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Cotnam v. Wisdom

Melissa A. Hale

ProfessorMelissa A. Hale

CaseCast "What you need to know"

CaseCast –  "What you need to know"

Cotnam v. Wisdom

Citation. 83 Ark. 601, 104 S.W. 164, 1907 Ark. 117
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Brief Fact Summary.

Harrison, deceased is represented by the Appellant who inherited intestate. Harrison was thrown from a street car. Appellees, surgeons, performed a difficult operation in an attempt to save his life but failed.

Synopsis of Rule of Law.

A quasi-contract or implied contract is a legal fiction where although there is no promise or contract in fact, one will be implied by the law to remedy unjust enrichment.


Appellant representing estate argued that the deceased, Mr. Harrison, could not give consent expressly or impliedly to the surgery since he was rendered unconscious and should not by contract have to pay for the surgery.


Whether surgeons are entitled to recover cost of difficult operation performed in an effort to save the life of Mr. Harrison under a quasi-contract or implied contract theory.
Whether it was error to admit evidence of the ability to pay for the surgery provided relying on law that contemplated means to pay as evidence of the price contemplated for the contract.


It was well settled that surgeons may recover the necessaries furnished in good faith to a person rendered in a helpless condition. Surgeons were entitled to recover.
It was error to admit evidence of ability to pay on an implied contract which is a legal fiction. By it, the surgeon is entitled to reasonable compensation for the services rendered whether or not the patient is “prince or pauper.”
Concurrence. The concurring Justices would allow recovery but did not agree with holding that the jury instructions could not consider the patients ability to pay. It might be considered in fixing the charge.


The Court quotes a passage explaining that implied contracts are found in the law somewhere between contract and tort and call for a remedy where none is otherwise provided to prevent unjust enrichment.

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