Prescott vs. Cass, 9 N.H. 93

Upham, J. The first exception taken in this case was as to the sufficiency of the proof of guardianship. We are of opinion that the ruling of the court was correct, and that a commission as guardian, or appointment as such, duly authenticated from the court of probate, is prima facie evidence that all the previous requisites necessary to a valid appointment have been complied with. There are many analogous cases where evidence of this character has been holden as prima facie evidence of a due appointment; and we are not aware that any inconvenience has arisen or is likely to arise from such a course.

The defendant, then, being shown to be under guardianship, it is clear that he is incapable of contracting, except in certain cases for necessaries, so as to bind the guardian without his assent. This is conceded; but an attempt is made to show such assent by evidence that the guardian has, in certain instances, permitted the ward to make contracts; and it is contended that from his practice in this respect his assent in this case is to be implied.

Where contracts have been made by the ward suitable to his state and condition, and have been paid and approved by the guardian, it may perhaps tend to show an assent to similar contracts with such individuals made under like circumstances. But it is believed to be unsafe to extend an implied assent farther than this. Because a guardian has ratified contracts made by his ward with one, two, or three individuals, it does not therefore follow that he must ratify all his contracts.

An assent that the ward may trade with one man, is not an assent to trade with another, any more than permitting him to associate with one individual is a license to permit him to choose such companions as he pleases. Neither is an assent that an individual may trade to some certain extent for articles a license to trade in the same to any extent he may elect. It is questionable whether any merely implied license of a guardian can extend to improvident and improper contracts of the ward. An inference so directly against the due discharge of the duties of guardian cannot with propriety be made.

The rules of evidence should be holden strictly on this point. Ordinarily there is no reason why an individual should incur the risk of contracting with a ward on implied authority merely ; and we are of opinion that the ruling of the court was correct, that the assent of the guardian to the contract now in suit cannot be inferred from evidence of instances of assent to other contracts, though frequently-shown. Such a general permission to contract is not to be presumed.

It would, for the time being, abrogate all authority of the guardian, and expose him, in his settlement with the ward, to personal liability for improvident contracts, without being of any advantage to the ward. Such being the case, the authority should be distinctly shown, that neither should be prejudiced by slight evidence of liability in such cases. Judgment for the defendant.