Robinson v. Hersey , 60 Me. 225 ( 1872 )

Tapley, J.

The action in this case is confessedly one to recover for services performed for the benefit of certain minor children of the defendant, whose legal guardian he was.

The parties disagree as to whether the defendant contracted in his individual capacity or as guardian, and it is stipulated that if the fact the plaintiff knew he was contracting as guardian is material, the case must stand for trial.

We think this is quite material, for if he contracted as guardian it became a liability of his wards, and not one of his own, and this action cannot be maintained. Raymond v. Sawyer, 37 Maine, 406; Homestead v. Loomis, 53 Maine, 549; Cole v. Eaton, 8 Cush. 587.

As the plaintiff may never recover judgment against this defendant, it is unnecessary to discuss any question of lien. If he proceeds against the defendant’s wards, their estate is held as against them to satisfy the judgment, and if this defendant should not pay it ’.from their estate, he is liable to the plaintiff on his guardian’s bond. Same cases. Action to stand for trial.

Appleton, C. J.; Cutting, Walton, and Barrows, JJ., conucurred.