The justice did not err in granting the nonsuit. The evidence was not sufficient to charge the defendant for the the clothes furnished his children. Proof by the witness, ’Well-mann, that they were necessaries does not establish (hat fact legally, in reference to the liability of the parent. Clothing is *109necessarjr, but whether any particular clothing is necessary or not depends wholly upon circumstances, which should be shown. If the defendant provided sufficient clothing for his infant children, then that furnished by the plaintiff was not necessary in legal contemplation, and no recovery could be had for it on the mere statement of a witness to the contrary.
It is not sufficient to charge the parent to show that the children supplied were minors, and that the articles furnished were necessary articles. Some assent or authority, by or from him, must be shown (Story on Con. § 70, and numerous cases there cited; 1 Yol. Parsons on Contracts, 253), unless there is proof that the articles sold were delivered to the infants to keep them from absolute want, or that there was absolute necessity for their use. No evidence of either of these elements ajapears in tke^ return.
A parent is under a natural obligation to furnish necessaries for his infant children, and, if he neglects to do so, a person who supplies them confers a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of such parent. But what is actually necessary will depend on the precise situation of the infant, and which the parly giving the credit must be acquainted with at his peril — (Van Valkenburgh v. Watson, 13 John. 480) — and must prove to maintain his action.
Judgment affirmed.