129 Mass. 78 | Mass. | 1880
It appeared at the trial in the Superior Court that when the defendant, an insane person, was received by the
The evidence did not justify any inference that the defendant became liable to the plaintiff for her board and support. The plaintiff having received her under the express contract with Towne and Wright to pay the plaintiff, there was no implied contract on her part to pay anything. There is no room for an implied contract where an express contract exists. Met. Con. 6. Whiting v. Sullivan, 7 Mass. 107. If A. contract with B. to furnish board at his expense to fifty men in his employ, and B. furnishes it, there is no implied contract on the part of the boarders to pay each for his own board. And this, not because they are employed by A., but because the board was furnished on A.’s promise to pay for it. In the numerous cases in which the question has arisen to whom was credit given, no express contract in writing, absolute in its terms, existed, and in the absence of such express contract the effort was to ascertain, from the facts surrounding the transaction, to whom credit was given, as an element in determining with whom the contract was made, or whether the undertaking was original or collateral. Of this character are these cases cited by the plaintiff: Cahill v
Under the pleadings it was competent for the guardian of the defendant to show the contract which led to the admission of the defendant to the asylum; and when that contract was established it made a complete answer to the plaintiff’s claim. The judge who tried the case in the Superior Court erred, therefore, in refusing to rule that on the evidence the action could not be maintained, and there must be a New trial.