#### JOHNSON v. ARMFIELD.

(Filed June 3, 1902.)

1. IMPROVEMENTS — Betterments—Burden of Proof — Contracts— Wills.

In an action for services rendered and for improvements under a contract with the owner that she would will land to plaintiff, the humen of proof is on plaintiff to show performance ol his part of contract.

2. IMPROVEMENTS — Contracts—Renté—Profits— Wills — Evidence.

In an action to recover for Services, improvements put on land hy plaintiff, under a promise to will it to plaintiff, and rents, profits and payments made to plaintiff should he considered.

3. IMPROVEMENTS — Contracts—Parol Contracts — Betterments.

A person is not entitled to pay for betterments placed on land before the contract to convey is made.

4. EVIDENCE — Declarations—Competency.

A personal representative can not introduce declarations of the deceased unless they are a part of the saíne conversation or statements proven hy the opposite party.

AotioN by Albert Johnson against G. W. Armfield, executor of Charlotte Gardner, beard by Judge Thos. J. Shaw and a jury, at September Term, 1901, of the Superior Court of GuilvoRD County. Erom a judgment for the plaintiff, the defendant appealed.

J. A. Barringer, for the plaintiff.

Bynum & Bynum and King & Kimball, for the defendant.

Furches, C. J.

This case is not in a condition to have a final disposition made of it in this appeal without risk of doing injustice to the parties. Neither the complaint nor answer is furnished by the record, and while this is accounted for by a statement that they had been lost, this does not supply the need of them, as we are unable to see what was the grounds *576of plaintiff’s complaint — 'whether for betterments p¡ut upon land, under a parol promise to convey, or for tbe value of improvements put upon land under contract, or promise to pay the plaintiff for his labor in so doing, or for supporting defendant’s testatrix. The case on appeal seems to have been made out by the appellant, to which there was no counter-case or exceptions filed. And while such a case, under The Code, becomes the case On appeal, and mil be so considered by the Court, this may account for the fact that no- charg'e of the Court is given and only defendant’s exceptions and prayers for instructions. In the absence of the complaint and answer and the information they would have given-, it is difficult for us to see the relevancy of the exceptions. The case on appeal gives a great deal of evidence, but it is not stated that all the evidence is given, and it may not be; and if it was, we would be incompetent to pass upon it if there was any conflict. In some phases it appears that plaintiff is suing for betterments for breach of a parol contract to convey land; in others it appears that he is suing for boarding and supporting defendant’s testatrix; and in others, for work he has done for defendant’s testatrix under contract.

If it is for betterments under a parol contract to- convey, of course the plaintiff will have to establish the contract by competent evidence, and show that he has complied with it, before he can recover. If he does this, the general rale of damage is the benefit the improvements have been' to the land, and not what they cost plaintiff to put them on the land. But in a case like this case seems to be, where plaintiff moved a house belonging to defendant’s te'statrix, that matter would have to be taken into consideration and the rents and profits the plaintiff had received from the land would also have to be taken into the account. If for boarding and taking care of defendant’s testatrix, that would depend upon the time and trouble the plaintiff was at in so doing, and anything she may have paid him therefor would have to be taken into the account.

*577If these contentions of plaintiff are not established, and he claims fox the work he has done for defendant’s testatrix, this would depend upon contract to do the same, either express or implied.

From what we have said it will be seen that there was error in not giving defendant’s second prayer for instructions and in refusing to give defendant’s sixth prayer for instructions, for which there must be a new trial.

No promise the defendant’s testatrix may have made to the plaintiff to convey him the land after the improvements were made, would support a claim for betterments.

The promise must have been made before the improvements were put upon the land. As a promise to convey, made after the improvements were made, could not have induced him to put them there, and it is the inducement that gives the equitable right to be paid for them. Luton v. Badham, 127 N. C., 96, 80 Am. St. Rep., 783, 53 L. R. A., 337, and authorities there cited. While it was competent for the plaintiff to prove declarations of defendant’s testatrix, it was not competent for defendant to do so unless it was a part of the same conversation or statement.

As the case goes back for a new trial, the Court below will, of course allow the parties to supply or file new pleadings.

New Trial.