ance of the terms of the contract on his part, and cannot recover for his services unless he does. In a case of this kind, in Vermont, it was held, that "if a physician commence attending upon a patient under a contract, that if there is no cure, there shall be no pay, he can not recover for his services or medicines, unless he show a performance of the terms of the contract on his part." § 17. Where a patient is unable to pay for professional services, and a third party assumes the responsibility of so doing, a special contract arises either in the nature of a guaranty, or of an absolute adoption of the indebtedness. Thus, if A. say to B., "attend upon C., and if he does not pay you, I will," that being a promise to answer for a debt of C., for which C. is also liable, the guarantee is only a collateral undertaking, and under the Statute of Frauds, must be reduced to writing before any recovery at law can be had under it.2 But if A. say to B., absolutely and unqualifiedly, "attend upon C., and charge the same to me, or I will pay you for such services as you 1 Smith v. Hyde, 19 Vermont, 54. 2 "The principle is a common one that if the whole credit is not given to the person who comes in to answer for another, his undertaking is collateral, and under the Statute of Frauds must be in writing." Ibid. Leland v. Cregin, 1 McCord, 100; Barber v. Fox, 2 E. C. L. R. 386; 3 Kent, 123. A physician who furnishes medicine to and attends upon a pauper can not recover for his services from the overseers of the poor, unless they were bestowed upon their request, or they have subsequently promised to pay. Everts v. Adams, 12 Wend. 449. A town is not liable to pay a physician for his services in attending upon persons sick with a contagious disease, who have ability to make payment themselves, unless he has been employed by the selectmen of the town to attend upon such persons, and it is not sufficient that the services of the physician were performed with their knowledge and assent. George, 28 Maine, 255. Kellogg v. St. ay render him," then, the not be liable for fur ty undertaking to pe 1 Smith on Contrac Story on Bailm. may render him," then, the whole credit being given to A., no written agreement is necessary, since it becomes absolutely the indebtedness of A.1 Hence, a request by the defendant to the plaintiff to attend as physician on a third person, and a promise that if he will so attend, the defendant will pay therefor, and the bestowing of such attendance by the plaintiff upon the faith of such request and promise, renders the defendant liable to pay what such attendance is reasonably worth. Though the defendant may, at any time, give notice to the plaintiff that he will not be liable for further services2-yet a guaranty, though in writing, and duly executed by the defendant, will be void, unless some consideration moves between him and the plaintiff. When, however, the undertaking is contemporaneous with the original debt, the guarantor is presumed to participate in the original consideration.3 Nor in relation to special contracts between physician and patient must the principle be overlooked that there is a wide distinction between a contract to do a thing which is accidentally, and one which is absolutely impossible. In the latter case, no obligation is created, and the contract is void ab initio. Impossibilium nulla obligatio est. But in the former, the contract is binding, notwithstanding, as the party undertaking to perform its conditions should have made provision against such contingencies. Every express contract makes him a guarantor, and it is his own fault if he undertake a thing beyond his ability.* SKILL, A PREREQUISITE OBLIGATION IN THE MANDATARY. § 18. That which particularly distinguishes professional services from ordinary mandates, is the quality of special knowledge or skill entering into them. Indeed, this constitutes a condition precedent to their exercise, and is always included by implication within the meaning of the term designating the practitioner of any learned avocation. A lawyer means, legally, a person skilled in the knowledge of the law; a physician, one skilled in the science and art of medicine; and so with all other professions. Hence, it may be stated as a general proposition, that every professional man, being thus specially instructed in some branch of science or art, and publicly announcing himself as a practitioner of the same, impliedly agrees to bring to the discharge of its duties, the ordinary skill of his profession, which is the lowest standard of capacity tolerated at law. This is but an affirmation of the doctrine laid down by Chief Justice Tyndall,' and now universally adopted, that 2 "Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not, if he is an attorney, undertake at all events, to gain the cause; nor does a surgeon undertake that he will perform a cure; nor does the latter undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself; but he undertakes to bring a fair, reasonable, and competent degree of skill. 1 Lanphier v. Phipos, 8 Carr. & Payne, 478. And in 2 The degree of skill rises in proportion to the delicacy and difficulty of the service. action against him by a pa is whether the injury com 21 want of a proper degree Et or not. Hence he is extraordinary skill, or for મ As a general rule, he wh form any work, is bound t tion and skill, adequat aking; that is, to do it pondet peritiam artis. Proportion to the value an he is in no case required 1 for he does not engage 19. The practitioner of Surgeon, comes legitima doctrine, and his respo at measure upon evidenc of the exhibition of th success in any given cas tent, it becomes his duty t the fiduciary relation auring and apportionin der virtual obligation particular circumstance attendant complexion dard established, acco invariably administer luded in the foregoin methods of practice sho art of these canons ther est confidence, the first, & 11 Bouvie RY. sional pecial s con and is of the avoca in the position, ially in publicly ame, im s duties, he lowest aid down y adopted, profession reasonable n attorney, does a suror does the ree of skill, and greater to bring a 11. And in voluntary contracts. That confidence must, in advance of all experience, rest upon belief; and this belief being engendered by the public notice of qualifications implied in a medical degree, and the desire to obtain patronage evinced by soliciting it, the practitioner of medicine becomes a guarantor of his own proficiency to the lowest extent necessary to successfully minister to the sick. In other words, spondet peritiam artis. § 20. These principles are well unfolded in a recent case in Maine, where it was said, that "Physicians and surgeons who offer themselves to the public as practitioners, impliedly promise thereby that they possess the requisite knowledge and skill to enable them to treat such cases as they undertake with reasonable success. "This rule does not require the possession of the highest, or even the average skill, knowledge, or experience, but only such as will enable them to treat the case understandingly and safely. "The law also implies that in the treatment of all cases which they undertake, they will exercise reasonable and ordinary care and diligence. "They are also bound always to use their best skill and judgment in determining the nature of the malady, and the best mode of treatment, and in all respects to do their best to secure a perfect restoration of their patients to health and soundness. "But physicians and surgeons do not impliedly warrant the recovery of their patients, and are not liable on account of any failure in that respect, unless through some default of their own duty, as already defined." § 21. But, on the other hand, and from the very nature 1 Patten v. Wiggin, 51 Maine, 594. the service rendered, h ad, considered a warran eatment, nor as stipulati the law of the manif stem, modified by age, s its of living, heredita rs all in the problem te the treatment of hysician can have little In a leading case in C Where one is empl skill of the operato ayment an engage site skill to accompl "But if the act to b the operator, and of of trol, the law only he usual skill as a m at the end shall be ertakes to conduct the judgment of the use of the comm |