Jonas v. King , 81 Ala. 285 ( 1886 )

SOMERVILLE, J.

—The plaintiff in this case declares on the common count for work and labor done, or, what is the same thing in legal effect, for medical services rendered by him at the request of the defendant. The evidence discloses a special agreement between tbe parties by which the defendant promised to pay the plaintiff the sum of one hundred dollars, if he would successfully treat and cure him of a certain disease with which defendant was afflicted. The evidence further tends to show that there was a breach of the contract on defendant’s part by his refusal to permit plaintiff to continue his treatment of him, without sufficient excuse.

1. The general rule is that where there is an express contract, the plaintiff can not resort to an implied one. An exception to the rule, however, is that he may recover on the common counts, although the evidence discloses a special agreement, where such agreement has been executed and fully performed, and no duty remains but the payment of the price in money by the defendant. But so long as the contract continues executory, the plaintiff must declare specially. — 1 Chitty on Plead. (16th Am. Ed.) 350 ; Beadle v. Graham, 66 Ala. 99 ; 2 Greenl. Ev., § 104 ; Moulton v. Trask, 9 Metc. 877 ; Burkham v. Spiers, 56 Ala. 547.

The court in its rulings erroneously treated the action as one brought on a special agreement, averring a readiness and ability to perform on the part of the plaintiff.

2. It was competent for the defendant, under the common count for a quantum meruit, to prove the real value of the plaintiff’s services, or that they were of no value, and, for this purpose, he could show what were the customary charges of physiciaos for like services in the same locality or neighborhood. The court erred in excluding this evidence.

3. So it was perfectly relevant to prove that the medicine used by the plaintiff, was worthless, and possessed no efficacy in producing the results for which it was used. In order to do this, the defendant could prove the ingredients and nature of this medicine. The plaintiff had no property in the secret of his remedy such as the law would privilege him from disclosing. The fear that such disclosure might give others the benefit of his skill would not excuse him in refusing to testify as to the nature of the medicine. His only mode of protection was by procuring a patent for the discovery. When he became a witness, it was for the purpose of testifying to all material and relevant facts within his knowledge not privileged by law from disclosure. The Circuit Court erred in excluding the question having reference to this inquiry.

It will be unnecessary to pass on the other assignments of error, as the questions raised will not probably enter into the consideration of the case on a new trial.

Reversed and remanded.