Nesbitt v. . Donoho

150 S.E. 875, 198 N.C. 147, 1929 N.C. LEXIS 439

• Court: Supreme Court of North Carolina
• Decided: December 30, 1929
• Status: Published

Opinion

Stacy, 0! J.

Services rendered gratuitously to one in his lifetime may not successfully be used as the basis of an action against his estate, and, in certain family relationships, the law presumes that such services were intended to be gratuitous. Henderson v. McLain, 146 N. C., 329, 59 S. E., 873; Staley v. Lowe, 197 N. C., 243. But this is a presumption which may be overcome or rebutted by proof of an agreement to pay, or of facts and circumstances permitting the inference that payment was intended on the one hand and expected on the other. Dunn v. Currie, 141 N. C., 123, 53 S. E., 533; Brown v. Williams, 196 N. C., 247, 145 S. E., 233.

Tbe present ease, we think, falls within the class supporting a quantum, m&ruit recovery. Winkler v. Killian, 141 N. C., 575, 54 S. E., 540. The ruling of the court in this respect is approved.

While not material, the case elicited a bit of mountain vernacular, perhaps worthy of preservation. It was in evidence that the plaintiffs’ little daughter, eight or nine years of age, was often seen “doing many chores around the house, toting in stovewood and fetching water from a spring about 200 yards away,” which, in answer to the question as to whether it was uphill or downhill from the house to the spring, the witness described it as being “downhill a-going and uphill a-coming.”

We have discovered no action or ruling of the trial court which, we apprehend, should be held for reversible error. Hence, the verdict and judgment will be upheld.

No error.