Allen v. Seay

• Decision Date: 30 April 1958
• Docket Number: No. 525,525
• Citation: 248 N.C. 321,103 S.E.2d 332
• Court: North Carolina Supreme Court
• Parties: Mrs. Ray S. ALLEN v. Thomas W. SEAY, Jr., Administrator c.t.a. of the Estate of Mary Cross Cox, Decedent.

Page 332

103 S.E.2d 332

248 N.C. 321

Mrs. Ray S. ALLEN v. Thomas W. SEAY, Jr., Administrator c.t.a. of the Estate of

Mary Cross Cox, Decedent.

No. 525.

Supreme Court of North Carolina.

April 30, 1958.

Graham M. Carlton, Salisbury, for plaintiff, appellant.

John C. Kesler, Salisbury, for defendant, appellee.

HIGGINS, Justice.

The plaintiff based her cause of action on a special contract. However, upon failure to establish the special contract her complaint contained sufficient allegations to permit her to go to the jury on quantum meruit. Thormer v. Lexington Mail Order Co., 241 N.C. 249, 85 S.E.2d 140; Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561, 15 A.L.R.2d 1325; Wright v. Teutonia Ins. Co., 138 N.C. 488, 51 S.E. 55; Stokes v. Taylor, 104 N.C. 394, 10 S.E. 566.

The court submitted only the issue based on the value of the services, evidently upon the ground the evidence was insufficient to show the special contract. On this issue the judge charged:

"Now, as I state a moment ago, where one kinsman moves into the home of another kinsman there is a presumption of fact that the services rendered by the kinsman to another kinsman were given gratis, that is, free, but that is not a conclusive presumption; that can be rebutted, and if * * * you find by the greater weight of the evidence that Mrs. Cox received services under certain circumstances and conditions, and find that she expected to pay Mrs. Allen for the services and Mrs. Allen expected her to pay, then it is a case of arriving at whatever her services were reasonably worth; * * *

"You cannot go back now and ward any sum of money to Mrs. Allen beyond three years from the time Mrs. Cox died."

The plaintiff's assignment of error No. 17 challenges the quoted portion of the charge insofar as it relates to the presumption that services rendered to a kinsman by a kinsmn are gratuitous. "The general rule that the performance of valuable services for one who knowingly and voluntarily accepts the benefit thereof raises the implication of a promise to pay, is subject to modification that, where certain family relationships exist, services performed by one member of the family for another, within the unity of the family, are presumed to have been rendered in obedience to a moral obligation and without expectation of compensation." Francis v. Francis, 223 N.C. 401, 26 S.E.2d 907,908, citing numerous cases. See, also, Twiford v. Waterfield, 240 N.C. 482,83 S.E.2d 548; Dills v. Cornwell, 238 N.C. 435, 78 S.E.2d 167; Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764; Coley v. Dairymple, 225 N.C. 67, 33 S.E.2d 477; Landreth v. Morris, 214 N.C. 619, 200 S.E. 378; Winklier v. Killiam, 141 N.C. 575, 54 S.E. 540; Callahan v. Wood, 118 N.C. 752, 24 S.E. 542; Williams v. Barnes, 14 NC. 348; Mordecai's Law Lectures, 2d ed., 199.

In the case at bar the plaintiff and the testatrix were first cousins once removed. Prior to 1947 the former lived in New Jersey and the latter in South Carolina. In that year the testatrix moved to the plaintiff's apartment in New Jersey where she remained until her death in 1956. Prior to 1947, insofar as the evidence discloses, the two had never been members of the same household. The court's charge, therefore, that services by a kinsman to a kinsman re presumed to be gratuitous was entirely too broad and all-inclusive. Kinship in this case, according to the authorities cited, and many others, was insufficient to raise a presumption that services rendered were gratuitous. In the charge the court committed error prejudicial to the plaintiff...