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Q. Yes, you were paying for the Q. You heard that word used by operation.
the doctor? A. Yes, and after I'd promised to A. Yes, sir. pay him, he guaranteed the opera- Q. What was the language that tion; so of course I imagine his the doctor used, just what was said, guaranty would work in.
and how did he happen to say it?
A. What? There is other testimony by the plaintiff, but the foregoing is sub
Q. You say he guaranteed it to stantially all of plaintiff's testimony be a first-class job; what was the which bears upon this phase of the languace he used ?
A. What was the language? matter. Witness Ginn testified:
Q. Yes; what did Dr. Blair say, That he was present at the time
and how did he happen to say it, of the conversation covered by
from which you say he guaranteed
it to be a first-class job? plaintiff's testimony; that the de
A. When he asked him about the operation; that Mr. Wilson asked $25 or $50, Ralph wanted to know if him, when he showed him this and
he could do him a 100 per cent job, asked him about operating on it,
and the doctor said he could; a very and he asked him about what an
simple operation. operation like that would cost, and The question presented is: Was he said from $25 to $50. Then Mr. there an agreement between plainWilson asked him if he thought he tiff and defendant, enforceable at could guarantee him a good job, a law, by which the latter guaranteed 100 per cent job. He said, “Yes, and warranted that as a result of you can use it just the same as you such operation the plaintiff's hand did before it was hurt," after this
would be cured of all defects and cord was sewed up.
rendered 100 per cent efficient? If Q. Now, will you answer the the contract in question was merely question, Mr. Ginn: Did the doctor that defendant was at that time say anything else about to perform a surgi- Physician and guaranteeing a 100 per cent efficient cal operation, then one undertaking hand?
the law requires eration.
to perform opA. Why, after Mr. Wilson told that defendant poshim about when he'd pay him, he sess the skill and learning which told him he'd guarantee him a 100 are possessed by the average memper cent job of it. Then Wilson ber of the medical profession in asked what it would cost, and the good standing in the community in doctor said it would cost him from which he resides; and to apply that $25 to $50, which would cover his skill and learning with ordinary fees for the operation. For all I
and reasonable care. He does not knew, Dr. Blair only agreed that become a guarantor of the results of the $25 or $50 was to be for operat- such operation. Loudon v. Scott, 58 ing on his hand-putting it so that Mont. 645, 12 he could use it again.
A.L.R. 1487, 194 operationQ. Was it your understanding Pac. 488; Hansen v. that Dr. Blair was to be paid from Pock, 57 Mont. 51, 187 Pac. 282; $25 to $50 for all the services he MacKenzie v. Carman, 103 App. was to perform?
Div. 246, 92 N. Y. Supp. 1063. A. To put the thumb in perfect It is plaintiff's contention, howshape.
ever, that the defendant entered inQ. Did you hear Dr. Blair use to a special contract with plaintiff, the word "guaranty" in connection under the terms of which the dewith perfecting a cure?
fendant increased his responsibility A. Yes, sir; he guaranteed a by guaranteeing the results of the first-class job.
operation to be performed. In or
(65 Mont. 155, 211 Pao. 289.) der that such special contract being day, the second question asked
valid, or to make it the plaintiff was, “I am asking you Guarantynecessity of enforceable at law, if you can give us the language of consideration.
it must be support the third guaranty ?” to which the ed by a consideration. "The rule plaintiff made answer: "Well, havthat consideration is essential to the ing thought the matter over, Dr. enforcement of a simple contract is Blair made his guaranty-after my
so thoroughly setContract
first conversation, after I had necessity of tled that it may be agreed to pay him either the $25 or consideration.
regarded as one of $50,-how much it,—what his fee the elementary principles of the would amount to-he guaranteed law of contracts.” 6 R. C. L. 650. that my hand would be 100 per cent The trial court very aptly stated efficient." this rule in the instructions given The third question asked was: to the jury and herein before noted. “Will you kindly give us the lanOur statute defines "consideration" guage that Dr. Blair used, and the as follows: “Any benefit con- circumstances under which he used ferred, or agreed to be conferred, it at the making of the third guarupon the promisor, by any other anty? Yesterday you gave us the person, to which the promisor is language and facts with reference not lawfully entitled, or any preju- to the first and second; now, please dice suffered, or agreed to be suf- give us the language and circumfered, by such person, other than stances surrounding the third guarsuch as he is at the time of consent anty,” to which plaintiff replied: lawfully bound to suffer, as an in- “Well, I wish to state that I admit ducement to the promisor, is a you kind of got me mixed up yestergood consideration for a promise. day, and the only guaranty Dr. Mont. Rev. Codes 1921, $ 7503. The Blair made was after I had agreed
consideration must to pay him; then he guaranteed that -validity of past be either present or my hand would be 100 per cent effi
future, but it must cient after he'd performed the opnot be past. “The rule that a past eration.” consideration will not support a The next question asked was, subsequent promise is only another “Now, having thought it over and mode of saying that every promise, found out where you're at, what was whether express or implied, must, the language and circumstances of in order to be binding, be made in this guaranty that you're telling us contemplation of a present or future
about now?" to which reply was benefit to the promisor.” Anson, made: “When I showed him my Contr. 115; 9 Cyc. 358; 13 C. J. 359.
hand and described the nature of The record discloses that, upon my case, and I had asked him the day of the trial of this cause,
whether it could be fixed or not, he plaintiff, on direct examination, tes
said it would be a very simple optified that defendant had guaran- eration. Then I asked him how teed the results of this operation much it would cost to have it done, three different times. Upon cross
and he told me that it would be examination on the same day, the $25; he didn't think it would be plaintiff stated the language used more than $25, but he was sure it by the defendant in the first and would not be more than $50. He second guaranties, and was asked
said it would be between those two by defendant's counsel the language fees, outside of the hospital bill, and used by the defendant in making the so I agreed to pay him that bill, third guaranty, but stated that he which was satisfactory, and he could not recall it at that time. At agreed to wait thirty days, or a this point in the cross-examination, little longer, if necessary.
It was the court recessed for the day. Up- perfectly agreeable to him. Then on court reconvening on the follow- I asked him if he was sure it would
make it all right. He says, 'Yes, court, speaking through Mr. Justice I'll guarantee that your hand will Holloway in the case of Casey v. be 100 per cent efficient after the Northern P. R. Co. 60 Mont. 56, 198 operation."
Pac. 141, is applicable here, as fol
lows: "It cannot be unfair to this The question and answer follow
plaintiff to deal with his case from ing this are: Q. That is the way it happened
the standpoint of his own state
ments. A party testifying in his now? A. Exactly; yes, sir.
own behalf has no
right to be deliber- weight-delibImmediately following this testi- ately self-contradic- erate self-conmony, the plaintiff, at least eight tory, and, whendifferent times, stated positively ever he is so, the courts are justified that the guaranty was given after in judging his case from that verhe had promised to pay for the op- sion of his testimony which is least eration.
favorable to him." It is argued by plaintiff's counsel Again, it is said: "It surely can that the plaintiff became confused never be unfair to a party laboring and was misled by the cross-exam- under no mental infirmity, to deal iner. A careful examination of the with his case from the standpoint record does not warrant this con- of his own testimony as a witness. clusion. This testimony was given Where a party calls witnesses who after mature deliberation. The rec- conflict with each other in their ord is replete with instances which
sworn statements, he is not to be do not have a tendency to substan- held responsible for the contradictiate the contention of plaintiff's tions among them, for it is not withcounsel that plaintiff was misled, in his power to prevent their oCbut rather the contrary is true. currence; and a reviewing court There is no other testimony which will generally give to a party the aids that of the plaintiff in this par- benefit of the most favorable verticular. What, then, was the con- sion of such testimony, as a whole, sideration for the guaranty? What which the jury would be authorized was the benefit to be received by to accept. But a party testifying in the defendant for the warranty? his own favor has no right to be inThe only consideration or benefit tentionally or deliberately self-confor this whole transaction, passing tradictory; and, if he is so, the from plaintiff to defendant, was courts are fully justified in taking the fee of from $25 to $50, and against him that version of his tesplaintiff says that this fee was for timony which is most unfavorable the operation. He says that he to him. Being peculiarly in a posiagreed to pay this to defendant, and tion to state fairly and definitely afterwards defendant warranted or the facts which he professes to guaranteed the results of the opera
know, he is under a duty of so stattion. That which defendant agreed ing them as to give a candid and into do, in consideration of the prom- telligible account of what occurred. ise to pay $25 to $50, was to per- The courts are also authorized to form the operation, and the thing give great weight to statements unthat plaintiff agreed to do was to willingly made upon cross-examinapay defendant not less than $25 or tion, when these statements have more than $50. Afterwards, plain- every appearance of being the real tiff says the guaranty was made. truth, though reluctantly told." Neither can it be maintained that Western & A. R. Co. v. Evans, 96 the guaranty was made as an in- Ga. 481, 23 S. E. 494. ducement to the contract to operate, The supreme court of Georgia for the guaranty was made subse- says: “If a person testify in his quently to the agreement to pay for own behalf, and there are material the operation. What is said by this conflicts and contradictions in his
(65 Mont. 155, 211 Pao. 289.) testimony, he is not entitled to re- court made no ruling. The motion cover, if he be the plaintiff, unless requiring plaintiff to elect was that portion of his testimony which granted. is least favorable to his contention (b) In the course of the crossis of such a character as to author- examination of the defendant, counize a recovery in his behalf. The sel for plaintiff asked defendant the rule just referred to was first laid following questions: down in the case of Western & At- (1) “Are you, or is the Medical lantic R. Co. v. Evans, supra. It Protective Association, the defendwas recognized and approved in ant in this case?”. Freyermuth v. South Bound R. Co. (2) "Under your contract with 107 Ga. 32, 32 S. E. 668, and South- them, would you personally, or ern Bank v. Goette, 108 Ga. 796 would they have to, pay any judg(2), 33 S. E. 974.” Atlanta R. & ment secured against you?" Power Co. v. Owens, 119 Ga. 833, 47 Objection was made and susS. E. 213.
tained to both of these questions. From the foregoing it is apparent Counsel for defendant moved the that the warranty was made after court to direct counsel for plaintiff the agreement to operate and to pay to desist from asking further questherefor, that the warranty did not tions of like character, but no such become a part of the contract to op- direction was made. erate, and that there was no con- (c) During the argument to the sideration for the warranty. We jury, counsel for plaintiff made the are of the opinion following statement:
“Of course, Physician and
that the trial court he did not care anything about it; anty of result of erred in denying it was not any affair of his; he was of consideration. defendant's motion
insured in an insurance company; for a nonsuit, that they had to pay these damages. the verdict is against the law, and
To these remarks of plaintiff's counthat the motion for a new trial sel defendant's counsel duly exceptought to have been granted.
ed, and requested the court to inError is predicated upon the ac- struct the jury to disregard the tion of counsel for plaintiff, by rea- same in its deliberations. The son of the following occurrences at court made no response to such rethe trial below, viz.:
quest. (a) Before the impaneling of The obvious purpose of these the jury to try this cause, but in the statements and questions was to get presence of the jury composed of before the jury such matter as that the whole panel, defendant moved the jury might infer therefrom that the court for an order requiring the some bonding company; and not the plaintiff to elect whether he would defendant, would be called upon to proceed to trial upon his action for
bear the burden of meeting any damages ex delicto, as stated in the judgment rendered in this cause. first cause of action, or upon his Clearly, none of such matter was action ex contractu, as set forth in admissible, and is
Evidence-action the second cause of action. During without the issues. against physi
Such practice is not
cian-insurance. the argument of this motion, and in the presence of the whole jury pan- to be commended. Having deterel, counsel for plaintiff said, in part: mined that this cause must be re"May it please the court, we realize, versed and remanded upon other of course, that several demurrers grounds, we do not deem it neceshave been filed in this action, but sary to now determine whether or bonding companies defending physi- not the action of counsel complained cians usually take advantage of of constitutes, in itself, reversible everything that they can possibly error. take advantage of to~" Objection
We recommend that the judgment to this statement was made, but the and order appealed from be reversed, and the cause remanded to sion reached by Commissioner Lei. the District Court, with directions per. I would not burden the record to set aside the verdict, and judg with my views on the question if ment for plaintiff and to enter judg. the case were remanded for a new ment for defendant.
trial. By the recommendations of Per Curiam:
the supreme court commission, For the reasons given in the fore
based upon his opinion, and apgoing opinion, the judgment and proved by the other justices, the order appealed from are reversed,
district court is to enter judgment and the cause is remanded to the
for the defendant. The plaintiff beDistrict Court, with directions to ing thereby deprived of an opporset aside the verdict and judgment tunity of having his case again prefor plaintiff, and to enter judgment sented is my reason for giving exfor the defendant.
pression of my views.
I think too narrow a construction Farr, J., dissenting:
has been given to plaintiff's testi. I dissent. I believe that the judg- mony. The jury was fully instructment and the order appealed from ed as to the law, and under the inshould be reversed and the cause re- structions the jury could have, in ma..ded for a new trial, but not for my opinion, found for either party the reasons assigned by Commis- according to their judgment of the sioner Leiper.
evidence and of the conclusions to In my opinion the conduct of be drawn therefrom. The jury was counsel for the plaintiff in introduc- first told, in effect,—upon the plaining before the jury that which was tiff's theory that if it found from not at all pertinent to the issues in- the evidence that the defendant, for volved, the effect of which was well a valuable consideration, agreed to calculated to influence the jury ad- effect a complete cure of plaintiff's versely to the defendant, and the hand, or to make it 100 per cent failure of the court, when requested efficient by performing a certain opby the defendant, to instruct the eration, and that he failed to carry jury to disregard a remark made
out his contract, it should find for by counsel for the plaintiff in his the plaintiff. (Instructions Nos. 1, argument, all constituted error re- 3, and 12.) And, second, -upon quiring that the case be remanded
the defendant's theory,—that if it for a new trial. Kerr v. National
found from the evidence that after Fulton Brass Mfg. Co. 155 Mich. the plaintiff and defendant had 191, 118 N. W. 925; Iverson v. Mc- agreed that the defendant should Donnell, 36 Wash. 73, 78 Pac. 202; perform the operation in question, Stratton v. C. H. Nichols Lumber and what his compensation for the Co. 39 Wash. 323, 109 Am. St. Rep. performance of the operation and 881, 81 Pac. 831; Lowsit v. Seattle subsequent treatment should be, deLumber Co. 38 Wash. 290, 80 Pac. fendant, without other considera431; Westby v. Washington Brick, tion passing to him, or paid or Lime & Mfg. Co. 40 Wash. 289, 82 promised to him, stated that the rePac. 271: Chybowski v. Bucyrus Co.
sult of the operation would be to 127 Wis. 332, 7 L.R.A.(N.S.) 357, make plaintiff's hand 100 per cent 360, 106 N. W. 833; Cosselmon v. efficient, and that he would so guarDunfee, 172 N. Y. 507, 65 N. E. antee, or words to that effect, such 494; Tremblay v. Harnden, 162 promise and dependence upon it Mass. 383, 38 N. E. 972.
were without consideration and As to the basic question, whether could not be enforced, and verdict or not there was a contract of guar- should be for the defendant. (Inanty separate and distinct from the struction No. C.) That these incontract for the performance of the structions fairly and satisfactorily operation and promise to pay there- stated the different theories upon for, I cannot agree with the conclu- which the case was tried by the re