Aldrich v. Moore — 26 N.Y. St. Rep. 964

Majority

p. 964

Martha Aldrich, Resp’t, v. Julia N. Moore, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 18, 1889.)

Headnote

Guardian and wabd — When gtoabdian peesonally liable on contbact FOB CABE OF WABD.

A mother who is the general guardian of her minor daughters is personally liable on a contract made by her for their care and maintenance, and the mere addition to her signature of the word “ guardian" will not relieve her of such personal liability.

p. 965

Appeal from judgment in favor of plaintiff, entered on the report of a referee.

The referee found that in 1880 defendant entered into an agreement in writing with plaintiff, by which the latter was to have the care, management and education of defendant's minor daughters abroad for one year, and that defendant agreed to pay for traveling expenses and their education, and pay to plaintiff $1,600 dollars, in quarterly payments; which contract was signed by defendant with the addition of the words “ guardian for ’’ said daughters; that said contract was performed by both parties for said year; that, at the end of said year, defendant by correspondence renewed the contract, and employed plaintiff for an indefinite time; that the contract was made by her in her individual capacity; that jilaintiff performed services thereunder from August 14, 1881, to February 14, 1884, and that there was due her for such services, and for moneys laid out and expended for said minors, the sum of $1,468.34, for which sum, with interest, he reported that plaintiff was entitled to judgment.

Defendant was divorced from her husband, and was the general guardian for her children in the years above mentioned.

Geo. M. Curtis, for app’lt; W. J. Groo, for resp’t.

The judgment rendered by the referee was fully sustained by the evidence. There are no errors of law brought to our attention sufficient to warrant setting aside the judgment. The defendant is clearly liable personally. It is clear that an action Could not be sustained against the defendant in her representative capacity. Thacher v. Dinsmore, 5 Mass., 300 . But aside from the fact that the referee had the advantage of seeing the witnesses and hearing them testify, and could better judge of their credibility than an appellate court, we cannot see how any injustice could have been done, except "in determining the amount of the payments. That the plaintiff rendered the services, and that they ought to be paid for, there can be no doubt, and the defendant, being the natural guardian of the two minor daughters, was bound to support them. It was immaterial to the plaintiff from whence the funds to pay for her services came. It is disclosed here that it was the duty of the defendant, as guardian of the children, and as having them in her care and custody, to support and educate them. If it had been the intention of the mother to make the estate of the infants the primary debtor, we must assume that it would have been accomplishhed by proper papers to effect the result. There is no evidence that such was the intention of the plaintiff, and the defendant has utterly failed to protect herself in this matter. It does not appear that the referee has made any mistake in determining the amount of the payments made on account. If the estate of the infants is ample, it will eventually reimburse the defendant. If there was no estate, it was a fraud upon the plaintiff to attempt to obtain services upon a credit that was known to be worthless. It is not a little significant in this connection that when the defendant settled her guardianship for the two young ladies, no mention is made of any claim of the plaint

p. 966

iff. On the whole case we think the judgment should be affirmed, with costs.

Barnard, P. J., and Dykman, J, concur.