Hardenstein v. Brien
50 So. 979
Miss.
1910
Check Treatment
Whiteield, O. J.,

delivered the opinion of the court.

The effort to show that the amount Mrs. Harper agreed to pay Dr. Hardenstein for services to- her in her last illness, to wit, the sum of $500 was a gift merely, under the testimony, is preposterous. ' The testimony of Mrs Searles and the- testimony of Miss Hanney disposes of this contention completely. Mrs. Searles states that Mrs. Harper said, touching this sub*499ject: “I bare paid bim nothing for tbis [that is, services for about sixteen to eighteen years previously] ; but in tbis last 'illness, wbicb bas run over so many months, be lias come to see me so' often by day and night, any hour in the night be was sent for, that be must be paid for tbis. ' I feel the obligation is too great to be passed over, and I feel I must pay bim for tbis.” Miss Hanney testifies on the same subject as follows: “A. Well, •one day she said to bim, just about a few days after she made her will, that she wanted to pay bim something for bis services, as be bad been good and kind to her, and she said to him, ‘Make •out a bill for me, Doctor,’ and be said, ‘Ob, no, Mrs. Harper; I cannot make out a bill; I don’t want to, because you are the widow of a physician, and I won’t think of doing such a thing,’ .and she referred to it ágain, and said, ‘Have yo-u made out that bill ?’ and he said, ‘No; I have not made out any bill,’ and she said, ‘I want the thing settled right .now; have you made out .any bill ?’ and be said, ‘No; I told you I was not going to make •out any bill,’ and she said, ‘I want to give you something; will ¡a thousand dollars do ?’ and be said, ‘I would not think of asking that much,’ and she said, ‘How will $500 do ?’ and be said, ■‘All right, I will take that.’ ” Tbis constituted a distinct contract, supported by a valuable consideration, to wit, the services in the last illness.

Dr. Howard testified that, the customary and reasonable •charge for a visit of a doctor in Vicksburg was $2.50'. The visiting list of Dr. Hardenstein contains no amount, but sets ■out the dates of bis visits, and the number of them. It is true that, when Dr. Hardenstein first made this “visiting list,” be bad no intention of charging Mrs. Harper anything, and the ■entries in that list were not, at that time, made with a view of ■charging her. But, from the moment be made the contract with her to accept $500 for all bis services during her last illness, be of course relied upon these entries from that-time forward as showing the dates of the visits and number of them, *500and tbe list was competent for that purpose from and after the making of the contract. lie should have been permitted to recover on the testimony in this case to the extent of the contract,.' to wit, $500.

It seems that the court below gave the charge to find for the-defendant upon the theory that the claim is barred by the-statute of limitations. The simple reading of Code 1906, §§ 2110, 2096a, and 3105 makes it-dear that the claim would not have been barred until after the expiration of four years and six months.

The court was manifestly in error in giving a peremptory .instruction. Reversed and remanded.