4 Daly 126 | New York Court of Common Pleas | 1871
—There is no conflict in respect to the facts in this case. There may be some little variation or difference between Dr. Buck and the defendant’s account of what occurred between them, but nothing that could materially affect the case. It is only that difference ordinarily found between two persons in narrating the same transaction, but not any difference as to the facts, which, as narrated by both, are substantially the same.
The defendant’s brother, J. C. Amidon, who was a resident of Groton, in Connecticut, had an affection of the bladder, for which he was attended by a Dr. Francis, of New London, and whilst the doctor was engaged in drawing the patient’s water by means of a catheter, the cap or button of the instrument broke off and the catheter passed into the bladder—a very unusual circumstance—and which involved the necessity of a very delicate and skilful operation to extract the catheter. The family was alarmed at the accident, and requested the doctor to send to New York for a surgeon, by telegraph, and “to make the thing sure,” to send the dispatch to the patient’s brother, F. H. Amidon, the defendant, as “ he would be sure to deliver it.” Dr. Francis accordingly sent a dispatch to the defendant in these words : “ New London, Nov. 20, 1869, 2 p. m. To Francis Amidon, 649 Broadway, N. Y. Don’t fail to come and bring a surgeon to-night. Gurdoh Buck, M. D., 121 Tenth street. Please come immediately. Elastic catheter
Immediately upon receiving the dispatch, the defendant went to the residence of Dr. Buck, the plaintiff, who is an eminent surgeon in this city, and told him that he had received a telegram from his brother’s physician, requesting him to bring up a surgeon that night to relieve his brother, living opposite New London (Groton), who had got a catheter in his bladder, and taking out the dispatch he read it to the plaintiff. He asked the plaintiff if he knew Dr. Francis, his brother’s physician, and the other said, “ No, but that he may have met him upon which the defendant replied that he must have heard of some operation of his, from his inviting the defendant to call upon him ; to which the plaintiff answered that he was somewhat known as a surgeon. The defendant then said, “The question is, can you goand the plaintiff, after some hesitation, said, “ Yes.” The defendant then advised him that there was a train that evening at 8 p. h. ; that if he could go, the defendant would go with him, and it was arranged that they should meet at the depot. The defendant then went away, and apprehending that there might be some misunderstanding, returned and left the telegram with the plaintiff, in order, as he said, that he might understand Dr. Francis better than he did, and they exchanged a few words confirming the appointment for the evening train at 8 o’clock. Nothing was said about who was to pay the plaintiff. The defendant testified that he did not consider that he had any discretion in the matter, and the plaintiff testified that when the dispatch was left with him, he took it to the light in his office, and seeing that it was addressed to F. H. Amidon, he referred to the directory, and finding, he said, that the person who called upon him was Mr. Amidon, the hatter, he took it for granted that he was dealing with a responsible party.
The plaintiff and the defendant met, pursuant to the appoint
The plaintiff testified that he noticed that the -patient was living upon a moderate scale, and that he was taken by surprise to be sent for so far by a man living apparently upon a moderate scale; that he considered that people in straitened circumstances do not send to distant cities for eminent medical service unless they are able to pay for it, or unless they have friends who can, and that he took into consideration that New England people should not be taken by their appearance, and knew that the patient had kind friends who could be responsible for extra medical services.
Upon the evening of the day of the operation, and shortly before the departure-of the plaintiff, the defendant’s brother sent for him and requested him to ask the doctor for his bill, which the defendant accordingly did. The plaintiff replied' that it did not matter about presenting a bill then, and gave the defendant a piece of paper, with these words written upon it, “Dr. Buck, 46 West 29th street, §400.” The defendant then went into his brother’s room, told him what the doctor’s bill was, and he expressed great surprise. The defendant returned and told the doctor that his brother thought that it was a very large bill, and that he must remember that his brother was not a rich man, and the doctor answered that he supposed the people who could send for a surgeon that distance were rich, or, as the plaintiff testified, he replied that he had taken that into consideration ; that he was not accustomed to go away and render services except upon such terms; that he had rendered a very important service, and saved the patient from á very serious operation which would have been necessary, if the plaintiff had not succeeded as he did; which was the first occasion upon which anything had passed between the defendant and the doctor upon the subject of his remuneration.
This letter was followed by letters between the plaintiff and Dr. Francis, of New London, and by a letter from the patient, and a note from the defendant, as indicated in the following letter which the plaintiff addressed to the patient on the 14th of December, 1869 : “ Mr. J. C. Amidon. Dear Sir: I beg to acknowledge your favor of the 9th instant, and to inform you that your brother addressed me a note yesterday, offering me one hundred and fifty dollars in settlement of my bill for professional services. I wrote Dr. Francis in reply to a letter received from him last week, and in consideration of explanations made by him, I expressed my willingness to make a concession of $100 in settlement of my bill. I desired him to communicate the contents of my letter to you, and supposing him to have done so, I received your last proposal with no little surprise. I am not disposed to conform my terms to your ideas of liberal remuneration, and have not been accustomed, after rendering important services, .especially at a distance, to submit to conditions the design of which seems to be, to determine how little may be got off with. I shall still adhere to my terms of $300, and hope there may be no further delay in settling. Very respectfully, &c., &c.”
The plaintiff testified that $500 would have been his charge but for the circumstances in which he found the defendant’s
It is suggested, in answer to the defendant’s appeal, that the question to whom the credit was given, was one of the intention of the parties as deduced from the facts and circumstances, and that the jury, having drawn the deduction that the services were rendered upon the credit of the defendant, their verdict should not be disturbed. Where, upon an uncontradicted state of facts, the point involved remains doubtful, or upon undisputed facts, inferences may be drawn either way, the question is properly one for the jury, and their finding should be conclusive. In all such cases the unanimous concurrence of the twelve minds in the jury box, is as satisfactory a mode of reaching a right conclusion, as to attempt, to work it out by legal deductions or logical reasoning. But in all such cases there must be something in the evidence to found the conclusion upon, and in this case I fail to discover anything showing, or tending to show, that the defendant ever did or said anything to warrant the plaintiff in assuming, before he went to Groton, and before he performed the operation, that the defendant was to pay him for his services. It would be preposterous to say that a person who brings a message to a surgeon from the attending physician of a patient, requesting him to come and perform an operation upon the patient, is, by the mere delivery of such a message, chargeable with the obligation of paying the surgeon for his services. He is a mere agent, and nothing more, unless he communicates the message in such a way, or does, or says something that fairly warrants the surgeon, before he undertakes the service, in supposing that he is the person-who is to pay for it, and in this respect it can make no difference that the bearer of the message happens to be a brother of the patient.
It is a general principle pervading the law of agency, that one who procures services to be done for another is not himself
In the present case, the defendant exhibited to and left with the plaintiff the dispatch he had received, and the plaintiff admitted, upon the trial, that the defendant told him that the
But the case is not only destitute of any act upon the part of the defendant which would justify the plaintiff in assuming, when he consented to go, that the defendant was to pay him; but Ins own acts, then and subsequently, show that it was the patient, and not the defendant, that he looked to for the payment of his bill. Before leaving, he consulted the directory, and found that the person who called upon him was Mr. .Amidon, the hatter, when, he says, he took it for granted that he was dealing with a responsible party; but that the one whom he took it for granted was a responsible party, was the patient upon whom he was to perform the operation, is shown by his own statement, upon the trial, that when he reached Groton he “ was taken rather by surprise to have been sent for so far by a man living upon a moderate scale,” but took into consideration that “New England people should not be taken by their appearance,” a presumption in the application of which he may still be right, for there is nothing in the case to show that the defendant’s brother was not a responsible person, and able to pay the amount which the plaintiff claimed. All that the case shows is that he complained that it was too large, and that he offered through his brother to pay a smaller sum.
All the plaintiff’s subsequent acta, like the preceding, show that it was to the person upon whom the operation was performed, that he looked for the payment of his bill. He made it out to him and sent it to the brother here in New York, because, to use his own words, he supposed that he was “ the proper
In the question which arises so frequently under the statute of frauds, to whom was the credit given, in cases where' the point is whether the promise was collateral to answer in default of another or was an original undertaking, just weight is attached to the fact that the plaintiff has charged the defendant upon his books or made out the bill to the person who received the goods, to show that the promise of the defendant was simply a collateral, and therefore void for not being in writing (Anderson v. Hayman, 1 H. Black. 121; Dixon v. Frazee, 1 E. D. Smith, 34; Larson v. Wyman, 14 Wend. 246; Browne on Statute of Frauds, § 198). It is not absolutely conclusive, as it may be shown that it was done by mistake (Loomis v. Smith, 17 Conn. 115); but it is a most material, and, without explanation, a controlling circumstance; for, as my former colleague, Judge W oodruff remarked, in Dixon v. Frazee (supra), the plaintiff thereby puts his own construction upon the agreement. Such was the case here. The plaintiff made out his bill against the defendant’s brother, and nothing appearing to show that this was done by mistake or any explanation given why he did so, the same construction would be given to so material a circumstance as was given in the cases above quoted ; so that even if the defendant had promised to pay the plaintiff,' the undertaking would be collateral, and void under the statute, not being in writing. After going carefully over the evidence, I can find nothing in it to support the verdict, and, in my judgment-, it should be set aside.
Judgment reversed.
Present, Daly, Ch. JT., Larremore and J. P. Bait, JJ.