Johnson v. Sanders , 260 N.C. 291 ( 1963 )

132 S.E.2d 582 (1963) 260 N.C. 291

Nellie Ralph JOHNSON
v.
Maywood N. SANDERS, Executor of Claude Ralph Estate.

No. 23.

Supreme Court of North Carolina.

October 9, 1963.

John H. Hall, Elizabeth City, for plaintiff-appellant.

Worth & Horner, Elizabeth City, for defendant-appellee.

SHARP, Justice.

The plaintiff in this case is an adult daughter who married, left her father's house and established a home of her own. Therefore, no presumption arises that any services she rendered to her father were gratuitous. 2 Strong, N.C.Index, Executors and Administrators, § 24c, p. 337. Plaintiff comes within the general rule that if one performs services for another which are knowingly and voluntarily accepted, nothing else appearing, the law implies a promise on the part of the recipient to pay the reasonable value of the services. Winkler v. Killian, 141 N.C. 575, 54 S.E. 540; Landreth v. Morris, 214 N.C. 619, 200 S.E. 378; Coley v. Dalrymple, 225 N.C. 67, 33 S.E.2d 477. However, services rendered gratuitously to one during his lifetime may not be converted into a debt after his death. Nesbitt v. Donoho, 198 N.C. 147, 150 S.E. 875. The burden always rests upon the plaintiff, even when there is no presumption that the services were gratuitous, to show circumstances from which it might be inferred that services were rendered and received with the mutual understanding that they were to be paid for, or, as it is sometimes put, "under circumstances calculated to put a reasonable person on notice that the services are not gratuitous." Lindley v. Frazier, 231 N.C. 44, 55 S.E.2d 815; Twiford v. Waterfield, 240 N.C. 582, 83 S.E.2d 548.

Whether plaintiff rendered services to her father with no expectation of being paid therefor or under an implied promise of compensation is a question of fact. Clearly she was entitled to have the jury pass upon her claim for services rendered during the three years immediately preceding his death. Hodge v. Perry, 255 N. C. 695, 122 S.E.2d 677.

Plaintiff seeks, however, to recover for services rendered over a period of seventeen years upon the allegation that decedent breached his agreement to compensate her in his will. Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764. When compensation is to be provided in the will of the recipient, the cause of action accrues when he dies without having made the agreed testamentary provision. Doub v. Hauser, 256 N.C. 331, 123 S.E.2d 821. Nevertheless, as pointed out by Rodman, J., in McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575, the promise which the law implies on the part of the recipient to pay for services knowingly and voluntarily received, is not expanded to imply a promise to pay at death and by will. "If the time for payment is to be extended to the death of the recipient of the services, there must be agreement to that effect." Plaintiff's evidence in this case fails to establish such an agreement.

The statements by Mr. Ralph, expressing his gratitude for what plaintiff had done for him and a purpose to leave her the house in which she resided, constituted neither an express promise on his part to pay for such services nor were they an unqualified acknowledgment of indebtedness to her. Dodson v. McAdams, 96 N.C. 149, 2 S.E. 453; Lindley v. Frazier, supra. A fortiori, they were not a promise to pay at death or by will. A mere expression of appreciation is insufficient to establish a contract. Such statements show Mr. Ralph's kindly disposition toward his daughter, but they fail to establish a promise to reimburse her in his will for services she might thereafter render him. They were competent for the jury to consider, along with all the other facts and circumstances, upon the question whether payment was intended on the one hand and expected on the other.

A contract, whether express or implied, requires mutuality of agreement and obligation to be enforceable. "(F)rustrated expectations of a bounty, not the offspring of agreement," will not change a partially barred claim into one wholly outside the three-year statute of limitations. Miller v. Lash, 85 N.C. 51, 52.

The expressions of Mr. Ralph are parallel to those made by the decedent with reference to the plaintiff's services in Brown v. Williams, 196 N.C. 247, 145 S.E. 233. There, although the expressions were never made to the plaintiff, it was held that the evidence was sufficient to go to the jury on the question of quantum meruit for the three years prior to the death of the recipient but not sufficient to show an express contract to make testamentary provision for the plaintiff.

According to the plaintiff's evidence, when she learned that her father intended to leave her the house, she had already rendered five of the total seventeen years of service for which she now seeks compensation. Her only reply when he stated this intention was, "That's all right, daddy." This exchange between plaintiff and her father is as consistent with gratuitous service on her part as it is with an expectation of payment. Yet, it is some evidence to support her claim that she expected to be paid for her services thereafter.

Plaintiff's failure to establish an express contract, however, will not defeat her right to prosecute her claim for services rendered during the three years preceding her father's death. Cline v. Cline, 258 N.C. 295, 128 S.E.2d 401; Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760; Coley v. Dalrymple, supra.

Defendant's contention that the nonsuit was justified by plaintiff's failure to offer evidence as to the reasonable value of her services during the three years immediately prior to Mr. Ralph's death is untenable. True, her proof related only to the total value of the services allegedly rendered during the seventeen years of her claim. However, as stated by Bobbitt, J., in Gales v. Smith, 249 N.C. 263, 106 S.E.2d 164, implied assumpsit is the basis for any recovery on quantum meruit. Upon the breach of such a contract a plaintiff would be entitled to nominal damages at least. To recover more, plaintiff must prove the value of the services rendered. The jury is required to base its verdict on evidence; it may not speculate. Cline v. Cline, supra.

The evidence in this case should be submitted to the jury on the issue of quantum meruit for the three years prior to the death of defendant's testate.

The judgment of involuntary nonsuit is

Reversed.