Dr. J. P. Walker sued R. W. (alias Sheff) Browning on an account for professional services rendered one Bostick, .amounting to -$43.50, with a credit by cash of $1. Prom the brief of the evidence set out in the hill of exceptions, it appears that the plaintiff testified as follows : The account is true, just, due, correct and unpaid. Tom Harris came after plaintiff and said that Browning sent him to tell plaintiff to come that night without fail, that Bostick was cut. Harris was riding Browning’s mule. Plaintiff went at once and stopped at Browning’s. Browning met him at the gate, and they went in the house. He told Browning that Harris had said Browning would pay the doctor’s bill, and Browning ■said: “ Yes, I will be responsible for the doctor’s bill.” Browning went with plaintiff to see Bostick that night, •and again next morning; seemed very much interested, asked plaintiff if Bostick was seriously hurt, if plaintiff would have to come again, and what the doctor’s bill would be if he did not have to come again. Plaintiff told him, and he said, all right. Plaintiff told. defendant that if Bostick got worse and defendant wanted him, he would find plaintiff at McRae’s that •eveniug. When plaintiff got to McRae’s, one Arm strong was there waiting for him, and. said Browning had sent him for plaintiff, that Bostick had gotten worse. Plaintiff went to see Bostick, and Browning went with him that night and again next morning. Next morning as they were returning, Browning said Bostick was in debt to him and doing nothing, and that this had taught him a lesson standing for doctor’s bills. Plaintiff attended Bostick until he got well, and handed in the account to Browning, who looked over it and asked several questions about it. Plaintiff explained it to him, and Browning said he had no money then, that times were hard, cotton low and he had sold no cotton. The first intimation plaintiff had that Browning did not-intend to pay the bill was when J. P. Walker and plaintiff were collecting. They went to see Browning who said he was not going to pay the account. Plaintiff would not have treated Bostick if Browning had not told him he would pay the bill. Harris testified that Browning told him to take his mule and go after the doctor, and tell him to be sure and come, that Bostick was cut; that he asked Browning if Browning had better not send an order, but Browning said, go on and tell the doctor that Browning sent for him and that Browning said for him to come that night without fail, and if witness told the doctor that, the doctor would come; that Browning did not say, tell the doctor he -would pay the bill. Armstrong testified, that Bostick told him to go to Browning’s and tell Browning to send for the doctor, that he Avas worse; that he told Browning what Bostick had said, and Browning told him to go to McRae’s where he would find the doctor; that he asked Browning if he did not need an order, and Browning said, no, tell the doctor that Bostick was worse off and that Browning had sent for him, and he would come. Bostick testified that he had nothing to do with sending for the doctor, and all he had ever heard about the bill was wlrat Browning said to him; that Bod Browning cut him, and Bod told him he would pay the doctor’s bill.
Browning testified: He did not owe the doctor anything. Bostick’s wife told him that Bostick wanted him to send after the doctor for Bostick, and he told Harris Bostick wanted a doctor. Bostick sent word that he wanted plaintiff, but if it had been left to him (Browning) he would have sent for another doctor. He had no conversation whatever with plaintiff’ about the bill; he did ask plaintiff next morning what the bill. would be if he did not come again. When plaintiff-handed him the account he put it in his pocket without noticing it. He did not tell plaintiff and J. P. Walker, when they came by collecting, that plaintiff’asked him if he would pay the doctor’s bill the night plaintiff stopped at his house, and that he made no reply. One Pervis testified that he was at Browning’s when plaintiff’ came, and went in the house with plaintiff’ and Browning; heard no conversation about the doctor’s bill; was with them all the time; they talked about things generally, but not about who was to pay the bilk
In rebuttal plaintiff’ testified: Pervis did not go in the house. There was no one in the house but Browning and witness when they were talking about the doctor’s bill. When J. P. Walker and plaintiff went collecting, Browning admitted that plaintiff asked him the night plaintiff’ stopped at his house if he was responsible for the doctor’s bill, but said he made no reply. The testimony of plaintiff, as to what occui’red when he and Walker went collecting, was corroborated by J. P. Walker.
There was a verdict in the justice’s court for the defendant. The plaintiff carried the case to the superior court by certiorari. This was overruled, and the plaintiff excepted, because the verdict was contrary to law,. •evidence, etc.; because the account sued upon .showed that a payment had been made on it before it was sued upon, which should have reversed the verdict; and because the court refused to remit the case to the justice’s ■court with instructions as to the statute of frauds, this having been the entire defence relied upon by defendant’s counsel. The judge, correcting the bill of exceptions, states that the defence relied on before him was, ■not the statute of frauds, but that the defendant never undertook nor promised to pay the account. All the foregoing facts appear in the bill of exceptions, the petition for certiorari and the answer not being in the ■record sent to this court.
J. P. Walker, by brief, for plaintiff.
No appearance for defendant.