tended to prove) that he may have been wholly ignorant of them.

It is well settled that the purchaser of a railroad ticket does not, by its mere acceptance, acquiesce in and bind himself to all the terms and conditions printed thereon, in the absence of actual knowledge of them: Baltimore & O. R. R. Co. v. Campbell, 36 Ohio St. 647; 38 Am. Rep. 617; Davidson v. Graham, 2 Ohio St. 135; Jones v. Voorhes, 10 Ohio, 145; Rawson v. Pennsylvania R. R. Co., 48 N. Y. 212; 8 Am. Rep. 543; 2 Wharton on Evidence, sec. 1243; Brown v. Eastern R. R. Co., 11 Cush. 97; Malone v. Boston etc. R. R. Co., 12 Gray, 388; 74 Am. Dec. 598; Camden and Amboy R'y Co. v. Baldauf, 16 Pa. St. 67; Wade on Notice, secs. 543, 552, 554, 555; Lawson on Carriers, secs. 106, 107; Blossom v. Dodd, 43 N. Y. 264; 3 Am. Rep. 701; Quimby v. Vanderbilt, 17 N. Y. 306; 72 Am. Dec. 469.

There is nothing in the circumstance that the ticket in the case at bar was sold at a rate reduced from the regular fare to take it out of the rule. The rate was the usual and established one allowed to a numerous class of patrons comprising commercial travelers whose principals were shippers over the company's road.

The contract between Kent and the railroad company was made when he bought his ticket, received and paid for it: Rawson v. Pennsylvania R. R. Co., supra. Neither party could, after that, change its terms or impose new conditions upon its enforcement without the consent of the other. According to the company's instructions to agents, and by the uniform custom regulating the sale of such tickets, they were required to be signed before their delivery to the purchasers. The company saw fit, in the case at bar, to dispense with this requirement. It received the plaintiff's money, delivered him the ticket, in his ignorance of any request that he sign it, honored it for several trips without first requiring him to sign its conditions. It thereby waived this requirement, and its conductor was not justified, while it still retained plaintiff's money, in ejecting him from its cars by reason of his failure to sign the ticket, which had already gone into full effect between the parties, and his failure to pay the usual fare in money for a passage which was already paid for.

The conclusion we have reached relieves us of a consideration of the question arising upon the claim of counsel that the sixth condition of this ticket was against public policy, and would have been void if signed.

The trial court was right in refusing the instructions requested.

The judgment of the circuit court is reversed, and that of the court of common pleas affirmed.

PASSAGE TICKETS, their nature and legal operation discussed: Quimby v. Vanderbilt, 72 Am. Dec. 469, and note 474; Cheney v. Boston etc. R. R. Co., 45 Id. 192; Johnson v. Concord R. R. Corp., 88 Id. 207, note.

PASSAGE TICKETS, notices and conditions in, construction: See Ohio etc. R. R. Co. v. Swarthout, 33 Am. Rep. 104; Lillis v. St. Louis etc. R. R. Co., 27 Id. 255; Steers v. Liverpool etc. Steamship Co., 15 Id. 453, and note 457; Little Rock etc. R. R. Co. v. Dean, 51 Id. 584; Lundy v. Central Pacific R. R. Co., 56 Id. 100; Auerbach v. New York Cent. etc. R. R. Co., 42 Id. 290.

PLACARDS, PASSENGERS NOT PRESUMED TO READ: Malone v. Boston etc. R. R. Co., 74 Am. Dec. 598, and see cases collected in note 600.

PRETZINGER v. PRETZINGER.

[45 OHIO STATE, 452]

HUSBAND AND WIFE. — AFTER DIVORCE, AS WELL AS DURING COVERTURE, PRIMARY DUTY of Maintaining ANY MINOR CHILD of the marriage still remains, as a general rule, with the former husband. The fact that there has been a decree of divorce a vinculo, on account of the husband's misconduct, with alimony and custody of minor children to the wife, but with no provision for their support, will not impair the obligation of the father to provide reasonably for their support until they are able to support themselves. ID.COMPENSATION FOR NECESSARIES FURNISHED BY MOTHER TO MINOR CHILD AFTER DECREE OF DIVORCE a vinculo, on account of her husband's misconduct, awarding her alimony, and the custody of such child, but making no provision for its support, is recoverable by her in an original action against the father, brought in a court other than that in which the divorce was granted.

ACTION brought by Izora Pretzinger, a divorced wife, against Jacob Pretzinger, her former husband, to recover compensation for necessaries furnished by her for the support of a minor child of the marriage. The material facts appear in the opinion. The court of common pleas found the issues for the plaintiff, and rendered judgment accordingly. The circuit court affirmed the judgment of the court of common pleas, and it is now sought to reverse the judgment of the circuit court.

H. M. Cole and W. Belville, for the plaintiff in error.

Craighead and Craighead, for the defendant in error.

DICKMAN, J. Issues of fact were joined between the parties, and upon submission to the court they were found for the defendant in error; but no exceptions were taken on the trial, and the record contains no bill of exceptions embodying the evidence. The only questions before us for consideration are such as may arise upon the original petition and subsequent pleadings. It is contended in behalf of Jacob Pretzinger that the original petition did not state facts sufficient to create a liability on his part, and that the court of common pleas should have entered up judgment in his favor on the pleadings.

Izora Pretzinger was divorced from her husband, by reason of his misconduct, and his ill treatment and neglect of her; and was, in consequence, awarded the custody, nurture, education, and care of their minor child, then about eight years of age. The court decreed an allowance to her as alimony, but it does not appear that any allowance was made to compensate her for the expense of her son's maintenance. For several years after the granting of the divorce she furnished to her son such boarding, clothing, care, and attention as were necessary and appropriate to his comfort and condition in life. When the divorce was granted, the father was insolvent; but at the rendition of the judgment in the case at bar, he was solvent, and able to support his son.

The duty of the father to provide reasonably for the maintenance of his minor children, if he be of ability, is a principle of natural law; and he is under obligation to support them, not only by the laws of nature, but by the laws of the land. As said by Chancellor Kent, "the wants and weaknesses of children render it necessary that some person maintains them, and the voice of nature has pointed out the parent as the most fit and proper person": 2 Kent's Com. *190; and see Trustees Jefferson Township v. Trustees Letart Township, 3 Ohio, 100; Edwards v. Davis, 16 Johns. 281. This natural duty is not to be evaded by the husband's so conducting himself as to render it necessary to dissolve the bonds of matrimony, and give to the mother the custody and care of the infant offspring. It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, to which they are not parties; or to enable the father to convert his own misconduct into a shield against parental liability. The divorce may deprive him of the custody and services of his children, and of the rights of guardianship against his will;

but if by the judgment of the court, and upon competent and sufficient evidence, he is found to be an unfit person to exercise parental control, while the mother is in all respects the proper person to be clothed with such authority, he cannot justly complain.

The alimony allowed by the court below is not to be construed into an allowance for the support, also, of the child. Alimony, in its proper signification, is not maintenance to the children, but to the wife; and the fact that there has been a judgment of divorce, with alimony and custody of minor children to the wife, will not of itself operate as a bar to a subsequent claim against the husband for the children's main

tenance.

We think it is a sound principle that if a man abandons his wife and infant children, or forces them from home by severe usage, he becomes liable to the public for their necessaries. The doctrine is stated in Weeks v. Merrow, 40 Me. 151, that if a minor is forced out into the world by the cruelty or improper conduct of the parent, and is in want of necessaries, such necessaries may be supplied, and the value thereof collected of the parent, on an implied contract. See also the language of Metcalf, J., in Dennis v. Clark, 2 Cush. 352; 48 Am. Dec. 671; 2 Kent's Com. 193; Stanton v. Willson, 3 Day, 37; 3 Am. Dec. 255; Lord Eldon, in Rawlyns v. Vandyke, 3 Esp. 252; Fitler v. Fitler, 33 Pa. St. 50. There is evidently no satisfactory reason for changing the rule of liability, when, through ill treatment or other breach of marital obligation, the husband renders it necessary for a court of justice to divorce the wife and commit to her the custody of her minor children. If, under such circumstances, upon the allowance of alimony with custody of children, the court omits to make an order for the children's maintenance, the father's natural obligation to support them is of none the less force.

It has been held in England that where a wife is living separate from her husband on account of his misconduct, and the custody of their infant child is given to her, against the husband's will, by the master of the rolls, under the statute, the wife will be clothed with power to pledge the husband's credit for the reasonable expenses of providing for the child. Bazeley v. Forder, L. R. 3 Q. B. 559, was an action for goods sold and delivered. The plaintiff, on the order of the defendant's wife, had supplied clothes for the defendant's child. The wife was living separate from him, for reasons which

justified her doing so, and the child, which was under seven years of age, was living with her, against the defendant's will, having been transferred by judicial order, under the statute, from the father's custody to that of the mother. Blackburn, J., said: "I think, on principle, that as soon as the law became such that a wife separated from her husband might properly and legally have the custody of her infant children under the age of seven years, though the husband objected, it became a reasonable and necessary thing that she should clothe and feed those children according to their degree. It is true that, in one sense, this is an expense voluntarily incurred by the wife, as she is not obliged to ask for or take the custody of her child; but I think the wife's authority in such cases is to pledge the husband's credit for her reasonable expenses, though they exceed what she is obliged to incur."

It is urged that the father is released from obligation to maintain his infant children, when deprived of their society and services against his will. But if voluntary misconduct on his own part leads to the deprivation, he is himself responsible, and not the court which intervenes for the protection of his children. And if the father, as against a stranger, cannot escape liability for necessaries furnished to his minor children, though remaining with their mother after the divorce, the mother will not be barred of an action against her former husband for the expense of maintaining the children. After a dissolution of the marriage relation by divorce, the parties are henceforth single persons, to all intents and purposes. All marital duties and obligations to each other are at an end, and they become as strangers to each other. Upon the establishment of such new relations, a promise may be implied, on the part of the father, to pay the mother, as well as a third person, who has supplied the necessary wants of his infant child.

The statute 43 Elizabeth, chapter 2, directs that "the father and mother, grandfather and grandmother, of poor, impotent persons, shall maintain them, if of sufficient ability, as the quarter sessions shall direct." Its provisions have been re-enacted in several of our states; and in view of the special enactment, it has been held that where the husband and wife are divorced, and upon her application the custody and control of their minor children are awarded to her, she cannot, in an action against the father, recover for the entire support of such children, furnished by her after the divorce, but only for contribution. But there is no such statute in this state; and AM. 8г. REP., Vol. IV. -85