kind to strip it of those rights which are accorded to the humblest of the mechanial occupations-the right to a quid pro quo for services rendered. Were such a principle sanctioned at law, it would follow that only the inferior callings would be protected by courts, and that, consequently, the nobler the profession the less the legal right to any reward for practicing it. The statement of such a proposition is, in itself, a sufficient refutation of its principle, not to require further comment. Mr. Pothier, with that elegance of statement and perspicuity of logic which distinguishes all his writings, has unfolded the true philosophy of this principle in the words following: "L'action qu'ont ces personnes pour demander une récompense de ces services, n'est pas actio ex locato, c'est persecutio extraordinaria, car cette récompense n'est pas un loyer, ce n'est pas le prix de leurs services, qui sont inestimables de leur nature; elle se regle sur ce qu'il est d'usage le plus communement de donner pour ces services, dans le lieu où ces personnes exercent leur profession." Pothier, Mandat, Oeuvres Tom. 5, ch. 1, § 2, 20. § 34. Admitting even that the mandate created only an imperfect obligation in the mandator, and that a mere moral obligation is no ground for an implied promise, the principle is a good one which considers a past service ▲ quantum meruit, his services, virtu fmere artisansh and money spent ach capital inv eive some re stance that ind al daily fatigue ase of the phy save that of ano Ter has a legal all the Unite to their vi hatever may the principle 1 the professions Sonorary, and mand and rece 1 Hew Ada re accorded to the s-the right to a , and that, conseless the legal right tatement of such a utation of its prin statement and per Il his writings, has inciple in the words ces pour lesquels, libérale, et qu'en contrat de mandat, I qui les ont rendus la récompense ordident dans leur proens, les maitres de pour demander une actio ex locato, c'est ecompense n'est pas rs services, qui sont regle sur ce qu'il est er pour ces services, ent leur profession." . 1, § 2, 20. mandate created only tor, and that a mere implied promise, the ders a past service rendered upon request as a sufficient consideration upon 2 Adams v. Stevens, 26 Wend. 451. 1 § 35. In the absence, therefore, of any statutory enactments limiting the right to practice medicine to such persons only as have pursued a prescribed system of studies, and obtained a degree in course from some duly authorized college, or board of medical examiners; in the absence of any such restrictive statutes, all persons who may choose, are authorized to undertake to administer medicines, and to perform cures, and in such case will be entitled to the rights, privileges and immunities of physicians. Hence the right to sue and recover for one's medical services to whomsoever rendered can no longer be questioned. On this point Edwards says:-" Wherever services have been performed at the request of another, there is an implied promise raised by law to pay for them what they are worth. Such person may recover upon a quantum meruit, the relation being one of contract, express or implied." Nor is it any defence to such a claim that the services were rendered by a person styled an irregular practitioner, or that his mode of practice was not agreeable to the views of the patient. For this latter had his choice whom to employ, and having made his selection he is bound by it, so long as the services continue to be received quia aegrotus debet sibi imputare cur talem elegerit. § 36. A physician then, wherever recognized as such, may maintain an action for his fees;2 and both physicians e paid for the li g to the general what they are over for professi demand by his hand it is no ' Edwards Bailm. 367; 2 Com. on Cont. 378; Peak's N. P. C. 123, 96. See case of Glover v. Le Testue, in Quincy's Massachusetts Reports 1761-72, page 225, n., where in a suit by a physician for visits and medicines, "the Court unanimously adjudged that indebitatus assumpsit would not lie upon the account in this case, neither for visits, bleeding, nor medicines, but allowed plaintiff to file a new declaration on quantum meruit on payment of costs." Judah v. McNamee, 3 Blackf. 269; McPherson v. Chedell, 24 Wend. 15; Adams v. Stevens, 26 Wend. 451; Simmons v. Means, 8 Sm. & Marsh. 397; Rouse v. Morris, 17 Ser. & R. 328; Smith v. Watson, 14 Verm. 332; In Vert and a promise to Sath, is not p re of medical deferring them the soundness ption; so that Sabbath constitu -charges mad 37. As to t trued to the over for servic upon the ge pa Tupon r. Sayre, 1 Eitt . Wilcox, 1 Land 3 Ser. & R. 41 People Dane's Ab. cap e the defendan to do; Cram . M Smith r. Walton W. y statutory enact icine to such per- in the absence of cover upon a quai eak's N. P. C. 123, 96. and surgeons can recover for the services of their students Thompson v. Sayre, 1 Denio, 175; Sweet v. Hooper, 1 Dane's Ab. 619; tracts. The rule as now settled is, "that if there has been no beneficial service, there shall be no pay, but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff's demand, leaving the defendant to his action for negligence. But it must be remembered that the physician is not a guarantor, without a special contract, of the good effects of his own treatment; and he only undertakes to do what can ordinarily be done under similar circumstances. If the good effects of his treatment, and the consequent value of his services be disputed, he must be prepared to show that his labor was performed with the ordinary skill, and in the ordinary way of his profession. This is all the essential evidence upon which to found his case. And he will be required to prove nothing more, since the whole issue turns upon this. repared to show 38. Yet ther d its application e former in ade he use of such n pose of accom consideration ator, and while guarantee it ase all ordinar Hence, if a phy In Basten v. Butter,2 which was an action founded upon a quantum meruit for work and labor done, Le Blanc, J., said: "I think that, in either case the plaintiff must be prepared to show that his work was properly done, if that be disputed, in order to prove that he is entitled to his reward; otherwise, he has not performed that which he undertook to do, and the consideration fails. And I think it is competent to the defendant to enter into such a defence, as well when the agreement is to do the work for such a man, as where it is general to do such a work. If a man contracted with another to build him a house for a certain sum, it surely would not be sufficient for the plaintiff to show that he had put together such a quantity of brick and timber in the shape of a house, if it could be shown that it fell down next day; but he ought to be 1 Farnsworth v. Garrard, 1 Campb. 39. 27 East, 479. ters improper n eres no benef ot entitled to if he has em profession, and Saint and calcu his hire and e particular in * some vice atient, for whi $39. The la be reasonable. allowed disc ss according rices. No on |