Charles Melbourne & Sons, Inc. v. Jesset

• Decision Date: 15 January 1960
• Citation: 163 N.E.2d 773,110 Ohio App. 502
• Court: Ohio Court of Appeals
• Parties: , 82 Ohio Law Abs. 366, 13 O.O.2d 276 CHARLES MELBOURNE & SONS, INC., Plaintiff-Appellee, v. William G. JESSET et al., Defendants-Appellants.

Page 502

110 Ohio App. 502

163 N.E.2d 773, 82 Ohio Law Abs. 366, 13 O.O.2d 276

CHARLES MELBOURNE & SONS, INC., Plaintiff-Appellee, v. William G. JESSET et al., Defendants-Appellants.

Court of Appeals of Ohio, Cuyahoga County.

Jan. 15, 1960.

Clifford Bruce, Cleveland, for plaintiff-appellee.

Michael A. Picciano, Cleveland, for defendants-appellants.

SKEEL, Judge.

This appeal comes to this court on questions of law from a judgment for the plaintiff entered in the Municipal Court of Rocky River. The plaintiff, a funeral director, at the request of Mrs. Laura Jesset, on August 5, 1955, entered into a contract with her to conduct the funeral services of her husband and to furnish the necessary material for the sum of $1,054.69. The services were performed as provided by the contract. A claim was made against the estate which was determined to be insolvent and $350 of the estate's assets paid on the claim as the plaintiff's share.

This action was filed against the defendant through her guardian appointed April 15, 1957. The defendant, Laura Jesset, was first adjudged incompetent in the Probate Court of Cuyahoga County after hearing on the affidavit sworn to and filed by William G. Jesset on July 10, 1940. The date of the adjudication was October 29, 1940. She was thereafter discharged from the State Hospital as improved July 31, 1944. On August 12, 1955, her son, William G. Jesset, filed a second affidavit charging mental incompetence against his mother, Laura Jesset, and upon hearing, she was again committed to Hawthornden State Hospital. The second adjudication was dated August 17, 1955. On September 16, 1955, a guardian was appointed for her estate who served until April 15, 1957, and filed his final account. The present guardian, William G. Jesset, son of Laura Jesset, was then appointed guardian of her estate and is still acting in that capacity.

From July 31, 1944, until the date the contract was signed, and from then until August 12, 1955, she was a free agent to act for herself without guardian or any other court supervision. It is also shown by the record that when the contract was signed, Laura Jesset was in the company of her two children, her son, William G. Jesset (now guardian), and her daughter, Joan Supplee, a resident of California, with whom Laura Jesset now resides. Neither of the children suggested anything about the mental history of their mother, nor is there any suggestion that at the time the contract was signed, her conduct was anything other than normal.

The second affidavit was signed by William G. Jesset after the defendant's husband had died, certainly a most disturbing incident in the now incompetent's life, the action being taken when no member of her family was available in this community for her care or companionship except the affiant, William G. Jesset.

Two questions are present: first, is the contract with the plaintiff enforceable, that is, is the adjudication of incompetence in 1940, under the undisputed circumstances here set out, a complete defense, and second, were the services rendered by the plaintiff necessaries which the guardian of the now adjudged incompetent's estate is bound to pay.

The defendant in his brief sets up a defense of lack of jurisdiction for want of service on the plaintiff's amended petition. The record shows that the original petition described the debt as for the funeral services of the now incompetent defendant's deceased husband and that the only change in the amended petition was to characterize such services as 'necessaries.' Upon leave having been granted plaintiff to file its amended petition, the defendant, by stipulation, directed the answer filed to the first petition to be considered as the answer to the amended petition. Thereupon the parties stipulated the evidence upon which they relied in support of their respective contentions on the issues.

After judgment for the plaintiff, a motion for new trial was filed which did not mention the chaim of the need for service on the amended petition. Such claim has been raised for the first time in this court. Aside from the fact that on the face of the record such claim is not well taken, it is now too late to raise the question in this court.

Funeral expenses of a deceased husband are the obligation of the widow, and as to her, are to be characterized as necessaries when the estate of the husband is insolvent, as is shown by the undisputed facts in this case. The public health, as well as the moral well-being of the widow, requires this to be so. The satisfaction of such a debt cannot be measured by the assets of the deceased's estate where the contract of the widow induced the expenditure of monies for the services rendered for her, and for which she agreed to pay.

It is true, as suggested by the defendant, that the amount recoverable for necessaries furnished a minor must be based on reasonable value under the circumstances and not the contract price unless such amount is less than the value determined to be reasonable, which rule has some limited application in the case of an incompetent. Whether the liability of an incompetent for necessaries would represent the only basis for recovery, without deviation, on his contracts, is not so clear. Some qualifications of the rule concerning the liability of persons said to be insane on their executed contracts is to be found in the cases. In the first place, the contract of a person non compos mentis is voidable and not void so that the party claiming disability must set up the lack of mental capacity as an affirmative defense and must assume the burden of proof on that issue.

In the case of Finch v. Goldstein, 1927, 245 N.Y. 300, 157 N.E. 146, the court had for consideration the question of whether the deed of an insane person having been summarily committed to an asylum prior to its execution was void, and whether the insane person's committee could enforce the provisions of the mortgage back. The facts in the case show that on September 16, 1920, Finch was determined to be mentally deranged and committed to the Hudson River State Hospital for the Insane. While there, to the knowledge of the defendant, Goldstein, he executed a deed of a farm, part of the consideration of which was a mortgage back to the incompetent. Thereafter, a committee was appointed for the incompetent and foreclosure brought on the mortgage. The first and third paragraphs of the headnotes of the North Eastern Reporter provide:

'1. Deed made by one while confined in the state hospital under a summary commitment by the county judge * * *, and before the appointment of a committee for his person and property * * *, was voidable only, and not void, and the committee on ratifying the conveyance was entitled to foreclose the purchase-money mortgage.

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'3. A lunatic retains exclusive possession and control of his property after his commitment to the state hospital by the county judge, * * *, until such time as committee to take possession of his property may be appointed, * * *.'

The answer in this case, denying all material allegations of the petition prejudicial to the defendant, was in accord with Revised Code, § 2309.20. However, that does not...