Price v. . Askins

WinborNE, J. These are the principal questions arising on this appeal: (1) In action by husband to recover for personal services is wife competent to testify to a transaction between husband and a deceased person? C. S., 1795. (2) Where right to recover on special oral con *587 tract to convey real property as compensation for service rendered by husband is denied, is wife competent to testify to such contract on bus-band’s claim for compensation oil quantum meruit f (3) Do issues submitted fully present controversy? (4) "Was refusal of motion to nonsuit proper? (5) Is plaintiff entitled to lien by virtue of attachment and by reason of personal appearance of heirs at law? We answer the first four “Yes” and the fifth “No.” 1. Defendant’s contention that the wife of plaintiff is incompetent to testify to conversation she heard between plaintiff and intestate, C. S., 1795, is untenable. In Burton v. Styers, 210 N. C., 230, 186 S. E., 248, Devin, J., said: “It has been consistently held by this Court that the prohibition against the testimony of ‘a person interested in the event’ extends only to those having a ‘direct legal or pecuniary interest’ and not to the sentimental interest the husband or wife would naturally have in the lawsuit of the other.” Helsabeck v. Doub, 167 N. C., 205, 83 S. E., 241; Chemical Co. v. Griffin, 204 N. C., 559, 169 S. E., 152; Hager v. Whitener, 204 N. C., 747, 169 S. E., 645; Vannoy v. Stafford, 209 N. C., 749, 184 S. E., 512; C. S., 1801. 2. The defendant challenges the testimony of the wife of the plaintiff as incompetent for that the contract sued upon relates to real property and, if established, the wife would acquire an interest therein, and thereby is interested in the event of the action. On the facts of this case the objection is not sustained. The plaintiff alleges special oral contract to convey specific real property as compensation for services rendered, and in the event that he be not entitled to recover on such special contract, that he is entitled to recover for services rendered on quantum meruit basis. The defendant does not plead the statute of frauds, but enters a general denial to those allegations. This is equivalent to a plea of the statute. In McCall v. Industrial Institute, 189 N. C., 775, 128 S. E., 349, Connor, J., states: “A parol contract to sell or convey land may be enforced unless the party to be charged takes advantage of the statute by pleading the same. But a denial of the contract as alleged is equivalent to a plea of the statute.” Arps v. Davenport, 183 N. C., 72, 110 S. E., 580; Henry v. Hilliard, 155 N. C., 373, 71 S. E., 439. Defendant’s denial renders the special oral contract void. Plaintiff is forced to resort to recover for services on quantum meruit. Thus the real property and any inchoate right the wife may have in the recovery of it are eliminated from the case. 3. The issues submitted fully presented the controversy. It seems that the law is settled that if issues submitted by the court are sufficient in form and substance to present all phases of the controversy, there is no ground for exception to same. Bailey v. Hassell, 184 N. C., 450, 115 S. E., 166. *588 4. Motions for judgment as of nonsuit were properly refused. Tbe evidence was plenary for consideration by tbe jury on tbe allegations of contract, performance by tbe plaintiff, breach by tbe intestate, and damages. Tbe defendant’s estate cannot escape liability for tbe services rendered by tbe plaintiff to tbe intestate at bis request by pleading tbe statute of frauds. Faircloth v. Kenlaw, 165 N. C., 228, 81 S. E., 299. It is there stated: “He asked for tbe services, and has received tbe full benefit of them, and tbe law implies a promise to pay for them what they are reasonably worth, otherwise tbe statute would be turned into an instrument of fraud instead of executing tbe purpose for which it was passed. It was intended to prevent and not to promote fraud.” In Deal v. Wilson, 178 N. C., 600, 101 S. E., 205, Walker, J., said: “Where services are rendered on an agreement which is void by tbe statute, an action will lie on tbe implied promise to pay for such services, and tbe terms of tbe contract are admissible as evidence of what those services are worth.” Continuing, on page 603, “It is stated in Brown on Statute of Frauds, 5 ed., sec. 118, ‘One who has rendered services in tbe execution of a verbal contract which on account of tbe statute cannot be enforced against tbe other party, can recover tbe value of bis services upon tbe basis of quantum, meruit/ " Pertinent to cases of this character, in Lipe v. Trust Co., 207 N. C., 794, 178 S. E., 665, Stacy, C. J., summarized tbe law: “It is established by decisions in this jurisdiction (1) that when services are performed under an oral agreement, express or implied, that compensation is to be provided for in tbe will of tbe party receiving tbe benefit, and no such provision is made, an action will lie to recover for tbe breach' or to prevent an unjust enrichment, if need be, on tbe part of the recipient of such services,” citing among other cases Whetstine v. Wilson, 104 N. C., 385, 10 S. E., 471; Hager v. Whitener, supra. 5. There is error in tbe judgment providing that tbe judgment shall be a prior lien by reason of tbe attachments and by reason of tbe appearance of tbe heirs at law. Tbe alleged contract was with tbe intestate. The cause of action survived against tbe administrator. O. S., 159. There is statutory authority for appointment of an administrator where “decedent, not being domiciled in this State, died out of tbe State, leaving assets” in tbe State. C. S., 1 (3). Tbe right to have an appointment’made was open to plaintiff. O. S., 6 (3). A sale of real property by heirs of a nonresident within two years from granting of letters is invalid as to creditors and administrators. C. S., 76. No lien can be created against tbe estate of decedent by tbe commencement of a suit against tbe administrator. O. S., 102 and C. S., 62. Tbe order of payment of all debts of decedent is prescribed by statute. C. S., 93. *589 Upon tbe death of a debtor his personal estate vests in the administrator or executor, and the lands descend to his heirs or vest in the devisees, subject to be sold if necessary to make assets to pay debts. “But the administration of the whole estate is placed in the hands of the personal representative, who is required first to apply the personal assets in payment of the debts, and if they prove insufficient, then the statute prescribes how the lands may be subjected and sold . . .” Tuck v. Walker, 106 N. C., 285, 11 S. E., 183; Flynn v. Rumley, ante, 25. There is no personal liability on the heirs at law, devisees or dis-tributees. Their liability for the debts of a decedent extends only to the value of the property of such decedent. C. S., 59 and 60. Moffitt v. Davis, 205 N. C., 565, 172 S. E., 317. Hence the defendants, heirs at law of H. N. Askins, are not estopped to deny the legal effect of the attachment. By this action the plaintiff has established his claim against the estate of the decedent and is entitled to participate in the distribution of the assets of the estate in accordance with the statute, O. S., 93, and no more. All other assignments have been considered and found to be without merit. The judgment, when modified in accordance. with this opinion, is affirmed. Modified and affirmed.