Johnson v. Sanders, 23

• Decision Date: 09 October 1963
• Docket Number: No. 23,23
• Citation: Johnson v. Sanders, 132 S.E.2d 582, 260 N.C. 291 (N.C. 1963)
• Parties: Neilie Ralph JONSON v. Maywood N. SANDERS, Executor of Claude Ralph Estate.
• Court: North Carolina Supreme Court

Page 582

132 S.E.2d 582

260 N.C. 291

Neilie Ralph JONSON v. Maywood N. SANDERS, Executor of Claude Ralph Estate.

No. 23

Supreme Court of North Carolina.

Oct. 9, 1963

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

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

SHARP, Justice.

The plaintiff in this case is an adult daughter who married, left her father's house and esablished 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...