¶1The opinion of the court was delivered by
¶2In reversing the judgment of the county court, accepting the report of the auditors, we must bear in mind that the auditors were judges of the facts, and with their determination thereon we have nothing to do. But when they state all the facts, as they have done in this case, and it appears they will not warrant the inference which the auditors have made, their decision may be reexamined by the court. In the case of Clark & Meigs v. Waterman, 7 Vt. R. 76, the facts were reported by the auditor and the court, on those facts, rendered judgment for the plaintiff.
¶3In the case under consideration, it appears that all the services, for which the plaintiff brings this action, were performed for the brother of the defendánt, who, though insane, was liable therefor. The present defendant can only be made liable on an original undertaking. The services were not beneficial to him, and he was under no legal obligation to pay for them, unless upon an express undertaking, or unless it may fairly be inferred, from the evidence, that it was the intention of both parties, that the plaintiff should perform the services, and the defendant should pay him therefor. *338Further it may be observed that if it appears from the report that the defendant, and any other person with him, are jointly liable on a contract to pay the plaintiff, the defendant may here take advantage of the non-joinder of the other contracting party, and the plaintiff cannot recover against this defendant alone.
¶4An examination of the case convinces us that the facts reported, instead of leading to the conclusion that the defendant was responsible to the plaintiff, negatives such a result altogether. In the first place, it is to be remarked that, in a case like this, we should naturally expect an express promise to pay would have been made, if any liability was intended. No such promise was made. The defendant was under no legal obligation to provide for or maintain his brother. His brother was not, and had not been, a member of his family, nor had the defendant been accustomed either to pay any debts for him, or provide for his support. Although the auditors find that the entries were originally made against the defendant, and that the services were performed at his request, yet the slips of paper, on which these entries were made, are thrown by, and the first date to the plaintiff’s charges is in 1840, which must have been more than three months after the first services were performed ; and a mere request to the plaintiff to perform the services, or carrying his brother to the house of the plaintiff, would not render the defendant liable, unless it was the intention of both the parties that he should be so liable.
¶5The evidence would as well charge the father of the insane person, either as a joint promissor with the defendant, or as a sole contractor. The young man had been a member of his father’s family, had made it his home at his father’s house, and the father went with him and the defendant, to the plaintiff’s house, and equally with the defendant requested the plaintiff to take care of him. Moreover, the plaintiff sent to inquire whether a demand could be secured against the father or the insane person, being then uncertain to whom he should resort for payment.
¶6All these facts lead irresistibly to the conclusion that the defendant never did agree to pay the plaintiff for those services. Or, if they do in any way tend to prove any such *339agreement, it was one made jointly with David Watson, the father, and, in either event, the plaintiff cannot recover.
¶7Compared with the case of Clark & Meigs v. Waterman, all the strong circumstances are wanting which induced the court to adjudge the defendant in that case liable. There the girl had lived in his family from her childhood until she arrived at the age of eighteen, and he stood in loco parentis to her. She also lived with him mostly until her death, which was at the age of twenty-three. He employed the physicians, changed them, and manifested a great concern as to her recovery. The natural conclusion of every one would be that die was taking care of her, as he would of one of his children, and as a member of his family, and, unless he intended to be responsible, he should have so manifested it to the gentlemen whom he employed ; and, furthermore, he called on the plaintiffs, Clark Sf Meigs, for their account, saying he intended to call on the town to see if they would not assist him. All these facts indicated strongly an original undertaking to pay the physicians for their attendance, and though not entirely satisfactory to me at the time, they were such as to induce a majority of the court, to hold the defendant liable in that action. In this case there is no proof, whatever, of any of these circumstances, nor any facts sufficient to prove an undertaking of the defendant to pay the plaintiff. We think, the auditors, in this case, were not justified, from the facts reported, in finding the defendant liable to the plaintiff.
¶8If there had been any contract in the case, it could not have been avoided because made on the Sabbath. It was not such a labor as is prohibited by the statute. Healing the sick, or employing a physician so to do, are within the exceptions of the statute, and are such works as necessity and charity require. The decision in the case of Lyon v.Strong, 6 Vt. R. 214, of the soundness of which I have never had any reason to doubt, and which has lately been recognized by a decision of a judge of the superior court in the city of New York, does not militate with the right of the plaintiff to recover, in this case, if his proof had been otherwise sufficient. With respect to the reasonableness or extravagance of the charges of the plaintiff, we cannot inquire, as that subject was for the consideration of the auditors. The judgment of the county court is reversed.