Gardner

Plaintiff, who is a physician and surgeon, was called in by defendants, and began to treat their *371 employee, Cook, on March 8,1883. He continued to visit the patient until October 2,1883. On September 24th he made a demand upon defendants for the sum of $2,386. Thereupon defendants notified him that they considered his charges exorbitant, and that they would not be responsible for any further services in behalf of Cook. He then brought this action to recover the sum of $2,406, alleged to be the reasonable value of his services. The' jury found a verdict in his behalf for the sum of $1,800, and judgment was entered for that amount, and $318 costs and disbursements. The defendants moved for a new trial, specifying several errors of law, and claiming that the verdict was excessive. The defendants convinced the learned judge who heard and decided the motion that the verdict was excessive, and not warranted by the evidence, and he thereupon caused to be entered a conditional minute order, of which the following is a copy: “The motion for a new trial herein will be denied, provided that plaintiff, within thirty days from this date, offer to remit the sum of eight hundred dollars from…

I dissent. I do not think that there is anything in the record to justify the conclusion that the court below thought the verdict excessive. The order recited in the leading opinion was an unusual one, but taking the whole record together, the broadest construction that to my mind can be given to it is, that the court below thought that under the circumstances of the case the verdict was a hardship to the defendants, and on the other hand the delays of a new trial and possible appeal would also work a hardship to the plaintiff, and that it would be better for both parties to settle *376 the matter on the basis of the order, which it gave them an opportunity' of doing. But the very terms of the order imply that the court did not consider the defendants entitled to that reduction as a matter of right or of law, and the weight of the evidence is against any such implication. On the contrary, the preponderance of the evidence is in favor of a much larger amount than that allowed by the verdict. If the amount of the bill was a surprise to the defendants, it was in a large degree their own fault, in utterly neglecting to ascertain the character of the case which they had committed to…