Burns v. Burns

167 S.E.2d 82 (1969) 4 N.C. App. 426

Nannie Mae BURNS
v.
Ewart BURNS, Executor of the Estate of Mary Cleo Burns, Deceased.

No. 6929SC168.

Court of Appeals of North Carolina.

April 30, 1969.

Hamrick & Hamrick, by J. Nat Hamrick, Rutherfordton, and J. A. Benoy, Forest City, for plaintiff appellee.

George R. Morrow and Carroll W. Walden, Jr., Forest City, for defendant appellant.

BRITT, Judge.

Defendant's first assignment of error relates to the failure of the trial court to grant defendant's motions for nonsuit.

The rule applicable to the case before us has been well established in this jurisdiction. In Ray v. Robinson, 216 N.C. 430, 5 S.E.2d 127, in an opinion by Stacy, C. J., it is said: "It is established by a number of decisions that in the absence of some express or implied gratuity, usually arising out of family relationship or mutual interdependence, services rendered by one person to or for another, which are knowingly and voluntarily received, are presumed to be given and accepted in expectation of being paid for, and the law will imply a promise to pay what they are reasonably worth. Winkler v. Killian, supra [141 N.C. 575, 54 S.E. 540]; Callahan v. Wood, 118 N.C. 752, 24 S.E. 542." The rule has been quoted with approval in numerous decisions, including Johnson v. Sanders, 260 N.C. 291, 132 S.E.2d 582, and McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575, 94 A.L.R. 2d 914.

Our Supreme Court has held that the relationship of daughter-in-law does not raise the presumption that services performed while living within the family are gratuitous. Lindley v. Frazier, 231 N.C. 44, 55 S.E.2d 815. The court has gone even further and held that there is no presumption that personal services rendered by an adult daughter to her father are gratuitous when such services are rendered after the daughter has married and left her father's house and established a home of her own. Johnson v. Sanders, supra. It follows that there is no presumption that the services rendered by plaintiff, a sister-in-law, in the instant case were gratuitous.

Although the plaintiff was not confronted with the presumption that the services rendered by her were gratuitous, the burden still rested upon her to 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. The quantum meruit must rest upon an implied contract. Nothing else appearing, such an inference is permissible when a person knowingly accepts from another services of value. Lindley v. Frazier, supra. We think that the evidence introduced by plaintiff was sufficient to show circumstances from which it might be inferred that the services were rendered by plaintiff and received by decedent with the understanding that they were to be paid for.

Defendant relies very strongly on Lindley v. Frazier, supra, in which the court held that the motion for nonsuit should have been allowed. The cases are clearly distinguishable. The assignment of error relating to defendant's motions for nonsuit is overruled.

Defendant assigns as error the failure of the trial court to instruct the jury that the maximum recovery would be an amount equal to $150 per month, for not more than three years.

In her amended complaint, plaintiff alleged that the reasonable value of her services rendered to the decedent was $100 per month from November 1954 through October 1959, and the reasonable value of services rendered from November 1959 through November 1966 was $150 per month. The trial court ruled that plaintiff was limited to compensation for services rendered within three years next preceding the death of decedent. Although plaintiff excepted to this ruling, she did not appeal, therefore, that question is not before us and we do not pass upon the propriety of the trial court's ruling. We deem it appropriate to pass upon the question of whether plaintiff's recovery was limited to $150 per month for the three-year period in view of the court's ruling.

In addition to the specific allegations contained in paragraph 6 of the amended complaint and summarized above, in paragraph 8 plaintiff alleged that because of decedent's failure to keep her promises, "plaintiff has been damaged" in the total sum of $18,700. In her prayer for relief, plaintiff prayed for judgment against the estate of the decedent for the sum of $18,700. It will be noted that by calculating $100 per month from November 1954 through October 1959 and $150 per month from November 1959 through November 1966, the total is $18,700, the amount declared by plaintiff to be due her in paragraph 8 of the amended complaint and the amount asked for in the prayer for relief.

It is well-established law in this State that to establish a cause of action there must be both allegata and probata, and the two must correspond. The plaintiff must make out his case secundum allegata, and may recover, if at all, only on the theory of the complaint. 6 Strong, N.C. Index 2d, Pleadings, § 36, pp. 368, 369, 370, and cases therein cited. Where both general and specific allegations are made respecting the same matter, the latter control. 71 C.J.S. Pleading § 56, p. 143. The prayer for relief is not a necessary part of the complaint and the relief to which plaintiff is entitled is to be determined by the facts alleged in the complaint and established by the evidence, and not in the prayer for relief. East Coast Oil Co. v. Fair, 3 N.C.App. 175, 164 S.E.2d 482; 6 Strong, N. C. Index 2d, Pleadings, § 6, pp. 304, 305. Applying these principles to the instant case, we hold that plaintiff was limited to the specific amounts alleged in her amended complaint, and the trial court committed error in not limiting the amount of recovery to the per-month value of the services alleged in the amended complaint. The assignment of error is well taken and is sustained.

Defendant also assigns as error the failure of the trial court to instruct the jury as to the proper measure of damage. The court instructed the jury that if they came to the second issue, their answer would be such amount, if any, as the plaintiff had satisfied them by the greater weight of the evidence was the reasonable fair market value of the services allegedly rendered the decedent during the last three years of her life. Plaintiff did not introduce any evidence showing the market value of the services rendered.

In Cline v. Cline, 258 N.C. 295, 128 S.E.2d 401, an action was brought to recover for personal services rendered. As was the case here, plaintiff did not introduce evidence showing the market value of the services rendered. The holding of the court is well summarized in the sixth headnote as follows:

"The damages recoverable on an implied contract to pay for personal services rendered decedent, is the reasonable market value of such services, without considering the financial condition of the recipient or the value of such services to him, with the burden upon plaintiff to establish by evidence facts furnishing a reasonable basis for the assessment of the damages according to some definite and legal rule, and an instruction merely that the jury should answer the issue of damages in whatever amount the jury should find to be the reasonable value of the services must be held for error."

We think the holding in Cline is applicable to the facts in the instant case. The assignment of error is sustained.

We have considered the other assignments of error brought forward and argued in defendant's brief but deem it unnecessary to discuss them, as the questions raised probably will not recur upon a retrial of this action.

New trial.

MALLARD, C. J., and PARKER, J., concur.