Clement v. City of Lewiston

Strout, J. The plaintiff’ claims to recover for professional services as a physician in attendance upon small-pox patients in June and July, 1901. No specific sum was agreed upon for his compensation. He was employed by the secretary of the board of health of Lewiston. Chapter 123, § 5, of the laws of 1887, provides that the municipal officers “shall regulate and audit all fees and charges of persons employed by eacli board of health, in the execution of the health laws and of their regulations.” Defendant claims that it was a condition precedent to plaintiff’s right to maintain the action, that the municipal officers had discharged this duty, or to show an attempt upon his part to have them do so. The presiding justice instructed the jury that if the municipal officers “failed to make any regulation or auditing of his (plaintiff’s) account at the time, and there being, when these services were per [98] formed, no regulations touching the fees and charges to which this plaintiff might be entitled, theb the plaintiff is entitled to recover a reasonable compensation.” Exception is taken to this instruction. The ruling was correct. The municipal officers could have fixed the fees before the services were rendered — and if they had done so, and it was known to the plaintiff, his renditition of services after that would be regarded as an acceptance of the terms made by the municipal officers, and his right to recover would be limited to that. In the absence of such action by them, for any services rendered by the plaintiff under a legal employment, the city impliedly promised payment therefor of a reasonable sum. The right to “regulate” fees should be exercised, if at all, before the services are rendered. To “audit” charges, in bills rendered, does not mean to determine their amount in the sense of binding the other party. To audit is — “an examination in general”; “an examination of accounts”; “compare the charges with the vouchers.” Webster. Upon such auditing the bill would be approved or rejected. If rejected, it would not preclude recovery if plaintiff had a meritorious cause of action. Such auditing cannot be regarded as a condition precedent to recovery. Plaintiff’s rights did not depend upon approval of the municipal officers. The cases cited by defendant do not apply. In them the terms of the contract required certain things to be done before action brought; they were made conditions precedent. This statute gives certain authority to municipal officers, and imposes a duty upon them — but it is directory. It does not make it the duty of the plaintiff to procure their action before enforcing his claim. The offered. evidence of the action of the municipal officers after plaintiff’s services were rendered, in attempting to fix the amount of his compensation, was rightly excluded. One party to a contract, after performance by the other, cannot determine the amount of compensation without the consent of the latter. The authority of the.secretary of the board of health to employ the plaintiff is expressly conferred by their rules and regulations contained in the ordinances of Lewiston, which were duly approved by a justice of this court, as required by law. [99] The offer to prove amounts paid by the city for similar services in previous years, to other physicians, was x’ightly x-efused. Such payments might have beexx upon expx’ess contracts, or been the result of a controversy or comproixxise, or have been x'endered by physicians of small experience, or limited skill or reputation, or under peculiar and exceptional .conditions. It would be unsafe axxd might be unjust to adopt them as a cx-itex-ion for the compensation to which plaintiff’ is entitled. Exceptions overruled.