Ellis v. . Cox

AlleN, J. The principle is fully recognized in this Court that services rendered to the parent by a child while a member of the family are presumed to be gratuitous, and that no recovery can be had therefor, in the absence of an express contract, when nothing appears except the relationship and the performance of the services (Abitt v. Smith, 120 N. C., 392; Hicks v. Barnes, 132 N. C., 150, and other cases), and it has been held that a son-in-law who lives with his mother-in-law as one family comes within the principle. Callahan v. Wood, 118 N. C., *619 752. Circumstances may, however, exist from which the jury or a referee may find as a fact an intent on the one part to charge and on the other to pay for the services, and upon this being found the law implies a contract to pay the reasonable value of the services, and this is the meaning of the finding by the intelligent referee that “the said services were rendered and received in such manner and under such circumstances as created an implied contract on the part of the said Seth Cox to pay for said services what they were reasonably worth,” and the defendants admit there was evidence to support the finding, if one of fact. The intention of parties is “not the object of sense,” “it cannot be seen or felt,” “is not usually announced,” and “will be gathered from all the circumstances.” S. v. McBryde, 97 N. C., 397. In this case the evidence is not sent up because of the admission of the parties that there was evidence to sustain all the findings of fact, and therefore w.e cannot see all the circumstances apparent to the referee, but it does appear that the daughter had left her father’s home and married; that she and 'her husband had moved to another State, where the husband was engaged in business, indicating the purpose to establish a permanent home there; that finding that Seth Oox, the father, had become paralyzed they came to this State to visit him, and remained at the request of the father as one of the family and performed the services for which a recovery is sought, which brings the case within the principle of Winkler v. Killian, 141 N. C., 575, in which a recovery by a son for services to the mother was sustained, and the Court said: “Counsel have not cited, nor have we been able to find, any case in this State where an adult child making a claim for services had removed from the home and family of the parent, had married and assumed the care and responsibility of a family of his own for and during the time the services were rendered. Courts of the highest authority in other jurisdictions, however, have dealt with the matter, and have held that in such cases the general rule obtains that where such services are rendered and voluntarily accepted, a promise to pay therefor will be implied.” The differences between the Winlcler case and this are that in the first the son was not living in the same house, but near her house, which is a circumstance in favor of the defendant’s contention, and in this the son-in-law and his wife had abandoned their home in another State at the request of the father to serve him, which favors the position of the plaintiff, but neither circumstance is conclusive, but are relevant on the intention of the parties. The findings of the referee, supported by evidence, are conclusive of *620 tbe right of the husband to recover for the earnings of the wife, but she ought to be made a party to the record in order that she may be bound by the judgment. Affirmed.