21 Wis. 466 | Wis. | 1867
The suit was brought to recover the value of medical services rendered by the plaintiff. It is alleged in the complaint, that the plaintiff was called upon professionally to attend the defendant, who was suffering from general dropsy to such an extent that his life was despaired of; that the disease was considered incurable by the physicians who had been attending upon the defendant; and that “the. plaintiff performed an operation upon the defendant which is not generally
This suit was commenced on the 18th of July, 1865; and it was admitted by the plaintiff on the trial that he presented his 'bill for services to the defendant for $300 only, in April, 1865. The court, at the request of the plaintiff, instructed the jury, 1. That the fact that the plaintiff demanded $300 of the defendant does not preclude Mm from recovering more, if the jury think his services were worth more. 2. That the jury must base their finding as to the value of the services upon the
To these instructions two objections are taken. In the first place it is said, inasmuch as the plaintiff presented bis hill for services for $300 only, in April, he is bound by the amount there claimed, and is estopped from now claiming more, unless he shows that the defendant refused to pay the hill rendered. The mere fact that the plaintiff presented his bill for $300, would not, we suppose, preclude him, under the circumstances, from recovering more than this amount, if he could prove to the satisfaction of the jury that his services were worth more than this sum. If the defendant had received and accepted the account, admitting its justness and offering to pay it, there would then be some ground for saying that there was a settlement and an account stated between the parties. But there is nothing whatever in the case which will authorize the assumption that the defendant acquiesced even in the justness of the account, or considered himself in any way bound to pay the amount there claimed. In the answer the defense is not put upon any such ground as that there has been an account stated between the parties which concludes them as to the amount due. The court, therefore, properly told the jury that the fact of presenting this account by the plaintiff was a circumstance to be considered by them in fixing the value of the services. It would have been error to have instructed the jury that the plaintiff, by merely presenting his bill for services, without its appearing that the defendant ever accepted it or admitted its correctness, and offered to pay it, so as to make it a stated account, thereby precluded himself from recovering more than three hundred dollars, if the testimony showed that the services were worth more than this amount. Toland v. Sprague, 12 Peters, 300; Lockwood v. Thorne, 11 N. Y., 170.
A further criticism is made upon the instructions, which is,
We are therefore of the opinion that the judgment of the circuit court must be affirmed.
By the Court. — Judgment affirmed.