196 N.C. 247
N.C.
1928
ClakksoN, J.

The questions involved:

1. Was the evidence offered by the plaintiff of an express contract to make testamentary provision for the plaintiff sufficient to be submitted to the jury? We think not.

In Overall Co. v. Holmes, 186 N. C., at p. 431-2, it is said: “A contract is ‘an agreement, upon sufficient consideration, to do or not to do *250 a particular thing.’ 2 Blackstone Com., p. 442. There is no contract unless the parties assent to the same thing in the same sense. A contract is the agreement of two minds — the coming together of two minds oii a thing done or to be done. ‘A contract, express or implied, executed or executory, results from the concurrence of minds of two or more persons, and its legal consequences are not dependent upon the impressions or understandings of one alone of the parties to it. It is not what either thinks, but what both agree,’ ” citing numerous authorities. See Bank v. Watson, 187 N. C., 107; Refining Corporation v. Sanders, 190 N. C., 203; Greene v. Jackson, 190 N. C., 789; Gravel Co. v. Casualty Co., 191 N. C., 313.

There is nothing to indicate, in the expressions made by defendant’s testator, any certain or definite promise or contract, either express or implied, to make a testamentary provision in his will in favor of plaintiff. The expressions were not even made to plaintiff, but to others. It was an appreciation and intention, but not an obligation. Dodson v. McAdams, 96 N. C., 149; Avitt v. Smith, 120 N. C., 392.

It is well settled in this jurisdiction that where services are performed under a contract that compensation is to be provided in the will of the party receiving the benefit, and if the party breaches the contract an action lies for the anticipatory breach thereof. If the party breaches the contract by dying without a will or if testator makes no provision in the will, then an action lies for the breach of such contract at the death of the party. The plaintiff may have an action on quantum meruit. Miller v. Lash, 85 N. C., 51; Laurence v. Hester, 93 N. C., 79; Freeman v. Brown, 151 N. C., 111; Helsabeck v. Doub, 167 N. C., 205; Shore v. Holt, 185 N. C., 312; Fertilizer Co. v. Eason, 194 N. C., 244.

2. Where there is no sufficient evidence to show an express contract between the parties, and the parties are not related, can plaintiff recover on a quantum meruit? We think, under the facts and circumstances of this case, that it is a question to be submitted to the jury.

In Callahan v. Wood, 118 N. C., at p. 757, it is said: “The general rule is that when work is done for another the law implies a promise to pay for it, and it is based on the presumption arising out of the ordinary dealings among men.” Bailey v. Rutjes, 86 N. C., at p. 520-1; Blount v. Guthrie, 99 N. C., 93; Dorsett v. Dorsett, 183 N. C., 354. See Stokes v. Taylor, 104 N. C., at p. 397; Dorsey v. Corbett, 190 N. C., at p. 788. It will be noted that plaintiff is not related to defendant’s testator.

In Dunn v. Currie, 141 N. C., at p. 127, it is said: “These cases establish the principle that certain relations existing between the parties raise a presumption that no payment was expected for services rendered or support furnished by the one to the other. The presumption standing by itself repels what the law would otherwise imply, that is, a *251 promise to pay for them, but this presumption is not conclusive, and may in its turn be overcome by proof of an agreement to pay, or of facts and circumstances from whieb tbe jury may infer that payment was intended by one of tbe parties and expected by tbe other. There is no fixed rule governing all cases alike, but each case as it arises must be determined upon a consideration of all tbe facts and circumstances, subject, however, to tbe legal bearing on tbe liability of tbe particular relation existing at tbe time between tbe parties.”

Tbe presumption applies to family relationship such as father and child; step-father and child; grandfather and child, etc. In Dorsett v. Dorsett, supra, to husband and wife.

Ruffin, J., in Williams v. Barnes, 14 N. C., at p. 352, says: “But this much I must say, that tbe jury had at least a right to pass upon the weight of the actual presumptions arising from the relation, both in estimating the wages which the plaintiff ought to be allowed, if any, and in determining whether he was to have any, , except what the mother chose in her natural kindness to bestow. In other words, whether they were to live together after, as they had done before the son became of age. I think such claims, without probable evidence of contract, 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.” See Pridqen v. Pridqen, 190 N. C., at p. 107.

We think the evidence should be submitted to the jury on the question of quantum meruit for the three years prior to the death of defendant’s testator. Edwards v. Matthews, ante, p. 39. There must be a

New trial.

CoNNOR, J., not sitting.