--

V.

by restaurant keeper); NISKY CHILDS Co. (reported herewith) ante, 227 (New Jersey case unwholesome or contaminated oysters, fried and served by restaurant keeper). The decision in the above cases, it is to be noted, rests upon the commonlaw doctrine that the furnishing of food at an eating house, hotel, restaurant, etc., is not a sale, but partakes rather of the character of service, in which case the standard of liability is the failure to use that reasonable care which the circumstances require. The contrary doctrine adopted by the Massachusetts and New York courts, among others, was expressly repudiated in both cases, the former expressly, and the latter by inference, holding that no implied warranty attached, even though the food was prepared by the one serving it.

Either following or adopting the contrary rule, to the effect that the service of food for immediate consumption on the premises, where ordered and paid for, constitutes a sale, carrying with it an implied warranty that the food is wholesome and fit for consumption, containing no deleterious substance, are the following recent cases: Heise v. Gillette (1925) 83 Ind. App. 551, 149 N. E. 182 (unwholesome chicken sandwich served by restaurant keeper-the court stating that this seems to be in harmony with the great weight of modern authority); Smith v. Gerrish (1926) Mass. 152 N. E. 318 (broiled mackerel prepared and served by restaurant keeper). See also the earlier case of Doyle v. Fuerst & Kraemer (1911) 129 La. 838, 40 L.R.A. (N.S.) 480, 56 So.

906, Ann. Cas. 1913B, 1110, cited in the Heise Case (Ind.) supra.

Under statute.

(Supplementing annotations in 5 A.L.R. 1117, and 35 A.L.R. 923.)

Upon the theory that the furnishing of food at an eating house, hotel, restaurant, etc., is not a sale, but partakes rather of the character of service, it has been held that the provision of Uniform Sales Law, § 15, to the effect that "where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacurer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose," does not apply to food served at a restaurant, etc.; and that in such case the keeper of the restaurant, etc., does not warrant that the food so supplied is fit and free from deleterious or injurious substances. Kenney v. Wong Len (1925) 81 N. H. 427, 128 Atl. 343; NISKY V. CHILDS Co. (reported herewith) ante, 227 (New Jersey case). It is the theory of the above cases that it was neither the intention nor effect of the provision above quoted so to change the common-law rule as to make of the service indicated a "sale of goods."

Directly opposed to the above cases is the recent case of Smith v. Gerrish (Mass.) supra, the Massachusetts court having adopted the rule that there is a sale of the food, though served for immediate consumption on the premises. L. S. E.

as to her son's earnings at that time, in response to an inquiry addressed to her in New York, where they were then living, by the probation officer in Baltimore by whom the father's weekly payments had been collected and remitted. On June 25, 1924, Mr. Szatai died, leaving a will which disposed of a solvent estate in ex'cess of $4,000, but made no provision for his son. The executor of the will filed a petition in the circuit court, referring to the terms of the divorce decree in regard to the payments directed to be made for the support of the testator's son, and alleging that his mother had preferred a claim against her former husband's estate for the weekly payments in arrears and for those which might accrue to the date of the son's majority. It was alleged to be the information and belief of the executor that the son had been self-supporting since September 19, 1923, and it was further averred that, upon the death of his father, the liability imposed upon him by the decree for the son's support terminated. In her answer to the petition Mrs. Szatai denied that her son was self-sustaining and relied upon the provisions for his benefit in the divorce decree as being still effective.

The only testimony offered at the hearing on the petition was that of the probation officer, who described the circumstances under which the weekly payments were suspended, and who produced a letter from Mrs. Szatai, dated October 13, 1923, stating that her son was employed as a "printer boy" at a "very small salary of $5 a week which just pays his carfare and lunch." Upon the evidence presented, the court below, on February 26, 1926, ordered that the executor pay to Mrs. Szatai the sum of $378, being the arrearage to that date in the prescribed payments, and that the original order therefor should be a lien upon the assets of Andrew Szatai, in the hands of the executor of his will, until the son of the testator becomes 21 years of

age; but it was provided that, before the executor should be required to make any further payments under the decree, a petition should be filed by Mrs. Szatai, or her son, and evidence produced duly proving that the payments claimed under the decree are actually necessary for the son's support. From that order the executor has appealed.

It is provided by § 39 of article 16 of the Code that the court shall "have power in all cases in which the care and custody of the children of parties forms part of the relief prayed whether a divorce is decreed or denied to order and direct who shall have the guardianship and custody of the children, and be charged with their support and maintenance and may at any time thereafter annul, vary or modify such order in relation to the children."

The contention of the appellee is that that part of the decree of the chancellor, under date of March 29, 1923, in the divorce proceedings, making provision for the custody and support of the child created an obligation upon the father so long as he lived, and, upon his death, continued as an obligation for which his estate is responsible. This contention is disputed and the effect claimed by the appellee is denied by the appellant. It is, however, conceded by the appellant that, if the child was not self-supporting from and after September 19, 1923, up to the death of the father, which occurred June 25, 1924, the father's estate is liable in a sum equal to $3 per week between said dates. Therefore the single question for determination is whether or not the decree of March 29, 1923, creates such a charge or liability against the father as will be extinguished by his death or will continue against his estate until such time as the child reaches the age of 21 years or becomes self-supporting.

The father was under the common-law obligation to support his child during its minority, and this

obligation continued without regard

Divorcefather's duty to support childeffect of divorce.

Judgment-divorce decreeeffect on liability for support of child.

to a divorce decree, unless in that decree the court should order that it be supported by some one other than the father. The fact that the decree ordered the father to pay $3 per week to the mother for the support of the child, in no way affected his common-law obligation to support it, but only prescribed the amount to be paid for its support, and through whom the child was entitled to receive it. If there had been no divorce, the father would have been compelled under the law to support his child so long as he (the father) lived, or until the child reached its majority; but at the death of the father his obligation to support the

Infants-duty to

support-effect of child ceased, no death of parent. matter what its age might then be, for the reason that under the law as it exists in this state the father had an absolute right to make such testamentary disposition of his estate as would result in the child receiving nothing therefrom. If at the time of making his will the father had the requisite testamentary capacity and was not subjected to what the law denominates "undue influence," and the will was executed in compliance with the legal requirements as to witnesses, etc., it cannot be doubted that he could legally and effectually disinherit his child. In such event the only redress for the child would be to attack the validity of the will upon some one or more grounds which the law of this state recognizes as being sufficient to invalidate and strike down a testamentary instrument. To give the decree the force contended for by the appellee would, in effect, be destroying the right of testamentary disposition on the part of the father. It will be remembered that in the divorce case the father was not at fault, the decree being obtained by him

award alimony.

Under the settled law in this state, courts of equity have full power to award alimony in cases of divorce a vinculo matrimonii or a mensa et thoro, and also upon a petition for alimony without divorce, where in the last-mentioned class of cases the evidence would entitle the power to party to a divorce either absolute or partial; and it is equally well settled that a court awarding alimony has full power and authority to vary or modify its previous decree. Emerson v. Emerson, 120 Md. 584, 87 Atl. 1033; Polley v. Polley, 128 Md. 60, 97 Atl. 526; Outlaw v. Outlaw, 118 Md. 498, 84 Atl. 383; Clarke v. Clarke, 149 Md. 590, 131 Atl. 821. While the language of § 39 above quoted is full and comprehensive in respect to the authority of courts of equity dealing with the custody and support of infants in divorce cases, or as was said by Judge Boyd in Hood v. Hood, 138 Md. 366, 15 A.L.R. 774, 113 Atl. 899, in speaking of this language, "Our statute (§ 38 [now § 39] of article 16) would seem to be broad enough to cover all questions concerning the care and custody of the children as well as their support and maintenance," it will be seen from the authorities quoted above that even under this broad language courts of equity have no greater or more comprehensive powers in dealing with the custody and maintenance of infants than they have in awarding alimony and varying or modifying decrees in respect thereto. In the early case of Wallingsford v. Wallingsford, 6 Harr. & J.

485, this court said: "Alimony is a maintenance afforded to the wife, where the husband refuses to give it, or where from his improper conduct he compels her to separate from him. It is not a portion of his real estate, to be assigned to her in fee simple, subject to her control, or to be sold at her pleasure, but a provision for her support, to continue during their joint lives, or so long as they live separate. Upon the death of either, or upon their mutual consent to live together, it ceases."

In the case of Emerson v. Emerson, 120 Md. at page 590, 87 Atl. 1035, the court speaking through Judge Constable, after quoting the above language said: "This is the definition of alimony which has been recognized and followed through all of the Maryland decisions down to the present."

To the same effect, see McCaddin v. McCaddin, 116 Md. 573, 82 Atl. 554.

The above cases, and many others which might be cited, all hold that alimony awarded to the wife ceases from and after the death

-duration of alimony-death of husband.

of the husband; in other words, it only continues during the joint lives of the husband and wife, and upon the death of either it is terminated. The language dealing with the court's power over the custody and support of minors is embraced in § 39, which has to do with divorce, and also authorizes the court to award alimony to the wife; and it would seem that the language used in respect to children was not intended and should not be construed to create any greater responsibility or incumbrance upon the husband or his estate than would be the effect of a decree awarding alimony. Decrees, both for alimony and for the support and maintenance of children in divorce proceedings, grow out of the natural and common-law obligation of the husband and father to support his wife and children. If there is any different obligation on the part of the husband to support the wife or the

children, it would appear from the present state of the law in Maryland that it guards and protects the rights of the wife to a greater degree than those of the children, because the husband is denied the testamentary right to so dispose of his property as to prevent his wife from sharing therein, while as stated above, he is at perfect liberty to disinherit by will any one or all of his children. Therefore, if the court decrees support and maintenance for the wife by way of alimony, and by the same decree orders the husband to make payment to the wife in certain designated installments for the support of the minor children, it being settled that the death of the husband terminates the payment of alimony, there can be no sound reason why it should not also terminate the pay

child-effect

authority.

ments by him for support of the support of the of statutory minor children. Without a divorce, the father is only bound to support his minor children so long as he lives, and it would seem to be illogical to hold that, by reason of a divorce decreed upon a bill filed by the father, he being in no wise at fault, a child should be in a better position in respect to his father's estate than he would be without the decree for divorce. Chapter 573 of the Acts of 1920, now codified as § 80 of article 16 of the Code, provides: "The several equity courts of this state shall have original jurisdiction in all cases relating to the custody or guardianship of children and may on bill or petition filed by the father

mother or relative or next of kin or next friend of any child or children to direct who shall have the custody or guardianship of such child or children, and who shall be charged with his, her or their support and maintenance, and may from time to time thereafter annul, vary or modify its decree or order in relation to such child or children."

It will be noted that this section, if not in exact words, in substance and effect empowers the equity courts of this state, upon bill or pe