There is in all such contracts a promise, implied if not expressed, that the party employing will pay for the service rendered; (a) and, on the other hand, that the party employed will use due care and diligence, and have and exercise the skill and knowledge requisite for the employment undertaken. (b) It is on this ground that physicians and surgeons are liable for any injury caused by their want of due skill, or of due care. (c)

If the contract express that the service shall be gratuitous, then it is void for want of consideration; (d) but there may be a valid agreement to delay payment, or to make the payment conditional on the happening of some event, - as when the work is finished, or when the employer receives his pay. (e) If a party agrees to do work, and receive no pay, he cannot recover pay, (f)

(a) Phillips v. Jones, 1 A. & E. 333, ante, p. *46, note (j).

(b) Morris v. Redfield, 23 Vt. 295; Goslin v. Hodson, 24 id. 140; Hail v. Cannon, 4 Hairing. (Del.) 360; Hager v. Nolan, 6 La. An. 70. And see Streeter v. Horlock, 1 Bing. 34.

(c) Howard v. Grover, 28 Me. 97; Bowman v. Woods, 1 Greene (la.), 441.

(d) In such case the person contracting to do the work is not bound to commence it. But if, in the understanding of all parties, the services were originally rendered gratuitously, they cannot afterwards be made a charge. James v. O'Driscoll, 2 Bay, 101. So in Davies v. Davies, 9 C. & P. 87, A and his wife boarded and lodged in the house of B, the brother of A, and both A and his wife assisted B in carrying on his business. A brought an action for the services, to which B pleaded a set-off for board and lodging. Held, that neither the services on the one hand, nor the board and lodging on the other, could be charged for, unless the jury were satisfied that the parties came together on the terms that they were to pay and to be paid; but that if that were not so, no ex post facto charge could be made on either side.

(e) Robinson v. The New York Ins. Co., 2 Caines, 357; s. c. 1 Johns. 616.

(/) In Jacobson v, Le Grange, 3 Johns. 199, where a young man, at the request of his uncle, went to live with him, and the uncle promised to do by him as his own child; and he lived and worked for him above eleven years, and the uncle said that his nephew should be one of his heirs, and spoke of advancing a sum of money to purchase a farm for him, as a compensation for his services, but died without devising any thing to the nephew, or making him any compensation; it was held, that an action on an implied assumpsit would lie against the executors, for the work and labor performed by the nephew for the testator. But in Patterson v. Patterson, 13 Johns. 379, the facts were, that the plaintiff, after he had come of age, lived with and worked for his father, the deif he does the work; but if there be a * contract of service which is silent or indefinite in regard to compensation, the party who renders the service under it may recover pay under a quantum meruit; (g) and if by the contract the party employed agrees to leave the compensation entirely to the employer, the jury may give what the employer ought to give. (h)

It seems to be doubted in England whether an arbitrator can recover for his services without an express promise; (i) but the doubt appears to grow out of the peculiar English rule, that the employment of a barrister-at-law is wholly honorary, and gives him no legal claim for compensation. We have no such recognized rule here, although the distinction between barristers and attorneys is preserved in some States, and it seems that some difference has been made as to their lien on * the pa pers or the judgment for fees. (j) In general, however, all lawyers have in this country the same legal claim for compensation that attorneys have in England. (k) So in England a physician (or one licensed by the College of Physicians), has no remedy fendant, who said he would reward him well, and provide for him in his will: held, that the plaintiff could not maintain an action to recover compensation for his services during the lifetime of his father. See also ante, p. *47, note (&).

(g) See Jewry v. Busk, 6 Taunt. 309; Bryant v. Flight, 5M.&W. 114.

(h) Thus, in Bryant v. Flight, 5M.& W. 114, A agreed to enter into the service of B, and wrote to him a letter, as follows: "I hereby agree to enter your service as weekly manager, commencing next Monday; and the amount of payment I am to receive I leave entirely to you." A served B in that capacity for six weeks. Held [Parte, B., dissenting), that the contract implied that A was to be paid something at all events for the services he performed; and that the jury, in an action on a quantum meruit, might ascertain what B, acting bona fide, would or ought to have awarded. So in Jewry v. Busk, 5 Taunt. 302, it is held, that a request to a tradesman to show the defendant's house,"and the defendant would make him a handsome present," is evidence of a contract to pay a reasonable compensation for the work and labor bestowed in that service. But in the earlier case of Taylor v. Brewer, 1 M. & SeL 290, where a person performed work for a committee, under a resolution entered into by them, "that any service to be rendered by him should be taken into consideration, and such remuneration be made as should be deemed right," it was held, that an action would not lie to recover a recompense for such work, the resolution importing that the committee were to judge whether any remuneration was due.

(i) Although the English cases are not quite agreed upon the subject, yet it seems the more generally received opinion in that country, that the appointment of an arbitrator is not of such a nature as to raise an implied promise to pay him a reasonable compensation for his services. Virany v. Warne, 4 Esp. 447; Burroughes v. Clarke, 1 Dowl. P. C. 48. But see Swinford v. Burn, 1 Gow, 5. An express promise to pay by the party will, however, bind him, and give the arbitrator a right of action. Hoggins v. Gordon, 3 Q. B. 466. In this country, arbitrators and referees under a rule of court have the same right to recover for their services as any person for his labor. Hinman v. Hapgood, 1 Denio, 188; Hassinger v. Diver, 2 Miles, 411. But the action must not be against both parties to the suit jointly, but only against the party producing the claim or demand. Butman v. Abbot, 2 Greenl. 361. If there were several arbitrators, each may maintain a separate action for his own services. Hinman v. Hapgood, 1 Denio, 188; Butman v. Abbot, 2 Green! 361.