Ward v. Hogan — 11 Abb. N. Cas. 478

Majority

p. 478

WARD v. HOGAN.

N. Y. Common Pleas ; Special Term,

November, 1882.

Headnote

Action for Breach of Physician’s Contract to send Patients TO PARTICULAR DRUGGIST.—PLEADING.

An agreement by -which a physician, as a consideration for the purchase from him of a drug and prescription business, contracts to send thereafter all prescriptions of his practice to the buyer to be filled, is not unlawful, and an action will lie to recover damages for its breach.

An allegation of a breach of such agreement in substantially the words of the promise, is sufficient ; the necessary implication therefrom being the existence of patients, and a willful or negligent omission to direct or recommend them to plaintifi.

Demurrer to complaint.

The complaint alleged that defendant was a practicing physician, doing a large business in the city of New York. That defendant had been in possession and the owner of a certain drug store and business

p. 479

and prescription business in said city, which he had sold and delivered to plaintiff, “and in consideration of said plaintiff purchasing said store and business and prescription business, said defendant agreed and covenanted with said plaintiff that he, said defendant, would send thereafter all prescriptions of his practice in the city of New York to said plaintiff, to be filled as other druggists filled the same in said city. ” It further alleged plaintiff’s readiness to fill such prescriptions, “and that defendant has failed, neglected and refused to send the prescriptions of his said practice to said plaintiff as agreed,” to his damage, and claimed damages for such breach.

Defendant demurred.

J. C. Julius Langbein, for the demurrer.

A. M. Card (T. V. Jarvis Christopher, attorney), opposed.

There was nothing unlawful in making the agreement set forth in the complaint, by which the defendant, a physician and surgeon, promised to send all his prescriptions to be filled by plaintiff, as a consideration for the purchase by the latter of the drug store and drug and prescription business of defendant carried on at the place specified in the pleading. A physician may with propriety advise or direct his patients to have his prescriptions made up at a particular druggist’s, and may with equal propriety agree with a druggist who, on the faith of that promise, buys out his shop, as in this case, to give such advice and direction to his patients.

The difficulty in an action for damages for the breach of such a contract might arise, in the attempt to show that defendant was responsible for the failure of' his patients to patronize plaintiff, for the patient may take his prescription to a druggist of his own selection, notwithstanding the recommendation

p. 480

of his physician. But that is a difficulty of proof and not of pleading. To make defendant liable it must be alleged and proved that he has neglected and refused to recommend the plaintiff’s shop to persons for whom he has prescribed. This complaint alleges substantially the same thing, viz., that “ defendant has failed, neglected and refused to send the prescriptions of his practice to said plaintiff as agreed by said defendant. ” The breach is alleged in substantially the same words as the promise, and that is a good allegation. The necessary implication from it is that defendant had patients to whom he gave prescriptions, but willfully or negligently omitted to recommend or direct them to go to plaintiff to have the prescriptions put up. The allegation of breach is therefore sufficient (Schenck v. Naylor, 2 Duer, 675 , 678).

Judgment on demurrer for plaintiff, with costs. Leave to answer on payment of costs as of judgment on issue of law.