Schramek v. Shepeck

98 N.W. 213, 120 Wis. 643, 1904 Wisc. LEXIS 86

• Court: Wisconsin Supreme Court
• Decided: March 22, 1904
• Status: Published

Opinion

The following opinion was filed February 3, 1904:

Winslow, J.

The evidence shows that there was no contract, either express or implied, made by Shepeck, the guardian, to pay for the services performed by the plaintiff; and, as Zalinka was incompetent and under guardianship, there-could b¿ no contract made by him. Hence there can be no recovery unless the services can be called necessaries. Sec. ‘3979, Stats. 1898. Doubtless it ivas necessary that the ward should have the personal attentions which the plaintiff gave ‘him, but, if the guardian had made provisions for the wants-of the ward in this respect, a mere volunteer, who assumed to perform the services without the authority of knowledge of the guardian, cannot recover for them. It appears without dispute in this case that the guardian had contracted with Straka for the hoard and care of the incompetent ward and that he knew nothing of the supposed services rendered by Schramek, henee thpre can he no recovery for such services even on the ground that they were necessaries. Gwaltney v. Cannon, 31 Ind. 227; McKanna, v. Merry, 61 Ill. 177.

By the Gourt. — Judgment affirmed.

A motion for a rehearing was denied March 22, 1904.