The opinion of the court was delivered by
SimpsON, C. J.William Ashley, the elder, was appointed •committee, after inquisition found, of his son, William Ashley, the younger, then about twenty-five years of age, on February 13th, 1855. It is stated in the complaint that this appointment *104was made by an order of the Court of Equity; that the estate of the lunatic, as reported to the court at that time, was valued at $2000; that'the order constituted the father committee both of the person and the estate of his sou; and that it was provided in the order that the annual interest on the estate, or $140, should be allowed the father, as committee, for the support and maintenance of his son.
William Ashley, the father, died on February 25th, 1879. The defendants, respondents, qualified as executors óf his will, and the appellant was afterwards appointed committee of the son*
Upon settlement attempted between the respondents, as executors of the former committee and-the appellant as present committee, appellant claimed an accounting for the services of the lunatic, alleged to have been rendered to the former committee. The claim was at the rate of $200 yearly, and was in addition to-the capital fund of $2000.
This claim was resisted by respondents, and appellant received and receipted for the capital fund, but without prejudice to his claim for the alleged services and the interest thereon.
This action has been brought for these services, the prayer of the complaint being that an account be taken under the order of the court of the sums received, or which should have been received, by the former committee on account of the wages earned by the lunatic from February 13th, 1855, to February 22d, 1879, and of the interest accrued on each several sum received,, or which should have been collected on account of each year’s-wages, as upon the investment made, or which should have been made thereof.
To this action the respondents demurred, “ for the ground that the complaint does not state facts sufficient to constitute a cause of action.” The Circuit judge sustained the demurrer, holding that the appellant was concluded by the original order by which respondent’s testator was appointed committee, this order, in his judgment, when properly construed, being intended to allow the committee not only the interest on the capital fund, $140, but, also, whatever services the lunatic could render, if any, as com-pensation for the support and maintenance of the lunatic, which *105his relation to him required the committee to furnish or see that he received it.
The appellant excepted to this ruling, and the appeal brings, up the single question: “ Whether the order, as stated in the complaint, precluded the claim of appellant to an account for the earnings as therein preferred.”
The case has been argued before this court with great research and zeal by counsel on both sides, and we are greatly indebted to counsel for the thorough discussion given to the ease in all its aspects, and for the very full preparation of the points and authorities with which they have furnished the court, so as to-aid the court in reaching a proper conclusion.
There being, however, but a single question raised by the-appeal, it will not be necessary to follow the argument into all of the points presented.
It is not the purpose of this court to express any opinion as to-the facts; whether the lunatic, in this case, was able or did render any service of value to his committee, or whether the-work he did, if any, should be regarded as the necessary and healthful discipline to which he should have been subjected as contributing to his physical comfort and health. If he was able-to do steady work, even as á hireling or common laborer, sufficiently so ,to earn $200 per annum, it seems strange that he should require a committee to take care not only of his estate but of his person. But these are questions of fact which 'are not. involved in this demurrer, and we propose to leave them for future investigation.
If this action was an action in behalf of the lunatic for an unsettled demand on account of wages earned by his labor, then the lunatic himself should have been party plaintiff.
In Sims v. McLure, 8 Rich. Eq. 286, Chancellor Ward law said : “The practice of instituting suits in the name of the committee only is sustained by high authority, but in this state it. is certainly better to follow the general rule of pleading, to make all parties to the suit, who are materially interested in the bbject of it, and not to litigate and adjudge concerning the estate of any person, even a lunatic, who is not before the court.”
But this is not an action strictly for the wages of the lunatic. *106It is a case “ in chancery,” by a trustee, against the representatives of a former trustee (as it is alleged) seeking an accounting for the estate of the cestui que trust, which, it is alleged, the former trustee had in his hands, at his death, belonging to the cestui que trust. It proceeds upon the theory that the former trustee having received the benefit of the labor of his ward he thereby became debtor to himself, as trustee, for the value of this labor, and, being both debtor and creditor, under the principle of Schnell v. Schroder, Bail. Eq. 335; Griffin v. Bonham, 9 Rich. Eq. 71; Jacobs v. Woodside, 6 S. C. 498, he is presumed in law to have paid himself, and since such payments he has been holding the amounts so received as trustee, and, therefore, it is a proper subject of accounting between the present committee and his representatives.
This, in the opinion of the court, is a correct principle, and if the facts will sustain the allegations the action would not be obnoxious to objection on account of the manner in which it is brought. William Ashley, the elder, being the committee of the person as well as of the estate, he was authorized to make proper contracts in his behalf, and if the lunatic was capable of service, he, the committee, could contract as an individual, with himself as the committee, in reference to this labor, as well as he could with other persons, either expressly or impliedly. In which case he would occupy the relation, as to such matter, both of debtor .and creditor, and the cases referred to above would apply.
All {his is based on the idea that the committee was a trustee, and that the custody and control of lunatics is a matter of equity jurisdiction, analogous to and subject to the same rules and principles as are applied to other fiduciary relations, such as guardian and ward, trustee and cestui que trust, &c. Much learning was displayed in the argument upon this branch of the case, and there is no doubt but that in England lunatics and idiots occupy a different position to the courts and in the law from all other cestuis que trust. There is no doubt but that the Lord Chancellor, under the sign-manual of the King, was the special custodian of this unfortunate class of society there, and that committees were his agents and responsible to him. It was not a subject matter over which his court had jurisdiction, but it was a power *107conferred upon the Lord Chancellor, as the representative of the crown, to be exercised as a special and personal duty. But whatever may have been or may now be the law in England on this subject, or whatever may have been its origin there, this principle has never prevailed practically in this country.
Lunatics and idiots, and the care of their persons and property, are now and have always been with us considered and acted upon as a branch of equity jurisdiction, and the Chancellor who. made the original order in this case, in 1855, acted by virtue of this jurisdiction, and not by any special power conferred upon him as an individual, either from the state or any other power as a special duty. Any other Chancellor of the state could have passed the order as well as he.
But this is aside from the question presented in the appeal, i. e., the effect of the original order of appointment. Is that •order a bar to this action, as urged by respondents and held by the Circuit judge? The pleadings did not disclose fully the facts upon which the order was passed. It does not appear from the pleadings whether or not the condition of the lunatic (further than simply that inquisition had been found) was made known to the Chancellor, and we have no other guide as to the intent of the order than its terms. There is nothing said in it on the subject of the services and labor of the lunatic, and there is certainly no express contract contained in it permitting the committee to have the benefit of such labor as a part of the compensation to be allowed him for his care and trouble.
It is manifest, from the character of the order, that the Chancellor had no conception that any services could be rendered by the lunatic. Assuredly not that his services could be worth $200 per annum, otherwise he would not have provided so especially for his support and maintenance out of the funds in hand. He expressly set apart the interest on this fund, $140, for support and maintenance. This would have been -wholly unnecessary if the lunatic had been regarded able to support himself by his own labor. And we have no idea, on the other hand, that the committee ever dreamed for a moment during his life that his estate, after his death, would be called upon to respond to a claim like this. But, although this may be true, and, also, that the, court *108in passing the order and the committee in accepting the trust, both acted upon the supposition that the labor of the lunatic could be of no service to any one, and was not to be regarded or provided for, yet we do not think that the order, under the circumstances of the case, amounted to a judgment, final and conclusive, upon that question, in the sense that the question has already once been adjudicated, and that that adjudication must be held as a bar to this claim, whether meritorious or not.
It is said that the lunatic could not make a contract; that, being a lunatic, he was without the power of assent, which is. an essential element of all contracts. A contract is an agreement between two or more parties, each being capable of assenting to its terms; and as one devoid of reason cannot assent, of course he cannot make an express contract. But there is a large class of legal obligations, arising out of acts where both parties are silent and no positive assent given on either side, denominated in the books as implied contracts, in which parties are sued and held liable in all of the courts. True, in these cases, this has been done in part on the theory that there was a contract between the parties implied by the law. This, however, is a fiction, as in most of such cases it is well understood that there never has been that mutuality of assent which the law lays down as an essential element of any contract. This idea of an implied contract was a fiction invented by the courts, as Mr. Pomeroy, section 512, says, “ in order to bring such obligations under the old action of assumpsit.”
We find many such fictions in the history of the old pleadings, (notably in the old action of ejectment,) arising out of and made necessary on account of the stringent rules and forms of practice under the former system.
And Mr. Pomeroy further says, section 540, since the adoption of the code: “ That it has been settled by an overwhelming preponderance of authority that it is no longer necessary to aver a promise in actions upon what were known at common law as implied contracts. It is enough to state the ultimate facts from which the law raises the duty or obligation to pay. The courts everywhere, where the code has been adopted, are beginning to deal more directly with the facts and substance, and dispensing *109more and more with forms and shadows. And when the true ■ends and objects of courts are considered, this tendency towards settling controversies upon their real merits, is not to be regretted.”
If, indeed, an unfortunate lunatic, bereft of his reason so far as to be unable to assent to a contract, is yet able, physically, to labor and does labor to the profit of another, can it be that he must be deprived of all compensation on the ground that he could not make a contract? and, on that account, there is no form of action suited to his case ? This would be a burning reproach to any system of pleading, and ,a stigma upon any country where such a principle prevailed.
There is no reason why the law should not raise an obligation ■on the part of a recipient of a lunatic’s labor to pay for it as fully as it does in cases where the parties are sane. In fact, inasmuch . as sane parties can protect themselves and lunatics cannot, there is a greater reason why the law should be more watchful as to the rights of the latter than the former.
No doubt, in this case, that 'William Ashley-, the elder, took the custody of his son without regard to his labor, and with no ’purpose to avail himself thereof. The unfortunate son, as it appears, was an incurable lunatic, and it was necessary that some ■ one should take him and his estate in charge. No one was more suitable for this purpose than his father, and he was properly appointed. While it is almost an anomaly in nature to suppose that a confirmed lunatic could be able for any steady work, or be expected to perform it; and while it is not the duty of a committee to put such a ward out to labor, and while it can scarcely be believed that a father, appointed the committee of an afflicted .son, with his reason gone, would make a regular domestic, menial servant of him, with the view to make profit and personal benefit out of his enforced services, yet if, in any case, where this relation exists, the facts will sustain an allegation that the •committee has thus enjoyed the wages of the ward in the way of valuable services rendered, the doors of the court should not be . shut upon the poor unfortunate; he and his friends should have The opportunity of a full and fair investigation of his claim, and *110if the facts warrant such a result, to have it established and enforced.
The order sustaining the demurrer is reversed and the appeal sustained. Let the case be remanded.
McIyer and McGoWAN, A. J.’s, concurred.