
    Samuel C. Hanford, Respondent, v. Daniel C. Higgins, Defendant & Appellant.
    A request by the defendant to the plaintiff, to attend, as physician and surgeon, upon a third person, arid a promise by the defendant to the plaintiff that, if he will so attend, the defendant will pay therefor, and the bestowing of such attendance by the plaintiff, upon such request, and relying solely upon such promise, render the defendant liable to pay what such attendance is reasonably worth. His promise need not be in writing to be obligatory. It is an original undertaking. The fact that he was under no obligation, prior to making such request and promise, to furnish or procure such attendance, does not make it essential to the validity of such a promise, that it be in writing.
    But the defendant in such a case may, at any time, give notice to the plaintiff, that he will not be liable for attendance or services subsequently rendered, and on so doing, the plaintiff can make no claim on him for services or attendance subsequent to such notice.
    A defendant has no right to be examined in his own behalf, merely because the wife of the plaintiffs assignor of a thing in action (being the plaintiff’s cause of action) has been examined for the plaintiff.
    (Before Dues, Slosson, & Woodkuejf, J.J.)
    Heard, April 8;
    decided, June 27, 1857.
    
      This action comes before the General Term, on appeal by the defendant from the judgment. It was tried before Mr. Justice Bosworth and a jury, in June, 1856, when a verdict was rendered for the plaintiff for $500 damages.
    The complaint states two causes of action:
    1. As assignee of Wm. 0. Mead, for board of and nursing one William C. Hetzell, from September, 1854, to June, 1855, at defendant’s request, and on his promise to pay therefor, the sum claimed, over and. above all payments made on account thereof, being $334.
    2. For attendance by the plaintiff, as physician and surgeon, upon said Hetzell, within the same period, at the like request, and on the like promise, for which $500 was claimed.
    It appeared that William O. Hetzell, on the 14th of September, 1854, being then a journeyman sail-maker in the defendant’s employ, had his leg fractured, and was taken to the hospital, from which place he was removed to Mr. Mead’s, on the 19th, that he might be better nursed and attended to. While he was at the hospital, Mrs. Mead, with whom he had formerly boarded, saw him, and messages from the defendant to Mrs. Mead, and from her to him, were carried by Joseph 0. Hetzell, which constituted part of plaintiff’s proof that Mrs. Mead took William C. Hetzell to her house, on being requested and employed by the defendant so to do, and relying on his promise to pay therefor.
    The proof, upon the question, whether the defendant employed the plaintiff as physician and surgeon, consisted of messages sent by the defendant, through third persons.
    One Thomas Bums, was examin ed for the defendant, and gave evidence tending to show that he was instructed by the defendant, while Wm. 0. Hetzell was at Mrs. Mead’s, on the defendant’s being requested to employ a consulting physician, to inform her and the plaintiff, that he had nothing to do with the employment of a doctor, that all he had agreed to do or would do, was to allow William $5 a week for three months, and that he communicated such message. Evidence was given with a view to contradict his statements, as to what he did in truth say to Mrs. Mead and the plaintiff, when assuming to communicate the message,“the defendant had sent to them.
    Evidence was given as to a bill, to the amount of $1203 having been made out by Mrs. Mead, and sent to the defendant by one McKinstry, and whether it was made and sent as being the whole amount of her claim, and the defendant insisted that if he was liable at all, for her services, his liability was limited to the sum named in that bill. The defendant’s theory of the case was, that Mrs. Mead agreéd with W. 0. Hetzell, while he'was at the hospital, absolutely, and unconditionally to take him and nurse him, and that defendant’s promise was collateral to this, and was merely a promise to allow to William $5 a week for three months, to assist and relieve him, and that he never authorized any one to employ a physician and surgeon, or a nurse, at his expense, or agreed to compensate for such services.
    Mrs. Mead was examined as a witness for the plaintiff. She having been so examined, and the plaintiff claiming to recover for her services and for the board and nursing of Wm. C. Hetzell, under an assignment by Mr. Mead, her husband, of his claim therefor, the defendant offered himself as a witness in his own behalf, and on being objected to, the Court excluded him, to which defendant’s counsel excepted.
    As the questions decided, relate to exceptions taken by the defendant to the charge of the Judge, and to his refusal to charge in the terms of requests made to him in that behalf, the evidence given is not stated.
    When the testimony was closed, the counsel for the respective parties summed up the case, and the defendant’s counsel requested the Judge to charge the jury as follows:- 1. That the promise proved by the evidence of Joseph Hetzell is void, and that the defendant is not bound thereby. 2. That if Mrs. Mead agreed to take William C. Hetzell at the hospital, any subsequent promise of defendant is collateral and void. 3. That in order to have a verbal promise on the part of the defendant to pay for the board or medical attendance of William C. Hetzell binding, there must have been some obligation on the part of the defendant to furnish such board and medical attendance, otherwise the promise is void for want of a writing. 4. That the promise of defendant was in the nature of a gratuity and revocable at any time; that the notice sent by Mr. Burns was a revocation of any promise; and defendant is not liable after that time. The same of defendant’s refusal to pay the bill., which was communicated to the plaintiff.
    
      That the plaintiff is bound by the charges in his complaint and can recover only at that rate for the time up to the notice-
    That the plaintiff is limited as to Mead’s bill to the amount of $120, contained in the bill sent over by Mr. McKinstry.
    The Court charged, inter alia, as follows:
    Did the defendant, before Mrs. Mead unconditionally agreed to take Hetzell into her house, and board and nurse him, promise to pay her for so doing; and did she receive him solely on the credit of such promise ? If so, the plaintiff is entitled to recover for such board and nursing.
    If Mrs. Mead unconditionally agreed to receive him, and board and nurse him, before the defendant made any promise to her, and she received him to be boarded and nursed in pursuance of such unconditional agreement, the defendant is not liable, although he subsequently promised to pay her.
    Were her services commenced solely on the credit of a promise by the defendant to pay her charges ? If they were, he is liable, although his promise was not in writing. To which charge defendant then and there excepted.
    The liability of the defendant, therefore, depends upon the facts, which you may find the evidence establishes. If she refused to allow Hetzell to come to her house, until the defendant was seen, and some satisfactory arrangement had been made with him for the payment of her charges, and the defendant sent a request to her to take him, and promised that he would pay the expenses, and she took him relying solely upon such promise, he is liable. To which defendant’s counsel excepted.
    If you find that she agreed absolutely to take Hetzell before the defendant had been seen on the subject, and that she took him in consequence of such agreement, he is not liable, although he subsequently agreed to pay her for her services and for his board.
    If you find the facts which the Court has stated would make him liable, then the next question is, for how much would he be liable? Unless she agreed to take him at an agreed price per week, the defendant is liable for what her services are really worth. If any price was agreed upon, the evidence does not show the defendant a party to it. If any price was fixed, it must have been between her and Hetzell. You have heard what they both swear on this point, and, from that and the other evidence, you will determine how the fact is. An agreement with HetzeH as to price would not bind the defendant, and would be strong evidence that Mrs. Mead did not take HetzeH relying on the defendant as the party to whom credit was exclusively given by her.
    If, at any time, defendant gave notice that he would not be Hable, or that he denied aH liability, from the time of such notice there would be no claim on him for future services.
    The question is, what notice did Burns give to Mrs. Mead when defendant was sent to, about a consulting physician, not what message defendant sent, unless it was communicated to the plaintiff. What message did defendant send back when the Mil of $120 was presented ? If that denied having anything to do with paying any charges, it was equivalent to a notice that he would not be Hable for the future.
    The same principles apply to the claim made by the plaintiff for his professional services. Did he commence them, relying solely on a promise of defendant to pay for them? If there was such a promise, and plaintiff commenced, relying solely on that promise, defendant is Hable for the fair value of the services up to the time that he gave the plaintiff notice that he would be no longer Hable. On this point, the evidence is different from that relating to the claim of Mrs. Mead. There have been no payments to plaintiff by HetzeH, and no communication between the plaintiff and defendant personally on the subject. The communications as to them were through third persons.
    If you shaU find such facts as, under the instructions given to you, make the defendant liable to pay either or both of these claims, then you wHl determine the proper compensation to be aUowed for the claim or claims which you shall find to have been satisfactorily proved. If you hold the defendant Hable to pay the proper and reasonable charges for nursing and attending HetzeH by Mrs. Mead and famfiy, you wiH deduct from the sum you shaH fix as their value, or to be paid, the amount which Mrs. Mead received from HetzeH.
    The Court refused to charge further or different in respect to the requests made by the defendant’s counsel.
    
      The defendant’s counsel excepted.
    The jury, after retiring to deliberate, came into Court, and rendered a verdict in favor of the plaintiff for $500 damages.
    Judgment having been entered on the verdict, the defendant appealed from it to the General Term.
    
      Gilbert Dean, for appellant,
    made and argued the following points:
    I. The promise proved was clearly void by the statute of frauds.
    1. There was no obligation on the part of defendant to provide for Hetzell.
    2. Hetzell requested Mrs. M. to take him, and the plaintiff to attend him.
    3. He was legally and morally liable to pay.
    4. The promise that is claimed to be binding was made after Mrs. Mead had taken him, and plaintiff had attended him.
    II. But any verbal promise made by Higgins, to pay for board, &c., of Hetzell, was void.
    1. The statute of frauds requires both a consideration and a writing.
    2. In this case there is a consideration, but no written promise. (Kingsley v. Balcome, 4 Barb. 131 ; Green v. Cresswell, 10 Adolphus & Ellis, 453; Roberts oh Frauds, 209; Jones v. Cooper, Cowper, 227: “You must supply my mother with bread, and I will see you paid.”)
    3. The contrariety of evidence, and the difference that existed
    between defendant and plaintiff, and Mrs. Mead, as to defendant’s obligations, show the necessity of a writing in all such cases. ,
    4. That portion of the charge which says, that if Mrs. M.’s services were commenced solely on the credit of a promise by defendant to pay charges, defendant is liable, was clearly erroneous, as applied to this case.
    HI. The Court erred in refusing to charge as requested by the defendant in his first, third and last request.
    The right to require a specific charge on any point of law raised by the evidence, is undoubted, (3 Kernan, 338, Zabriskie v. Smith.)]
    
    
      ■ 1. The first request was right—Was it complied with ?
    2. Iu a case like this, there are peculiar reasons why a jury should be instructed specifically as to the effect of any particular promise.
    3. The third request involves a point before discussed.
    4. The last request claimed that a party, after presenting a bill, was bound by its amount when no error was shown.
    IV. The contract proved was void for want of mutuality. There was no obligation on the part of either Mrs. Mead or plaintiff, for a breach of which defendant could have sustained an action.
    The assent to a binding contract must be mutual. Every agreement ought to be so certain and complete that each party may have an action upon it. It must be obligatory on both parties, or it binds neither.
    A written agreement “ to remain with another, two years, for the purpose of learning a trade,” is void, for the want of an engagement in the same instrument to teach. (3 Car. & Payne, 289, Lees v. Whitcomb.)
    V. A new trial should be granted, because the verdict is wholly without evidence.
    1. The amount is wrong; the claim was for $834 for eight months. The Court held we were not liable after the notice (two months). Verdict is for $500.
    2. There is no evidence of any authorized communication to plaintiff, except by Joseph Hetzell.
    
      C. Schaffer, for plaintiff and respondent.
   By the Court. Slosson, J.

The charge to the Jury presented the questions, involved in this case, as favorably to the defendant as a correct exposition of the law admitted of, in respect to both claims, and under the charge, their finding is conclusive upon these points. 1st. That Mrs. Mead undertook the care and boarding of Hetzell, relying solely on the defendant’s promise that the expense thereof would be paid by him. 2d. That the plaintiff’s services were rendered on the faith of a like promise. This takes the case out of the statute.

It is impossible to say, from the amount of the verdict, at what rate the board, lodging, and services of Mrs. Mead, or the services of the plaintiff were estimated. But as the Court charged that, unless she agreed to take Hetzell at a certain price per week, the defendant would be liable for what her services were really worth, and in respect to the plaintiff’s professional services, that the defendant would be liable for their fair value up to the time that he gave the plaintiff notice that he would be no longer liable, we must assume that the jury fixed the amount upon a principle which they considered the evidence to have warranted.

The assignor of the claim for board, &c., was Mr. Mead the •husband, and he was not examined. The examination of his wife as a witness, (which was proper) does not bring the case within § 399 of the Code. This is a sufficient answer to the exception to the ruling of the Judge excluding the offer of the defendant as a witness, and makes it unnecessary to decide whether the offer was too broad as not having been restricted in terms to “ the same matter,” to which Mrs. Mead had testified.

In respect to the requests to charge, made by the defendant’s counsel; the Court properly refused to charge the first, as it was for the jury to determine whether in fact the services were rendered solely upon the faith of the defendant’s promise or not, and the Court correctly charged the law in either alternative.

The second request was substantially charged.

It is not necessary that a party promising absolutely to pay for goods to be sold, or services rendered to another, should be under an obligation to pay, at the time he makes such promise. The question is, whether the goods are sold or services rendered, on the sole credit of the party so promising; if they are, the promise is not to pay the debt of another, but an original undertaking, and therefore not within the statute of frauds requiring it to be evidenced by a writing. The Court therefore properly refused to charge the third request. (Dixon v. Frazee, 1 E. D. Smith’s R. 32; Flanders v. Crolius, 1 Duer, 206.)

The fourth request was charged in substance.

In respect to the request to charge, that the plaintiff could only recover at the rate of charges as stated in his complaint, up to the time of the notice, it is sufficient to say, that the Court having instructed the jury that, if at any time the defendant gaye notice that he would not be liable, or that he denied all liability, from the time of such notice there would be no claim on him for future services,” and the jury having found $500 only for both classes of service, it does not appear, which way they may have found the fact of notice, nor that they have exceeded in their verdict the amount claimed in the complaint as due for the board and nursing. The defendant is therefore not prejudiced by the omission or refusal of the Judge to charge that proposition specifically.

In respect to the request to charge that the plaintiff was limited as to Mead’s bill'to the amount of $120, contained in the bill sent over by McKinstry, the evidence shows that that bill was made out in March, whereas the services continued until June; the Judge therefore properly refused to charge that proposition.

The exceptions to the charge, we tbinlr unfounded. On the whole charge the law was correctly laid down to the Jury.

The judgment must be affirmed.  