15 S.D. 648 | S.D. | 1902
This is an appeal from a judgment on a directed verdict, and from an order modifying the same and denying a new trial. The plaintiff, a physician, brought this action against the defendant, as administrator of the estate of Vito Francisco Crisci, deceased, to recover the sum of $255 for professional services rendered him in his lifetime. The complaint contained three causes of action: ■ The first was for $5 for professional visits to the deceased; the second, for $250 for the performance of a surgical operation claimed to have been made upon the deceased under a special contract; and the third was to recover $250 for the value of professional services rendered the deceased in performing the operation referred to. Upon motion of the counsel for the defendant, the court required the plaintiff to elect upon which cause of action he would proceed, as between the second and third, and he elected to proceed to trial upon the first and second. There seems to have been no question as to the $5 item, and the fact that the plaintiff performed for
“That before the performance of said operation said Vito Francisco Crisci asked the plaintiff what his charge for performing said operation would be, and the plaintiff then informed him that it would be from $200 to $400; and said Vito Francisco Crisci then directed plaintiff to perform said operation, and agreed to pay therefor from $200 to $400.”
The errors assigned on the part of the appellant are: (x) That the court erred in admitting evidence upon the second cause of action over the objection of the appellant, for the reason that the contract alleged was too vague and uncertain to be enforced by a court of law; (2) that the court erred in excluding certain evidence offered on the part of the defendant tending to prove the value of the plaintiffs services; and (3) that the court erred in its order denying the motion for a new trial upon the plaintiff remitting the sum of $50 of the judgment.
It is contended on the part of the appellant that the contract alleged, namely, that the plaintiff was to be paid for his services from $200 to $400, was so vague and indefinite that the plaintiff could not base a cause of action thereon. This contention, in our opinion, is untenable. The contract alleged is not uncertain as to the minimum sum for which the plaintiff agreed to perform the operation, and was certainly specific to the extent of $200. In the recent case of Kramer v. Ewing (Old.) 61 Pac. 1064, a contract to pay a party $50 or $60 for the performance of a certain act was held to be a valid contract to the extent of $50, at least; and the learned supreme court of Oklahoma, in its opinion, says: “Where
It is further contended on the part of the appellant that the learned circuit court erred in excluding certain evidence offered by the defendant tending to prove the value of the plaintiff’s services. In our opinion, the court ruled correctly in excluding this evidence. As above stated, the third cause of action, in which the plaintiff sought to recover for the value of his services, had been eliminated by the court’s order requiring the plaintiff to elect upon which cause of action he would proceed to trial. The plaintiff having proceeded upon the cause of action alleging a special contract, he had offered no evidence as to the value of his services; and the defendant therefore had no right to introduce evidence upon that subject, as the value of services was not in issue — the only material issue being, did the deceased make the contract alleged in the complaint ?
It is further contended on the part of the appellant that the court erred in excluding Exhibit-A, and indorsements thereon, which was the bill for the services, made out by the plaintiff, and filed with the defendant as administrator, claiming therein the sum of $255, but in which he made no mention of the contract. It was claimed to be offered on the part of the appellant to- show the nature of the plaintiff’s claim against the estate, and as further showing that the allowance made by the administrator was approved by the judge of the county court. It is alleged in the complaint that this claim was presented to the administrator and allowed by him for the sum of $50, and that he rejected the balance of the claim, and these allega
It is further contended on the part of the appellant that the court erred in its order directing that in case the plaintiff should remit the sum of $50 a new trial should be denied; the appellant insisting that, when the court discovered that it had committed an error, it should have directed a new trial. But the law seems to be quite well .settled that when the rule for the measure of damages is fixed and definite, and the case discloses the necessary facts to enable the court to determine the exact sum which the plaintiff is entitled to recover under the verdict, the court may properly make a conditional order that a new trial be granted unless the excess be remitted. In Whitehead v. Kennedy, 69 N. Y. 462, the court of appeals of that state uses the following- language: “When in an action upon contract a recovery has been had upon distinct and separate items and claims, .and error either of fact or law has been committed on the trial in respect to one or more of .the claims embraced in the recovery, the general term, if no other error exists, may, instead of reversing the judgment absolutely, reverse it only as to the erroneous items, and affirm it as to the fesidue, provided the plaintiff consents to forego his claim to recover them, and the items as to which
Finding no error in the record, the judgment of the court below and order denying a new trial are affirmed.