
    C. O. Freel v. C. C. Harken and Mrs. C. C. Harken, Appellants.
    Contracts: personal services: evidence. Where one contracts to 1 have work done at his own expense the law implies a promise to pay, unless it is shown that the same was to be performed without any intention of accepting payment. In the instant case the evidence is held to require the submission of the questions of promise to pay and intent to demand payment.
    Same: evidence. In this action, upon an account for services, evi2 dence that plaintiff told defendant before commencement of suit that his account would not have been as large had defendant not testified as he did in another action was an admission, which should have been received over an objection that it occurred during an attempt at a compromise and settlement.
    
      Appeal from Clarice District Court. — IIon. Thomas L. Maxwell, Judge.
    
      Tuesday, April 9, 1912.
    Suit on an account. Judgment foi’ plaintiff. .Defendants appeal.-
    
    Reversed.
    
      O. M. Blaymaher, for appellants.'
    
      V. R. McGinnis and J. 8. Banker, for appellee.
   Si-terwin, J.

The plaintiff sued on an account for services as a physician, and the defendants denied the extent and value of his services, and counterclaimed for work, labor, and material furnished him at his request. The plaintiff’s claim was for about $120 balance and interest, and the defendants’ counterclaims amounted to $55. After the defendants’ evidence on the counterclaims had been received, the court sustained plaintiff’s motion to withdraw the counterclaims from the consideration of the jury, because it conclusively appeared that the work done by the defendants for the plaintiff, and- the material furnished by him in connection with the work, had been done and furnished without expectation of pay therefor. We think the court was in error in so holding. There was sufficient -evidence to sustain the appellants’ claim that the plaintiff had agreed to have this work done by somebody and to pay for it, and it is undisputed that the defendant O. C. Harken did a part of the work himself, and had the rest done by his father, all with the knowledge and consent of the plaintiff. The reasonable value of the work so done, and of the material used in doing the work, were also shown. The defendant C. O. Harken testified in chief that he did the work and furnished the material under the contract with the plaintiff that it should be done at plaintiff’s expense, but, on his cross-examination, the following questions were asked him and were answered as herein shown: “Q. You didn’t expect to put that bill in? A. No, sir; if Dr. Freel hadn’t raised his. Q. You never expected to get anything for this bill until Dr. Freel put this hill in? A. In all probability I would never have put it in. Q. It wasn’t expected of Dr. Freel? You didn’t expect anything? A. Yes, sir; I would have to pay. Q. It wasn’t expected that Dr. Freel would pay you? A. Yes, sir; it was expected of Dr. Freel.” The work done by the defendant’s father was done at defendant’s instance, and his bill therefor was assigned to defendant. This cross-examination of the defendant will bear the construction that when the defendant performed the work and furnished the material therefor, as shown, he did expect Dr. Freel to pay for it, but that he also had in mind that he might, or might not, insist upon payment therefor, depending on the charges made against him by the plaintiff.

A contract had been made whereby the plaintiff undertook to have the work done at his expense, and this contract would not have been necessary if the defendant had contemplated doing the work himself, without expense to the plaintiff, and, under the circumstanees, an implied promise to pay the defendant would arise. Of course, if he had even then gone on with the work without any intention of receiving or accepting pay therefor, he has no case on his counterclaim. But we are of the opinion that the question should have been left to the jury to determine, because of the fact that the real intent of the defendant when he performed the work was not so clearly shown as to justify the court’s action.

The defendant, before this suit, had sent an offer to the plaintiff of $40 in settlement of his bill, which offer was refused. In the .conversation at that time between the plaintiff and the defendants’ representative, plaintiff was told that the defendant thought his bill should not 'be over $35 or $40, to which the plaintiff replied that it would not have been “much more than that, if any, if it hadn’t been for the way Clayton swore and talked in the Busserman. case.” This evidence was stricken on plaintiff’s motion on the ground that it occurred during au attempt to compromise. While this matter is probably not of great importance, it should be settled for the benefit of the parties on a retrial of the case, if they should insist on such trial. There is nothing in the statute which would require the exclusion of this evidence, for, as we understand the record, this conversation occurred before this suit was brought, and, unless controlled by statute, the general rule is that offers of compromise are not competent against the person making the offer. We know of no rule excluding statements in the nature of admissions of fact where they are made by the party rejecting the offer. 1 Greenleaf on Evidence (13th Ed.), section 192; Rudd v. Dewey, 121 Iowa, 454; Kassing v. Ordway, 100 Iowa, 611.

We think the evidence was competent. Eor the reasons pointed out, the judgment is reversed.  