Stevenson v. Bruce

10 Ind. 397

• Court: Indiana Supreme Court
• Decided: June 17, 1858
• Status: Published

Opinion

Per Curiam.

Thomas W. Stevenson, and John Green, guardian of Cosmo A. Stev.enson, a minor, leased to Charles Bruce a house and lot in Logansport, for five years, at 150 dollars a year. Bruce subleased the premises to another person, for four years and nine months, at 200 dollars a year.

Stevenson and Green refused to give possession to Bruce, or the sublessee. Bruce sued them for damages, and recovered 250 dollars. The Court rendered the judgment as. against Green, to be levied of the effects of his ward, Cos-mo A. Stevenson. Pending the suit, Green resigned his guardianship, and was offered as a witness for his co-defendant, but he was rejected.

D. D. Pratt and S. C. Taber, for the appellants.

A suit against a guardian upon a contract made by him touching his ward’s estate, is personal against the guardian, and not against him in his fiduciary capacity. Hence, he could not, in this case, by resigning, cease to be a party to the suit. His rejection as a witness was, consequently, correct. It follows, also, that the direction in the judgment, to levy it of the ward’s effects, is error. Clark v. Casler, 1 Ind. R. 243.

As to the damages, we cannot say, under the evidence, that they are excessive — perhaps they might have been a few dollars less, but we are not at liberty to interfere, for this reason, with the verdict.

The error in the form of rendering the judgment may be considered as amended in this Court.

The judgment is affirmed, with 1 per cent, damages and costs.