¶1The opinion of the Court was delivered by
¶2Nicholas A. Baumgarden and Justin J. Langles were, in 1877 and for some years previously, equal partners in the bakery business known as the “ Commercial Bakery.”
¶3On the 31st of December, 1877, by an act of sale passed before Jas. Fahey, notary public, Baumgarden sol'd and transferred to Langles all his right and title in the said business, including the real estate connected therewith and owned jointly by the partners, the assets, machinery, apparatus, book accounts, cash on hand, good-will, etc., for the price of forty-five thousand dollars.
¶4On the 21st of May, 1878, Baumgarden was interdicted, and died, insane, on the 23d April, 1879. His wife was qualified as his curatrix in the interdiction proceedings, and, on the 30th of December, 1878, filed the present action, the object of which is to annul the sale above mentioned, on two grounds:
¶51. Notorious insanity at the date of the sale, rendering Baumgarden incapable of validly consenting thereto.
¶62. Fraud, in that defendant, being well aware of Baumgarden’s mental weakness, took advantage thereof and, by threats, improper influences, and false and fraudulent representations, induced him to make said sale for a price much less than the value of the thing sold.
¶7As to the first ground, a careful study of the record convinces us that a proceeding for the interdiction of Baumgarden, based upon the evidence therein contained as to his mental and physical condition and as to his actions and conduct prior and up to the date of this sale, must necessarily have failed.
¶8This is the first test to be applied in a case of this kind. Evidence which would not avail to provoke a decree of interdiction is insufficient to establish a decree of insanity or mental imbecility destroying a person’s capacity to contract. More than this, however, is required to invalidate the contract on this ground; for, under the Code, for this purpose it is necessary not only to establish the mental incapacity, but also that it was notorious, or, at least, that “the person who contracted with him was acquainted with his incapacity.” C. C. 402, 1788, Section 2.
¶9Both of these elements are certainly wanting in the instant case; for the question now in hand is not whether Baumgarden was, to a certain extent, mentally and physically weakened by disease, but whether he was so affected to a degree rendering him incapable of validly consenting to a contract and so a fit subject for interdiction.
¶10It is to be borne in mind that Langles stood in relations with Baum-garden which rendered his dealing with him rather than with another *443a matter of necessity and not of choice. He was his partner. He desired to terminate that partnership and to liquidate its affairs. He had a legal right to do so. He had the right to do so by amicable agreement, if Baumgarden was mentally capable of contracting. The question, then, for him to determine was whether Baumgarden was so capable. If he believed him to be so, and if he was not notoriously otherwise, he had the right to contract with him, and such contract cannot be annulled for want of capacity to contract.
¶11Baumgarden’s infirmities and Langles’ knowledge of them, far from being obstacles to entering into such a contract, were powerful and proper motives inducing thereto, because they impaired the value of Baumgarden’s services to the partnership; and unless those infirmities were such as rendered him legally incapable of contracting, and Langles knew them to be so, their existence and Langles’ knowledge of them were not sufficient, per se, to annul the contract.
¶12We fully recognize the fact, however, that a person may be mentally and physically weakened by disease, without being legally incapaci- • tated to contract, and the law extends its sheltering arms over such persons to the extent of scrutinizing contracts made by them and protecting them from imposition, undue influence, improper advantage and other fraudulent conduct by persons dealing with them. Holland vs. Miller, 12 An. 624; Chevalier vs. Whately, id. 652.
¶13Undoubtedly, the condition of Baumgarden was such that, if we were satisfied that Langles had been guilty of such conduct, we should not hesitate to afford relief. We find no concealment, no misrepresentation, no threats, no improper influence, and no advantage.
¶14The proposition to sell out came originally from Baumgarden. Langles’ offer of a price was a give or take offer. Baumgarden, shrewdly and intelligently, insisted' upon and obtained more advantageous terms. The transaction was conducted openly and with the knowledge of his wife and friends, and finally executed under the supervision of his selected friend and of his lawyer.
¶15The price was not seriously, if at all, inadequate.
¶16Since the appeal herein was taken, Theresa Baumgarden, the curatrix, has died; and the major heirs of herself and of N. A. Baumgarden have openly abandoned the appeal, leaving it to be prosecuted only in the interest of a minor heir. This makes it doubtful if the interest of anyone would be promoted by the annulment of the sale, and we are certain that the law and evidence of the case do not support the demand to that effect.
¶17Judgment affirmed at appellant’s cost.