Gales v. Smith

HiggiNS, J. The issues of fact arising on the pleadings and the principles of law applicable thereto are fully stated in the opinion of Bobbitt, J., on the former appeal reported in 249 N.C. 263, 106 S.E. 2d 164. As pointed out in that opinion, the plaintiffs are entitled to recover the reasonable value of the services they rendered to J. 0. Smith and his wife under such circumstances as implied a promise to pay for them. As a further defense, the defendant alleged the plaintiffs and their children had a home on, and support from the defendant’s farm during the entire period covered by their claim. The defendant offered evidence tending, in some degree at least, to support the allegations of this further defense. On the issue of damages (assuming the plaintiffs have prevailed on the preceding issues) the plaintiffs are entitled to recover the difference between the reasonable value of the services rendered and the reasonable value of the benefits received. Research has failed to disclose a decision of this Court directly in point on this accounting aspect of a case based on quantum meruit. See Sawyer v. Cox, 215 N.C. 241, 1 S.E. 2d 562. Directly in point, however, is Hendrickson v. Meredith, 161 Va. 193, 170 S.E. 602; Kearns v. Andree, 107 Conn. 181, 193 A. 695; Brown v. Woodbury, 183 Mass. 279, 67 N.E. 327; Warren v. Interstate Realty Co., 192 Ill. App. 438; Cohen v. Stein, 61 Wis. 508, 21 N.W. 514; Kirkpatrick v. Jackson, 256 Wis. 208, 40 N.W. 2d 372; [694] Roske v. Ilykanyics (Minn.) 45 N.W. 2d 769. See also 59 A.L.R. 604, and 69 A.L.R. 14. On the issue of damages the court should have charged the jury that the amount found to be the reasonable value of the services rendered should be offset by the reasonable value of the benefits the plaintiffs and their children received from the defendant, including the use of his home and farm. Failure of the court so to charge is directly challenged by Assignment of Error No. 2, based on Exception No. 6. We hold the court’s failure in this respect was prejudicial error. By other assignments the defendant complains the court over-emphasized the importance of the alleged contract to convey the farm and in view of the wording of the issues submitted, the complaint seems to be well founded. The contract to convey was in parol. It was unenforceable under the statute of frauds. Evidence relating to it was admissible only because of its bearing on the question whether the services were rendered and accepted with the expectation the defendant would pay the plaintiffs for them. The foundation of this action is not the breach of the parol contract to convey, hut the breach of the implied contract to pay reasonable value for services rendered and accepted under circumstances showing payment was expected. The instructions may have left the jurors with the mistaken belief they were awarding damages for breach of contract to convey the farm. For the reasons assigned, the judgment of the superior court is set aside and the defendant awarded a New trial.