268 P. 434 | Cal. Ct. App. | 1928
The parties to this cause are Oliver Fetterley, plaintiff, cross-defendant and respondent; Helen M. Randall, defendant, cross-defendant and appellant, and First Savings Bank of Vallejo, California, defendant and cross-complainant. On the 13th of March, 1922, and after a proceeding authorized by sections 2168, 2169 and 2170 of the Political Code, viz., a hearing before a superior judge with two physicians present, sometimes referred to as the lunacy commission, respondent was ordered committed to the state hospital for the insane. Before his trial thereon before a court and jury, which he had demanded, respondent made and delivered to appellant a bank draft upon the First Savings Bank of Vallejo, California, for the sum of $500, payment as attorney's fee to appellant. Respondent had contracted for the services of appellant long before the institution of the proceedings above mentioned. This draft appellant cashed. Respondent demands the return of this sum, on the ground that he was legally incapacitated to enter into a contract at the time he employed appellant. Appellant contends that respondent was legally competent to make the contract and to draw the check or draft, and also that even if he were not competent the services were for necessities, and appellant is entitled to the sum mentioned in the draft on the quantum meruit. It was stipulated below that such sum is a reasonable payment for the services. The trial judge gave judgment that appellant, in effect, return the $500, on the ground that respondent had been adjudged insane and was insane when he delivered the check to appellant. This appeal is from that judgment.
As to appellant's contention that attorney's fees are necessaries of life, we shall express no opinion, as we shall decide the case upon the other point.
A careful perusal of the complaint fails to reveal any allegation that respondent was insane when he made and delivered the bank draft. The bill of exceptions shows that no evidence whatever was received by the court that respondent *413 was insane. In fact, all such evidence offered, except evidence of the referred to proceeding, was rejected by the court. Notwithstanding this the court found "that said draft was void for the reason that at the time said draft was executed plaintiff was insane and had no capacity to make contracts of any kind or character." The court also found: "That . . . it is true that said plaintiff was adjudged insane at a regular hearing of said [superior] court on the 13th day of March, 1922." It is apparent that the trial court viewed the proceedings of March 13, 1922, as legally determinative of the fact that respondent was insane, and that he was incapable of entering into a contract. Upon this point we are unable to agree with the learned trial judge.
[1] The proceeding before the judge, with the advisory assistance of two physicians, under the provisions of section 2168 et seq. of the Political Code, is a summary proceeding for the purpose of determining whether or not the person charged with being insane is in fact in such a mental condition as to justify the state in depriving him of his personal liberty and affording to him, if it is found needed, the benefit of proper care and remedial aid. It is not a conclusive judicial determination of sanity or insanity. In the case of People v. Willard,
In the case of Kellogg v. Cochran,
And, again, in People v. Prosser,
We think the above quotations demonstrate the incorrectness of the court's finding in the instant case "that said plaintiff [respondent here] was adjudged insane at a regular hearing of said court on the 13th day of March, 1922," and that it does not follow as a matter of law that after such proceeding the respondent was incapable of contracting.
[2] We now take up for consideration Finding No. IV, above referred to, which is as follows: "That said draft was void for the reason that at the time said draft was executed plaintiff was insane and had no legal capacity to make contracts of any kind." As heretofore stated, the complaint does not specifically allege that the plaintiff named therein was ever insane. It appears to premise the right to relief upon the commitment heretofore referred to, and we are of the opinion that, under the authorities above quoted from, this finding also stands unsupported by the evidence. For a pertinent discussion of variance between allegation and proof on the exact point here under discussion see Maionchi v. Nicholini,
Section
[3] In order for respondent to recover the sum collected on the draft it would be necessary for him to allege and prove that, when he executed and delivered the draft, he was lacking in understanding and that he did not comprehend the meaning of his acts. (Ripperdan v. Weldy,
The only other evidence offered was not allowed, and, we may say, was properly disallowed, under the view taken by the court, but improperly disallowed if the pleadings had been broad enough to take in evidence of respondent's capacity of understanding. (People v. Harris,
A general demurrer to the complaint was interposed and overruled. It should have been sustained.
The judgment is reversed.
Craig, Acting P.J., and Thompson, J., concurred.