Mays v. Patterson

Opinion by William W. Porter, J., This action is brought by a phj’sician for professional services rendered to the defendants. Two affidavits of defense have been filed. Both contain a general denial of the accuracy of the charges upon which the claim is founded. This allegation does not, however, stand alone. The first affidavit alleges that anterior to the present claim, the defendants “ were indebted to ” the plaintiff in the sum of $53.00 for medical attendance, and that the bill was paid, in consideration of which the plaintiff agreed to gratuitously give to the defendants all prescriptions and general advice needed from time to time, and that the services upon which the present claim is based were covered by this agreement. Palpably, the agreement thus set up was without consideration. The statement thus set forth in the first affidavit is at variance with that contained in the second. The latter alleges that the payment of $53.00 was made after a dispute as to the propriety of the amount of the plaintiff’s bill and that the settlement of this controversy was the consideration for an agreement by the plaintiff to “ render to the defendants such general advice and prescriptions as would be needed by them from time to time, and said plaintiff promised said defendants to give such general advice and prescriptions as would be needed by the defendants from time to time, if said defendants would pay said disputed bill of $53.00.” The affidavit contains the further statement that “the charges so contained in the plaintiff’s account are charges for services so rendered by plaintiff for defendants in consideration of the payment of $53.00 as aforesaid.” Without criticism of the contradictory statements under oath as to the circumstances of the payment of the' $53.00, the con [95] elusion is inevitable that the affidavits are insufficient. While the settlement oi a doubtful right may furnish consideration for a promise, yet such promise to be enforceable must be definite in its terms. The most superficial examination of the allegation of contract here, shows that the alleged promise of the physician was uncertain and indefinite as to the character of the professional services to be performed, as to the place of their performance, and particularly as to the time during which the services should continue. The contract as set up, is thus insufficient to defeat the plaintiff’s right to judgment. See Purves’s Estate, 196 Pa. 438. The judgment of the court below is therefore reversed and the record is remitted with direction to enter judgment against the defendants for such sum as to right and justice may belong, unless other legal and equitable cause be shown to the court below why such judgment should not be so rendered.