#### E. P. LOWRIE v. ALVA OXENDINE, Guardian, et al.

(Filed 19 October, 1910.)

1. Domestic Relations — Parent and Child — Payment for Services— Promise — Evidence Sufficient.

, In an action brought by the plaintiff to recover for the value of his services rendered his step-grandfather, while living with him, in managing his business and taking care of him during his illness, there was evidence tending to show that the grandfather had repeatedly stated in the presence of others his intention of paying plaintiff, and that the plaintiff expected to receive com*268pensation for them. BeU, Not error to submit the question of compensation to the jury under a charge that the law presumed the services were rendered gratuitously, and the burden was upon plaintiff to satisfy the jury by the greater weight of the evidence that the step-grandfather promised to pay plaintiff therefor, or that the parties intended that the plaintiff should be paid for his services.

2. Domestic Relations — Parent and Child — Emancipation Implied— Child's Compensation.

Evidence that the father permitted his minor son to work for himself’and receive the earnings of his own labor is sufficient to go to the jury upon the question of whether the father had impliedly emancipated his own son, and assented to the son’s receiving his earnings in his own right.

■Appeal from W. B. Allen, J., at tbe April Term, 1910, of ROBESON.

Tbis action was brought to recover tbe value of services alleged to bave been rendered by tbe plaintiff to tbe intestate of tbe defendant. Tbe intestate was tbe step-grandfatber of tbe plaintiff. 'With, respect to tbe relationship of tbe parties, tbe court charged tbe jury that ordinarily when one renders services for another, in tbe absence of an express promise to pay for them, tbe law implies a promise to pay tbe reasonable value of such services, but tbis is not tbe rule as between a child and its. •parent, or one standing in tbe relation of a parent. In that case, tbe presumption is that the services were rendered gratuitously, that is, without any intention to charge for tbe same, and in order to recover for services thus rendered, tbe plaintiff must show a promise to pay for them, and consequently, in tbis ease, tbe burden is upon tbe plaintiff to satisfy tbe jury by tbe greater weight of evidence that H. T. Oxendine, tbe step-grand-fatber of tbe plaintiff, promised to pay him for tbe services rendered. If tbe plaintiff bad so satisfied tbe jury, be is entitled to recover what they find from tbe evidence to be tbe reasonable value of tbe services, but if tbe jury find that there was no promise, tbe plaintiff would not be entitled to 'recover anything. There were other instructions given to tbe jury, but it is not necessary that they should be set forth. There was a verdict for tbe plaintiff, and from tbe judgment thereon tbe defendant appealed.

*269 McIntyre, Lawrence & Proctor for plaintiff.

Robt. B. Lee and McNeill & McNeill for defendant.

"WaleeR, J.,

after stating tbe case. There are many exceptions appearing in tbe record, but it is necessary to consider only one or two questions in order to dispose of tbe real matters in controversy. Tbe court stated to tbe jury in its charge tbe correct rule applicable to cases of this kind, and' there was evidence to support tbe instruction. Tbe plaintiff lived with bis grandfather for several years, and during that time be managed bis business and took care of him during bis illness. There was evidence tending to show that bis grandfather repeatedly stated in tbe presence of others that be intended to pay him for bis services, and that tbe plaintiff expected to receive compensation for them. It was for tbe jury to decide, upon tbe evidence, whether it was mutually understood by and agreed between tbe parties that tbe plaintiff should be remunerated for bis services.

Tbe presumption arising from tbe relation of tbe parties that services were performed by one of them for tbe other gratuitously, is not conclusive, but may be rebutted by evidence which tends to show that at tbe time tbe labor was performed or tbe services rendered, tbe parties contemplated and intended that compensation should be made for tbe same, and sufficient, therefore, to show an implied agreement to that effect. An express agreement may, of course, be shown. Dodson v. McAdams, 96 N. C., 156; Young v. Herman, 97 N. C., 283; Stallings v. Ellis, 136 N. C., 69; Dunn v. Currie, 141 N. C., 123; Freeman v. Brown, 151 N. C., 113. In this ease there was proof of an express contract to pay. Tbe other objections relating to tbe question now under consideration are untenable.

We think there was evidence that tbe plaintiff bad been emancipated by bis father and permitted to work for himself and to receive tbe earnings of bis labor. In Ingram v. R. R., 152 N. C., 762, we held that “if a minor son contracts on bis own account for bis services with tbe knowledge of bis father, who makes no objection thereto, there is an implied emancipation and an assent that the son shall be entitled to tbe earnings in bis own right,” citing Burdsall v. Wagoner, 4 Col., 261; Armstrong v. *270 McDonald, 10 Barb., 300; Jenny v. Alden, 12 Mass., 375; Campbell v. Campbell, 11 N. J. Eq., 268; Taylor v. Webb, 36 N. Y., Supp., 592.

Tbe general features of tbis ease are libe those of Freeman v. Brown, supra, and sufficiently so to bring it witbin tbe application of tbe principles therein stated.

There is no error to be found in tbe rulings of tbe court, and tbe judgment should be affirmed.

No error.