The jury not having agreed upon the fact, whether the defendant was or was not insane, at the time the services were rendered by the plaintiff, the question arises upon the other branch of the instructions, which relates to the defendant’s liability as upon an implied contract for necessaries.
The court are of opinion, that the direction was correct. It proceeds on the ground, that the contract of a person of unsound mind is voidable but not void (Allis v. Billings, 6 Met. 415); and, then, whether void or not, in any particular case, must depend on the circumstances.
Mental capacity is undoubtedly necessary to the validity of an express contract, which derives its force from the mutual agreement of the parties. But a party may be liable on an implied liability for supplies and services, which are reasonable and proper, and suitable to the state and condition of such party, though at the time he is not of sound mind. The contracts of such persons are placed in many respects on the *299same footing with those of infants. Seaver v. Phelps, 11 Pick. 304; Baxter v. Earl of Portsmouth, 5 B. & C. 170; S. C. 7 D. & R. 614, and 2 C. & P. 178.
In the case of a person wounded, or fallen in an apoplexy, we suppose, that if. medical relief, suitable and necessary to his condition, is called by others before he becomes conscious, he will be liable, on a quantum meruit, for such professional services.
If, during a person’s last sickness, accompanied with delirium and insanity, from which he never recovers, he should be attended by physicians and nurses called in by friends, or be supplied with medicines and other necessaries suitable to his condition, at the instance of his family or other attendants, we suppose that such services and supplies would constitute a good legal claim, which, by statute, is made a preferred one, on his estate.
Cases may be supposed, in which legal professional services may be as necessary to a person in such an unhappy condition, as medical, and yet no one may have express authority to procure them. We think that services of this description would stand upon the ground of food, fuel, and other necessary supplies, where, from the duty of making a reasonable compensation, the law implies a promise. Of course, if such supplies or services are not necessary, if any imposition be practised, or advantage taken, either by the person making the claim, or by any one in privity or in concert with him, no such duty arises, and no such promise is implied. That is always a question for the jury, if contested.
In the present case, we think the rule of law was correctly stated, and with proper qualifications. We must not be governed by the consideration, that the defendant was subsequently adjudged to be insane; at the time the plaintiff was retained, the defendant was restrained of his liberty, without warrant of law, that is to say, without legal process; and there was ample room for supposing, that he was not insane, and, of course, was unlawfully restrained of his liberty. If such was the fact, nothing could be more necessary to the *300well being of the defendant than to obtain his liberty, and, for that purpose, to put in motion the proper proceedings for bringing his right to a judicial determination.
Exceptions overruled.