Curry v. Shelby

OLOPTON, J. The complaint contains the common counts, and a special count declaring on a written order drawn by defendant in favor of plaintiff. The suit is really founded •on defendant’s personal liability for services rendered by plaintiff, as physician, to F. L. Hammond, who was the father of the defendant’s wife, and to whose house he was carried when injured. The sole question we deem necessary to consider is, the propriety of the affirmative charge given in favor of the plaintiff. The order, upon which the special count is founded, is not an absolute, unconditional promise to pay the sum specified therein, but a direction to pay out of a particular fund, the proceeds of a particular claim against a third person held by the drawee as the attorney of the drawer, when collected. It does not import a promise to pay, if the claim is not collected. Whether, therefore, the order was given in consideration of the release and discharge of Hammond’s estate from liability, or in compromise of the claim preferred against defendant personally, it constitutes merely an equitable assignment of the claim particularized therein. Such being its nature, the law does not raise in favor of the payee, against the drawer, a promise to pay, in the event the claim, from the proceeds of which its payment is directed, can not be, or is not collected. Plaintiff is not entitled to recover under the special count, on the mere ground that the draft has not been paid.—Averett v. Booker, 15 Grat. 163. As, however, it appears that the draft was not received as pay [280] ment unless paid, plaintiff is. not precluded from recovering-on his original debt, at least to the amount of the order; and the circumstances under which it was given may be considered, in determining the question of defendant’s personal liability to plaintiff for his services. The question then arises, is the liability of defendant a conclusive legal implication from the evidence, which is uncontradicted ? The main facts, upon which plaintiff relies, are: that defendant went for him two or three times to go and see Hammond, which he did; that on two oceásioils he proposed to discontinue his attendance, when defendant requested him to-continue his visits; and that after Hammond’s death, he presented his bill, which was for five hundred dollars, to defendant, as a claim against him individually, and asked its payment, when he did not deny his responsibility, but objected to the amount; and after a dispute and some angry words, he wrote the order above mentioned, and handed it to plaintiff,, saying he would give him that, and would not pay him another cent, and if he did not take that he would not get anything. Plaintiff further testified, that he rendered the service after defendant went'for him, until he quit in January, 1884,. in consequence of his request. If these facts stood alone, an agreement on the part of defendant to pay plaintiff for his services would be clearly implied; but there are qualifying facts, in connection with which they should be considered. Immediately upon hearing of Hammond’s injury, «plaintiff went to see him, and rendered medical assistance, without request by defendant, who was not at home, and was visiting him when defendant went for him to go and see Hammond; and when he proposed to discontinue his visits, Hammond and the wife of defendant united in requesting him not to do so. The account for services was charged on the books of plaintiff to Hammond, and when the bill was presented to defendant, he was his administrator, but this was unknown to plaintiff. Though plaintiff, in the beginning, may have rendered services solely upon Hammond’s responsibility, in the absence of a special contract, he was not bound to continue to do so, and had the right to discontinue, and enter into a contract with defendant to become responsible for his subsequent services; but, in such case, the burden is on him to show, not only a discontinuance, or a proposal to discontinue, but also an agreement on the part of defendant to be responsible. Plaintiff testified that he had no conversation with defendant, as to who was to pay for his services. There is no pretense of an express agreement; in the absence of such, it was necessary for [281] plaintiff, in order to entitle him to the affirmative charge, to prove facts undisputed, from which the law would conclude an actual, though implied, agreement. The cause of plaintiff’s-proposals to discontinue his attendance does not appear. Though the evidence is not conflicting, it is oral, and manifestly inferences are to be drawn therefrom upon consideration of all the facts and circumstances. Every person, who may go for the regular attending physician wdien needed by his patient, or who, from considerations of friendship or humanity, may request him not to discontinue his attendance, does not render himself responsible for the services of the physician. Whether he does or not, depends upon the attendant circumstances. However well satisfied the court may be as to the proper inferences, if there be any evidence, however weak, from which an adverse inference may be drawn, the case can not properly be taken from the jury. DePoister v. Gilmer, 82 Ala. 435. There is no error in the exclusion of the testimony of Dr. Dement objected to. It was irrelevant, not tending to shed any light upon the issue between the parties. Reversed and remanded.