Conant v. Evans

202 Mass. 34 | Mass. | 1909

Mobton, J.

This is an action of contract to recover for services rendered in performing an operation at the defendant’s request on the defendant’s minor son. The declaration is in three counts, the first alleging that the defendant employed the plaintiff to perform an operation on the defendant’s son, which the plaintiff did, and that the defendant promised to pay the plaintiff the sum of $1,000 for his services, the second on an account annexed for services in operating on the defendant’s son at his request, and the third alleging, like the first, that the plaintiff performed the operation at the defendant’s request and then alleging that the defendant promised to pay what the services were reasonably worth, and that thereafter the plaintiff offered to accept and demanded of the defendant $1,000, and that the defendant promised to pay the same.

As we construe the first and third counts the promise alleged to have been made was made after the services were plTffof med. ' This construction accords with the facts as they appeared in evidence at the time. The plaintiff did not contend and offered no evidence tending to show that the defendant promised to pay the sum named before the services were rendered and in consideration thereof. What he did contend was, in effect, that the defendant had made certain admissions in reference to the plaintiff’s bill in a correspondence, which took place between the parties after the services had been rendered and which was introduced in evidence by the plaintiff, which conclusively established, as he contended, the defendant’s liability for the sum named and constituted an agreement to pay it. The judge so ruled and directed a verdict accordingly, and the principal question presented by the bill of exceptions is whether this ruling and direction were right. We do not think that they were.

It is plain that the letters written by the defendaniuwere competent' so far as theycontained any statements or admissions in relation to theTnatter in controversy, and the defendant’s exception to their admission must, therefore, be overruled. Such statements and admissions were competent not only in regard to the question of liability, but also in regard to the question of amount, and they were not rendered incompetent by reason of the defendant’s admission that the operation was performed at his request and that he owed the plaintiff whatever his services were reasonably worth. The answer was a general denial and the plaintiff was not obliged to accept or be content with the concessions or admissions made by the defendant in the course of the trial. Dawson v. Boston & Maine Railroad, 156 Mass. 127. Dorr v. Tremont National Bank, 128 Mass. 349, 360. Priest v. Groton, 103 Mass. 530, 540.

But the statements and admissions made by the defendant in the correspondence, while admissible as evidence on the question of his liability and the amount thereof, were not of such a nature as to be conclusive in regard to either his liability or the amount thereof. There was nothing to show that the plaintiff did anything or refrained from doing anything in reliance upon such statements or admissions, and there was, therefore, no ground on~which*ihe defendant was estopped to contest his liability or the amount to which the plaintiff was entitled. Mackay v. Holland, 4 Met. 69.

So far as the services that were rendered were relied upon to support the°expreis promise alleged to have beehTuBsequehfly made, it is settled that they did notfurnish a sufficient consideration^for such promise. Massachusetts Mutual Ins. Co. v. Green, 185 Mass. 306. Moore v. Elmer, 180 Mass. 15. Chamberlin v. Whitford, 102 Mass. 448. The defendant, therefore, should have been permitted to introduce evidence, as he offered to do, of what the services rendered were reasonably worth, and the case should have been submitted to the jury under proper instructions. Many of the questions now raised may not arise at another trial, and therefore we have not dealt with the defendant’s requests in detail.

^Exceptions sustained.