Stallings v. Ellis.

Connor, J. The plaintiff declares upon a quantum, meruit for services rendered her father during the last four years of his life. It is elementary learning that right to recover upon this count or cause of action is based upon implied assumpsit, that is, that in the absence of a special contract, the law implies a promise to pay so much for services as they are reasonably worth. When, however, the relation existing between the party rendering and the one receiving the services is that of parent and child, there is a presumption, on account of the relationship, that the services are rendered because of mutual affection or reciprocal benefits, and in the absence of any evidence tending to rebut the presumption no recovery can be had. The presumption may be rebutted by showing that the party rendering the services expected to recover and the other party expected to pay for them. The law is well stated in 21 American & Eng. Enc. (2 Ed.), p. 1061. “The general rule deducible from the authorities is that when the child, after arriving at majority, continues to reside as a member of the family with a parent, or with one who stands in the relation of a parent, or when the parent resides in the family of a child, the presumption is that no payment is expected for services rendered or support furnished by the one to the other. This presumption is not, however, conclusive, but may be overcome by proof of an express agreement to pay, or of such facts and circumstances as show satisfactorily that the parties gt the time expected payment to be made.” The editor cites a large number of cases to sustain the text. This rule *72 bas been adopted and uniformly adhered to by this Court. Ruffin, C. J., in Williams v. Barnes, 14 N. C., 348, states the law clearly and defends it in strong language. Pearson, J., in Hudson v. Lutz, 50 N. C., 217, says: “When work is done for another, the law implies a promise to pay for it; this is the general rule; it is based on a presumption growing out of the ordinary dealings of men. But an exception is made whenever this presumption is rebutted by the relation of the parties. The case of a parent and child is exception.” The same doctrine is adhered to in Dodson v. McAdams, 96 N. C., 149, 60 Am. Rep., 408; Young v. Herman, 97 N. C., 280; Callahan v. Wood, 118 N. C., 752; Avitt v. Smith, 120 N. C., 392; Hicks v. Barnes, 132 N. C., 146. The plaintiff’s counsel cites several cases decided by other Courts which are not entirely in harmony with the law as announced by this Court. It may be that some of the Courts have made the distinction contended for by the plaintiff, that when the child rendering the service is of full age and married, the legal status of the parent and child being in a sense severed, the law implies a promise to pay for services. Certainly in such cases it would require less evidence to rebut the presumption than in those where there is a continued, unbroken residence. However this may be, we prefer to* adhere to our own decisions and uphold that view which we think is most creditable and more in consonance with the sentiment and practice of our people. We are not willing to have the law attribute, in the absence of a contract, to a child mercenary motives in the rendition of services to an aged parent in sickness and adversity. It is evident that the plaintiff has rendered to her aged and infirm father faithful services, and it may be that it would be proper and generous in the other children to consent that such services should in some measure be recognized in the *73 distribution of his estate. We have no power, however, to enforce the performance of such duty. In the view which we take of the testimony, the relation which existed between the father and the plaintiff and her family is the same which is frequently found among our people. He was old and in bad health. He had a small farm upon which they first lived. The rents, after removing from it, he applied to his board and actual expenses. The services which the daughter rendered, in her own language, were such as she would have rendered to her own child. There is no suggestion in the complaint or the evidence that she expected to be paid for them, and in the absence of such suggestion the law raises no implication to that effect. The demurrer to the evidence should have been sustained and the action dismissed. His Honor erred in refusing the motion. Let it be so certified. Error.