Belluci v. Foss

• Decision Date: 06 March 1923
• Citation: Belluci v. Foss, 244 Mass. 401, 138 N.E. 551 (Mass. 1923)
• Parties: BELLUCI v. FOSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 401

138 N.E. 551

BELLUCI

v.FOSS.

Supreme Judicial Court of Massachusetts, Suffolk.

March 6, 1923.

Exceptions from Superior Court, Suffolk County; F. W. Fosdick, Judge.

Action of contract by Antonetta Belluci against William A. Foss to recover for nursing and care of defendant, and for money expended for food and clothing for defendant.Verdict for plaintiff, and defendant brings exceptions.Exceptions overruled.

Defendant was under a conservatorship at the time the services were furnished, and the money expended and advanced, and defendant excepted to the refusal of an instruction that, if his conservators furnished sufficient money for his comfortable support, plaintiff could not recover.The jury found for plaintiff for $1,235.45, but, on motion for new trial, the court made an order pursuant to which plaintiff remitted $211.52.

George F. McKelleget, of Boston, for defendant.

CARROLL, J.

The plaintiff in this action seeks to recover for care and nursing of the defendant, for money expended by her in buying food for him, and for money paid to him for the purchase of merchandise and wearing apparel.She introduced evidence tending to show that from January 5, 1916, to July 5, 1916, with the exception of one week, she rendered services as nurse and housekeeper to the defendant; that she bought the articles mentioned in her declaration; and that for a substantial part of the time the defendant was confined to his bed.From January 5, 1916, to March 25, 1916, Albert E. Little was the conservator of the defendant's property, duly appointed by the probate court.On March 25, 1916, John P. Feeney was appointed conservator and continued to act as such during the time in question.The bill of exceptions recites that from January 5 to January 24, 1916, Little paid to messengers, who claimed to come from the defendant, $30 each week for his support.From January 24 to March 26he paid one Frisco $5 each week for the defendant.It did not appear that these sums of money, other than the money given to Frisco, were paid to the defendant.From March 25 to July 5, 1916, Feeney ‘furnished directly to the defendant $50 every week for his support and living expenses.’There was evidence that the conservators, from January 5 to July 5, 1916, paid bills amounting to $278.56 for provisions furnished the defendant, in addition to the payments above mentioned.The case was referred to an auditor and his report was in evidence.At the close of the evidence the defendant requested the court to instruct the jury:

‘If the conservators Little and Feeney, furnished sufficient sums of money to the defendant for his comfortable support the plaintiff cannot recover in this action for services rendered or for goods furnished to the defendant.’

To the refusal of the court to give this instruction the defendant excepted.The jury were instructed to the effect that the fact that the defendant was under a conservatorship did not prevent him from making an implied contract for such things as were reasonably necessary for his comfort; that he could make an implied contract for such things, if necessary for him in the situation and circumstances he was in.No exception to the charge was taken.

A conservator has the same powers and duties, except as to the custody of the person, as a guardian of an insane person; and the laws relating to the jurisdiction of the probate court over the estate of a person under guardianship, as an insane person, including the management, sale or mortgage of his property, and payment of his debts, shall apply to a person under conservatorship.G. L. c. 201, § 20.A person over whom a conservator has been appointed may be liable for necessaries furnished him, like an insane person or an infant.If liable, he is bound on an implied contract.Whether the articles sued for are necessaries is generally a question of fact, depending not...