The opinion
Brogden, J.
The plaintiff bases her cause of action upon two theories:
1. That there was an express contract between the plaintiff and the deceased to pay for services rendered.
2. That if there was no express contract, the law implied a promise by the deceased to pay the reasonable worth of the services rendered by the plaintiff and accepted by the deceased.
The only evidence relied upon to establish an express contract was the following statement by a brother of the plaintiff: “Martha Staley
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said whoever waited on her should have all that she had. I heard her make that statement before and after going to the Smith place.” It does not appear from the evidence that the plaintiff was present when these conversations took place, or that they were communicated to- her by her brother. Moreover, the statement itself was too vague, uncertain and indefinite to constitute a contract.
Brown v. Williams,
196 N. C., 247 .
Upon the second theory involving
quantum meruit,
the law is thus stated in
Winkler v. Killian,
141 N. C., 575 , 54 S. E., 540 : “It is equally well established that when a child resides with a parent as a member of the family or with one who stands to the child in
loco parentis,
services rendered under such circumstances by the child for the parent are, without more, presumed to be gratuitous and no promise will be implied and no recovery can be had without proof of an express and valid promise to pay, or facts from which a valid promise to pay can be reasonably inferred: This last position is usually considered as an exception to the general rule, and in this and most other jurisdictions obtains both as to adult and minor children. Wherever the same has been applied, however, to claims by adult children so far as we can discover, it has been made to depend not alone on the fact of kinship in blood, but also on the fact that the adult child has continued to reside with the parent as a member of the family.”
In the case at bar the plaintiff and her mother lived together as one family at the old home place. The plaintiff purchased a new home and the family moved away from the old home to the new home. We see nothing in the evidence to indicate there was any break in the family unity except the mere fact of moving together from one place to another. Furthermore, there is no evidence in the record tending to show that the services were rendered in expectation of payment or that deceased intended to make payment, except perhaps the mere fact of the rendition of services. There is no decision in this jurisdiction where such family relationship exists holding that the mere rendition of services, without more, is sufficient evidence of an expectation of payment on one hand and the intention to pay on the other.
Winkler v. Killian,
141 N. C., 575 , 54 S. E., 540 ;
Dorsett v. Dorsett,
183 N. C., 354 , 111 S. E., 541 ;
Ellis v. Cox,
176 N. C., 616 , 97 S. E., 468 .
We therefore hold that the motion for nonsuit should have been allowed.
Reversed.