Vandersmith v. Washmein's Adm'r ( 1826 )

Buchanan, Ch. J.

delivered the opinion of the Court. The objections attempted to be taken to the declaration, that the promise to the administrator, and death of the intestate, are defectively set out, and that there is no profert of the letters of administration, though they might have furnished good causes of demurrer, come too late now, after verdict, and the case must be decided on the bill of exceptions taken at the trial. On which the only question raised is, whether the appellant was entitled to retain any thing on account of the physician’s bill?

If the money, which was placed by the intestate, Frederick Washmeifi, in the hands of the appellant, was deposited with him for sate keeping only,- and for no other purpose, he then would have had no right to pay any part of it over in discharge of the physician’s bill. But the evidence is, that the deceased directed the appellant to send for a physician, to furnish him with every-thing that was necessary, and to apply the money placed in his hands to the payment of the physician’s bill, and in discharge of any expenses that might be. incurred. Now, if the meaning of the deceased was, that in the event of his death, the appellant should pay the attending physician out of thjf money so placed in his hands, and that formed one of the jáurposes for which it was lodged with him, (which would seem to have been the case, for it is difficult to suppose, that he intended, in the event of his recovery, that the appellant should be his paymaster,) then it was a special fund, only to be brought into action after the death of the intestate; and the appellant may be considered in the light of a trustee, or agent, of the physician, for whose remuneration the fund was in part created, and was warranted in paying his bill, if indeed the amount was such as he was entitled to receive. We think, therefore, that the court below erred in directing the jury, that the appellant was entitled to no deduction from the amount claimed in the action, on account of the physician’s bill.

JUDGMENT REVERSED,