b. UPON REQUEST.

i. In General.

POTTER ET AL. v. CARPENTER ET al.

76 N. Y. 157.-1879.

RAPALLO, J.-The plaintiffs in their complaint claim to recover upon a note made by the defendants for $1,116.44, dated April 6, 1874, given in part payment for a stock of goods sold by the plaintiffs to the defendants, and also for various items of services rendered from time to time in the years 1869, 1871, 1872 and 1874, amounting in the aggregate to upwards of $2,000. The defendants in their answer denied the allegations as to the services, and set up as counter-claims an alleged indebtedness of the plaintiffs of $200 for the use of a barn for four years, and of $1,000 for services in teaming for the plaintiffs from 1869 to 1874 at $200 per year, with other counter-claims. The plaintiffs replied that the use of the barn was not worth over $10 a year, that by mutual understanding the plaintiffs let the defendants use their horse and wagon as an equivalent therefor and for the other services claimed in the answer.

The referee found for the plaintiffs for the amount due on the note, and also found that the plaintiffs rendered all the services alleged in the complaint, but disallowed their claims therefor, finding, as to each item, that they were rendered under some agreement that no compensation was to be made therefor except board, influence in getting situations for the plaintiffs, rent of a store and the like. But in respect to the claims for the use of the barn and services in teaming set up in the answer, the referee allowed the full amount claimed by the defendants, and he reported a balance in defendants' favor over and above the amount due on the note of $700.96. There was no proof of any express agreement on the part of the plaintiffs to pay for the services of defendants in teaming, or for the use of the barn, nor was there any proof of the items of the charge for teaming, farther than that it was done by the teams and men employed by the factory of which the defendants had charge and was of almost daily occurrence, and its value was estimated at $200 per year. The testimony on these points is quite loose and general, and from the findings of the referee as finally settled after an appeal to this court, it appears that the defendants frequently used in their business a horse and wagon belonging to the plaintiffs and that neither party kept any account of the services of the horse and wagon or of the team work.

The referee further finds that it was not their intention to keep any such account, but he also finds that the parties did not suppose that one service was equal to the other, and that there was no understanding between them that one service should be set-off against the

other. The referee also found that on the 1st of April, 1874, the defendants were indebted to the plaintiffs upon an open account for goods sold to the amount of $3,283.19, and afterwards paid the same to the plaintiffs, by installments, as follows:

These payments were all made after the alleged indebtedness of the plaintiffs to defendants for $1,000 for teaming had accrued, and there is no finding or proof that any such claim was ever set up until this action was brought.

Upon all these facts, and in the absence of proof of any express agreement to pay for the teaming, we do not think that such an agreement could properly be implied. The finding that neither party kept or intended to keep any account of it, is equivalent to a finding that it was not their intention that any charge should be made. The findings show that during all the period covered by these transactions these parties were in the habit of rendering mutual services to each other, and that although they had pecuniary transactions to a considerable amount, these services were not brought, nor intended to be brought, into their accounts. Upon such a state of facts a promise to pay cannot be implied, and these services must be regarded as matters of mutual accommodation for which neither party intended to make any charge against the other. This is not inconsistent with the finding of the referee that the parties did not suppose that one service was equal to the other, or was to be setoff against the other. If neither party intended to keep any account of them there could be no comparison of values, or setting-off of one against the other, for there was nothing to set-off.

The judgment entered upon the report of the referee and the judgment of the General Term should be reversed and a new trial ordered, with costs to abide the event.

All concur.1

'See also, De Cesare v. Flauraud, 69 App. D. (N. Y.) 299 (1902). In McGuire v. Hughes, 207 N. Y. 516 (1913), a physician sued the mother of a patient who was living with her husband, for services rendered to the patient at request of the mother. The court said: "The general rule that where a person requests of another the performance of services, which are performed, the law implies a promise by the former to pay their reasonable value, has no application in the case of a physician rendering professional services to a third person, if the relation to the patient of the person who requests them, be not such as imports the legal obligation to provide them."

THOMAS v. THOMASVILLE SHOOTING CLUB.

121 N. C. 238.—1897.

ACTION by P. C. Thomas against the Thomasville Shooting Club. From a judgment for plaintiff, defendant appeals. Affirmed.

* * *

FAIRCLOTH, C. J.-This action is brought to recover for services rendered in procuring hunting ground leases at the instance of defendant, which were accepted and received by the defendant. The plaintiff testified that when he got up the leases he did not expect to charge for the work, if they should pay balance on his house, which has been paid, and should pay him to take charge of their business at lucrative wages. The defendant's president testified that: "The consideration for getting up the leases was that we were to buy his property, and make him steward of the club at a salary. This was not a contract. It was our intention. Did not employ him as steward because we had a falling out about the house. * I told him to get up the leases before we bought the house." So that there was no contract as to the leases, because the construction of a contract does not depend upon what either party expected, but upon what both agreed. Brunhild v. Freeman, 77 N. C. 128. If A. agrees to render services to B., and it is agreed by both that the services are gratuitous, and not to be charged for, then A. cannot recover. If A. renders services to B., and the work is accepted, the law implies a promise by B. to pay the value of the work. This is too familiar to need citation of authority. There was evidence as to the value of the services and the house, and the jury rendered a verdict in favor of the plaintiff for $160. In apt time, the defendant asked the court to instruct the jury that if the plaintiff, when he got up the leases, expected to make no charge, but expected remuneration afterwards by employment from the defendant, he could not recover for getting up the leases. This prayer was refused, but in lieu thereof his Honor charged that: "If Thomas did not intend at the time to charge for getting up the leases, and this was known to the defendant, then he could not charge and recover for the same; but, if it was not known to the defendant that Thomas did not intend to charge, then Thomas could afterwards sue for and recover for his services in getting up the leases." Exception. We see nothing prejudicial to the defendant in the charge as given, which included, in substance, the defendant's prayer, or so much thereof as he was entitled to. When the law implies a promise to pay for work done and accepted, and there is no agreed price, the laborer may recover the reasonable value of his services, unless there be some agreement or understanding that nothing is to be paid. A physician makes no charge for professional services on his books, and payment is resisted on the ground that the services were intended to be gratuitous, and the jury find that the services were rendered without any agreement to pay a definite sum. Held, WOODRUFF'S Cases—5.

that the law implies a promise to pay what they were reasonably worth. Prince v. McRae, 84 N. C. 674. Here, as the implied promise is not met by any agreement that there should be nothing paid, the plaintiff is entitled to recover.1 Affirmed.

HEWITT v. ANDERSON et al.

56 CAL. 476.-1880.

SHARPSTEIN, J.-The defendant signed and caused to be published an instrument, of which the following is a copy:

"We, the undersigned, promise and agree to pay the sum set opposite our names for the arrest and conviction of any person who has, within the past six months, maliciously, and with intent to commit arson, burned any building in the town of San Bernardino, or who may in the future, with said intent, set fire to, attempting to burn, or shall burn, or cause to be burned, any building in the limits of said town." Opposite the name of each of the defendants a certain amount is set, and the aggregate of those amounts is $900, for which the plaintiff sues. The findings of the court, with one exception, are in favor of the plaintiff. That one is as follows: "That none of the acts of the plaintiff were done with a view to obtaining said reward, or any part thereof, but all of said acts were done without any intention of claiming said reward, or any part thereof."

If this finding is justified by the evidence, the judgment rendered in favor of defendants cannot be disturbed. The evidence upon this point is conflicting. The plaintiff, on the trial, testified that he did do the acts upon which he bases his claim to the reward with a view to obtaining it. On the other hand, there was evidence introduced by the defendants which tended to prove that the plaintiff had stated, under oath, that he had not expected any reward. In view of that conflict, we would not disturb a finding either way. And we are satisfied, that under that finding the plaintiff cannot recover in this action. If he did not do the acts upon which he now bases his right to recover, with the intention of claiming the reward in the event of his accomplishing what would entitle him to it, he cannot recover. If he had not known that a reward had been offered, he might upon the authority of some cases recover. But we are not aware of any case in which it has been held that a party, after disclaiming any intention to claim a reward, could recover it. Judgment and order affirmed.

'In Christianson v. McDermott's Estate, 100 S. W. 63 (Kansas City Ct. of Appeals, 1907), plaintiff rendered services to defendant's testator, there being no family relation. The court said: "The appellant contends that as the plaintiff did not contemplate charging for the services when rendered, but expected to be compensated for them in the deceased's will, she is not entitled to recover. There is some evidence tending to show that she expected to be compensated in that manner; but the evidence shows further that she did expect remuneration in some form, and that the deceased agreed that she should be remunerated. We are at loss to know why, if a remuneration was expected and promised for the services, plaintiff would not be entitled to it, although she did not get it in the form so expected."

WEBSTER ET AL. V. DRINKWATER.

5 GREENL. (ME.) 319.-1828.

ASSUMPSIT for services performed and moneys expended. Mr. Ilsley, the collector of the customs at Portland, being duly authorized by the United States to contract for the building of two new revenue cutters, with their boats and barges, made an agreement under seal with the plaintiffs, who undertook, for a certain sum of money, to build and complete the cutters with their boats, to the satisfaction and approbation of the collector, or such person as he should designate and appoint. The collector, on his part, agreed that upon their completion, and the production of a certificate from the person so appointed, that they were built in all respects according to the contract, he would pay the stipulated sum. The agreement was particular as to the size and manner of finishing and furnishing the vessels, and contained a provision respecting the appointment of a person to superintend the building, and certify that the plaintiffs had performed the contract. Under this provision the defendant was appointed the superintendent; and upon the completion of the vessels and boats contracted for, he gave them the certificate required, which they produced to the collector, and thereupon received of him the money agreed for, and a further allowance for certain extra bills, of which they claimed payment. At the time of this settlement the plaintiffs said to the collector that they had made a bad bargain, and had done more work on the vessels than they were bound to do by the contract, though no more than the defendant, as superintendent, had insisted was within it; and that they should apply to congress for compensation for this extra labor and expense; but they did not then speak of any pretense of claim against the defendant. A petition was accordingly presented to congress, but without success.

The labor and materials which formed the subject of the present suit, were proved to have been furnished at the request and under the direction of the defendant, in his capacity of agent of the United States, he insisting, and the plaintiffs denying, that they came within the meaning of the contract.

Upon this evidence, the chief justice left it to the jury to determine whether any work had been done, or expenses incurred by the plaintiffs, in building and completing the vessels, not required of them by the contract; and if so, whether it was done and incurred under an engagement, express or implied, on the part of the defendant, to pay for the same. And they found for the defendant; certifying moreover, that some extra work had been done, and expense incurred by the plaintiffs, respecting which the defendant assumed to act as the agent of the United States, without authority, by contending that such work was within the terms of the contract, but which was not so considered by the jury. The coun