F.H. Hood T/A Hood Construction Co. v. Faulkner , 47 N.C. App. 611 ( 1980 )

267 S.E.2d 704 (1980)

F. H. HOOD t/a Hood Construction Company
v.
Samuel A. FAULKNER et ux., Dolly Ruth Faulkner.

No. 794DC1115.

Court of Appeals of North Carolina.

July 15, 1980.

Gaylor & Edwards by Jimmy F. Gaylor, Jacksonville, for plaintiff-appellee.

Turner & Harrison by Fred W. Harrison, Kinston, for defendant-appellant.

HEDRICK, Judge.

Initially, defendant contends that the court erred in refusing to grant his motion for a directed verdict. He argues that there was no "proper evidence" from which the jury could determine damages since there was no evidence as to the value of the services rendered by plaintiff other than his bill. We disagree that the mere paucity of evidence as to the value of plaintiff's services in connection with the extra work performed entitles the defendant to a directed verdict. Plaintiff established the existence of a contract whereby defendant was to pay him for extra work or additional materials required to be undertaken or supplied in building defendant's house. Plaintiff offered plenary evidence of the nature and extent of additional work and services rendered. Defendant accepted the services, but has refused to pay for all the additional work performed. "The law implies a promise to pay for services rendered by one party to another where the recipient knowingly and voluntarily accepts the services and there is no showing that the services were gratuitously given." Harrell v. W. B. Lloyd Construction Co., 41 N.C.App. 593, 595, 255 S.E.2d 280, 281 (1979). See also Johnson v. Sanders, 260 N.C. 291, 132 S.E.2d 582 (1963). In such a case, plaintiff is entitled at least to nominal damages. Bryan Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968); Gales v. Smith, 249 N.C. 263, 106 S.E.2d 164 (1958). Thus, the trial court properly denied defendant's motion for a directed verdict. See Harrell v. W. B. Lloyd Construction Co., supra; Pilot Freight Carriers, Inc. v. David G. Allen Co., Inc., 22 N.C.App. 442, 206 S.E.2d 750 (1974), cert. denied, 423 U.S. 1055, 96 S.Ct. 786, 46 L.Ed.2d 644 (1976).

However, error in the charge requires that we reverse the judgment of the District Court and remand the matter for a new trial. It is uncontradicted that the written agreement between these parties failed to address the question of how much the plaintiff would be paid for extra work he performed or additional services he rendered in the construction of defendant's house. Neither does the evidence support even an inference that the parties ever agreed otherwise as to the amount of compensation plaintiff would receive. Plaintiff's action, then, clearly sounds in quantum meruit and is based on the promise to pay which the law implies. The proper measure of plaintiff's recovery in such a case is the reasonable value of the services rendered to and accepted by the defendant. "[W]hen there is no agreement as to the amount of compensation to be paid for services, the person performing them is entitled to recover what they are reasonably worth, based on the time and labor expended, skill, knowledge and experience involved, and other attendant circumstances, . . . ." Turner v. Marsh Furniture Co., 217 N.C. 695, 697, 9 S.E.2d 379, 380 (1940). See also Austin v. Raines, 45 N.C.App. 709, 264 S.E.2d 121 (1980). See generally, 5 A. Corbin, Contracts § 1112 (1964); 66 Am.Jur.2d, Restitution and Implied Contracts §§ 24, 28 (1973).

With respect to the issue of damages in the case before us, the judge charged as follows:

A party injured by a breach of contract is entitled to be placed insofar as this can be done by money in the same position he would have occupied if the contract had been performed. The party injured by the breach is entitled to recover for gains prevented as well as losses sustained because of the breach. Now the plaintiff contends of course that he has been damaged in the amount of $2,437.54, that's the value of his services and materials that he has indicated that were expended on behalf of the defendant for services requested and materials provided.

. . . . .

So I finally instruct you on this issue that if you find by the greater weight of the evidence that F. H. Hood has sustained some amount of damages under the rule that I have explained to you, and if you find by the greater weight of the evidence that the damages were reasonably foreseeable at the time the contract was made, then you would answer the issue by writing that amount in the blank space provided. [Our emphasis.]

The portion of the charge quoted above constitutes the court's entire instruction regarding the measure of damages recoverable in this case. It obviously is erroneous since at no point did the judge instruct the jury that it must determine from all the evidence adduced the reasonable worth of the additional services rendered by plaintiff and that it could award plaintiff only an amount that represented a reasonable value. Indeed, the charge amounts almost to a peremptory instruction that the jury award plaintiff the total sum shown on his bill. While the plaintiff's bill is some evidence of the value of his services, it is by no means conclusive and, standing alone, is insufficient to support an award for the amount shown. Harrell v. W. B. Lloyd Construction Co., supra; Pilot Freight Carriers, Inc. v. David G. Allen Co., Inc., supra. Nor is the plaintiff's opinion that the amount of his bill is reasonable sufficient to sustain an award for such sum. Austin v. Raines, supra. The reasonable value of services rendered is an objective measure and "is determined largely by the nature of the work and the customary rate of pay for such work in the community and at the time the work was performed." 66 Am. Jur.2d, supra § 28 at 973. Accord, Cline v. Cline, 258 N.C. 295, 128 S.E.2d 401 (1962); Harrell v. W. B. Lloyd Construction Co., supra.

In our opinion the plaintiff in this case did not offer sufficient evidence of the reasonable value of the services for which he sought to hold defendant accountable. His testimony that the rates shown on the bill were customary for him, and that he based the total amount on the hourly rate he paid his employees plus ten percent, establishes no more than a formula by which he arrived at a total and a reiteration of his opinion that his bill was reasonable. There is no independent evidence or objective indicia by which to gauge whether the plaintiff's rates were customary and reasonable in the business, in the community, and at the time. For this reason as well as for error in the charge, defendant is entitled to a

New trial.

PARKER and VAUGHN, JJ., concur.