Grady v. Faison

• Citation: 31 S.E.2d 760,224 N.C. 567
• Decision Date: 01 November 1944
• Docket Number: 383.
• Parties: GRADY v. FAISON.
• Court: North Carolina Supreme Court

31 S.E.2d 760

224 N.C. 567

GRADY v. FAISON.

No. 383.

Supreme Court of North Carolina

November 1, 1944

This was an action to recover for services to defendant's intestate. It was alleged that the services were rendered in consequence of decedent's contract to compensate plaintiff therefor by a devise of real and personal property.

Compulsory reference was ordered. The referee reported findings of fact and conclusions of law to the effect, (1) that the decedent did not enter into the special contract alleged; (2) that there was an implied promise on the part of decedent to pay plaintiff the reasonable worth of the services rendered; (3) but that plaintiff was only entitled to recover the reasonable value of such services as were rendered within three years of the death of the intestate; and (4) that the reasonable value of plaintiff's services for the three years' period was $1500.

Plaintiff filed exceptions to the referee's report on the ground that he should have found there was a special contract between intestate and plaintiff as alleged or, failing that, the three years' statute of limitations should not have been applied, and that the value of the services rendered within the three years' period was greater than that allowed.

Defendant excepted to the referee's report on the ground that there was no competent evidence to support the finding that plaintiff was entitled to recover anything on his claim, and that plaintiff's action should have been nonsuited.

On the hearing jury trial was waived, and the court, after consideration of the pleadings, evidence, report of referee and exceptions thereto, sustained, approved and confirmed each of the referee's findings of fact and conclusions of law, and overruled all exceptions thereto, and entered judgment that plaintiff recover of defendant administrator 1500.

Both plaintiff and defendant appealed.

Oscar B. Turner and L. A. Wilson, both of Rose Hill, and H. E Phillips, of Kenansville, for plaintiff.

J Faison Thomson, of Goldsboro, Rivers D. Johnson, of Warsaw, and Beasley & Stevens, of Kenansville, for defendant.

DEVIN Justice.

The plaintiff grounded his action for compensation for services to the defendant's intestate upon an alleged special contract or agreement to compensate him therefor by devising to him all the property, real and personal, she might own at her death. However, the referee who heard all the evidence found as a fact that the decedent and plaintiff did not enter into the special contract alleged. This finding, which is supported by evidence, was approved and confirmed by the trial judge, and hence the conclusion on this point must be regarded as unassailable. Dent v. English Mica Co., 212 N.C. 241, 193 S.E. 165. The suggestion that the refusal of defendant's motion for nonsuit, and his failure to offer evidence should be considered as conclusively establishing the credibility of plaintiff's evidence, is not in accord with the statutory proceedings prescribed by G.S. § 1-183.

But failure of proof of a special contract would not prevent plaintiff from maintaining his claim for compensation for his services to decedent upon the implied promise to pay what these services were reasonably worth. Brown v. Williams, 196 N.C. 247, 145 S.E. 233; Lipe v. Citizens' Bank & Trust Co., 206 N.C. 24, 173 S.E. 316; Price v. Askins, 212 N.C. 583, 194 S.E. I84; Daughtry v. Daughtry, 223 N.C. 528, 27 S.E.2d 446. Upon this phase of the case the plaintiff excepted to the ruling of the trial court in confirming the conclusion of the referee that in the absence of a special contract to compensate plaintiff for his services by will effective at her death, the statute of limitations would bar all claim for services except those rendered within three years. This ruling was a logical sequence of the finding that there was no contract to postpone payment of compensation until her death, such as would arrest the running of the statute, and hence the ruling must be upheld as correct. Miller v. Lash, 85 N.C. 51, 54, 39 Am.Rep. 678; Brown v. Williams, 196 N.C. 247, 145 S.E. 233; Lipe v. Citizens' Bank & Trust Co., 207 N.C. 794, 178 S.E. 665.

The complaint was not demurrable. Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331. Denial of the contract in the answer raised the defense of the statute of frauds. Henry v. Hilliard, 155 N.C. 372, 71 S.E. 439, 49 L.R.A.,N.S 1. Specific performance of an oral contract to devise real property is unenforceable. Daughtry v. Daughtry, 223 N.C. 528, 27 S.E.2d 446,...