1 Mo. App. 126 | Mo. Ct. App. | 1876
delivered the opinion of the court.
Defendants demurred to the petition of plaintiff herein, rand, for ground of demurrer, alleged that it does not set forth facts sufficient to constitute a cause of action. The -demurrer was sustained in the court below, and, plaintiff declining to plead further, final judgment was rendered for 'defendants on the demurrer. Plaintiff, having duly saved bis exceptions, and his motion for a new trial being overruled, brings the case here by appeal.
A demurrer, under the 6th subdivision of Article 5 of the Practice Act, stating the grounds of it in the language of ■the subdivision, is sufficient, and the ground of the objection need not be more specifically pointed out. To sustain a •demurrer under this subdivision, the statement of facts must be such that, admitting them all to be true, the court is ■authorized to say that they furnish no cause of action, at least against the defendant demurring.
' The petition states that defendant Francis Cabanné is 'over fifty years old; that he has an estate worth $200,000, bringing in a large revenue from rents ; that Cabanné had become an habitual drunkard, whereby his mind had become weakened and impaired, so that he was incapable of managing his affairs ; that he had taken up his residence at a low ■drinking-house, and, from mental incapacity, become the •dupe of knaves who were cheating him out of his property ■to the amount of $10,000 annually; that his habits and person had become filthy and intolerably offensive, by
The petition nowhere alleges that Francis Cabanné is, or was at the time of the alleged contract, or at any time, an idiot, or lunatic, or person of unsound mind, but merely that he was so addicted to habitual drunkenness as to be incapable of managing his own affairs. Our law provides for appointing a guardian for such persons, though they be not of unsound mind, or idiots, or lunatics. Wag. Stat. 178, sec. 52. Defendant appears from the petition to have been of a very weak mind from drunkenness. It may be that defendant Cabanné had .not the degree of intellect sufficient to enable him to contract. But that is nowhere said in the petition, and, for anything appearing on the face of the pleading, he may have had, in his sober moments, sufficient intellect to make a bargain. It is alleged that a bargain was made with plaintiff, by defendant’s agent, to employ plaintiff to render professional services which are declared to have been necessary. These services may have been, and are clearly alleged in the petition to have been, absolutely necessary. It may be that great skill and diligence were required to protect defendant against himself; and we cannot say that, in his sober moments, he could not authorize his brother to make a valid contract with an attorney to take steps, under the statute, to have a guardian appointed to take him out of the clutches of the harpies who are alleged to have been taking advantage of his weakness and wasting his estate, nor from how slight circumstances such authority to the brother might be implied.
The petition is loosely and rhetorically drawn, but we cannot say that it does not sufficiently set out a contract with plaintiff by defendant Cabanné, through his agent, which the courts would uphold, and that, admitting all the facts stated to be true, plaintiff has no cause of action against either defendant.
We, therefore, think that the judgment of the Circuit Court, sustaining the demurrer filed to plaintiff’s petition, should be set aside. The judgment of the Circuit Court is reversed and the cause remanded.