Eddy v. Davidson

42 Vt. 56 | Vt. | 1869

The opinion of the court was delivered by

Peck, J.

The plaintiff’s claim is for medical services rendered in doctoring the defendant’s daughter Lizzie, about twenty years of age, while sick at the defendant’s house, in his family. The question is, whether, upon the facts reported by the auditor, the defendant is legally liable. The fact that the defendant, on the occasion of the plaintiff’s first visit, requested him to attend Lizzie and do all he could for her, and be as reasonable in his charges as he could; for he supposed he should have the bills to foot; and on a subsequent visit again said to the plaintiff he wanted him to attend her and do all he could for her, that she was a poor girl and he wanted he should make his charges as reasonable as he could, for he should have to foot the bills; and other expressions while the account was accruing, recognizing his liability, and acknowledging that he employed the plaintiff; and the fact that the plaintiff, while rendering the services, made all his charges, as they accrued, directly to the defendant, tends to show, not only a promise on the part of the defendant to pay the plaintiff for his services, but also that the plaintiff rendered the services on the faith of that promise; in other words, that the plaintiff rendered the services on the credit of the defendant, and was authorized by the defendant to do so. This, with the finding of the auditor that as to the account for which he finds the defendant liable, it was supposed and understood by both parties, during the time when the plaintiff’s services were being rendered, that the defendant was to pay him therefor, is sufficient to create a direct original indebtedness from the defendant to the plaintiff.

The statute of frauds relied on by the defendant’s counsel is no protection to the defendant. The performance of services by the plaintiff at the defendant’s request and on the faith of his promise to pay, creates a direct original indebtedness of the defendant to the plaintiff, not within the statute of frauds, notwithstanding the services were solely for the benefit of a third person, and that known to the plaintiff. To bring a case within the provision of the statute of frauds relating to a special promise to answer for the debt, default or misdoings of another, it is necessary that the promise of the defendant should be collateral to the liability of another. There is nothing in this case to warrant the conclusion that the defendant’s promise was collateral. It is a direct original indebtedness, and therefore not within the statute of frauds. Arbuckle v. Hawks, 20 Vt., 538. Nor is the case varied by the finding of the auditor from the deposition of Lizzie, that she did not expect her father was to pay, but that she was to pay with the assistance of her brothers and sisters; a fact not communicated' to the plaintiff, and, for aught that appears, unknown to the defendant. The defendant’s promise can not be brought within the statute by showing that the facts create a liability on the part of Lizzie to the plaintiff; as it would only show a direct joint indebtedness of the defendant and Lizzie to the plaintiff, to which the statute does not apply. R. & J. Wainwright v. Straw & Cunningham , 15 Vt., 215.

The judgment of the county court is affirmed.