(after stating the facts). The theory of the plaintiff was that he had made an express contract with the defendant whereby the latter agreed to pay him the sum of $1,500 for operating on Mrs. Freeman, the defendant’s sister. He seeks to recover the balance due him under the contract.
On the other hand, it was the theory of the defendant that the plaintiff was not entitled to- compensation unless the operation was successful and the patient was entirely cured.
Special contracts with physicians -or surgeons upon the principle of “no cure, no pay,” are generally held valid. They are conditional contracts, and there seems to be no .reason why a physician may not enter into a contract whereby his right to compensation may be dependent upon his curing the patient entirely by treatment or by operating upon him. Jones v. King, 81 Ala. 285; Mock v. Kelly, 3 Ala. 387; Hollywood v. Reed, 57 Mich. 234; Fisk v. Townsend, 7 Yerger (Tenn.) 146; Smith v. Hyde, 19 Vt. 54, and Dye v. Corbin [Sup. Ct. of Appeals W. Va.) 53 S. E. 147.
In Henderson v. Hall, 87 Ark. p. 1, the plaintiff sought to recover for medical services under an express contract to pay a certain sum. The defendants admitted having employed the plaintiff, but denied having agreed to pay him any particular sum. The court held that it was not error to instruct -the jury that, if defendant agreed to pay the sum named, they should find for plain*113tiff accordingly; but, if there was no contract for any certain amount, the jury should find for the plaintiff a reasonable compensation for the services rendered.
Thus it will be seen that it is well settled that a physician or surgeon may make an express contract whereby he is to receive a stipulated sum for his services, or he may make a special agreement to cure his patient by an operation or, in case he fails ¡to do ¡so, to receive no pay.
The respective theories of the parties, under the principles of law decided above, were submitted to the jury, in certain instructions given by the court. In this connection it may also be stated that, under the testimony of the plaintiff, the agreement of the defendant was an original undertaking, ¡and not a collateral one within the statute of frauds. In Cleveland v. Maddox, 152 Ark. 538, the plaintiff testified that defendant employed him to -perform a surgical operation on his adult son, and told the plaintiff that he would pay the bill, and it was held that the evidence was sufficient to sustain the finding that defendant’s undertaking was an original one.
It is claimed by counsel for the plaintiff that the court gave an instruction which ignored these principles of law. The instruction complained of is No. 9, and reads as follows: “Although you may find that defendant is primarily liable upon the contract sued on, still, if you find and believe, from a preponderance of the evidence, that Whitlow was induced to agree to pay $1,500 for the operation upon Mrs. Freeman in reliance upon the representation of plaintiff that $1,500 was a reasonable charge for such character of ¡surgical services; that defendant believed said representations, and did not himself know whether said charge was reasonable for such services; and you further find that a charge of $1,500 w-as excessive and exorbitant for such services, then defendant would only be liable for a reasonable fee for the services performed, and, if he has paid more *114than you find is a reasonable compensation for such services, then he is entitled to recover any excess paid, as shown by the proof. And, in determining what is a reasonable fee, you will take into consideration the skill and care and expense required and used in the diagnosis of, preparation for and execution of the operation, but you are not authorized to diminish a reasonable fee because of the fact that Mrs. Freeman died following the operation, unless there was a warranty of the result, as explained in these instructions.”
We think this assignment of error is well taken. It will be noted that the instruction tells the jury that, although1 it may find that the defendant is liable upon the contract sued on, still if he agreed to pay $1,500 for the operation upon his sister, in reliance upon the representations of plaintiff that this was a reasonable charge for the operation, and that, if defendant believed this to be true, and did not know whether the charge was reasonable or not, and the jury should further find that $1,500 was an excessive fee, then the defendant would only be liable for a reasonable fee, and would be entitled to recover any excess paid, as shown by the proof. It was error to narrow the inquiry by instructing the jury that the right of the plaintiff to recover under the contract depended upon whether he represented to the defendant that $1,500 was a reasonable fee, and the defendant, in ignorance of what was a reasonable fee, believed the representations to be true. This tended to concentrate the mind of the jury upon a single question and to place too narrow a limit upon the plaintiff’s right to recover.
As we have already seen, when the contract was made, no confidential relation existed between the parties, and a contract for the amount of fee to be charged by a surgeon is valid and unobjectionable, and will be enforced, unless there are special circumstances ■ from which it appears that it was induced by fraud or some improper or undue advantage over the patient or the *115person employing the surgeon. There may be cases where, from the nature of the transaction and the situation of the parties, fraud and imposition may be inferred from the representations of the surgeon that his fee was reasonable. Such a ease would be where there was necessity for an immediate operation and no other surgeon was available. Such a case might also be presented where a party was induced to go to the sanitarium of another and was persuaded that an immediate operation was necessary to -save the life of a patient. It may be stated that, in any case of emergency, where the patient or the person making a contract for the patient was laboring under such great excitement or distress of mind that an unconscionable advantage has been taken of him, then the contract will be set aside on the ground of fraud, and recovery for services will only be allowed upon a quantum meruit.
Here none of these elements existed. There was no necessity for an immediate operation. No emergency existed. The defendant was at home, and his sister was in a hospital in the same town. If he made the contract testified to by the plaintiff, he did so of his own volition. He did not ask Dr. Love if the fee was reasonable. There was another physician in the city who had attended his sister, He had time to have consulted him about the reasonableness of the fee. He did neither. If he made the contract as testified to by the plaintiff, his only ground for setting it aside on the ground of fraud is that it was unreasonable. This is not sufficient. It cannot be said that the contract was procured by fraud because the plaintiff charged more than other physicians and surgeons would charge for a similar operation in the same city. There must be some mental distress caused by the attending circumstances which would constitute constructive fraud because the party seeking to enforce the contract had taken an unconscionable advantage of one who had the right, under the circumstances, to rely upon his representations that the fee was a reasonable one.
*116This principle was recognized in the case of Cotnam v. Wisdom, 83 Ark. 601. In that case a surgeon was called in to attend a person injured in án accident, and, in an effort to save his life, performed an operation on him while lie was unconscious. The patient died without regaining consciousness, and the law implied a contract on his part to pay a reasonable compensation to the surgeon.
The same principle would apply to a helpless man, without friends to aid or advise him, who would be induced to make an unconscionable contract with a physician or surgeon in order to save the life of himself or some one near to him.
It follows that the court erred in giving instruction No. 9 to the jury, at the request of the defendant, and for that error the judgment must be reversed, and the cause remanded for a new trial.