#### Schramek, Appellant, vs. Shepeck, Administrator, Respondent.

*January 15*

March *22, 1904.*

*Guardian and ward: Care of incompetent "by volunteer: Recovery.*

Where a guardian had contracted'for the care of his incompetent ward, a mere volunteer who assisted in the care of the ward without the authority or knowledge of the guardian cannot recover for such.services on the ground that they were.necessaries.

Appeal from a judgment of tlie circuit court for Brown county: Samuel D. Hastings, Circuit Judge.

*Affirmed.*

Tlie plaintiff filed a claim amounting to $640 in tlie county court against the estate of John Zalinka, deceased, for personal services. The claim being disallowed in the county court, the plaintiff appealed to the circuit court, where a jury trial was had* The evidence showed that prior to March 26, 1900, the defendant, Bhepeck, was the duly appointed general guardian to one John Zalinka, who was then ■over eighty years of age, and mentally incompetent and physically very weak; that on March-26, 1900, Bhepeck, as such guardian, placed Zalinka to live with one Joseph Straka,- in Green Bay, under an express contract for his hoard. *Bhepeck*testifies that this contract was that he was to pay $20 per month in full for the hoard and the care of Zalinka, while Straka testifies that he agreed that he would take Zalinka and hoard and look after him for that sum. It ■further appears that from March 26, 1900, up to December 31, 1901, being the date of Zalinka’s death; he remained in Straka’s house, and 'was hoarded .and cared for there, and that - Straka received $20 per month therefor, and gave monthly receipts for the money, in which the $20 was stated as being for hoard and care; that the plaintiff was a nephew of Zalinka, and the partner of Straka in a small button man-*644ufaeturing business, and boarded with. Straka during tbe whole time; that Zalinka was so feeble as to be unable to-dress or feed himself or attend to the calls of nature, and that the plaintiff (except during four or five absences from Green Bay) daily assisted Zalinka in these respects; and for these services, at $1 per day, this claim is made. It appears-further that the board alone was not worth to exceed $3.50-per week; that the plaintiff knew this fact, and also knew that Straka was getting from *Shepeck*$20 a month; that-neither Straka nor *Shepeck*ever asked *Schramek*to render any of the services for which he claims pay, and that the plaintiff never informed *Shepeck*that he was doing the services, or asked him for any pay therefor; that, when the-plaintiff was away from home, Straka and his family attended to the personal services for which the plaintiff claims-pay. At the close of the evidence a verdict for the defendant was directed, and from judgment thereon the plaintiff' appeals. *

*V. I. Minahan,*for the appellant.

For the respondent there was a brief by *Sheridan & Evans-*and *A. P.*Schenian, and oral argument by *W. L. Evans.*

The following opinion was filed February 3, 1904:

Winslow, J.

The evidence shows that there was no contract, either express or implied, made by *Shepeck,*the guardian, to pay for the services performed by the plaintiff; and, as Zalinka was incompetent and under guardianship, there-could b¿ no contract made by him. Hence there can be no recovery unless the services can be called necessaries. Sec. ‘3979, Stats. 1898. Doubtless it ivas necessary that the ward should have the personal attentions which the plaintiff gave ‘him, but, if the guardian had made provisions for the wants-of the ward in this respect, a mere volunteer, who assumed to perform the services without the authority of knowledge *645of the guardian, cannot recover for them. It appears without dispute in this case that the guardian had contracted with Straka for the hoard and care of the incompetent ward and that he knew nothing of the supposed services rendered by Schramek, henee thpre can he no recovery for such services even on the ground that they were necessaries. *Gwaltney v.*Cannon, 31 Ind. 227; *McKanna, v.*Merry, 61 Ill. 177.

*By the Gourt.*— Judgment affirmed.

A motion for a rehearing was denied March 22, 1904.