Miller v. Lash

• Citation: 85 N.C. 51,39 Am.Rep. 678
• Parties: MARGARET MILLER v. T. B. LASH and others Adm'rs.
• Decision Date: 31 October 1881
• Court: United States State Supreme Court of North Carolina

39 Am.Rep. 678

85 N.C. 51

MARGARET MILLER

v.T. B. LASH and others Adm'rs.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION tried at Fall Term, 1880, of DAVIDSON Superior Court, before McKoy, J.

Verdict and judgment for plaintiff, appeal by defendants.

Messrs. J. M. McCorkle, Starbuck and Bailey, for plaintiff .

Mr. J. M. Clement, for defendants .

SMITH, C. J.

In this action the plaintiff seeks to recover from the defendants, administrators of I. G. Lash, compensation for services rendered their intestate in the management and supervision of his domestic affairs and providing for his servants at Bethania, for a series of years succeeding 1849; and also for her special personal care and attention to the intestate himself, at his residence in Salem, for more than two years and a half preceding and until his death on April 17, 1878. The summons was sued out, after an ineffectual demand, on the 30th day of September following. There was much testimony offered to show the nature and value of the plaintiff's services, and the high estimate put upon them by the deceased, but there was no evidence of any special contract or understanding between the parties as to their duration or compensation; and the defendants insisted, from their relations and dealings with each other, as disclosed by the witness, it was to be inferred that what was done by either was intended to be and was gratuitous; and they further contended that, if the plaintiff was in law entitled to remuneration, she could recover for such services only as were performed within three years next preceding the bringing of the action. There was proof of declarations of the intestate of his high appreciation of the plaintiff's services, of their extent and usefulness, and of his intent to make a liberal provision for her in his will on account of them; and of her declarations to the effect that she was not acting as a hireling nor to be rewarded as such. It was also shown that at the intestate's instance, a paper writing was produced on one occasion, bearing his signature, and then attested in his presence by a witness. The instrument was not read by the witness nor explained by the deceased, and he knew nothing of its nature or contents.

Numerous exceptions were taken during the trial, which, with the testimony (much of it wholly irrelevant to the points presented) reiterated with equal particularity of detail in the case prepared on the appeal accompanying the record. But it is necessary in our view of the case to notice and pass upon one only--that arising on the defense under the statute of limitations.

Among the instructions prepared by the plaintiff's counsel and presented to the court to be submitted to the jury, the third is in the following words: If the jury believe that the plaintiff was to serve the defendants' intestate for no certain or determinate time, and not from year to year, then no part of the claim for services is barred by the statute of limitations. The court so charged, adding, “if the services were to be paid for by the week, month or year, then the statute will bar the action for all sums which were due to be paid three years prior to the bringing of the action; if the services were to be continuous, and no amount fixed to be paid, and no time fixed for payment, the statute will not begin to run until the death of the intestate.”

The defendants' counsel requested and were refused this modification: “In the absence of express contract a right of action accrued, as the services were rendered on the implied promise, and, as there was no credit, the law implied that every day's service was to be paid for what it was worth.”

To these rulings exception is taken, and out of them arises the question we propose to examine, which is, whether services thus rendered for a series of years under no definite contract as to duration, rate, or mode of compensation, other than that implied by law, are without the operation of the statute of limitations until put an end to by the death or positive act of one of the parties?

The authorities cited in the argument for the plaintiff seem to establish the proposition that where personal services are performed by one person for another during life under a contract or mutual understanding, fairly to be inferred from their conduct and declarations and the attending circumstances, that compensation therefor is to be provided in the will of the party receiving the benefit of them, and the latter dies intestate or fails to make such provision, the subsisting contract is then broken, and not only will the action then lie for the recovery of their reasonable value freed from the operation of the statute, but it could not be maintained before. It is equally plain that if the services were given in the mere expectation of a legacy, without a contract express or implied, and in reliance upon the gratitude and generosity of the deceased, the action cannot be sustained. Little v. Dawson, 4 Dallas, 111; Sevires v. Parsons, 5 W. & S., 357; Nimmo v. Walker, 10 La. An. Rep., 581; Riddle v. Backus, 38 Iowa, 81.

In Osborne v. Governors of Guy's Hospital, 2 Strange, 728, Chief

Justice RAYMOND told the jury that if the plaintiff did not expect to be paid for transacting certain stock affairs of the deceased, but to be considered for it in his will, “they could not find for the plaintiff, though nothing was given him by the will, for they should consider how it was understood by the parties at the time of doing the business, and a man who expects to be made amends by a legacy cannot afterwards resort to his action.”

In Patterson v. Patterson, 13 John., 379, VAN NESS, J., delivering the opinion of the supreme court of New York, in a case where the evidence showed the existence of such mutual understanding as to the mode of remuneration, and suit was instituted, during the life of the recipient, remarks: “The defendant is bound to make, and it is presumed will make, such...