Wilkins v. Stidger

Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring, and Norton, J. concurring specially. This action was commenced by one McDaniel against the defendant to recover a demand for services as a surgeon and physician. The complaint avers that the plaintiff, McDaniel, is a physician and surgeon, and was employed by the defendant to perform services [235]for him as such, which he did at the special instance and request of the defendant, and the nature of the services performed are then described; that for such services defendant is justly indebted to him in the sum of $2,855 over and above all payments; that plaintiff has demanded payment from the defendant, but he has refused to pay the same. The complaint also avers, that defendant is indebted upon a promissory note, which is set out. When the case was called for trial, on motion of the counsel for the plaintiff, the name of Wilkins, the assignee of McDaniel, was substituted as plaintiff. The plaintiff recovered judgment; defendant moved for a new trial, which was denied, and he appeals.

The first error assigned is that the complaint does not state facts sufficient to constitute a cause of action, because that portion of the complaint which sets forth the claim for professional services does not aver any promise to pay, or that the services were of any value. We think the complaint is in this respect sufficient. It follows substantially the form of a count in debt, under the old system of pleadings. By transposing the averments, it can then be read in this way: that the defendant was at a certain time indebted to the plaintiff in a certain sum for professional services renderedi by plaintiff at the special instance and request of the defendant. ' The promise to pay, alleged in the common counts in assumpsit, was a mere conclusion of law from the facts stated, and as the new code only requires the facts to be stated, they are sufficient without setting forth the conclusions of law arising from those facts. But, even if the complaint was in this respect defective, it is too late to make the objection after verdict. It should be made by demurrer. (Osgood v. Davis, 5 Cal. 453; Sutter v. Cox, 6 Id. 415; (Garcia v. Satrustegui, 4 Id. 244.)

At the trial the plaintiff, Wilkins, introduced McDaniel as a witness, under notice given as prescribed by the amendment of 1861 to Sec. 422 of the Practice Act, to which defendant objected; and this is also assigned as error. The demand sued for was unliquidated and in the nature of an account. The witness was the assignor thereof, and was introduced on behalf of the plaintiff. Sec. 4 of the Practice Act expressly prohibits such an assignor from being a witness. We find nothing in Sec. 422, as amended,