Hodge v. Perry, 456

Citation255 N.C. 695,122 S.E.2d 677
Decision Date22 November 1961
Docket NumberNo. 456,456
PartiesMary Elsie HODGE v. Lewis PERRY, Jr., Administrator of the Estate of Lewis Perry, Sr.
CourtUnited States State Supreme Court of North Carolina

Bunn, Hatch, Little & Bunn, Raleigh, for plaintiff, appeallee.

J. B. Bilisoly, Wendell, for defendant, appellant.

BOBBITT, Justice.

Careful consideration of each of defendant's twenty-one assignments of error fails to disclose error deemed sufficiently prejudicial to justify the award of a new trial.

However, assignments Nos. 12, 13, 14 and 16, based on exceptions to portions of the charge, merit discussion. All present the same question of law.

Decedent died May 19, 1959. Defendant qualified as administrator May 25, 1959. This action was instituted April 11, 1960.

The court instructed the jury that, if plaintiff was entitled to recover, she was entitled to recover the reasonable value of the services she rendered the decedent during the three years immediately preceding his death. Defendant contends this was error, asserting plaintiff's action was barred as to all services rendered more than three years prior to the institution of this action. Thus, under defendant's contention, plaintiff's recovery would be limited to the period of two years, one month and eight days immediately preceding decedent's death.

We are not presently concerned with decisions such as Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764 and cases cited therein, holding that, with reference to personal services rendered by A to B under an agreement that A is to be compensated therefor at the death of B, the statute of limitations does not begin to run during B's lifetime. Here, the court, in accordance with defendant's contention, held plaintiff's evidence insufficient to invoke this rule.

Disapproving a contrary suggestion in Hauser v. Sain, 74 N.C. 552, this Court, in Miller v. Lash, 85 N.C. 51, in opinion by Smith, C. J., said: '* * * the unexplained fact of labor performed and extending over a series of years raises no implication that payment is to be made at any fixed period, unless perhaps annually, as controlled by a prevalent custom appropriate to the kind of service and entering into the contract, when it so appears in evidence. The implied promise is to pay for services as they are rendered, and payment may be required whenever any are rendered; and thus the statute is silently and steadily excluding so much as is beyond the prescribed limitation.' This rule is restated and approved by Stacy, J. (later C. J.), in Wood v. Wood, 186 N.C. 559, 120 S.E. 194. Absent a special contract or prevalent custom that compensation was to become due at a later date, the implied promise was to pay for plaintiff's services as and when rendered.

In Wood v. Wood, supra, the trial judge instructed the jury that plaintiff's action was barred by the statute of limitations 'for all time except the three years next preceding the death of defendant's intestate.' Defendant calls attention to this excerpt from the opinion: 'But as a general rule, when the statute of limitations is pleaded, plaintiff may not recover on a quantum meruit for services rendered more than three years next immediately preceding the commencement of her action.' Miller v. Lash, supra, and McCurry v. Purgason, 170 N.C. 463, 87 S.E. 244, Ann. Cas.1918A, 907, are cited in support of this statement. While a new trial was awarded on a different ground, the opinion suggests that the court's instructions may have caused the jury to award a larger amount than plaintiff was entitled to recover. There, as here, an appreciable time elapsed between the death of the decedent and the institution of the action against the administrator.

In McCurry v. Purgason, supra, the question presented was whether the plaintiff's cause of action accrued at decedent's death, as contended by plaintiff, or as and when the services were rendered, as contended by defendant. The plaintiff performed no services after December 12, 1910. The decedent died in January, 1915. In awarding a new trial, this Court held, inter alia, if the plaintiff and the decedent on December 12, 1910, mutually abandoned their agreement, plaintiff's cause of action for services previously rendered then accrued; and that, since more than three years elapsed from December 12, 1910, until the institution of the action, plaintiff's right to recover, if the agreement was abandoned by mutual consent, was barred by the statute of limitations. However, in McCurry, if the three-year statute of limitations applied, plaintiff's right to recover was barred prior to the death of the decedent.

In Edwards v. Matthews, 196 N.C. 39, 144 S.E. 300, 301, where a judgment for plaintiff was upheld, the per curiam opinion states: 'Recovery was limited, under instructions of the court, to services rendered during three years immediately preceding the death of defendant's...

To continue reading

Request your trial
6 cases
  • Doub v. Hauser, 388
    • United States
    • United States State Supreme Court of North Carolina
    • February 2, 1962
    ...is silently and steadily excluding so much as are beyond the prescribed limitation.' Miller v. Lash, 85 N.C. 51. See also: Hodge v. Perry, 255 N.C. 695, 122 S.E.2d 677; Grndy v. Faison, 224 N.C. 567, 31 S.E.2d 760. (b) Where it is agreed that compensation is to be provided in the will of re......
  • McCraw v. Llewellyn
    • United States
    • United States State Supreme Court of North Carolina
    • January 12, 1962
    ...time for payment is to be extended to the death of the recipient of the services, there must be agreement to that effect. Hodge v. Perry, 255 N.C. 695, 122 S.E.2d 677; Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760; Edwards v. Mattews, 196 N.C. 39, 144 S.E. 300; Brown v. Williams, 196 N.C. 24......
  • Johnson v. Sanders, 23
    • United States
    • United States State Supreme Court of North Carolina
    • October 9, 1963
    ...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 brea......
  • Lassiter v. Faison
    • United States
    • Court of Appeal of North Carolina (US)
    • July 20, 1993
    ...v. Stephens, 191 N.C. 101, 131 S.E. 383 (1925 [1926] ); Prentzas v. Prentzas, 260 N.C. 101, 131 S.E.2d 678 (1963). In Hodge v. Perry, 255 N.C. 695, 122 S.E.2d 677 (1961), our Supreme Court "The general rule is unquestionably that when the 'statute of limitations once begins to run nothing s......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT