Darby v. Cabanné

• Decision Date: 14 February 1876
• Citation: 1 Mo.App. 126
• Parties: JOHN F. DARBY, Appellant, v. FRANCIS CABANNÉ and UNIT RAISIN, Respondents.
• Court: Missouri Court of Appeals

1 Mo.App. 126

JOHN F. DARBY, Appellant,

v.FRANCIS CABANNÉ and UNIT RAISIN, Respondents.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1876.

1. A demurrer under the 6th subdivision of section 6, Article 5, of the Practice Act is sufficient, if the ground of demurrer is stated in the very language of the act.

2. A man of weak intellect from habitual drunkenness, and incapable of managing his own affairs, may make a contract for necessaries, including such things as are useful and proper for his station. He may make a contract with an attorney to have a guardian appointed for his protection, under the statute; and the attorney can recover a reasonable fee from the estate of the drunkard for the value of services rendered in procuring the appointment of a guardian, and for moneys expended for costs.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.

John F. Darby, pro se, cited: 2 Kent's Com. 226, 453; 1 Story on Con. 78; 1 Pars. on Con. 383, 385; 1 Coll. on Lunacy, 375, 385, 403; Chitty on Con. 79, 187; State v. Hundley, 46 Mo. 414; State v. Baird, 47 Mo. 301; Dutcher v. Hill, 29 Mo. 271; Eaton v. Perry, 29 Mo. 271.

J. G. Lodge, for respondents, cited: Whittlesey's Pr., sec. 61, p. 208; Wag. Stat., ch. 74, p. 711.

BAKEWELL, J., delivered the opinion of the court.

Defendants demurred to the petition of plaintiff herein, and, for ground of demurrer, alleged that it does not set forth facts sufficient to constitute a cause of action. The demurrer was sustained in the court below, and, plaintiff declining to plead further, final judgment was rendered for defendants on the demurrer. Plaintiff, having duly saved his exceptions, and his motion for a new trial being overruled, brings the case here by appeal.

A demurrer, under the 6th subdivision of Article 5 of the Practice Act, stating the grounds of it in the language of the subdivision, is sufficient, and the ground of the objection need not be more specifically pointed out. To sustain a demurrer under this subdivision, the statement of facts must be such that, admitting them all to be true, the court is authorized to say that they furnish no cause of action, at least against the defendant demurring.

The petition states that defendant Francis Cabanné is over fifty years old; that he has an estate worth $200,000, bringing in a large revenue from rents; that Cabanné had become an habitual drunkard, whereby his mind had become weakened and impaired, so that he was incapable of managing his affairs; that he had taken up his residence at a low drinking-house, and, from mental incapacity, became the dupe of knaves who were cheating him out of his property to the amount of $10,000 annually; that his habits and person had become filthy and intolerably offensive, by reason of which he had lost his health and was “confined to his wretched bed, bloated, ghastly, and almost unconscious;” that he was fast sinking into the grave from bad whisky, and must have died in two weeks; that, whilst Francis Cabanné was in this condition, his brother called upon plaintiff, as an attorney and an old and intimate personal and professional friend of defendant Francis and his said brother, “to employ and retain plaintiff as attorney for and in behalf of said defendant Francis Cabanné, as the primest and one of the first necessaries of his life and being, to take such steps and legal proceedings as were required by the emergencies of the case, and were right and proper to be furnished defendant under the circumstances, so that he might have his person decently taken care of, his health restored, and have him provided with the common necessaries of life, for the protection of his estate and the preservation of his existence;” that said brother was then acting as the agent of defendant Francis, and making a contract as his agent, and in defendant's name, with plaintiff; and then stated that said Cabanné's estate was ample, and that plaintiff, for his professional...