The opinion of the court was delivered by
Hall, J.It is objected in the first place, in behalf of the defendant, that, in making the contract for the keeping of the ward, he is to be considered as having acted in the character of an agent of the ward, and not to have bound himself personally, but only the estate of the ward, — it appearing that the plaintiff had full knowledge that he was guardian.
It is not found by the auditor, that, at the time of the making of the contract for the board of the ward, the defendant undertook to limit the right of the plaintiff to the estate of the ward, for his indemnity ; and I have not been able to entertain any doubt, that the liability of the guardian, under such circumstances, is personal. The guardian has the possession and control of the estate of the *441ward, for the purposes of his support and maintenance, and has the power of indemnifying himself out of such estate for any proper contracts he may make. It is his business to know the amount and situation of the estate; and he is not obliged to incur any liability beyond it. If he do so, it is his own fault, for which others, who cannot be supposed to be so well possessed of this knowledge, ought not to suffer. We therefore think the defendant is personally liable and the action properly brought.
Upon the other principal question in the case, — whether the plaintiff can be allowed more than $1,50 per week, for the keeping of the ward, — we have not been without considerable doubt. The defendant never made any direct promise to give the plaintiff over $1,50 per week, but neglected to take the ward away, and suffered him to remain with the plaintiff until the time of his death, although notified, at the end of a year, that the plaintiff would not keep him longer for less than $2,00 per week. On the whole, considering that the defendant was entitled to the legal custody of the ward, and that it was his duty to provide a place for his support, and considering that the plaintiff, notwithstanding the refusal of the ward to leave his house, insisted upon the defendant’s taking him away, unless he would pay the $2,00 per week, and especially considering, that the defendant gave no notice to the plaintiff to return the ward to the defendant’s custody, and made no claim, that it was not his own duty to go after him, we are of opinion, that the defendant is to be treated as having acquiesced in the claim of the plaintiff for the additional price, and consequently, that the judgment of the county court is right, in allowing the $2,00 per week found by the auditor.
The report farther finds, that the plaintiff never gave the defendant notice, that he should charge more than $2,00 per week for keeping the ward; and we think no contract of the defendant is shown, for the payment of the several charges for extra services in his keeping, which were disputed before the auditor, but included in the judgment of the county court. The judgment of the county court is therefore reversed, and judgment is to be rendered for the plaintiff for the sum found by the auditor, lessened by the amount of those charges.