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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:

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"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.

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§ 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

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re accorded to the

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re such a principle
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, 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
which to found a legal claim. The general rule of an im-
plied undertaking to remunerate another for services
rendered upon request, rests upon the broad principle that
when a person thus bestows his skill and labor for the
benefit of another, and no agreement is made in respect
to them, the law raises an implied promise to pay such
compensation as the person performing the services
deserves to have; and when there is no statutory or
other restraint upon the remedy, an action lies on such
promise.1 Hence the principle of the honorarium finds
no support in American law, even if it still does in Eng-
land, and although the right of the physician to sue upon
a quantum meruit, in an action of assumpsit to recover for
his services, virtually reduces his profession to the grade
of mere artisanship, it must not be forgotten that the time
and money spent by him in obtaining an education are so
much capital invested, for which he is justly entitled to
receive some return. It is the emolument in the first
instance that induces men to undergo the persistent trials
and daily fatigues of professional practice, and, as in the
case of the physician, to risk health and life in order to
save that of another. By parity of reason, since the law-
yer has a legal title to his fee-bill, so the physician can,
in all the United States, recover for his services, accord-
ing to their value. "For," says Chancellor Walworth,
"whatever may be the practice of other countries, however,
the principle never has been adopted in this State, that
the professions of physicians and counsellors are merely
honorary, and that they are not of right entitled to de-
mand and receive a fair compensation for their services."
1 Hewitt v. Wilcox, 1 Metc. 154, per Shaw, C. J.

2 Adams v. Stevens, 26 Wend. 451.


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§ 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.

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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


Tupon r. Sayre, 1

Eitt . Wilcox, 1

Land 3 Ser. & R. 41

t. Monroe
Sury, Bailm. 3

Dane's Ab. cap
McPherson v. Ch

e the defendan

to do; Cram . M Smith r. Walton


y statutory enact

icine to such per-
system of studies,
e duly authorized

in the absence of
who may choose,
er medicines, and
be entitled to the
ysicians. Hence
medical services
Wherever services
f another, there is
pay for them what

cover upon a quai
ontract, express or
ch a claim that the
tyled an irregular
e was not agreeable
atter had his choice
his selection he is
continue to be re-
e cur talem elegerit.
recognized as such,
nd both physicians

eak's N. P. C. 123, 96.
s Massachusetts Reports
ian for visits and medi-
ebitatus assumpsit would
sits, bleeding, nor medi-
Ɔn on quantum meruit on

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and surgeons can recover for the services of their students
in attendance upon their patients. But in taking charge
of a case, and in order to entitle him to recover for ser-
vices rendered, it is not necessary that a specific price
should be expressly agreed upon at the outset by a phy-
sician, for he is tacitly presumed to engage for the usual
price paid for the like services, at the same place, accord-
ing to the general custom of his profession, or according
to what they are worth there. And in an action to
recover for professional services, the plaintiff may support
his demand by his book of original entries, and his own
oath, and it is not necessary that he should produce his
license. In Vermont, the employment of a physician,
and a promise to pay him for his services, made on the
Sabbath, is not prohibited by statute. Considering the
nature of medical services, and the frequent impossibility
of deferring them to another day, there can be no doubt
of the soundness of this doctrine, nor of its universal
adoption; so that the employment of a physician on the
Sabbath constitutes a valid contract with him, and his
book-charges made on that day are legal and collectable.
§ 37. As to the amount of benefit which must have
accrued to the patient in order to entitle the physician to
recover for services rendered, some qualifications must be
put upon the general principle regulating executory con-

Thompson v. Sayre, 1 Denio, 175; Sweet v. Hooper, 1 Dane's Ab. 619;
Hewitt v. Wilcox, 1 Met. 154; Mays v. Hogan, 4 Texas, 26; Mooney v.
Lloyd, 5 Ser. & R. 416.

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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
cording to his
at to prove that
e no value at

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

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allowed disc ss according

rices. No on

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