Voiles v. Beard

| Ind. | Nov 15, 1877

Biddle, C. J.

Action by appellant, to recover for work and labor done and performed while he was a minor, for the appellee.

Nine paragraphs of answer were filed, but all were withdrawn except the third and seventh, which were as follows:

3. That said services were rendered in compliance with a contract made between plaintiff and defendant, by which it was agreed that said plaintiff should render said services, in consideration that the defendant, for the same time, should furnish the plaintiff with boarding, clothing, schooling, attendance in sickness and health; that the defendant complied with his part of the contract, and that the plaintiff, after he' was of full age, and with a full knowledge of the facts, ratified and confirmed said agreement. "Wherefore, etc.

*5117. That, during all the time the said services were rendered by the plaintiff, he was a minor, under the guardianship of the defendant; that, as such guardian, the defendant took the plaintiff' into his house, and treated him as a member of his family, and furnished him with boarding, clothing, lodging, attention in sickness and health, and, after the plaintiff became of age, the defendant made a final settlement of the matters of his guardianship with the proper court, exhibiting his report and receiving a final discharge from said trust, setting forth his report as a part of the answer, and also a receipt given by the plaintiff to the defendant, by which he acknowledges that he has received a certain amount “ in full of balance in my favor against him as guardian.” Wherefore said cause of action grew out of said guardianship, and did not accrue within" three years immediately before the beginning of this suit, which was not brought until more than three years after the approval of said report.

Each of these paragraphs was tested by a demurrer, alleging the insufficiency of the facts stated in it, and held good by the court. Exceptions were reserved, and, the appellant refusing to reply, judgment was rendered in favor of appellee, for costs.

Overruling the demurrers to the third and seventh paragraphs of answer presents the only questions in the case.

It is alleged, against the third paragraph, that the ratification by the appellant of the contract set forth, after he became of age, is not sufficiently averred; that the averment is a mere conclusion of law, and not a statement of fact. We think, however, that the averment is sufficient to withstand a demurrer. The appellant might, perhaps, have successfully moved to have the paragraph in that particular made more specific; but, as he has not done so, we must hold that the error is one merely of form, and not one that substantially injured his rights.

*512The seventh paragraph contains no averment, that the matters set forth in the complaint in this case were included in the guardian’s settlement with the court. The settlement, as set forth in the paragraph, does not show that the matters now in controversy were included therein ; they are not such as belonged properly to the guardian to settle with the court. We. can not, therefore, ■presume, that they were so included in the settlement. . For want of a direct averment, that the matters in the complaint were included in the settlement of the guar- . dian with the court, we must hold the seventh paragraph insufficient.

The judgment is reversed, with costs, and the cause remanded, with instructions to sustain the demurrer to the seventh paragraph of the answer, and for further proceedings. '