Swim v. Juhl

NOURSE, J.

Plaintiff sued on an assigned claim for medical services alleged to have been rendered the defendant Dorothy E. Bradley. The defendants Ethel Baye Juhl and her husband, Jesse Peter Juhl, were joined on the theory that the former, who was the mother of Dorothy Bradley, promised to pay for the services rendered her daughter. The Juhls answered and went to trial before the court sitting without a jury. At the close of plaintiff’s case the court, on motion of these two defendants, granted a non-suit. The appeal is taken from this order and is presented on a transcript prepared under section 953a of the Code of Civil Procedure.

The complaint was framed on two causes of action—one for the reasonable value of the medical services rendered, the other upon an account stated. On this appeal the appellant concedes the correctness of the ruling as to the first cause of action because the employment of the physician having been made by the daughter and the alleged agreement of the mother to pay in case of the daughter’s default not having been in writing, and having been made subsequent to the employment, the mother’s contract was void because of the provisions of section 1624 of the Civil Code, commonly referred to as' our statute of frauds.

As to the second cause of action, the evidence is that after the services had been rendered and after the daughter had been released» from the hospital, appellant’s assignor sent a bill for his services to Mrs. Bradley, and, receiving no reply from her, sent two or three bills for the same account to Mrs. Juhl. No reply was received from her and upon this fact the appellant bases his claim of an account stated. The appellant’s theory is that, conceding the original con

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tract of the mother to answer for her daughter’s default to be void because not in writing, her failure to object to the bills when rendered created a new contract which was not controlled by the statute of frauds. The answer of the respondent is that an'account can be stated only when based upon an existing legal obligation, and the promise of the mother being void because of the statute of frauds, no valid contract could be created by the purported statement of account. The respondents also argue that the question of the reasonableness of the time within which the mother failed to object to the bill was a question of law for the court and that on this appeal we must assume that the court held that a reasonable time had not elapsed.