53 S.E. 533 | N.C. | 1906
The plaintiff sued to recover to his own use the sum of $243.80 for work done, labor performed, and services rendered by himself and family for Thomas Bunnell, the intestate of the defendant. He testified as follows: "Q.: Did you ever do any work on the land of Thomas Bunnell? A.: I worked on the land in cultivating it; I worked on the building; cannot tell the date; it was worth 75 cents per day." He further testified that he did other work, such as cutting and binding wheat and oats, plowing and mauling; that his family also worked on the farm; that his wife did the cooking and he took care of the intestate's house and his stock, and he and his wife nursed him in his last illness. The plaintiff's wife is a daughter of the intestate. He then testified as to the reasonable worth of the work and labor done by him and his family. All of this testimony was objected to by the defendant in apt time and admitted. The defendant excepted. There was other evidence introduced by the respective parties which is not set out in the case because, as is stated, there was no exception thereto. At the close of the testimony, the defendant requested the court to charge the jury that if they believed the testimony in the case the presumption of a promise to pay for the services rendered is rebutted by the relation of the parties, and the plaintiff is not entitled to recover. This instruction was refused, and defendant excepted. There was a verdict for $232.15 and judgment thereon for the plaintiff. The defendant appealed.
The testimony of the plaintiff, which was admitted by the court over the objection of the defendant, was *121
incompetent and should have been excluded. If it did not clearly show a transaction or communication between the plaintiff and the intestate, from which the law would imply a promise by the latter to pay for the services alleged to have been rendered, then it was wholly irrelevant and did not tend to establish the plaintiff's cause of action for work done and labor performed for the intestate. From the fact that labor is performed and services are rendered which benefit another, who avails himself of the benefit thus derived, the law implies both a prior request for the labor and services and a promise on the part of the beneficiary to pay for them what they are reasonably worth. Any dealing or course of conduct on the part of the plaintiff with respect to the deceased which tends to imply this request and the consequent promise to pay the reasonable worth of the benefits received, must of necessity, though indirectly, show a transaction or communcation [communication] with the deceased within the evident meaning and intention of the statute. Revisal, sec. 1631. In this case the plaintiff substantially testified to a transaction or communication with the deceased; otherwise, where is there the slightest foundation for the claim that the defendant, as his administrator, is indebted to him? If he did no work for the intestate nor render him any service, there was no implied promise to pay, and he does not allege or rely on an express one. The case, therefore, is governed by the principle announced in Davidson v. Bardin,
There is nothing, though, in the facts of this case, as we view them, to prevent a recovery, if the plaintiff had, by competent evidence, proved that he had performed the services, as alleged, and that the intestate received the benefit of them.
New trial.
Cited: Freeman v. Brown,
(128)