[NOTE - It is believed that this is James Issac (J.I.) Bonner.  Need to recheck against 
 the original.]

36 S.W. 1014

BONNER 
v. 
BRADLEY.

Court of Civil Appeals of Texas.
June 13, 1896.


Page 1015

        Error from Freestone county court; A. G. Anderson, Judge.
        Action by J. T. Bonner against J. T. Bradley on an account for medical services rendered by plaintiff 
for defendant. There was a judgment in favor of defendant, and plaintiff brings error. Reversed and 
remanded.
        J. R. Bell, for plaintiff in error.
        RAINEY, J.
        This is a suit by plaintiff in error to recover of defendant in error for medical services rendered 
defendant in error's daughter, which plaintiff in error alleged in his petition were rendered at the instance 
and request of defendant in error. Defendant answered, denying that he owed plaintiff anything, and that 
plaintiff was not in the active practice of medicine at the time such services were alleged to have been 
rendered; that plaintiff was closely related to the family of defendant by consanguinity and affinity, and 
the families were upon the most intimate terms; that for 30 or 40 years plaintiff and defendant extended 
hospitalities, courtesies, and favors to each other in the way of kindnesses and substantial benefits, 
without charges or any kind of legal obligation from one to the other, and especially about the times of the 
rendering of such services; and that a greater part of the time plaintiff made defendant's home a general 
stopping place for rest, recreation, and refreshments, and it was at these times, and on these occasions, 
and under these circumstances, that said plaintiff, as defendant then thought and believed, and was so 
impressed, acting as much or more in the capacity of a friend than as a physician, examined and 
prescribed for the family of defendant when indisposed. The evidence shows that the services of plaintiff in 
error were rendered as stated in his account, and also further shows that the relation existing between the 
parties was as stated in defendant in error's answer, and that their conduct and transactions with each 
other were the same as alleged. On the trial the court gave a general charge to the jury to the effect that, 
if plaintiff's demand was just and due, he would be entitled to recover, and, further, that if they did not 
believe such account was just and due, and was contrary to law and equity, then they should find for 
defendant. The plaintiff asked a special charge upon the question of implied contract, which the court 
refused to give. We think, under the circumstances, the court failed to properly charge the jury. When 
services are performed at the request of a party, the law will imply a promise to pay the reasonable value 
thereof, unless such request be made and acceded to as a gratuitous favor. "That the service for which 
plaintiff seeks to recover was done under an implied promise that he should be paid for it may be rebutted 
by evidence that the relation between the parties was such as to exclude the inference that they were 
dealing on a footing of contract." Potter v. Carpenter, 76 N. Y. 157; Moyer's Appeal, 112 Pa. St. 290, 3 
Atl. 811; 3 Am. & Eng. Enc. Law, p. 61. Taylor v. Deseve, 81 Tex. 246, 16 S. W. 1008, the court says 
"that it is a settled principle of law that a promise to pay will not be implied contrary to the intention of 
the parties," citing Lippman v. Tittmann, 31 Mo. 74. If, at the time the services were performed by 
plaintiff in error, it was not the intention of the parties that charges should be made for such services, 
then defendant in error would not be liable therefor. As the law applicable to the facts of the case was not 
given to the jury in the charge of the court, the judgment will be reversed, and the cause remanded. 
Reversed and remanded.