Woodard v. McGee

21 N.C. App. 487 | N.C. Ct. App. | 1974

BROCK, Chief Judge.

Plaintiffs contend by numerous exceptions that the trial court committed error in rulings on the admissibility of evidence concerning conversations between the deceased and the plaintiffs with respect to what the deceased had promised them.

G.S. 8-51, referred to as “The Dead Man’s Statute,” is applicable to this contention. In this action, both plaintiffs are “interested” parties; both are seeking a pecuniary interest from the estate of McGee. Both plaintiffs sought to testify to a personal transaction with the deceased, in hopes of establishing a claim against the administratrix of McGee’s estate. The trial court properly excluded testimony of a personal transaction by either plaintiff with the deceased in accordance with G.S. 8-51. Testimony as to conversations between the deceased and one of the plaintiffs, brought out by the other plaintiff in testifying, was allowed. This assignment of error is overruled.

Plaintiffs contend the trial court committed error in the exclusion of opinion testimony as to the reasonable value of services rendered by plaintiffs to the deceased.

Both plaintiffs in their pleadings based their complaint upon an express contract with the deceased, and now, in this Court, seek to argue an implied contract. There is no evidence in the record tending to show that the deceased accepted the services under the assumption that-the plaintiffs expected to be paid for these services.

“The burden always rests upon the plaintiff, even when there is no presumption that the services were gratuitous, to show circumstances from which it might be inferred that services were rendered and received with the mutual understanding that they were to be paid for, or, as it is sometimes put, ‘under circumstances calculated to put a reasonable person on notice that the services are not gratuitous’.” Johnson v. Sanders, 260 N.C. 291, 132 S.E. 2d 582.

This assignment of error is overruled.

Plaintiffs also contend that the trial court committed error in allowing defendant’s motion for a directed verdict. “On a motion by a defendant for a directed verdict in a jury case, the court must consider all the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff.” Kelly v. Harvester Company, 278 N.C. 153, 179 S.E. 2d 396.

In our opinion, the trial court correctly allowed defendant’s motion. This assignment of error is overruled.

Affirmed.

Judges Parker and Baley concur.