am not able to discover the difference in principle between that case and the present.
Upon the whole, I think the motion to set aside the report of the referees should be denied; and I place my opinion upon the ground of the legal incapacity of the plaintiff, at the time the services were rendered, on account of his non-age, to enter into or give his assent to any agreement which should deprive him, on coming of age, of the right to recover whatever his services were worth, after deducting the defendant’s claim for necessaries furnished.
Motion to set aside report granted.