45 N.Y. 810 | NY | 1871
We are of opinion that the plaintiff was not precluded, by the form of his bill of particulars, from proving and recovering the value of the services, though he should fail to prove an agreement for the payment of a specified sum therefor. The bill of particulars specifies the nature of the services, and the dates between which they were rendered and the amount claimed, and, in those respects, limited the plaintiff's proofs; but the addition of the words "by agreement," did not restrict him to proof of a special agreement fixing the price.
The charge would have been correct in so far as it authorized the jury, in case they did not find the contract, to find the value of the services, had there been, independently of the alleged contract, any evidence of such value, upon which a verdict could be based. But the judge had excluded evidence on either side as to value, and none was given. In the absence of such evidence, it was error to submit the question of value to the jury independently of the question of contract. *812
What Dr. Robinson said he would charge was not evidence on the question of value, nor did it legally prove even what his opinion was on that subject. His sworn testimony, as to the value of his services, would have been competent, but his unsworn statement was not.
As, under the charge of the court, the verdict may have been based upon the supposed value of the services, and not upon a finding of the special contract, the judgment should be reversed, and a new trial ordered, with costs to abide the event.
All concur. Judgment reversed and new trial granted.