§ 2. Right of action. An action cannot be maintained against guardian or his sureties, on his official bond, whilst the relation of guardian and ward subsists. Eiland v. Chandler, 8 Ala. 781. Nor, in most of the States, until after proceedings to ascertain the amount due on the guardianship accounts. Salisbury v. Van Hoesen, 3 Hill, 77; Pratt v. McJunkin, 4 Rich. (S. C.) 5; Justices v. Willis, 3 Yerg. (Tenn.) 461; Jarrett v. State, 5 Gill & J. (Md.) 27; Bailey v. Rogers, 1 Me. 186; Foteaux v. Le Page, 6 Iowa, 123; O'Brien v. Strang, 42 id. 643. See Brown v. Snell, 57 N. Y. (12 Sick.) 286; State v. Strange, 1 Ind. 538. But a guardian cannot prevent an action on his bond by failing to render an account. Wann v. People, 57 Ill. 202.

The time within which suits on guardian's bonds must be brought is usually prescribed by statute. If no period is thus fixed, the ordinary limitation to suits on sealed instruments is applicable. Ragland v. Justices, 10 Ga. 65. In Massachusetts, the period of limitation to suits on guardian's bonds is fixed at four years from the termination of the guardianship. Loring v. Alline, 9 Cush. 68. So, in Ohio, Favorite v. Booher, 17 Ohio St. 548. In Kentucky, the period is five years (Johnson v. Chandler, 15 B. Monr. [Ky.] 584); while in Indiana, it is three years. State v. Hughes, 15 Ind. 104. See, as to the period of limitation in Maryland, Byrd v. State, 44 Md. 492.

An action may be maintained on a guardian's bond, against the guardian and his sureties, without previous demand. Hudson v. Barnes, 54 Ind. 378.

§ 3. Rights of sureties. Sureties on a guardian's bond, who are compelled to respond in damages for the guardian's default, may seek indemnity from his property. Foster v. Bisland, 23 Miss. 296; Howell v. Cobb, 2 Coldw. (Tenn.) 104. And equity likewise allows them to enforce contribution as among themselves. See ante, 538, art. 1, 84; Waller v. Campbell, 25 Ala. 544. But the guardian cannot pledge the property of his ward as security to his own surety. Poultney v. Randall, 9 Bosw. (N. Y.) 232.

The sureties on a bond, as well as the guardian, are estopped by the recitals therein. Sasscer v. Walker, 5 Gill & J. (Md.) 102. So, the sureties are concluded by the amount adjudged for which the guardian is liable on settlement of his accounts. Commonwealth v. Rhoads, 37 Penn. St. 60. And a surety cannot become a party to the accounting of his principal either in the original proceeding or on a revision of such accounting. Re Scott's Account, 36 Vt. 297. See Curtis v. Bailey, 1 Pick. 198.

§ 4. Liabilities of sureties. See ante, 538, art. 1, § 4. The liability of the surety is not limited to the property owned by the ward at the

time of the execution of the bond, but extends to property received by the guardian before the bond was made (Merrells v. Phelps, 34 Conn. 109), and to property coming into his hands subsequent to the execution of the bond. Gray v. Brown, 1 Rich. (S. C.) 351. So, it is the duty of a guardian, whose powers as such have been revoked, to account to his wards, or to his successor as guardian, if there be one, for their estate, including evidences of claims which may have come to his hands; and if, after such revocation, he collects any money on account of any such claim, he and his surety as guardian are accountable therefor to the parties entitled thereto. Sage v. Hammonds, 27 Gratt. (Va.) 651. And where new sureties are given, they become liable for breaches of the bond before they became sureties, as well as for subsequent breaches. Steele v. Reese, 6 Yerg. (Tenn.) 263; Bell v. Jasper, 2 Ired. (N. C.) Eq. 597. See ante, 538, art. 1, § 4.

But the sureties on the general bond of a guardian are not responsible for the failure of the guardian to account for money received from the sale of real estate of his ward, or its misapplication by him. Such sale is no part of his general duties. Henderson v. Coover, 4 Nev. 429. And see Muir v. Wilson, Hopk. (N. Y.) 512; Williams v. Morton, 38 Me. 47; Colburn v. State, 47 Ind. 310. Nor can the sureties of a guardian be made liable for an account for the work and labor of the wards, done for the guardian. Phillips v. Davis, 2 Sneed (Tenn.), 520. And where a guardian, on the expiration of his guardianship during the minority of his ward, leaves the State without paying the balance due, the surety on his bond will not be liable, unless a new guardian has been appointed and demand made. Favorite v. Booher, 17 Ohio St. 548. See Horton v. Horton, 4 Ired. (N. C.) Eq. 54.

An action lies upon a guardian's bond, against the surety, without any previous suit against the principal. Call v. Ruffin, 1 Call. (Va.) 333; Jarrett v. State, 5 Gill & J. (Md.) 27; State v. Strange, 1 Ind. 538. And in a suit against sureties on a guardian's bond, if some of the sureties have died, their personal representatives should be made parties. Lynch v. Rotan, 39 Ill. 14; Commonwealth v. Cox, 36 Penn. St. 442; Jones v. Hays, 3 Ired. (N. C.) Eq. 502.

§ 5. Defense. If a guardian's bond contains more than the statute requires, it is not thereby invalidated. Pratt v. Wright, 13 Gratt. (Va.) 175. So, it is valid although it does not recite the fact of the guardian's appointment. Id. And if the condition relates to a part only of his duty, it is valid to the extent of the condition. Id. But if the bond contains no penalty, this will prevent a recovery at law. Bumpus v. Dotson, 7 Humph. (Tenn.) 310.

Lapse of time, during which a ward is prosecuting an action against

the guardian, and the statute of limitations, furnish no ground for exoneration of a surety of the guardian from liability. Roberts v. Colvin, 3 Gratt. (Va.) 358. Nor are the sureties discharged from liability by the fact that the guardian's account is not settled until more than two years after his death, and after the right of action against the administrator is barred by the statute of limitations. Chapin v. Livermore, 13 Gray, 561. And see Ashby v. Johnstone, 23 Ark. 163.

In Greenly v. Daniels, 6 Bush (Ky.), 141, a judgment in favor of a ward, obtained in a suit on the guardianship bond, against the guardian and his sureties, was reversed as to the sureties, on the ground that the ward was not named in the bond.

A bond executed by a guardian and sureties to a judge of probate in one State, under the laws of that State, is purely a creature of its statute law. And if the remedy provided for the violation of the bond be one peculiar to the laws of the State where it is executed, the courts of another State, to whose system of jurisprudence such a remedy is unknown, will not enforce the obligation. Probate Court v. Hibbard, 44 Vt. 597; S. C., 8 Am. Rep. 396.

VOL. III.-73

CHAPTER LXXVII.

HIRE OF SERVICES.

TITLE I.

OF THE HIRE OF SERVICES IN GENERAL.

ARTICLE I.

OF THE GENERAL RULES OF LAW RELATING TO THE HIRE OF SERVICES.

Section 1. Nature of the contract. The hire of services is a contract, by which the work or service of a person is given for a compensation or reward. Out of the contract arises the relation of master and servant or that of employer and employee; or, if the services are to be employed upon a chattel, the contract of hiring is a bailment, and the relation arising out of it is that of bailor and bailee. The peculiar features of the relation of master and servant are of sufficient importance to form the subject of a separate title; while the general principles of law, relating to the hiring of services of all kinds, will be given in the following sections.

It is essential to the validity of a contract for services, that the parties thereto have the legal capacity to contract. And if either party labors under a legal disability which prevents him from making a valid contract for services, the contract cannot be enforced. Thus, it would seem to be well settled in this country, at least, whatever may be the rule of law in England, that an infant is not bound by a contract of hiring entered into by him, although for his benefit, but such contract is voidable if the infant chooses so to elect. Lufkin v. Mayall, 25 N. H. 82; Hoxie v. Lincoln, 25 Vt. 206; Lowe v. Sinklear, 27 Mo. 308; Francis v. Felmit, 4 Dev. & Bat. (N. C.) 498; Clark v. Godard, 39 Ala. 164. See Reg. v. Lord, 12 Q. B. 757. So, as to the contracts of lunatics and idiots; they are voidable whether beneficial or not. Maddox v. Sim mons, 31 Ga. 512; Cook v. Parker, 5 Phil. (Penn.) 265; Crowther v. Rowlandson, 27 Cal. 376. And a contract entered into by one so far intoxicated as to impair his reasoning faculties is void. Burroughs v. Richman, 13 N. J. (1 Green) 233. So, of a contract obtained by

duress (Burr v. Burton, 18 Ark. 214); or by gross misrepresentation or fraud. Jones v. Austin, 17 id. 498; Bank v. Gregg, 14 N. H. 331.

If an infant hires out his services for a specified term, at a fixed price, he may abandon the service at any time before the expiration of the term, and although he may not recover upon the contract, he is entitled to recover what his services were reasonably worth. Vent v. Osgood, 19 Pick. 572; Van Pelt v. Corwine, 6 Ind. 363. And he is not liable to have the damages occasioned by his breach of contract deducted from the amount he otherwise would be entitled to recover for his labor. Whitmarsh v. Hall, 3 Denio, 375; Derocher v. Continental Mills, 58 Me. 217; S. C., 4 Am. Rep. 286. If the contract has been fully performed by the infant, he may sue for the contract price, or he may avoid the contract and sue upon a quantum meruit. Davies v. Turton, 13 Wis. 185; Oaks v. Oaks, 27 Vt. 410. And see Spencer v. Storrs, 38 Vt. 156. But if an infant continues in his employer's service after becoming of age, he will be treated as having ratified his contract, and if he then refuses performance he can recover nothing for his services rendered under his contract. Forsyth v. Hastings, 27 Vt.

646.

At common law, a married woman could not make a valid contract for the services of others except as the agent of her husband. See Mizen v. Pick, 3 Mees. & W. 481; Lane v. Ironmonger, 13 id. 368. But it is otherwise in this country under many of the statutes enacted in the different States, for the removal of the legal disabilities of married women. And, at common law, a married woman, an infant, a lunatic, or person of unsound mind, is bound by a contract for services that are actually necessary. See Reed v. Moore, 5 Carr. & P. 200; Richardson v. Strong, 13 Ired. (N. C.) 106; Skidmore v. Romaine, 2 Bradf. (N. Y.) 122; Barnes v. Hathaway, 66 Barb. 452; Sims v. McLure, 8 Rich. (S. C.) Eq. 286.

As to the power of a corporation to make binding contracts, see ante, Vol. 2, pp. 318-321.

§ 2. Express contracts. It is an established rule, that an implied contract cannot arise where there is a subsisting express contract covering the entire subject-matter. Galloway v. Holmes, 1 Doug. (Mich.) 330; Ford v. McVay, 55 Ill. 119; Smith v. Bowler, 1 Disney (Ohio), 520. A contract in writing is presumed to embrace all that the parties intended, and unless there is a latent ambiguity, parol evidence is not admissible to alter, vary, or explain it. Kemp v. Rose, 1 Giff. 258; Evans v. Roe, L. R., 7 C. P. 138; S. C., 2 Eng. R. 116. This rule is applicable to contracts for work or service (Id.); and in an action upon a written contract that the plaintiff should serve the defendant at a