
    Swank v. Nichols’ Adm’r.
    
      Contract — Waiver.—A, being afflicted with a cancer, employed B, a cancer-doctor, to treat him for its cure, and it was agreed between them that the doctor was to have 100 dollars, and was to do A 100 dollars’ worth of good, and, if he eured him, he was to have 200 dollars. The doctor treated him about six months. At the end of about three months, A gave B his two notes — one for 25 dollars, and one for 200 dollars — and at the end of six months he died. Said notes were filed as a claim against A’s estate. Defense, want and failure of consideration, and fraud.
    Held, that, in the absence of fraud, the giving of said note for 200 dollars, when the period of treatment had only half expired, and its result was uncertain, amounted in law to a waiver of the original eoqtract; and that parol evidence would not be admissible to show that the note, unconditional on its face, was intended by the parties to be conditional; but its consideration might be disputed.
    APPEAL from the Oioen Common Pleas.
   Perkins, J.

Two notes were filed in the office of the clerk of the Owen Common Pleas against the estate of Amos Nichols, deceased. The notes were executed by Amos in bis lifetime, payable to Moses Swank — one for 25 dollars, and tbe other for 200 dollars.

On the filing of tbe notes, tbe proper docket entry was made.

Armstrong L. Nichols appeared at tbe next term of tbe court and answered, setting up want of consideration, failure, &c., and fraud.

Issues of fact were formed, tried, and there was final judgment for tbe defendant.

Tbe evidence and instructions are upon tbe record.

It appears that Amos Nichols, for about four years, bad bad a cancer upon bis under lip, and that by June, 1858, it bad increased to such an extent as to present, in the language of tbe witnesses, “ a bad case.” About tbe first of June named, said Amos employed Moses Swank, tbe plaintiff* who claimed' to be a cancer-doctor, to attend upon him as a physician. Tbe doctor was to have 100 dollars, and was to do Amos 100 dollars’ worth of good, and, if be cured him, be was to have 200 dollars. Tbe doctor entered upon bis employment, and continued in it about six months, but be did not cure bis patient. Nichols died of the cancer on tbe 1st of August, 1859.

Tbe doctor’s treatment was strong plasters, almost daily applied — probably caustic plasters; they caused severe suffering. He advised a generous diet, but not of salt or greasy food, and also abstinence from vigorous or long-continued exercise.

Some physicians were examined on the trial, who stated that no improvement had been made for many years in the treatment of cancers; that in early stages of them, caustics to eat them out, or the knife to cut them out, (surgical operations,) were the remedies; in later stages of cancers, where they have become incurable, palliatives should only be used. A diet such as that recommended by Swank, and habits as to exercise, wére proper, as was also an abstinence from the use of stimulants.

There,was no dispute upon the point that Swank did not cure Nichols. There is hardly a doubt but that Nichols deviated from the directions of Swank as to diet and habit. There is a conflict in the evidence as to how much benefit Nichols received from Nr. Swanks treatment. Indeed, how could it be valued in money? Was not the doctor to be paid 100 dollars, in any event? Is not such the legal effect of the contract ?

About the middle of September, after Swank had been treating him over, three months, Nichols gave Swank the two notes filed as the foundation of this suit.

There is evidence tending to show that, when they were given, the original. contract was waived and superceded. There is evidence tending to show that the 25 dollar note was given upon a separate consideration.

The Court instructed the jury thus:

“ If you believe from the evidence that the notes were given in consideration that the plaintiff should cure the deceased, and that he failed to cure him; or if the plaintiff agreed to do something as the consideration of the notes which he did not do, you must find for the defendant; you must find the whole amount of 200 dollars or none of it.” To this the plaintiff excepted.

Had the agreement upon which the note was given, been simply that Swank was to have 200 dollars for curing Nichols, it is probable that he could not have sued upon the note and recovered anything less than the entire amount. Cure would have been a condition precedent to any amount of pay upon the contract; but if the contract had not been fulfilled, though there had been services rendered, under such circumstances as would entitle the plaintiff to compensation upon a quantum meruit, then there would necessarily have been a paragraph in the complaint, in suing for such services, upon a quantum meruit. Such was the case of Coe v. Smith, 1 Ind. 267. See the same ease again in the 4th Ind. 79. In the case at bar the original contract was different. The doctor did not agree to cure. He was to attend upon the patient, and have a compensation less than 200 dollars, but if he effected a cure, he was to have 200 dollars. The larger note in question in this suit, was given for the highest sum named in that contract; but if the cure had not been effected before the services ceased, the consideration, as to at least 100 dollars of that contract had failed, and also of the note if it was given upon that contract.

It would have been safe to have added a paragraph to the complaint, upon a quantum meruit, as physicians can recover for their services upon such a claim in Indiana, where there is no special contract; and in some cases, where one has existed but has been broken or rescinded. Coe v. Smith, 4 Ind. supra. The Court refused to instruct the jury, that if they believed that the contract for services by the doctor was made in June, and that in September following Nichols gave him the note for 200 dollars, such act would, in the absence of fraud, be a waiver of the conditions of the original contract. We think this instruction should have beén given. At the time the -note was given the service under the original contract was still being performed; the result to be accomplished by it was still uncertain, and yet the note was given unconditionally, for a eei'tain sum. It made xxo- reference to any other contract. In such a state of facts, the giving of the note, in the absence of fraud, amounted, in law, to a waiver, because, if such was xxot the real intention of the parties, still, parol evidence is not admissible to show the note a conditional one. The authorities in this Coux’t are in point. Miller v. White, 7 Blackf. 491; O’Donald v. The Evansville &c., Co., 14 Ind. 259; The Evansville &c., Co. v. Dunn, 17 Ind. 603. But still the consideration of the note may be disputed.

Wm. M. Franklin, for the appellant.

Per Curiam.

The judgment is reversed, with costs. Cause remanded for fux'ther trial.  