4 Ky. 612 | Ky. Ct. App. | 1809
‘OPINION of the Court, by
Upon a demurrer to the evidence, tendered by the defendant, anc^ voluntarily joined by the plaintiff, the jury assessed the damages, subject to the opinion of the court upon the demurrer : but that opinion being against the plain* ¡n the action, judgment was entered for the defendant: the plaintiff prosecutes this writ of error to that judgmfent. Four points are to be considered:
*St‘ "^e character and species of the count,
2d. The effect of a bill of exceptions to the admission of a deposition, tendered and allowed, on behalf of the demurrant.
3d. The relevancy of the evidence to the count,
4th. The consequences and result of the demurrer to evidence.
Upon the first point, the difficulty arose out of the awkward manner of the count. The declaration consists of a single colint, that the defendant was indebted to the plaintiff in the sum of £. 12 2s. for medicine and attendance as a physician on the defendant’s wife, at his special instance and request; and being so indebted, did, in consideration thereof, assume to pay the plaintiff as much as his medicine and attendance was really worth, Bsc. ; and avers they were reasonably worth .£.12 2#. &c. The count begins as an indebita-tus assumpsit, and concludes as a quantum meruit. The considerations laid are for medicine and attendance, at the defendant’s instance and request, and the promise is to pay their worth ; the indebitatus for the sum certain must be rejected as surplusage, and the count taken as a quantum meruit.
Upon the second point, it seems that the objection to the reading of the deposition was overruled upon insufficient reasons. Because it had been read on a former trial, it did not follow that it might be read therefore in every subsequent trial: the very reason of objection as stated, might not have existed on a former trial: then the absence of the witness might have been accounted for, or known to the defendant wherefore he did not object; but he was not therefore precluded at a subsequent trial from taking the objection when it did exist, Besides, parties are not restricted in a second trial to
3d. Taking the count as a quantum meruit, the evi-. dence is clearly relevant. It proves the attendance as a physician, which is one of the considerations laid. It is also* conducive to prove circumstantially the other consideration, to wit, administering medicine to the patient; which leads to the last point, viz. the consequences and result of the demurrer.
It seems clearly to result from the adjudications upon demurrers to evidence, that where the evidence is parol and circumstantial, the party whose evidence is so circumstanced, on the tender of a demurrer by his adversary, ought not to be compelled to join in demurrer, unless the demurrant would distinctly admit of record every fact and conclusion which the evidence demurred to conduced to prove. So it was decided in the case of White vs. Fox
Judgment reversed.
Ante 369.