Victim, injured by Driver in an auto accident, employed attorney First to
represent him in the matter. Victim was chronically insolvent and expressed
doubt whether he could promptly get necessary medical treatment.
Accordingly, First wrote into their contract his promise to Victim "to pay
from any settlement with Driver compensation to any physician who provides
professional services for Victim's injuries." The contract also provided
that First's duties were "non-assignable." First immediately filed suit
against Driver. Victim then sought and received medical treatment,
reasonably valued at $1,000, from Doctor, but failed to inform Doctor of
First's promise.

After receiving a bill from Doctor for $1,000, Victim immediately wrote
Doctor explaining that he was unable to pay and enclosing a copy of his
contract with First.

Victim then asked First about payment of this bill, but First requested a
release from their employment contract, stating that he would like to refer
Victim's claim to attorney Second and that Second was willing to represent
Victim in the pending lawsuit. Victim wrote a letter to First releasing him
from their contract and agreeing to Second's representation. A copy of this
letter was sent to Doctor. Second subsequently promised First to represent
Victim and soon negotiated a settlement of Victim's claim against Driver
which netted $1,000, all of which was paid by Victim to creditors other than
Doctor. Victim remains insolvent.

In an action by Doctor against Victim to recover $1,000, Doctor's best
theory of recovery is that Doctor

A. is a creditor beneficiary of the employment contract between
Victim and First.
B. is a donee beneficiary of the employment contract between
Victim and First.
C. provided services essential to the preservation of victim's
health.
D. has a claim based upon an implied-in-fact contract with
Victim.

D

D my first choice
C my second choice

<!--[if gte mso 9]> Normal 0 false false false MicrosoftInternetExplorer4 <!-- /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-parent:""; margin:0cm; margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:12.0pt; font-family:"Times New Roman"; mso-fareast-font-family:"Times New Roman";} @page Section1 {size:612.0pt 792.0pt; margin:2.0cm 42.5pt 2.0cm 3.0cm; mso-header-margin:36.0pt; mso-footer-margin:36.0pt; mso-paper-source:0;} div.Section1 {page:Section1;} --> <!--[if gte mso 10]> V is judgment proof. (It is drilled in 2-3 places in the vignette)

In an action by Doctor against Victim to recover $1,000, Doctor's best  theory of recovery is that Doctor to go after the promisor in K b/w patient and attorney –First. If Fist had obligation to pay Doctor and failed he is liable to Doctor, secondary to V. In order to invoke liability against First, Doc will assert his rights under creditor- beneficiary of the employment contract between
Victim and First. All he need to show that his rights were vested. Indeed, after receiving a bill from Doctor for $1,000, “Victim immediately wrote Doctor explaining that he was unable to pay and enclosing a copy of his contract with First.”  As such, Doc can demand from First or Second to whom all duties of K b/w V and First were delegated, including duty to paid creditors.

B/c doctor was creditor –beneficiary not donee, his rights were vested before other creditors (simply first in time.-first in right). Hence, First or Second, broke the K obligation to pay Doctor the fee. First is secondary and Second is primary liable under the assignment (i.e., delegation of duties)

<!--[if gte mso 9]> Normal 0 false false false MicrosoftInternetExplorer4 <!-- /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-parent:""; margin:0in; margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-fareast-font-family:"Times New Roman";} @page Section1 {size:8.5in 11.0in; margin:1.0in 1.25in 1.0in 1.25in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-paper-source:0;} div.Section1 {page:Section1;} --> <!--[if gte mso 10]> Answer D is correct. An implied-in-fact contract is a type of enforceable contract, but one that is based on a tacit rather than an express promise. An implied-in-fact promise may be inferred from parties’ conduct, such as where services are rendered by one person for another under circumstances where it may fairly be presumed that the parties understood that compensation would be paid. Doctor is entitled to recover payment from Victim on an implied-in-fact contract theory, since Victim implicitly agreed to pay for services rendered when Victim sought and received medical treatment from Doctor. A and B are incorrect because the promise to pay in that agreement was made by First and not by Victim. C is incorrect because this fact alone would not give rise to an obligation to pay for the services.
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