Pilot Freight Carriers, Inc. v. David G. Allen Co., Inc. , 22 N.C. App. 442 ( 1974 )

206 S.E.2d 750 (1974) 22 N.C. App. 442

PILOT FREIGHT CARRIERS, INC.
v.
DAVID G. ALLEN COMPANY, INC.

No. 7410DC311.

Court of Appeals of North Carolina.

July 17, 1974.

Smith, Hibbert & Pahl by Carl W. Hibbert, Raleigh, for plaintiff appellee.

Dixon & Hunt by Daniel R. Dixon, Raleigh, for defendant appellant.

HEDRICK, Judge.

The single question presented by this appeal is whether the trial court correctly entered summary judgment in favor of the plaintiff. Summary judgment is the proper procedure if examination of the pleadings, interrogatories, affidavits, etc., discloses that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. G.S. § 1A-1, Rule 56(c), Rules of Civil Procedure. The propriety of summary judgment in the instant case involves a discussion of the following two propositions: (1) Was summary judgment properly entered with regard to the issue of liability; (2) Was summary judgment properly entered with regard to the issue of damages?

I

"In the absence of anything to indicate a contrary intention of the parties, where one performs for another a useful service of a character that is usually charged for and such service is rendered with knowledge and approval of the recipient, who either expresses no dissent or avails himself of the service rendered, the law raises an implied promise on the part of the recipient to pay the reasonable value of such service. The general rule is that where services are rendered by one person for another, and are knowingly and voluntarily accepted, without more, the law presumes that such services were given and received in the expectation of being paid for, and implies a promise to pay their reasonable worth." 66 Am.Jur.2d, Restitution and Implied Contracts, § 24, p. 968. See also, Root v. Insurance Co., 272 N.C. 580, 158 S.E.2d 829 (1968).

A careful survey of the pleadings, exhibits, affidavits, and other documents filed in the motion for summary judgment reveals that the defendant did receive 930 bags of stone, which was delivered by plaintiff, and incorporated this crushed stone into the fabrication of the turkey plant. Moreover, no express contract existed between the parties. These uncontroverted facts manifest a benefit conferred by plaintiff and acceptance of such benefit by the defendant. Such circumstances dictate, in the absence of an express contract, that quasi-contract principles be imposed to prevent one party from being unjustly enriched to the detriment of the other. Therefore, the trial court correctly entered summary judgment in favor of the plaintiff as to the issue of liability.

II

Next, directing our attention to whether summary judgment was properly entered with regard to the issue of damages, we are of the opinion that the trial court incorrectly granted summary judgment as to this aspect of the case. In an action founded upon the theory of quasi-contract, the measure of the recovery is determined by the value of the actual benefit realized and retained. Stout v. Smith, 4 N.C.App. 81, 165 S.E.2d 789 (1969); 66 Am.Jur.2d, Restitution and Implied Contracts, § 28, p. 973. The value of the services rendered and retained "is determined largely by the nature of the work and the customary rate of pay for such work in the community and at the time the work was performed." 66 Am.Jur.2d, Restitution and Implied Contracts, § 28, p. 973. The only evidence in this record as to the value of the services rendered by the plaintiff and retained by the defendant is that shown on the "Freight Waybill"; and while not conclusive, it may be considered, if shown to be consistent with the Interstate Commerce Commission's Schedule of Rates and Tariffs, together with other evidence, if any, in determining the reasonable value of such services.

The result is—as to the issue of defendant's liability: summary judgment for the plaintiff is affirmed; as to the issue of damages: summary judgment for plaintiff in the amount of $1,373.99 is reversed, and the cause is remanded to the District Court for a determination of the issue of damages consistent with the principles of law herein set out.

Affirmed in part; reversed in part.

MORRIS and BALEY, JJ., concur.