Coyne

Appeal from a judgment for the plaintiff and an order denying the defendant’s motion for a new trial. The plaintiff sues as assignee of H. G. Brainerd, a physician; but it appears from his testimony that the claim was assigned to him for collection only, and that he has no interest therein except for such commission as he may be entitled to for collection. The complaint contains two counts, the first on a quantum meruit for the sum of $400 “for services as a physician rendered and performed by said Brainerd to said defendant,” etc., and the second for the same sum on a parol contract, whereby it was agreed that Brainerd, “as such physician, was to make examination of said defendant as to his physical and mental condition, consult with other physicians with reference thereto, and give his opinion thereof as a medical expert in evidence” before a commissioner. In the answer it was pleaded to the first count “that the alleged cause of action arose out of an implied contract for the payment of witness’ fees in a matter wherein said . . . Brainerd appeared as a witness,” etc., “wherein in testifying as such witness, and by reason of gross negligence, ignorance and carelessness in…