Imágenes de páginas
PDF
EPUB

The United .States Mortgage Company r. Henderson H al.

debt. The wife, for the purpose of avoiding threatened litigation, executed a note and mortgage upon the land. Commenting upon the facts, the court said: "The finding does not show the compromise of any actually existing liability; it states only the belief of the defendant that he had a claim, without any fact upon which such belief is founded; it is not found that there was any valid claim against the plaintiff. * * * There is no fact found upon which even a doubtful claim could arise in favor of the defendant against the plaintiff. A threatened litigation, founded merely on the defendant's belief, without any fact to support the belief, amounts to nothing, and the purpose to avoid such a litigation was no consideration for the plaintiff's promises." Wade v. Simeon, 2 C. B. 548; Edwards v. Baugh, 11 Mees. & W. 641; Spahr v. Hollingshead, 8 Blackf. 415.

In the language of the court in Jarvis v. Sutton, 3 Ind. 289, " It is true a compromise of doubtful claims may be sufficient to found a consideration upon, but in such cases there must be a surrender of some legal benefit which the other party might have retained. * * * A promise to give something for the compromise of a claim, about which there is merely a dispute and controversy, and for which there is no legal foundation whatever, is not sufficient to sustain a suit at law."

In order that a compromise may constitute a sufficient consideration for the enforcement of an executory contract, there must have been an actual bona fide claim, founded upon a colorable right, about which there was room for honest doubt and actual dispute.

Upon the plaintiff's theory the interest coupons were in effect paid by having been satisfied by the purchase of property. In that event there would have been no color or foundation for a dispute or claim. The instructions requested ignored the necessity for even color or foundation for the claim. Because the instructions omit these essentials they were properly refused.

The United States Mortgage Company v. Henderson et al.

Other instructions given by the court, and some which were requested by the appellant and refused, are the subjects of discussion in the briefs. Most of these relate to questions which have already been considered in connection with the pleadings and other matters which have preceded. While we have carefully considered the questions made, it would involve a useless repetition to state them all separately, and the reasons upon which we conclude that no error intervened in respect to giving or refusing instructions.

It became a subject of controversy whether, under the contract of agency, Henderson and Jameson had the right to charge the mortgage company for the services for which compensation was claimed, the items of which were comprised by the bill of particulars and the proof in the case.

As has been seen, the agency comprehended by the contract was to make loans of money on bonds and mortgages, and to collect money to become payable on such loans. The contract also provided that the company should not be liable for any charges, disbursements or commissions to their agents "for their services in said agency."

The court put the case to the jury upon the theory that, under the contract, the mortgage company had no right to require the services of Henderson and Jameson, or either of them, without compensation, as to any or either of the following matters:

First. Legal services in foreclosing mortgages or collecting moneys for the company by legal proceedings and actions at law.

Second. Looking after repairs to, and caring for, properties bought in by the company upon foreclosure of its mortgages.

Third. Renting and collecting rents of properties bought in by the company upon foreclosure of its mortgages.

Fourth. Superintending repairs and improvements to, and taking general oversight of, properties in the hands of reThe United States Mortgage Company v. Henderson et al.

ceivers appointed by the courts in cases brought to foreclose mortgages executed to the company to secure loans made by its agents.

Fifth. Looking after the payment of taxes, and the keeping up of insurance, upon properties bought in by the company, upon foreclosure of its mortgages.

Sixth. Looking after the payment of taxes, and keeping up the insurance, upon properties mortgaged to the company to secure loans.

The court instructed the jury that for all services of the character above specified, performed by the agents, or either of them, at the instance and request of the company, the latter became liable to pay a just and fair compensation.

These instructions are covered in principle by what was said in Union, etc., Ins. Co. v. Buchanan, 100 Ind. 63-73: "The fact that an attorney is employed as an agent to negotiate loans does not preclude him from rendering professional services, if requested by his principal. Loaning money is one thing; giving advice in matters of law, and conducting suits, are quite different things." So it may be said here, the services enumerated above are services quite different from those comprised by the contract of agency, which related exclusively to loaning money on bonds and mortgages, and collecting moneys payable on loans made. We have discovered no error of law in the record.

In respect to the value of the services, and the diligence exercised by the agents in attending to the company's affairs, there was apparently sharp antagonism. The great length ( of time occupied with the hearing, and the volumes of evidence taken, attest the care and minuteness of inquiry into all the details of the whole business, which characterized the investigation. A careful consideration of all the questions, which have been very elaborately and carefully presented, fails to disclose any error of law committed by the court; and, while we may say the amount of the recovery ($12,506.72) seems large, we are unable to see that a different Orr v. Meek, Administrator.

result would be reached if a new trial were ordered and the same evidence submitted to a new jury.

The judgment is, therefore, affirmed, with costs.

Elliott, C. J., did not participate in the decision of this case.

Filed May 12, 1887.

No. 13,579.

Orr V. Meek, Administrator.

Physician.License.Compensation.—One who undertakes to practice the profession of medicine, without the license required by statute, can not recover compensation for his services.

Same.License Required for Each County in Wiiich Physician Practices.—A physician, who has obtained a license in one county, can not regularly engage in practice in another county without taking out another license.

Statute.Construction.Forms.—A form prescribed by statute is an essential and controlling part of the statute.

From the Fayette Circuit Court.

C. A. Murray, R. Conner and H. L. Frost, for appellant. J. I. Little and D. W. McKee, for appellee.

Elliott, C. J.—In the recent case of Eastman v. State, 109 Ind. 278, we held, after a full examination of the authorities, that the act requiring physicians and surgeons to obtain a license was constitutional, and it is unnecessary to again discuss that question. In the investigation of the case re-« ferred to, we found that the authorities were harmonious in holding acts like ours to be valid and enforceable.

The cases agree in holding that one who undertakes to practice the profession of medicine without the license required by statute can not recover compensation for his services (Eastman v. State, supra, and cases cited), and section 6 of the act of April 11th, 1885, expressly declares that no Orr v. Meek, Administrator.

recovery can be had for medical services unless a license has been taken out.

What we have said disposes of two of the questions discussed by counsel, and leaves for examination this question: Can a physician, who has regularly obtained a license in one county, practice in another county without taking out another license?

Section 2 of the act of April 11th, 1885, provides, among other things, that "Any person desiring to practice medicine, Burgery or obstetrics in this State, shall procure from the clerk of the circuit court of the county wherein he or she desires to practice a license so to do."

Section 4 provides that "Any person who shall practice medicine, surgery or obstetrics in this State without having first procured from the clerk of the circuit court of the county wherein he or she shall so practice a license, as provided in this act, shall be deemed guilty of a misdemeanor."

We can perceive no reason for doubting the correctness of the construction placed upon this statute by the trial court, for it seems clear that a license must be taken out in the county where the physician practices. If, however, there were any doubt as to the meaning of the two sections from which we have quoted, that doubt is removed by the form of the license given in section 6, for the form provides that the person to whom it is issued " is hereby authorized to practice medicine, surgery or obstetrics in said county." Acts of 1885, p. 199.

It was held in Wasaon v. First Nat'l Bank, 107 Ind. 206, 'that a form prescribed by statute is an essential and controlling part of the statute, and it must be so held here. The conclusion that the right to regularly practice is restricted to the county in which the license is issued, is irresistible, for the whole scope of the statute, as well as the form prescribed, very clearly shows that the license is confined to the county in which it is procured.

It may be that there are cases where the courts would hold

« AnteriorContinuar »