Meyers v. McKillop

[145]

BURNETT, J.

The action was for the recovery of the sum of $390.25 for services rendered by plaintiff as physician and surgeon and by his assignees, W. B. Johnson and Sacramento Valley Hospital (a corporation), and the judgment was in his favor for $359.25.

The only question in this case is whether the evidence warranted the court in finding that the transaction between plaintiff and defendant created an original or primary obligation on the part of the latter, it being his contention that he was, at most, a guarantor, and that the obligation was void because not in writing. The facts are similar and the same question is presented in the matter of the two small assigned claims.

We think that there can be no doubt that the theory adopted by the trial court finds sufficient support in the record. The services were performed for one P. J. Williams, and Dr. Meyers was called to attend him on the fifth day of October. Two days thereafter, according to plaintiff’s testimony, he had the following conversation with the defendant at the Sacramento Valley Hospital: “I asked him whether he would pay Mr. Williams’ bill. I told him I had an understanding he was going to pay the bill and he said he would. I told him perhaps we had better make the sister feel more easy about the money. When we went downstairs, I repeated the conversation in front of Sister Marie and the substance was that he was to pay Mr. Williams’ bill.”

He furthermore testified: “I made three calls on the 7th; on the 8th three calls; on the 9th there were five calls made; and on the 10th he was operated on by myself, Dr. Johnson and Dr. Wilson. I called on him twice subsequent to the operation; on the 11th I called three times; on the 12th I called four times; and on the 13th three times the day he died. ’ ’ These services performed after his conversation with defendant were reasonably worth, so he said, the sum of $305, and this was allowed by the court.

It is a fair inference from the foregoing that these services were performed upon the reliance that the defendant would pay, and it is also a fair inference that the latter directly promised to make such payment. This constitutes an original contract with a sufficient consideration for its support: