Disbrow v. Durand, 54 N. J. L. 343; Carpenter v. Weller, 15 Hun 134; Bundy v. Hyde, 50 N. H. 116; Guild v. Guild, 15 Pick. 129; Keener on Quasi-Contracts, 315-341.

The testimony shows, as already stated, that Mrs. Hill's condition required the constant care and attendance of the plaintiff, and that the latter, in consequence, gave up her previous occupation in order to render to her sister the care and attendance which were necessary. While it is doubtful if the plaintiff, unless prompted by her sisterly affection, would have been willing to give up her prior occupation and take on herself the burden of caring for, nursing and attending the deceased, suffering as the latter was from the infirmities of mind. and body with which she was afflicted, and which rendered her incapable of reciprocating or perhaps appreciating the acts of kindness bestowed upon her, we think that the jury were fully warranted in finding on the testimony a reasonable and proper expectation on the part of the plaintiff that she was to be compensated for her services beyond the mere support which she received from the income of her sister's estate. The only fact appearing which can be urged as inconsistent with such expectation is that the plaintiff made no claim for compensation during the lifetime of her sister. Why she made no claim does not appear, but it is to be borne in mind in this connection that if the fact was susceptible of explanation, the plaintiff was precluded by the statute from making it. It may be conjectured that the income of the estate of Mrs. Hill was barely sufficient for the comfortable support of the household, and that the plaintiff was, therefore, willing to forego, while her sister was living, payment of compensation which could only be made out of the principal of the estate, and which would thereby lessen the income needed for their support. But whether this be so or not, the testimony shows that immediately on the death of Mrs. Hill, and before the existence of a will was known, the plaintiff made her claim for compensation. This prompt presentation of her claim on the death of her sister tends to negative the idea that her claim was an afterthought and to support the view that she expected to receive compensation.

We think that the instruction was properly denied and that the verdict was not against the evidence. * * * *

Defendant's petition for a new trial denied and dismissed with

costs.

iii. Rewards.

DAWKINS v. SAPPINGTON.

26 IND. 199.-1866.

FRAZER, J.-The appellant was the plaintiff below. The complaint was in two paragraphs. 1. That a horse of the defendant had been stolen, whereupon he published a handbill, offering a

reward of $50 for the recovery of the stolen property, and that thereupon the plaintiff rescued the horse from the thief and restored him to the defendant, who refused to pay the reward. 2. That the horse of the defendant was stolen, whereupon the plaintiff recovered and returned him to the defendant, who, in consideration thereof, promised to pay $50 to the plaintiff, which he has failed and refused to do.

To the second paragraph a demurrer was sustained. To the first an answer was filed, the second paragraph of which alleged that the plaintiff, when he rescued the horse and returned him to the defendant, had no knowledge of the offering of the reward. The third paragraph averred that the handbill offering the reward was not published until after the rescue of the horse and his delivery to the defendant. The plaintiff unsuccessfully demurred to each of these paragraphs, and refusing to reply the defendant had judgment.

1. Was the second paragraph of the complaint sufficient? The consideration alleged to support the promise was a voluntary service rendered for the defendant without request, and it is not shown to have been of any value. A request should have been alleged. This was necessary at common law, even in a common count for work and labor (Chitty's Pl. 338), though it was not always necessary to prove an express request, as it would sometimes be implied from the circumstances exhibited by the evidence. 2. It is entirely unnecessary, as to the third paragraph of the answer, to say more than that, though it was highly improbable in fact, it was sufficient in law.

3. The second paragraph of the answer shows a performance of the service without the knowledge that the reward had been offered. The offer, therefore, did not induce the plaintiff to act. The liability to pay a reward offered seems to rest, in some cases, upon an anomalous doctrine, constituting an exception to the general rule. In Williams v. Carwardine, 4 Barn. & Adolph. 621, there was a special finding, with a general verdict for the plaintiff, that the information for which the reward was offered was not induced to be given by the offer, yet it was held by all the judges of the King's Bench then present, Denman, C. J., and Littledale, Parke, and Patteson, JJ., that the plaintiff was entitled to judgment. It was put upon the ground that the offer was a general promise to any person who would give the information sought; that the plaintiff, having given the information, was within the terms of the offer, and that the court could not go into the plaintiff's motives. This decision has not, we believe, been seriously questioned, and its reasoning is conclusive against the sufficiency of the defense under examination. There are some considerations of morality and public policy which strongly tend to support the judgment in the case cited. If the offer was made in good faith, why should the defendant inquire whether the plaintiff knew that it had been. made? Would the benefit to him be diminished by the discovery

that the plaintiff, instead of acting from mercenary motives, had been impelled solely by a desire to prevent the larceny from being profitable to the person who had committed it? Is it not well that any one who has an opportunity to prevent the success of a crime, may know that by doing so he not only performs a virtuous service, but also entitles himself to whatever reward has been offered therefor to the public?

The judgment is reversed, with costs, and the cause remanded, with directions to the court below to sustain the demurrer to the second paragraph of the answer.1

2. IN THE PERFORMANCE OF, OR UNDER THE INDUCEMENT OF, A CONTRACTUAL AGREEMENT.

VREDENBURGH, J.-Under the findings of fact and of law of the trial judge in this cause, a jury having been waived, final judgment was awarded the plaintiff below for the balance of principal money, with interest, as claimed by the plaintiff and specified in the bill of particulars. The declaration was in contract, upon the common counts, and the account as claimed was thus particularized, viz.: "(1) To board and care of said Eliza Van Norden, deceased, from October 1, 1893, to October 1, 1898, 260 weeks, at $4.25 per week, $1,105. (2) To board and care of Eliza Van Norden, deceased, from October 1, 1898, to date of her death, March 13, 1902, 179 weeks and 2 days, at $5 per week, $896.43; total, $2,001.43. Against these charges were credits given for payments made on account of $1,426.75. The only plea filed was the general issue in assumpsit. The plaintiff's evidence at the trial (and there was

1Accord, Auditor v. Ballard, 9 Bush (Ky.) 572 (1873); Russell v. Stewart, 44 Vt. 170 (1872); Eagle v. Smith, 4 Houst. (Del.) 293 (1871). Contra, Williams v. West Chicago St. R. R., 191 Ill. 610 (1901), and N. Y. and Tenn. cases cited therein.

See the cases on the disaffirmance of infants' contracts and the restoration of consideration therefor, in Woodruff's Cases on Domestic Relations.

none other offered) exhibited an express contract, made in October, 1893, between the original parties, under which the board and lodging of the deceased were agreed upon at a fixed price. The evidence showed that the deceased boarded with the plaintiff from October, 1893, until the summer of 1898, making monthly payments on account of her board under the contract proved, and then visited her sister until October, 1898, when she returned to the plaintiff's house. Upon her return a great change both in her body and mind was apparent. The evidence clearly shows, and the trial judge found, that the deceased had become non compos mentis. While no inquisition was had, nor office found, it is clear from the evidence, and must be conceded, that after October 1, 1898, at least, the deceased became insane. To this mental disorder the physical affliction of cancer was added; and her condition, both mentally and physically, necessitated constant and exacting care and services toward her on the part of the plaintiff. A short extract from the very full testimony on this subject will show that the services rendered and the care given to the deceased by the plaintiff, both before and after October 1, 1898, belonged to a class which in law are properly denominated "necessaries." A witness in the plaintiff's household testified that "she [the deceased] couldn't be left alone. We didn't leave her alone for a number of years for five years-and never left her alone night and day. * * Then gradually she became worse, and soiled the rooms, the carpets in four rooms, and the hall, besides her own room— spoiled them, ruined them-and destroyed some of the furniture. She became violent, and couldn't care for herself-had to be attended to, dressed, and so forth, washed and cared forand she became very noisy and troublesome at the table and in the house, so that no other boarders could be had, because of her constant noises and disturbance. * * In caring for her, if she was soiled, and we wished to remove her clothing, it would often take two to handle her, because she would kick so. She would fight and scratch and pull hair. One had to hold her feet while the other would get her clothes off."

*

* * *

*

The counsel of the plaintiff in error did not contend upon the motion for a nonsuit in the court below, nor does he in this court insist, that the deceased after October 1, 1898, was sane, nor that the extra services performed were not necessary to be done for her health and comfort; but the insistment is that no recovery for any sum in excess of that agreed upon can be had on an implied contract to pay for the reasonable worth of such additional services, because the express contract proved excludes an implied contract, or, to use the words of the brief, "an express contract was in existence, covering the entire subject-matter of the suit." But this contention ignores the important change in the contractual relations of the parties which the intervention of the insanity of one of the contracting parties accomplished. After that occurred, the express mutual agreement no longer continued in force. The authorities are all WOODRUFF'S CASES-6

in such accord upon this head that citation is uncalled for. After that event deprived the parties not only of their power to keep in force the prior mutual agreement, but also of their legal ability to enter into any new one, the law implied a liability on the part of the lunatic, which became binding after her death also upon her estate, to pay, upon quantum meruit, what such necessaries were reasonably worth. This principle, also, is so well sustained by authority of both text-books and reported cases that I shall only cite a few of the most pointed, viz.: Van Horn v. Hann, 39 N. J. Law 207; Hallett v. Oakes, I Cush. 297; Kendall v. May, 10 Allen 59; Richardson v. Strong, 35 N. C. 106, 55 Am. Dec. 430; Pearl v. McDowell, 3 J. J. Marsh. 659, 20 Am. Dec. 199; 1 Ad. on Con. (2d Am. Ed.), p. 236. In the case, supra, of Richardson v. Strong, the action was assumpsit on quantum meruit for work and labor-being for the services of a nurse for a madman, and of a guard to protect him from a propensity to destroy himself-and the North Carolina Supreme Court held that "where a person is insane, so as to attempt injury to himself, or the destruction of his property, the services of a nurse and guard fall within the class of necessaries, as defined by law." The finding of the trial judge as to the value of the services rendered by the plaintiff after October 1, 1898, in the care of the deceased, is not here reviewable; nor, indeed, has the correctness of his finding upon that subject been questioned by the counsel of the plaintiff in

error.

*

iii. Married Women.

SHEARER v. JOHN FOWLER.

7 MASS. 31.-1810.

THE declaration, which was in case, contained four counts. The last count, upon which alone any question came before the court, was for money had and received by the defendant for the plaintiff's use. At the trial of the action before SEDGWICK, J., at the last April term in this county, the plaintiff offered to prove, in support of his said count, that, in consideration of the deed made by Abigail Fowler, the defendant's wife, as the attorney of her husband, and in her own right (which deed is described in the case of Fowler v. Shearer, ante, page 14), of certain premises, which the husband and wife held in her right; he, the plaintiff, paid to the defendant one hundred and sixty dollars, and gave his promissory note for two hundred dollars, to recover back which money so paid was the purpose of this count. The evidence was rejected by the judge, and for that cause the plaintiff moved for a new trial, and the action stood continued upon that motion to the present term.

CURIA. The principles of law, applicable to this case, seem to