Freeman v. . Brown

Manning, J., after stating tbe case: Tbe form of tbe issues submitted by bis Honor, to wbicb no exception was taken by tbe appellants, or other issues tendered by them, renders it unnecessary to consider several exceptions appearing in tbe record and pressed upon our attention. Tbe first issue was to determine tbe existence of an express contract, as set forth in that issue. Tbe evidence of tbe plaintiff himself, tending to show services performed by bim for bis father, from wbicb tbe jury could imply a contract and fix their value as upon quantum meruit, was immaterial, and we cannot see — certainly, as no part of bis Honor’s charge is sent up in tbe record — that tbe defendants were prejudiced by tbe admission of it. If this evidence were material or pertinent to any issue, its competency would present a difficult question for solution, under tbe decisions of this Court. Dunn v. Currie, 141 N. C., 123; Stocks v. Cannon, 139 N. C., 60; Davidson v. Bardin, 139 N. C., 1, and cases cited. It has been held in numerous cases decided by this Court and other appellate courts that neither tbe admission or exclusion of immaterial evidence — immaterial in tbe determination of any issue to be found by tbe jury (and it cannot be seen by tbe appellate Court that tbe appellant was prejudiced thereby) — will constitute reversible error. In re Thorp, 150 N. C., 487; *114 Davis v. Thornburg, 149 N. C., 233; Griffin v. Railroad, 123 N. C., 55; Jennings v. Hinton, 128 N. C., 214; Collins v. Collins, 125 N. C., 98. Tbis disposes of tbe first six exceptions of the appellants, all of which, were taken to the evidence of the plaintiff of the purport above stated. The seventh exception is thus stated in the record: “Here the plaintiff offers in evidence the deposition of Hattie Freeman. The defendant objects and moves to suppress the deposition, for that the same was taken before there was issue joined in the-cause, in that the answer had not been filed at the date of taking the deposition. Motion denied and objection overruled. Defendant excepts.” This exception cannot be sustained. The motion to suppress the deposition ought to have been made, at latest, before the trial was entered upon. Section 1647, Revisal; Ivey v. Cotton Mills, 143 N. C., 189. It is not required by section 1652, Revisal, that the plaintiff shall delay the taking of evidence by deposition until after answer is filed. On the contrary, it has been held that it is competent, under the limitation prescribed in the cases cited, to use a deposition taken in one case in a subsequent ease. Bryan v. Malloy, 90 N. C., 508; Stewart v. Register, 108 N. C., 588; Mabe v. Mabe, 122 N. C., 552. The eighth, ninth and tenth .exceptions present the question, by motion to nonsuit and by refusal of his Honor to direct the jury to answer the first issue “No,” whether there was sufficient evidence to take the case to the' jury. Several witnesses for plaintiff testified as to statements made t;o them at various times and places by the' intestate, from which the jury could fairly and reasonably find that the express contract, stated in the issue, existed between plaintiff and his father. While no one of the witnesses testified in the exact language of the issue, we do not understand that to be necessary. Where a motion to dismiss an-action is made, under the statute, the evidence must be construed in the view most favorable to the plaintiff, and every fact which it tends to prove, and which is an essential ingredient of the cause of action, must be taken as established, as the jury, if the case had been submitted to them, might have found those facts from the testimony. Cotton v. Railroad, 149 N. C., 227; Brittain v. Westhall, 135 N. C., 492. One witness, Edgay Askew, testified that the intestate told him that he had told plaintiff, after his son, Walter, one of the defendants, left him,'about twenty years before, that if he would stay with him and.help, him out of debt he would will him what he had when he died; another, that plaintiff lived with his father, looked after him and the farm and property, and that intestate told plaintiff he- *115 must live with, him and take care of Mm; another, that he heard the intestate say the plaintiff had worked there (on the farm), had redeemed the farm, and he had given it to him — that plaintiff did everything around the farm; another, that he had seen plaintiff plow, hoe, ditch and repair buildings, and heard the intestate say that he had given everything he had to the plaintiff. In our opinion, from this evidence of the conduct, declarations and attending circumstances, the jury could fairly infer a contract or mutual understanding, as stated in the issue. The eleventh exception is to the refusal of his Honor to give the following charge, at the request of the defendants: “That the plaintiff’s action is barred by the statute of limitations, except for services rendered, if any, for the three years next preceding the death of the defendant’s intestate.” In the statement of the case on appeal we find this statement: “It was agreed, by consent, that if the jury answered the first issue ‘Yes’ the court should answer the other issues for the jury as found in the record.” In view of this statement, we doubt if this exception is presented for consideration; but, passing this, we do not think his Honor should have given the instruction prayed. The finding of the jury to the first issue brings this ease clearly within the principle, declared in Miller v. Lash, 85 N. C., 51: “Where services are performed by one person for another, during life, under a contract or mutual understanding, fairly to be inferred by their conduct and declarations and the attending eircumstancés that compensation therefor is to be provided in the will of the party receiving the benefit of them, and the latter' dies intestate or fails to make such provision, the subsisting contract is then broken, and not only will the action then lie for .the recovery of this reasonable value, freed from the operation of the statute, but it could not be maintained before.” No issue as to the value of plaintiff’s services was submitted;, but, in view of the counterclaim set up by the defendants, both parties seemed to conclude that the value of plaintiff’s services and his liability upon the matters set up in the counterclaim could be more justly and accurately determined by a referee and the stating of an account by him. Having found no reversible error in the trial below, the judgment is affirmed. No error.