sicians are not common carriers, nor publicans, and the law requires no such absolute compliance with the demands of the public. They have their choice, therefore, to accept or refuse the call, but having accepted, must continue in attendance upon the case until recovery, unless dismissed by the patient or the party employing them, or they may withdraw from it themselves, provided they give reasonable notice of such intention, so that another medical attendant may be secured.1 Their service is always voluntary at its inception, but having once undertaken to treat the case, they are under legal obligation to exert their best skill, and all necessary diligence to carry it to a speedy and successful termination.

Pothier unfolds the principle upon which this obligation of fidelity in the discharge of an accepted trust rests, in the following lucid and succinct manner:

"Le contrat de mandat est de la classe des contrats consensuels; il se forme et il reçoit sa perfection par le seul consentement des parties. Aussitot que le mandataire a consenti de se charger de l'affaire dont le mandant l'a chargé, quoi qu'il ne soit encore intervenu aucun fait de part ni d'autre, le mandataire est dès lors obligé à gérer l'affairé dont il s'est chargé, et le mandant contracte l'obligation de l'indemniser de ce qui lui en coutera."

§ 14. The physician, as before said, may, nevertheless, withdraw from the case after due notice given, but cannot abandon it without; since this would constitute negligence of a grave character, and render him amenable for all injuries sustained by the patient in consequence thereof. The

'Les medecins qui ont commencé le traitement d'une maladie, sont tenus de le continuer tant qu'elle dure, a moins qu'ils n aient une excuse légitime pour s'en dispenser. MERLIN, Repert. de Jurisp. tit. Medecin, 3, 2. 2 Du Contrat de Mandat, ch. 1, § 4.

contract is for the performance of a service of indefinite duration, and usually without stipulation for its continuance during any particular period. In its essence it is an entirety without limitation as to time of performance. It is true that either party may, at any time interrupt its continuance, with this proviso only, that the physician must give reasonable notice of such intention, while the patient need give none. The mandator is always the principal in the transaction, and may dismiss the mandatary at any moment sua sponte, while the latter having accepted the mandate is bound to carry it out if possible, and can only absolve himself by due notice previously given to his principal. It is plainly a fraud upon the mandator to abandon or to neglect discharging the trust after having accepted it, for the acceptance constitutes a promise, and a promise is a good foundation upon which to rest a legal obligation. If the mandatary retires from it, he can only do so by placing the mandator in as good circumstances as he found him, and by giving due notice of his intention.

§ 15. But where a special contract is made with a physician, either by a public institution or private individual, to render professional services during a definite period and for a stated sum, so long as he continues able and willing to, and actually does render such services in a proper manner, he cannot be legally discharged before the natural expiration of the contract. The obligation to continue to employ during a fixed period is, by the very terms of the mandator's agreement, binding upon him so long as the mandatary faithfully discharges his duties.

On the other hand, stipulations exacted by a physician. from a patient before, or in the course of treatment, to

'McDaniel v. Yuba Co. 14 Cal. 444.

pay a certain sum contingent upon the performance of a cure, have always been considered as professionally immoral, and in the civil law were repudiated as against public policy. "Et patimur accipere quæ sani offerunt pro obsequiis, non ea quæ periclitantes pro salute promittunt," (Code. Leg. de Prof. et Med.). It is doubtful whether the common law would adopt so ethical a view of human relations into the sphere of perfect obligations, and thus provide remedies against their violation. Certainly we have been able to find no decisions interfering with the right of physicians to make bargains with their patients in the nature of special contracts, at any time while attending upon them.

§ 16. In general, however, the contract between physician and patient belongs to the class of ordinary mandates, and is subject to the rules of interpretation applicable to such cases. When, however, he enters into a special contract to perform a cure, he will be held strictly to its terms, as in any other transaction of life, nor will he be allowed to plead circumstances which, under the general law of professional obligation, might fairly exonerate him from blame, for failing of success in the treatment of his patient. And in order to constitute a special agreement it is not necessary that a specific sum should be agreed upon, for it is not the specific sum, so much as the absolute promise to cure, that forms the gist of the contract.1 In case of a cure, he will be entitled to recover a reasonable compensation, unless that cure is associated with some permanent deformity in the patient, directly traceable to his professional misconduct. any event, however, he must be able to show a perform

In

'Mock v. Kelly, 3 Alab. 387.

ance of the terms of the contract on his part, and cannot recover for his services unless he does.

In a case of this kind, in Vermont, it was held, that "if a physician commence attending upon a patient under a contract, that if there is no cure, there shall be no pay, he can not recover for his services or medicines, unless he show a performance of the terms of the contract on his part."

§ 17. Where a patient is unable to pay for professional services, and a third party assumes the responsibility of so doing, a special contract arises either in the nature of a guaranty, or of an absolute adoption of the indebtedness. Thus, if A. say to B., "attend upon C., and if he does not pay you, I will," that being a promise to answer for a debt of C., for which C. is also liable, the guarantee is only a collateral undertaking, and under the Statute of Frauds, must be reduced to writing before any recovery at law can be had under it. But if A. say to B., absolutely and unqualifiedly, "attend upon C., and charge the same to me, or I will pay you for such services as you

Smith v. Hyde, 19 Vermont, 54.

2 "The principle is a common one that if the whole credit is not given to the person who comes in to answer for another, his undertaking is collateral, and under the Statute of Frauds must be in writing." Ibid.

Leland v. Cregin, 1 McCord, 100; Barber v. Fox, 2 E. C. L. R. 386; 3 Kent, 123.

A physician who furnishes medicine to and attends upon a pauper can not recover for his services from the overseers of the poor, unless they were bestowed upon their request, or they have subsequently promised to pay. Everts v. Adams, 12 Wend. 449.

A town is not liable to pay a physician for his services in attending upon persons sick with a contagious disease, who have ability to make payment themselves, unless he has been employed by the selectmen of the town to attend upon such persons, and it is not sufficient that the services of the physician were performed with their knowledge and assent. George, 28 Maine, 255.

Kellogg v. St.

Hence, a request by the attend as physician on a

may render him," then, the whole credit being given to A., no written agreement is necessary, since it becomes absolutely the indebtedness of A.1 defendant to the plaintiff to third person, and a promise that if he will so attend, the defendant will pay therefor, and the bestowing of such attendance by the plaintiff upon the faith of such request and promise, renders the defendant liable to pay what such attendance is reasonably worth. Though the defendant may, at any time, give notice to the plaintiff that he will not be liable for further services2-yet a guaranty, though in writing, and duly executed by the defendant, will be void, unless some consideration moves between him and the plaintiff. When, however, the undertaking is contemporaneous with the original debt, the guarantor is presumed to participate in the original consideration.3 Nor in relation to special contracts between physician and patient must the principle be overlooked that there is a wide distinction between a contract to do a thing which is accidentally, and one which is absolutely impossible. In the latter case, no obligation is created, and the contract is void ab initio. Impossibilium nulla obligatio est. But in the former, the contract is binding, notwithstanding, as the party undertaking to perform its conditions should have made provision against such contingencies. Every express contract makes him a guarantor, and it is his own fault if he undertake a thing beyond his ability.*

1 Smith on Contracts, 44.

2 Hanford v. Higgins, 1 Bosw. (N. Y. Supr. C.) 441.

3 Chitty on Contr., 10th Am. Ed., p. 548.