SNOW BY AND THROUGH DOCKERY v. East

384 S.E.2d 689, 96 N.C. App. 59, 1989 N.C. App. LEXIS 943

• Court: Court of Appeals of North Carolina
• Decided: October 17, 1989
• Docket: 8817SC1387
• Status: Published

Opinion

ORR, Judge.

The dispositive issue on appeal is whether the trial court erred in granting defendant’s motion for summary judgment. A motion for summary judgment under G.S. 1A-1, Rule 56(c) “shall be rendered ... if the pleadings, depositions,. . . show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” This remedy permits the trial court to decide whether a genuine issue of material fact exists; it does not allow the court to decide an issue of fact. Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 535, 303 S.E.2d 358, 360 (1983) (citations omitted).

In a summary judgment proceeding, the trial court must determine if there, is a triable material issue of fact, viewing all evidence presented in the light most favorable to the nonmoving party. Land-of-Sky Regional Council v. Co. of Henderson, 78 N.C. App. 85, 336 S.E.2d 653 (1985), disc. rev. denied, 316 N.C. 553, 344 S.E.2d 7 (1986); Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986).

Plaintiff contends that the check defendant tendered to plaintiff and cashed by plaintiff did not constitute accord and satisfaction of any and all debts Mrs. McMickle owed plaintiff at the time of Mrs. McMickle’s death. We agree.

Viewing the evidence in the light most favorable to plaintiff as the nonmoving party, it establishes that plaintiff and defendant did not have any discussion at any time that the check for $133.72 covered the cost for anything except the money plaintiff loaned Mrs. McMickle and the pajamas and robe she purchased for Mrs. McMickle. Defendant’s reliance on Sanyo Electric, Inc. v. Albright Distributing Co., 76 N.C. App. 115, 331 S.E.2d 738, disc. rev. denied, 314 N.C. 668, 335 S.E.2d 496 (1985) is misplaced. Defendant is correct in his assertion that Sanyo stands for the proposition that the law of accord and satisfaction in North Carolina does not require a complete discussion of the alleged claim, a summary of the amounts owed, or a detailed agreement concerning payments therefor, and that all that is required is “some indication on the check that it is tendered in full payment.” Id. at 117, 331 S.E.2d at 740. Cashing a check tendered in full payment of a disputed claim establishes, as a matter of law, an accord and satisfaction. Id.

However, in the case sub judice, the evidence tends to show that plaintiff believed that the check for $133.72 was full payment only for the clothes and loan to Mrs. McMickle a few days prior to Mrs. McMickle’s death. Plaintiff stated in her deposition that there was no discussion between defendant and plaintiff at the time the check was written or subsequently that the sum covered any other expenses on behalf of Mrs. McMickle.

Moreover, the words written by defendant on the face of the check may be construed to support plaintiffs belief. Defendant wrote, “In Full Food, Clothing, etc.” (Emphasis added.) The term “etc.” can be interpreted as the loan plaintiff made to Mrs. McMickle, rent, fuel, electricity, transportation or any other expense. In Sanyo, the check in question was accompanied by a letter stating that “This check is delivered to you in full, final and complete settlement of all amounts . . . Id. at 117-18, 331 S.E.2d at 740. It is not at all clear that defendant intended this check to cover full payment “of a disputed claim” as is required by Sanyo. In fact, at the time defendant wrote the check for $133.72, there was no other claim at all. If there is no claim, then there can be no accord and satisfaction.

Plaintiff next argues that the trial court erred in granting summary judgment on the basis that a contract for payment for services never existed between plaintiff and Mrs. McMickle. As to this contention, we disagree.

Plaintiff maintains that she and Mrs. McMickle had an implied contract and may therefore recover under a quantum meruit theory. In Twiford v. Waterfield, 240 N.C. 582, 83 S.E.2d 548 (1954), our Supreme Court stated:

The circumstances must be such as to warrant the inference that the services were rendered and received with the mutual understanding that they were to be paid for. ‘The quantum meruit must rest upon an implied contract.’ Lindley v. Frazier, 231 N.C. 44, 55 S.E.2d 815. It must be made to appear that at the time the services were rendered, payment was intended on the one hand and expected on the other. Brown v. Williams, 196 N.C. 247, 145 S.E. 233; Francis v. Francis, 223 N.C. 401, 26 S.E.2d 907. The plaintiff must show by the greater weight of the evidence that both parties, at the time the labor was done or the services were rendered, contemplated and intended that pecuniary recompense should be made for the same. Young v. Herman, 97 N.C. 280; Staley v. Lowe, 197 N.C. 243, 148 S.E. 240; Lindley v. Frazier, supra; Lowrie v. Oxendine, 153 N.C. 267, 69 S.E. 131.

If the services were rendered as a pure gratuity or in discharge of a moral obligation, no promise to pay is implied and no presumption of such promise arises. (Citation omitted.)

240 N.C. at 585, 83 S.E.2d at 551.

When one family member performs services for another within the family, those services are presumed to have been gratuitous, performed from a sense of moral obligation and with no expectation of payment. See 2 Brandis on North Carolina Evidence sec. 232 (1982). Even when the relationship is not sufficiently close to raise a presumption of gratuitous services, in order to recover, plaintiff must “show circumstances from which it might be inferred that the services were rendered and received with the mutual understanding that they were to be paid for.” Brown v. Hatcher, 268 N.C. 57, 60, 149 S.E.2d 586, 589 (1966) (citations omitted).

Applying the above principles to the case sub judice, we find that we cannot infer from any of the evidence that plaintiff and Mrs. McMickle had an implied contract.

First, plaintiff stated in her deposition that she 11 just figured that she [Mrs. McMickle] would pay at least half of the expenses plus rent” (emphasis added). Plaintiff acknowledged that there was no written agreement and there was no evidence that she and Mrs. McMickle had even discussed payment for services.

Second, there is no evidence of Mrs. McMickle’s intent to pay plaintiff. The general rule under a quantum meruit theory is that the payment for services must be intended by one party and expected by the other. Id. Here, plaintiff presented no evidence that Mrs. McMickle ever intended to pay her for her services. Plaintiff stated in her deposition that Mrs. McMickle paid her over $5,000.00 during the period she lived with plaintiff. Plaintiff presented no explanation or evidence, however, as to the basis for these payments.

Finally, we find that because plaintiff and Mrs. McMickle were sisters, the services plaintiff performed for Mrs. McMickle are presumed gratuitous absent any evidence to the contrary.

For the reasons set forth above, we find that the trial court did not err in granting summary judgment in favor of defendant.

Affirmed.

Chief Judge HEDRICK and Judge LEWIS concur.