Jasper BROWN, Administrator of the Estate of Lida T. Brown, Deceased,
v.
Charlie HATCHER, Administrator of the Estate of Melissa Etta Brown, Deceased.
No. 607.
Supreme Court of North Carolina.
August 26, 1966.*588 L. Austin Stevens, Wiley Narron, W. Kenneth Hinton, Smithfield, for plaintiff appellee.
William I. Godwin, Selma, Britt & Ashley by William R. Britt, Smithfield, for defendant appellant.
SHARP, Justice.
Plaintiff offered no evidence tending to establish the express contract which his intestate had alleged. This failure, however, will not defeat his right to recover the fair value of those services if the evidence justifies the inference they were rendered under an implied promise to pay. Thormer v. Lexington Mail Order Co., 241 N.C. 249, 85 S.E.2d 140; Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760. The relationship of mother-in-law and daughter-in-law was not sufficient to raise a presumption that the services were rendered gratuitously, Cline v. Cline, 258 N.C. 295, 128 S.E.2d 401, but if Lida did render them gratuitously, they may not be converted into a debt after the death of Miss Melissa. Nesbitt v. Donoho, 198 N.C. 147, 150 S.E. 875. Even when there is no presumption that the services *589 were gratuitous, in order to recover for them, plaintiff must show circumstances from which it might be inferred that the services were rendered and received with the mutual understanding that they were to be paid for, that is, "under circumstances calculated to put a reasonable person on notice that the services are not gratuitous." Lindley v. Frazier, 231 N.C. 44, 46-47, 55 S.E.2d 815, 816. Accord, Johnson v. Sanders, 260 N.C. 291, 132 S.E.2d 582; Twiford v. Waterfield, 240 N.C. 582, 83 S.E.2d 548.
This case is analogous to Callahan v. Wood, 118 N.C. 752, 24 S.E. 542, in which the plaintiff, a son-in-law, sued the estate of his mother-in-law for services rendered her prior to her death. He had lived with her in her house since the day he married her daughter. The "plaintiff's five children were born under her roof; all the parties rendering assistance to each other during the time. There was no agreement to pay either way, and nothing was paid except in such mutual services." In reversing judgment for the plaintiff, Faircloth, C. J., said:
"Does the law imply a promise to pay the plaintiff for the services of himself and wife under these circumstances? * * *. Is there any reason more favorable to a son-in-law, under the situation in the present case, where the relation of `one family' was established and recognized by the parties until death, without any fact found or evidence tending to show that there was any intention on the one part to pay for the services, or on the other part to charge for the same? The law does not look favorably upon such afterdeath charges, in the absence of any intention between the parties prior to death.
"We do not put our decision entirely on the kinship relation, but also on the `one-family' relation established and maintained by the parties and the entire absence of any intention to the contrary on the part of either party. We approve of the language of Ruffin, J., in Williams v. Barnes, 3 Dev. 349, [14 N.C. 348,] saying: `Such claims ought to be frowned on by courts and juries. To sustain them tends to change the character of our people, cool domestic regard, and in the place of confidence sow jealousies in families.' Hudson v. Lutz, 5 Jones [50 N.C.] 217; Young v. Herman, 97 N.C. 280, 1 S.E. 792." Id. at 757-758, 24 S.E. at 542-543. Accord, Lindley v. Frazier, supra.
Miss Melissa, Jasper and Lida lived in the same house, albeit she lived on one side and they on the other. The same door connected the two sides as it had always done; the old home had not been constructed as an apartment house. At the time for the trial, according to plaintiff, it was "about the same" as it was when he and Lida married over thirty years ago. "It was about rotted down then, and it is now." But, however mean the house, it was Miss Melissa's during her lifetime (G.S. § 30-5, since repealed by Sess. Laws 1959, ch. 879 § 14), notwithstanding it was on one of the two shares allotted to Jasper "to look after Melissa." It cannot reasonably be said that Miss Melissa, Jasper and Lida, and their five children, all of whom were born there, lived as separate family entities in the old four-room homestead. If, in fact, Miss Melissa did always prefer the quiet of her own kitchen at mealtime to the noise of five children at her son's table, the preference is understandable. Yet, they were still one family. During the years when Miss Melissa was helping Lida with the five small children, it is inconceivable that her services were given or received with any idea of pecuniary compensation. In recognition of their mutual interdependence, they did things for each other. Surely, had Lida become ill and died while Miss Melissa was still able to work, she would have helped care for Lida and her family without expecting any recompense.
The evidence is plenary that Lida rendered dutiful and valuable services to her mother-in-law during the last three years of her life, but, considering the modus vivendi of the two women throughout the previous *590 thirty years, we can find nothing in the evidence which would have put Miss Melissa, or any reasonable person, on notice that Lida had begun to charge her for services when her health failed three years before her death. It is noted that while Miss Melissa often said that Lida was good to her, no witness ever heard her say that she wanted, or expected, Lida to be paid for what she did for herand this despite the allegation in the complaint that Melissa "frequently reiterated her intention to compensate plaintiff for services. * * *" Expressions of appreciation for kindness do not, without more, amount to an implied promise to pay for it. Johnson v. Sanders, supra. Seldom indeed do we review a case of this nature in which, as here, evidence to sustain such an allegation is totally lacking.
We hold that plaintiff's evidence does not justify the inference that Lida's services to Miss Melissa were rendered and received with the mutual understanding that they were to be paid for. Defendant's motion for judgment of involuntary nonsuit should have been granted.
Reversed.