CONTRACTS — INSANITY.

[Licking Circuit Court,

March Term, 1898.]

Before Adams, Douglass and Smyser, JJ.

#### Dustin Kimball, Guard., v. John Bumgardner.

Contract by Insane Person Enforcible when for Necessaries.

Where a person is insane, and has a guardian, but such person remains in the control of his property and enters into a contract for repairs of the same, there being no fraud or overreaching in the transaction, and the repairs being well worth the cost, and a judicious and wise repair, such contract will be enforced.

Error to the Court of Common Pleas of Kicking county.

Douglass, J.

This is a case heard in the common pleas court to enforce a medianic’s lien in favor of defendant in error. The court found the equity of the case in favor of defendant in error John Bumgardner. To reverse this finding, error is prosecuted to this court.

The issue; as made up, is founded on these facts: That William McNaughton was the owner of a grist-mill property; that James Hickey was the guardian of McNaughton; that Devi Knowlton held a mortgage-lien upon the property, and these parties are made defendants. A judgment is asked for the balance due upon this mechanic’s lien, amounting to $75.

The answer of McNaughton sets out that at the time of making this contract for repairs, McNaughton was insane, and James Hickey was his guardian. That he was adjudged insane by the probate court of this county, November 14,1890-, and was discharged on the thirteenth day of December, 1893; that during that time James Hickey was his guardian, and he was held for a time by the authorities in the asylum at Columbus. Also that said guardian made no contract for such repairs, and notified Bumgardner that he was guardian, and would not pay for any such repairs.

As a second defense McNaughton sets up that many of the repairs were unnecessary as made. That they were not made at his direction as agreed; that Bumgardner and his help put in the time uselessly. Also, a counterclaim for defective work. The reply is a general denial.

Evidence was introduced showing a finding of insanity in the probate court in November, 1890; the appointment of Hickey as guardian, and his discharge in December, 1893. The work was done between 1890 and 1893.

This, under the authorities, would make a *prima jade*case that an insane person would not be competent to enter into a valid binding contract.

It appears from the record that Bumgardner had heard of the appointment of the guardian, and sought an interview with Hickey, and that Knowlton, the mortgagee, was present at one of these interviews; the record discloses that Hickey declined to assume any responsibility, in this matter whatever. That is, that he did not want to become obligated himself, to pay either as guardian -or as an individual, disclaiming that he had any authority over this property.

*410The record discloses the fact that the appointment was for a single purpose — to enable the guardian to secure a pension for the ward. Of course, that does not change the general effect of the finding of insanity.

The work was discontinued for some time, and, after an interview with the parties, the work was completed; payments were made, $75 remaining unpaid, and a mechanic’s lien perfected under the statute.

It is contended by the plaintiff in error that it was sought to get through this case by a claim for necessaries, but no such claim was made or argued by the defendant in error any more than this : Not that they were necessaries and that therefore the “record” insane person (in this case, McNaughton) was properly chargeable as an. infant would be for necessaries, but the contention was that this was a judicious and wise repair ; that there was no overreaching; that there was no fraud. All that defense to which I have alluded was abandoned, excepting the mere fact of insanity. That the work was properly done, worth the cost, and that it was judicious and wise, under this record, there can be no question. This mill property in the control of McNaughton was practically without value unless it could be put in a condition in which the propeity could be made available as mill property, and some work done in it; and Mr. Knovvlton, who was present at one of these conversations when the work was discontinued, could not object because this work enhanced its value. So looking at the case, there is no fraud, or overreaching, or anything of that sort. The work that was done under this contract was well worth its cost, and was a judicious and wise repair, but not a “ necessary.” There is no contention on the part of defendants in error that it was a necessary that would bring this ward within the category of infants for whom necessaries furnished should be paid for.

54 Ohio St., 398, is relied upon as authority by the plaintiff in error. We have these propositions announced in the first and second syllabi:

> “As a general rule the promissory note of a person *non compos*mentis, is invalid; but the rule is subject to the qualification that when such a note is given for necessaries, or for other adequate consideration of benefit furnished the maker in good faith without knowledge of his unsound mental condition, it may be enforced to the extent of the value of the consideration so furnished.

> “2. Such mental incapacity of the maker is *prima facie*a complete defense to an action on a note signed by him, and when interposed, the the burden is upon the plaintiff to prove the consideration for the note, and other facts necessary to overcome such defense and entitle him to recover.”

We *have*also cited on this, to Mahoney v. Goepper, 8 Ohio Dec., Re. 154, where, in discussing this matter, Judge Force says :

> “ Accordingly, where a mortgage, fair in itself, was given to one who had no knowledge or notice of the insanity, such mortgagee had a right to foreclose, and the insanity of the mortgagor is no defense.

> “In the United States, the cases are not all in accord. In New York it is held that if the grantor is so insane that he does not know what he is doing when he executes the deed, the deed is void. And a mortgage executed by one whose mind is enfeebled and affected, yet who understands what he is doing, if the transaction is in all respects fair, is valid and will be enforced.

> “ The Supreme Court of Pennsylvania held that Thompson v. Reach is still a correct statement of the law, and as we have no feoffments, but *411only conveyances by deed, the deed of conveyance of an insane person is void. ”

In the case of Beckroege v. Schmidt, 6 Ohio Dec. Re., 994, before Avery, Cox and Johnson, we have a discussion of this-matter that lends some aid. There was a request made to charge the jury that if it were found that the defendant was insane at the time of the contract, the contract would be void; “ instead of which the court charged that to sustain the defense the jury must find the defendant to have been of unsound mind and incapable of making a contract at the time of the contract, and also that the plaintiff knew of this state of defendant’s mind, or that by fraud or misrepresentation he had profited by it.” Judge Cox, in discussing this, says :

> “ Most of the authorities hold that it would interfere too'much with the general course of business to add such a new element of risk as the avoiding a contract because of the insanity of one party when the other party did not know of such insanity, or was not guilty of fraud. This doctrine is sustained by the best authorities.” * * *

> “ We think that the weight of the testimony was that the plaintiff below had no knowledge of the insanity of the defendant, and was not guilty of any fraud or misrepresentation, and that therefore the verdict was sustained by the weight of the evidence.”