
    Fisk vs. Townsend.
    A promise made, whilst sober, by an habitual drunkard to a physician, that ho would pay him one hundred dollars, in consideration of which the physician promised and undertook to cure him of his appetito for ardent spirits, is binding.
    Where the drunkard, after taking the medicine, quit his habits of intoxication for nine months, and told his friends that he had lost his appetite for ardent spirits, but that he thought he could again acquire the appetite by beginning with cider and wine: Held, that this was a cure within the meaning of the contract, if the party returned to his habits of drunkenness with the dishonest purpose of evading the contract.
    This is an action on the case. The plaintiff declared upon a special contract, as follows: “that whereas said Townsend was an habitual drunkard, he promised and undertook that if the said Fisk, who was a medical doctor, would cure him, the said Townsend, of his disposition and appetite for ardent spirits, and thereby effect a cure, that he, the said Townsend, would pay to said Fisk one hundred dollars.” The plaintiff then averred, “that he, the said Fisk, by his prescriptions and medical skill bestowed in. that behalf, did cure the said Townsend of his disposition to, and love of ardent spirits; in consideration of which, he, the said Townsend, undertook and promised to pay him said sum of one hundred dollars,” &c. The defendant pleaded the general issue.
    The plaintiff proved the contract and undertaking, and that it was made with Townsend when he was sober; that the defendant, at the time of the promise, was habitually a drunkard;' that the plaintiff, Fisk, furnished him with medicine, after using which, he quit his habits of intoxication, and told his friends that he had lost his appetite for ardent spirits, but that ho thought he could again acquire his appetite for spirits by beginning with cider or wine. He continued to be sober for about nine months, when he returned to his habits of intoxication. IIow he acquired the appetite again is not proved. In the county court the plaintiff recovered a verdict and judgment; the defendant appealed to the circuit court, where a verdict and judgment were rendered for him. The judge charged the jury that they should first enquire if drunkenness is a disease which could be cured by medical skill'; if it was not such a disease, then the plaintiff cannot recover. If the jury think it was curable by the aid of medicine, then to enquire if it was effectually cured; that the cure must have removed the appetite for spirits, and restored the subject to the condition of a temperate man; that to suppress the appetite for a season would not fulfil the contract on the plaintiff’s part; that it was no cure if the appetite was only suspended during the operation of the medicine; but if it was so far removed that it would not return unless he indulged in such manner as a temperate man brings on the propensity, it was in that case, and in that case only, a cure.”
    JV\ Haggard and Cullen, for plaintiff in error.
    
      Jl. Lane and Jlnderson, for defendant in error.
   Peck, J.

delivered the opinion of the court.

Drunkenness is a habit, and the habit indulged in will make it a disease; it must bo distinguished from those diseases which may be denominated constitutional. As moral agents, the propensity which some men have to indulge in the use of spirits, must be under their own control. Some diseases, such as gout, may be partly constitutional, and partly from habit; if it arises from indulgence, it is probably curable, but the moral faculty in this latter case, as well as in the case of drunkenness, must be exercised. If in either case the disposition be destroyed; to indulge again so as to bring about the disease, proves a disregard of that sense of moral principle which a rational being would be expected to exercise. Our boast of the superior powers of the rational man, createS astonishment that any should voluntarily degrade those powers by the disgusting habit of drunkenness.— But that it exists, we have the experience of every day to attest; and if, fortunately, the patient had been so far cured as that the propensity had been destroyed, as a good citizen, the patient was bound to have profited by the skill of the physician that had restored and placed him, as a rational being, amongst his fellow men.

To admit that after being so placed he might return, is to admit that by his own voluntary act he could defeat the physician of his promised reward; and it would hence follow, that by taking advantage of his own wrong, the physician would have the twofold mortification of losing his fee and seeing his skill mocked at. Therefore, it should have been left to the jury to say, whether, if the propensity had been destroyed, the patient returned to his habits of drunkenness with the dishonest purpose of evading the contract.

This, in all probability, was the turning point in the cause; and for myself, I would no more tolerate the principle that a man, by his after voluntary drunkenness, should defeat his contract, than I would excuse him for the commission of a crime, on his plea that at the time, he was bereft of reason from having indulged too frequently in intoxicating liquors.

The case being one of the first impression, is not on that account to be regarded as too light for serious consideration. Let the judgment of the circuit court be reversed and the cause remanded to be tried by thq law as understood in this opinion.

Judgment reversed.  