Keith v. Miles , 39 Miss. 442 ( 1860 )

Harris, J.,

delivered the opinion of the court:

The defendant in error, when about ten or twelve years old, left the house of his guardian, Alexander- Miles, plaintiffs’ intestate, and went to the house of his uncle by marriage, “ and there in the neighborhood remained until his guardian persuaded him to go and live with him, making him the following promises: that he, the guardian, would not charge him, the said defendant any board; that he would send him to school and make no charge for the same.” The defendant went to live with plaintiffs’ intestate, his said guardian, and remained there about twelve months.

On final settlement of the guardianship account, plaintiffs in error claimed allowance of sixty dollars for the board of defendant, and also amounts paid -for tuition.

Exceptions were filed tó these items in the court below, and sustained by the court. This writ of err-or is now prosecuted here to revise that judgment.

It appears in this record that the defendant paid no board at his uncle’s house' during his stay there; and upon this ground, we suppose, it was thought, in the court below, a sufficient consideration arose to sustain the promise of the guardian to board and school the defendant without charge.

Between adults, or where no duty of obedience existed, a promise niade under these circumstances would doubtless be obligatory, upon the ground that injury and loss would otherwise be occasioned to defendant by his abandonment of his uncle’s house, where he paid no board. But a different rule is held in cases where it is the legal duty of the promissee to do, without reward, the act induced by the promise sought to be enforced.

No action will lie to enforce a promise for doing that which it was the party’s legal duty to do, without such promise or reward, “ for this would be extortion and illegal.” 2 Tucker’s Lect. 137; 2 Burr. R. 924; 2 Black. R. 204; Chitty on Con. 54.

The ward in this case, being under the legal control of his guardian, had no right to rebel against his authority, leave his house, or refuse obedience to his lawful directions. It was his legal duty, as well as his highest interest, to submit himself cheerfully to the directions of his guardian; and he cannot be permitted to exact a reward for the performance of a duty so obviously incumbent on him. The law will not presume that injury or loss could arise to him in the discharge of that duty, and hence no consideration for the promise to board and school him could arise to support it, against his guardian.

The promise relied on to avoid the items of board and tuition claimed in the account of plaintiff’s intestate being without consideration is void. The court therefore erred in rejecting these items on that ground.

Let the judgment and decree of the court below be reversed, and cause remanded for further proceedings in accordance with this opinion.