(after stating the case). There was no error in refusing the first instruction asked for by the defendant. There was evidence to go to the jury from which a contract might be implied.
The familiar principle, so confidently relied on by the defendant “that where there is a written contract concerning the whole subject matter ” there can be no implied promise, we think finds no application in the facts of this case.
It was not pretended that there was any written contract at all between the plaintiff and the defendant. In fact the learned counsel for the defendant deny that there was any contract, express or implied, by which the defendant was to pay the plaintiff, and they say that the evidence shows that the work was completed under the plaintiff’s contract with Ransley, and referring to the evidence they ask, “ Did not Guthrie .have the right to suppose under these circumstances that Ransley himself had paid Blount out of prior remittances or otherwise arranged with him?” On the contrary, we cannot see how in any view of the evidence the defendant could suppose that Ransley had paid or arranged to pay or would pay Blount for work done after the discharge of the former, and while a different view is. insisted upon in tbe printed brief of the able and learned counsel for the defendant, we do not understand them in the oral agreement before us as denying the right of the plaintiff to recover for so much of the work as was done by him after the defendant discharged Ransley and undertook himself to have the dwelling completed. It appears from the evidence that after the defendant discharged Ransley the work was continued under Hill, who had been Ransley’s foreman, and who was em*101ployed by the defendant “to take charge of the house and superintend it,” and the dwelling was completed under the same foreman and under the direction and supervision of the same architect, without any notification to the plaintiff of any change and without the knowledge on his part of any change until after he had completed the portion of the work which he had undertaken.
If this evidence is to be believed, and there is no conflict in this respect, might it not be reasonably inferred that the defendant meant to pay, certainly for the work done after the discharge of Ransley? Would not this be fairly and justly implied, and was not the evidence proper to go to the jury to be considered by them upon the question of implied liability of the defendant to the plaintiff, not only for the work and labor performed and materials furnished after, but also before, the discharge of Ransley ? If Ransley was discharged and the work continued by the direction of the defendant under the same foreman and architect directing the details, without any notification to the plaintiff and without any opportunity on his part to elect to continue or discontinue the work if he was not to be paid for it, was there a reasonable inference or implication that the defendant would pay for it?
In Bailey v. Rutjes, 86 N. C., 517, it is said, “It is unquestionably true that if, in the absence of all express understanding, one stands by in silence (and much more if he actively encourages) and sees work done, or material furnished for work upon premises belonging to him, and of which he must necessarily get the benefit, and afterwards he does accept and enjoy it, a promise to pay the value thereof may be inferred and ordinarily will be, and the inference under the circumstances will be purely one of fact, viz.: whether the party’s conduct has been such that a reasonable man might understand from it that he meant to recognize the benefit as one conferred on himself, and to pay for it. In such a case *102there can be no difficulty in making such an inference against the party, since the premises being his, the benefit of the labor done or material furnished must necessarily result to him, and withal he had the opportunity and the power to countermand it, if he would.”
But his Honor instructed the jury that if certain facts stated were found to exist “ the law implies a promise by defendant to pay,” &c. We think in this there was error, which entitles the defendant to a new trial. It' was not an inference of law but of fact to be determined by the jury, and it was for them to say whether from all the evidence the conduct of the parties, and under all the circumstances the plaintiff might reasonably understand that the defendant was liable to him for the work done, and a reasonably implied obligation or promise on the part of the defendant to pay him for the work. These are questions of fact and not of law, and it is for the jury to find from the evidence whether there was or was not a reasonably implied contract.
For this error the defendant is entitled to a new trial, and it becomes immaterial to consider the other questions presented as they are not involved in the aspect of the case indicated in this opinion.
Error.