Allen v. Seay , 248 N.C. 321 ( 1958 )

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103 S.E.2d 332 (1958) 248 N.C. 321
Mrs. Ray S. ALLEN
v.
Thomas W. SEAY, Jr., Administrator c.t.a. of the Estate of Mary Cross Cox, Decedent.
No. 525.
Supreme Court of North Carolina.
April 30, 1958.
Graham M. Carlton, Salisbury, for plaintiff, appellant.

John C. Kesler, Salisbury, for defendant, appellee.

*333 HIGGINS, Justice.

The plaintiff based her cause of action on a special contract. However, upon failure to establish the special contract her complaint contained sufficient allegations to permit her to go to the jury on quantum meruit. Thormer v. Lexington Mail Order Co., 241 N.C. 249, 85 S.E.2d 140; Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561, 15 A.L.R. 2d 1325; Wright v. Teutonia Ins. Co., 138 N.C. 488, 51 S.E. 55; Stokes v. Taylor, 104 N.C. 394, 10 S.E. 566.

The court submitted only the issue based on the value of the services, evidently upon the ground the evidence was insufficient to show the special contract. On this issue the judge charged:

"Now, as I stated a moment ago, where one kinsman moves into the home of another kinsman there is a presumption of fact that the services rendered by the kinsman to another kinsman were given gratis, that is, free, but that is not a conclusive presumption; that can be rebutted, and if * * * you find by the greater weight of the evidence that Mrs. Cox received services under certain circumstances and conditions, and find that she expected to pay Mrs. Allen for the services and Mrs. Allen expected her to pay, then it is a case of arriving at whatever her services were reasonably worth; * * *

"You cannot go back now and award any sum of money to Mrs. Allen beyond three years from the time Mrs. Cox died."

The plaintiff's assignment of error No. 17 challenges the quoted portion of the charge insofar as it relates to the presumption that services rendered to a kinsman by a kinsman are gratuitous. "The general rule that the performance of valuable services for one who knowingly and voluntarily accepts the benefit thereof raises the implication of a promise to pay, is subject to the modification that, where certain family relationships exist, services performed by one member of the family for another, within the unity of the family, are presumed to have been rendered in obedience to a moral obligation and without expectation of compensation." Francis v. Francis, 223 N.C. 401, 26 S.E.2d 907, 908, citing numerous cases. See, also, Twiford v. Waterfield, 240 N.C. 582, 83 S.E.2d 548; Dills v. Cornwell, 238 N.C. 435, 78 S.E.2d 167; Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764; Coley v. Dalrymple, 225 N.C. 67, 33 S.E.2d 477; Landreth v. Morris, 214 N.C. 619, 200 S.E. 378; Winkler v. Killian, 141 N.C. 575, 54 S.E. 540; Callahan v. Wood, 118 N.C. 752, 24 S.E. 542; Williams v. Barnes, 14 N.C. 348; Mordecai's Law Lectures, 2d ed., 119.

In the case at bar the plaintiff and the testatrix were first cousins once removed. Prior to 1947 the former lived in New Jersey and the latter in South Carolina. In that year the testatrix moved to the plaintiff's apartment in New Jersey where she remained until her death in 1956. Prior to 1947, insofar as the evidence discloses, the two had never been members of the same household. The court's charge, therefore, that services by a kinsman to a kinsman are presumed to be gratuitous was entirely too broad and all-inclusive. Kinship in this case, according to the authorities cited, and many others, was insufficient to raise a presumption that services rendered were gratuitous. In the charge the court committed error prejudicial to the plaintiff.

The plaintiff's assignment No. 18 challenges the applicability of the plea of the statutes of limitations quoted in full in the statement of facts. The form and sufficiency of the plea were not debated either in the briefs or on the argument. However, we call attention thereto in view of the assignment of error. The essence of such a plea is a factual allegation showing the lapse of time between the date the cause of action accrued and the date on which it was actually instituted. When the facts showing the lapse of time are pleaded, the *334 pleader becomes entitled to the benefit of the plea as a matter of law. "* * * the plea is not good if it merely states that the party pleads the statute of limitations. * * he must go further and state the facts constituting the defense." Citizens' Nat. Bank v. Gaston Farmers' Union Warehouse Co., 172 N.C. 602, 90 S.E. 698; Jackson v. Thomas, 211 N.C. 634, 191 S.E. 327; Pipes v. North Carolina Mica Mineral & Lumber Co., 132 N.C. 612, 44 S.E. 114; Lassiter v. Roper, 114 N.C. 17, 18 S.E. 946; Turner v. Shuffler, 108 N.C. 642, 13 S.E. 243; Pope v. Andrews, 90 N.C. 401; McIntosh on Practice and Procedure, 2d ed., Vol. 1, sec. 372, p. 211.

The plaintiff alleges that errors were committed in the exclusion of certain testimony and documents tending to show a special contract. Some of these assignments are not without merit, but since they may not arise on another trial we refrain from discussing them. For the error in the charge the plaintiff is awarded a

New trial.