Lipe v. Citizens' Bank & Trust Co

• Court: North Carolina Supreme Court
• Writing for the Court: STACY, Chief Justice
• Citation: Lipe v. Citizens' Bank & Trust Co, 207 N.C. 794, 178 S.E. 665 (N.C. 1935)
• Decision Date: 27 February 1935
• Docket Number: No. 391.,391.
• Parties: LIPE. v. CITIZENS' BANK & TRUST CO et al.

207 N.C. 794

178 S.E. 665

LIPE.

v.CITIZENS' BANK & TRUST CO et al.

No. 391.

Supreme Court of North Carolina.

Feb. 27, 1935.

Appeal from Superior Court, Cabarrus County; Harding, Judge.

Action by Charles H. Lipe against the Citizens' Bank & Trust Company and others. Judgment for plaintiff, and defendants appeal.

No error.

Civil action to recover for services rendered by plaintiff to Alice J. Bost during the last 19 years of her life; it being alleged that in 1910 the said Alice J. Bost "asked the plaintiff to look after and manage her affairs in general and render such other services, and to do other work for her, as she, from time to time, might request, and told him if he would do so, that she would make her will leaving all her property to him."

Alice J. Bost died in 1929, leaving a will in which she bequeathed to the plaintiff the sum of $3,000. She left an estate, consisting largely of real property, valued at approximately $16,000. Among the assets was a note of $250, executed by the plaintiff to the deceased, and upon which interest had been paid up to March 26, 1928.

Upon denial of liability and issues joined, the jury returned the following verdict:

"1. Did defendant's testate, Alice J. Bost, and Chas. H. Lipe enter into a contract, as alleged in the complaint? Answer: Yes.

"2. Did defendant's testate, Alice J. Bost, breach said contract? Answer: Yes.

"3. Did the plaintiff, Chas. H. Lipe, render services to said Alice J. Bost in good faith relying on her contract and agreement with him, as alleged in the complaint? Answer: Yes.

"4. What amount, if any, is plaintiff entitled to recover? Answer: $3,875.00.

"5. Is the plaintiff's action barred by the three year statute of limitations, as alleged in the answer? Answer: No.

"6. What sum, if any, is the plaintiff indebted to the defendants by reason of the note set up in the counter-claim? Answer: $250.00, with interest at 6% from March 26, 1928."

The court instructed the jury that the plaintiff was not seeking to recover damages for breach of the alleged contract, but for the reasonable value of the services rendered by him to the said Alice J. Bost under the contract during the last 19 years of her life. Exception.

Upon the fifth issue, relating to the statute of limitations (C. S. § 441), the jury was instructed as follows: "The court charges you, gentlemen, upon all the evidence, if you believe it to be true, it would be your duty to answer the fifth issue No; and the court has already answered it No for you." Exception.

Judgment on the verdict for plaintiff, from which the defendants appeal, assigning errors.

Z. A. Morris, Jr., and H. S. Williams, both of Concord, for appellants.

Hartsell & Hartsell and Crowell & Crowell, all of Concord, for appellee.

STACY, Chief Justice.

This is the same case that was before us at the fall term, 1933, opinion filed February 28, 1934, and reported in 206 N. C. 24, 173 S. E. 316.

It is established by the decisions in this jurisdiction:

(1) That when services are performed under an oral agreement, express or implied, that compensation is to be provided therefor in the will of the party receiving the benefit, and no such provision is made, an action will lie to recover for the "breach, or to prevent an unjust enrichment, if need be, on the part of the recipient of such services. Grantham v. Grantham, 205 N. C. 363, 171 S. E. 331; Hager v. Whitener, 204 N. C. 747, 169 S. E. 645; Redmon v. Roberts, 198 N. C. 161, 150 S. E. 881; Brown v. Williams, 196 N. C. 247, 145 S. E. 233; Deal v. Wilson, 178 N. C. 600, 101 S. E. 205; Patterson v. Franklin, 168 N. C. 75, 84 S. E. 18; Whetstine v. Wilson, 104 N. C. 385, 10 S. E. 471; Miller v. Lash, 85 N. C. 51, 52, 39 Am. Rep. 678.

(2) That the cause of action accrues at the time of default, which may arise from abandonment or anticipatory breach (Shore v. Holt, 185 N. C. 312, 117 S. E. 165), but which usually results from failure to make testamentary provision as promised (Harrison v. Sluder, 197 N. C. 76, 147 S. E. 684; Farmers' Co-op. Fertilizer Co. v. Eason, 194 N. C. 244, 139 S. E. 376; Brown v. Williams, supra; Patterson v. Franklin, supra; Helsabeck v. Doub, 167 N. C. 205, 83 S. E. 241, L. R. A. 1917A, 1; Freeman v. Brown, 151 N. C. Ill, 65 S. E. 743; Whetstine v. Wilson, supra; Miller v. Lash, supra).

(3) That the measure of damages, or recoverable compensation, on facts such as...