On a careful examination of the transcript of the record in this case, we can see no error which demands a new trial. The case is suit on a physician’s account for services, with medicine, rendered defendant for himself and family for a series of years. The account was admitted to be correctly transcribed from the doctor’s books of original entry, and the services were proved by himself.
1. Complaint is made that set-off for tort in giving defendant too lai'ge a dose of medicine, which injured him to the amount of two hundred dollars, was not allowed by the court. There is no error in striking the plea. Tort cannot be set-off against contract. The defensive remedy is that the workman did not do his work skilfully, or recoupment springing out of the contract. It matters not whether the defendant was or was not insolvent. Mere set-off is not a good plea. Besides, the plea itself is too loose. The idea that an overdose of ipecac endamaged a man two hundred dollars, without stating in the plea wherein and how, is hardly plainly and distinctly setting out a defence.
2. Complaint is made that the judge instructed the jury, to the effect that if one calls in a physician and he is intoxicated, and yet afterwards he continues to employ him, the continuous employment amounts to a waiver of objection on account of the intoxication. In view of the evidence, the charge is not erroneous. The evidence is that, after the alleged intoxication sworn to by defendant, he sent for the doctor, who attended as well on his wife and son as on himself. Surely one cannot object to a doctor’s bill on account of past intoxication, when he keeps him as his family physician for years afterwards; and whilst the facts ■ may not amount strictly to estoppel or waiver, there is no ■ such error as hurt defendant, so as to make a new trial necessary. The plaintiff ought to recover if defendant,. knowing his habits, employed him as his family physician, and he rendered service as such.
*6603. Whilst it may have been well to admit the opinion of witnesses other than physicians, as to unskilful practice, tinder our Code, facts and reasons being given for such opinion, yet, as the facts were all before the jury, on which that body at last was to make its opinion in a verdict, we ■do not see how the exclusion of opinion by other witnesses Ihurt; especially when the opinion of no expert had been .given in behalf of the plaintiff.
On the whole, it seems to us that the verdict is right on the law and evidence, and ought to stand, it being satisfactory to (he very able and experienced judge who tried the case, despite any trifling errors which a hypercritical eye might discover.
Judgment affirmed.