Doyle v. Edwards

• Decision Date: 02 July 1902
• Parties: DOYLE v. EDWARDS.
• Court: South Dakota Supreme Court

91 N.W. 322

15 S.D. 648

DOYLE v. EDWARDS.

Supreme Court of South Dakota

July 2, 1902

Appeal from circuit court, Yankton county.

Action by E. M. Doyle against Charles L. Edwards, as administrator of Vito Francisco Crisci, deceased. From a judgment for plaintiff, and an order denying a motion for a new trial defendant appeals. Affirmed.

Titus E. Price (C. H. Dillon, of counsel), for appellant. French & Orvis, for respondent.

CORSON J.

This is an appeal from a judgment on a directed verdict, and from an order modifying the same and denying a new trial. The plaintiff, a physician, brought this action against the defendant, as administrator of the estate of Vito Francisco Crisci, deceased, to recover the sum of $255 for professional services rendered him in his lifetime. The complaint contained three causes of action: The first was for $5 for professional visits to the deceased; the second, for $250 for the performance of a surgical operation claimed to have been made upon the deceased under a special contract; and the third was to recover $250 for the value of professional services rendered the deceased in performing the operation referred to. Upon motion of the counsel for the defendant the court required the plaintiff to elect upon which cause of action he would proceed, as between the second and third, and he elected to proceed to trial upon the first and second. There seems to have been no question as to the $5 item, and the fact that the plaintiff performed for the deceased the surgical operation for which he claimed the sum of $250 was not denied by the defendant, but he did deny that the services were performed under a special contract. The sixth paragraph of the second cause of action is as follows:

"That before the performance of said operation said Vito Francisco Crisci asked the plaintiff what his charge for performing said operation would be, and the plaintiff then informed him that it would be from $200 to $400; and said Vito Francisco Crisci then directed plaintiff to perform said operation, and agreed to pay therefor from $200 to $400."

The errors assigned on the part of the appellant are: (1) That the court erred in admitting evidence upon the second cause of action over the objection of the appellant, for the reason that the contract alleged was too vague and uncertain to be enforced by a court of law; (2) that the court erred in excluding certain evidence offered on the part of the defendant tending to prove the value of the plaintiff's services; and (3) that the court erred in its order denying the motion for a new trial upon the plaintiff remitting the sum of $50 of the judgment.

It is contended on the part of the appellant that the contract alleged, namely, that the plaintiff was to be paid for his services from $200 to $400, was so vague and indefinite that the plaintiff could not base a cause of action thereon. This contention, in our opinion, is untenable. The contract alleged is not uncertain as to the minimum sum for which the plaintiff agreed to perform the operation, and was certainly specific to the extent of $200. In the recent case of Kramer v. Ewing (Okl.) 61 P. 1064, a contract to pay a party $50 or $60 for the performance of a certain act was held to be a valid contract to the extent of $50, at least and the learned supreme court of Oklahoma, in its opinion says: "Where an agreement or promise is in the alternative, and is accepted, the promisor may elect which of the alternatives he will perform, provided he makes such election within the time the contract is to be performed. If he fails to make the election before default, the promisee may make such election. *** The testimony on the part of Ewing shows that Kramer made a positive and certain promise to do one of two things in the event he found a customer for the land; that is, to pay him $50 or $60. Either was a valid and sufficient consideration for the services to be performed." And that court held that there was no such uncertainty as would render the contract void. The court, in support of this decision, cites the following authorities Disborough v. Neilson, 3 Johns. Cas. 81; Giles v. Bradley, 2 Johns. Cas. 253; Smith v. Sanborn, 11 Johns. 59; Patchin v. Swift, 21 Vt. 292; Gillett v. Ballou, 29 Vt. 296; Dessert v. Scott, 58 Wis. 390, 17 N.W. 14. The alleged contract in the case at bar was more specific than the contract in the case from which we have quoted, as it will be observed that it is alleged that the deceased was informed by the plaintiff that his charge for the performance of the operation would be from $200 to $400, and that the deceased then directed the plaintiff to proceed with the operation. It is quite clear, therefore, that the contract as alleged was a binding and valid contract for the sum of $200 in any event, and the value of the services, up to $400, upon proof of such value. The circuit court,...