#### JOHN PERRY, Jr., v. MARTHA A. and LUCY U. NORTON.

(Filed 7 December, 1921.)

1. Contract— Parol— Statute oí Frauds— Breach— Equity — Damages— Lands.

Upon equitable principles, administered in our courts having jurisdiction of both law and equity, where a contract resting in parol will not be specifically enforced in regard to lands, it is unconscionable for the owner of lands to receive the benefit of permanent improvements made thereon and services rendered in good faith, upon consideration of an agreement to convey them, and not be held to liability therefor upon his pleading the statute of frauds, to the extent that the lands were enhanced in value.

2. Same.

One who has permanently improved the lands of the owner and continued in his service for a comparatively, small wage for years, relying upon a parol agreement that the owner would convey the lands in consideration of the permanent improvements and the services thus rendered, upon the happening of a certain event, which the owner has refused to perform under the plea of the statute of frauds, may recover for the *586value the services thus rendered, and the increased value of the land by-reason of the improvements, though he may not enforce a specific performance of the verbal contract.

3. Same — Judgments—Interest—Statutes.

Where it has been ascertained by the verdict of the jury, upon a trial free from error, that the plaintiff is entitled to recover of the defendant the value of permanent improvements he has put upon the defendant’s land under a parol agreement that the latter would convey a part of the lands in consideration thereof, void under the statute of frauds, to the extent that the improvements have enhanced the value of the land, interest is properly allowed in the judgment from the time of the defendant’s breach, on tiie amount ascertained to be due at that time; and objection that the jury may have included the interest in their verdict is untenable when it appears that nothing was said by counsel or court in respect to it, the presumption being to the contrary. O. S., 2309.

Adams, J., not sitting.

Appeal by defendants from Adams, J., at the June Term, 1921, of HENDERSON.

This action was brought to recover damages for improvements made upon land, which defendants promised by parol to convey, but which they failed to do, and for money expended and services rendered in reliance upon said promise so repudiated.

In the case at bar the plaintiff alleges that he had been in the employ of the defendants since he had been large enough to earn his own living, and, in July, 1913, he was offered very much higher wages than the defendants were paying, and he went to defendants and told them that he wanted to serve notice of his leaving their employ. Defendants were so anxious to keep plaintiff that they made him a proposition that if he would not leave and go to the better-paying job they would continue to pay him $40 per month, charge no house rent, and when their large plantation was sold, or they dispensed with his services, they would deed him the cottage and lot he was occupying in lieu of the higher wage he would receive at the other place. He took the offer under consideration, and, on the day following, he went to defendants and told them he had decided to accept the same. He therefore exercised a sole, and even despotic, dominion over the house and lot as his own, building a fence around it and erecting a barn on it, at his own cost and expense, and continued to serve the defendants at the same wage of $40 per month for four years' — three of them years of world war — uncertainty and unprecedently inflated prices for living commodities, and labor wages never before heard of — a period in which skilled workmen such as he (a landscape gardener, plumber, and general utility man) were in great demand and earning anywhere from $150 to $300 per month the country over. .For all this period the defendants got this man’s services on the *587same basis — never any change — allowed him to build the barn, and expend his own money in improving the place, believing it to be his, as soon as the plantation could be sold, and when his services to defendants were no longer needed, assured for themselves a permanent supply of skilled labor from him through all the chances and vicissitudes of the war, and then, when the plantation is sold, included the lot and house they had contracted to convey to him with the whole estate, and made no other compensation for the sacrifice of his opportunities, and the benefits that they had received from his hard toil, freely given, and induced by the false promise.

The jury returned the following verdict:

“1. Did the defendants contract with the plaintiff to pay him for his services more than $40 a month, and for the use of the house and lot, as alleged in the complaint? Answer : ‘Yes.’

“2. If so, in what amount are the defendants indebted to the plaintiff? Answer: ‘$1,700.”

Judgment on the verdict, and defendants appealed.

Fhvbank & Whitmire for plaintiff.

Martin, Rollins & Wright for defendants.

Waleer, J.,

after stating the case: 1. The defendants’ first ground of exception is the court’s instruction to the jury that the burden was upon the plaintiff to satisfy them by the greater weight of the evidence that the alleged contract was made, and if, upon consideration of all the evidence, the plaintiff has satisfied them that the defendants made the contract upon which he relies, that is, a contract .to convey to him the house and lot, to pay him money, and give him the use and occupation of the house and lot, they will answer the first issue “Yes,” and further, that it has long been settled by our Court that where the labor or money of a person has been expended in the permanent improvement and enrichment of the property of another by parol contract or agreement, which cannot be enforced because, and only because, it is not in writing, the party repudiating the contract, as he may do, will not be allowed to take and hold the property thus improved and enriched without compensation for the additional value which his improvements have conferred upon the property and this equity rests upon the broad principle that it is against conscience for one man to be enriched to the injury and cost of another, which was induced by his own acts. Luton v. Badham, 127 N. C., 96; Ford v. Stroud, 150 N. C., 365; Ballard v. Boyette, 171 N. C., 26.

The jury found the facts to be as proven by the plaintiff, and the law has been settled by this Court in a number of well considered cases that *588tbe defendants cannot take advantage of tbe plaintiff’s labor and services, under sucb an agreement as that set up and proved in tbis case, and defeat bis claim for compensation for tbe same by pleading tbe statute of frauds. Luton v. Badham, and other cases, supra. In Albea v. Griffin, 22 N. C., 9, tbe bill was for specific performance of tbe contract. Tbe defendants relied upon tbe statute of frauds, tbe contract being in parol, and Judge. Gaston said tbat tbe Court admitted tbis objection to be well founded, and beld, as a consequence from it, tbat, tbe contract being void, not only its specific performance cannot be enforced, but tbat no action will lie, in law or equity, for damages because of nonperformance. But we are, nevertheless, of tbe opinion tbat plaintiff has an equity which entitles him to relief, and tbat parol evidence is admissible for tbe purpose of showing tbat equity. Tbe plaintiff’s labor and money have been expended on improving property which tbe ancestor of tbe defendants encouraged him to expect should become bis own, and, by tbe act of God or tbe caprice of tbe defendants, tbis expectation has been frustrated. Tbe consequence is a loss to him and a gain to them. It is against conscience tbat they should be enriched by gains thus acquired, to bis injury. Baker v. Carson, 21 N. C., 381. In Dunn v. Moore, 38 N. C., 364, relief was denied because tbe contract set up in tbe bill was denied. Nash, J., said tbat if tbe defendant bad admitted tbe contract tbe court would not have permitted him to put plaintiff out “without returning tbe money be bad received, and compensating him for bis improvements.” Of this Cormor, J., said, in Ford v. Stroud, 150 N. C., at p. 365, tbat while in tbe case at bar tbe contract is not denied, if it bad been, we should not hesitate to follow tbe decision in Luton v. Badham, supra, in which Mr. Justice Furches reviews tbis and all tbe other cases, and shows conclusively tbat tbe right to relief cannot be defeated by ajuere denial of tbe contract. See tbe very able and, tbe writer thinks, conclusive opinion of Smith, C. J., in McCracken v. McCracken, 88 N. C., 272. Certainly tbis cannot be done where tbe action is for tbe recovery of tbe purchase money, as upon an implied assumpsit for money bad and received or for money paid for a consideration which has failed.

In Daniel v. Crumpler, 15 N. C., 184, Bodman, J., says tbat tbe right to recover tbe purchase money and compensation for improvements against one who bad repudiated bis parol contract to convey land “stands on general principles of equity.” As said by Judge Furches in Luton v. Badham, supra, all of tbe cases are based upon tbis theory. It is doubtful whether, prior to tbe abolition of tbe distinction between actions at law and suits in equity, an action could have been maintained at law for compensation for improvements put upon land by tbe vendee. Tbe court of equity bad granted relief by enjoining tbe eviction of tbe *589vendee by tbe vendor, wbo bad repudiated bis contract, until be bad made compensation for improvements. Whatever difficulty was encountered because of technical rules of pleading disappear when forms of action are abolished and a plaintiff recovers upon tbe facts stated in bis complaint and proven upon tbe trial.

2. As to tbe defendants’ second exception, which is that tbe court erred in rendering tbe judgment in favor of tbe plaintiff and against tbe defendants for tbe interest on $1,700 from October, 1917, until paid. Under tbe contract between tbe parties, plaintiff’s right to compensation for tbe loss of tbe bouse and lot accrued when tbe defendants sold their plantation in October, 1917, and at tbe same time sold tbe bouse and lot that tbe plaintiff bad labored to acquire for four years. Tbe defendants bad received tbe services for which compensation was due, and tbe plaintiff bad, in addition to these services, expended bis money in building fences and a barn on tbe defendants’ lot, which they bad contracted to convey to him prior to October, 1917, and tbe jury “ascertained from tbe terms and relevant evidence” tbe amount of tbe plaintiff’s claim, and, under decisions of this Court, tbe trial judge rendered judgment for interest from tbe time tbe plaintiff’s right to compensation accrued, to wit, from October, 1917. In this tbe trial judge simply followed tbe law as established by tbe decisions of this Court. Chatham v. Realty Co., 174 N. C., 671. In tbe case before tbe Court, there has been more than an adequate default on tbe part of tbe defendants in withholding tbe money belonging to tbe plaintiff for tbe value of bis services — they have tried to defeat bis claim altogether for a period of four years, and still, in tbe prosecution of this appeal, endeavor to prevent him from reaping tbe reward of bis toil. Tbe statute says that all sums of money due by contract of any kind, excepting money due on penal bonds, shall bear interest, etc., (C. S., 2309). From this it would seem to follow in this State that whenever a recovery is bad for a breach of contract and “tbe amount is ascertained from tbe terms of tbe contract itself or for evidence relevant to tbe inquiry,” that interest should be added. Kester v. Miller, 119 N. C., 475; Bond v. Cotton Mills, 166 N. C., 20.

But this question of interest has been settled by this Court at tbe present term in Croom v. Lumber Co., ante, 217, opinion by Adams, J., where tbe authorities are collected, which decision also bears somewhat upon tbe equitable principle we have applied to another branch of this case. It was argued by tbe defendants that as tbe court did not instruct as to giving interest in tbe verdict, tbe jury may have done so, and defendants would thereby pay double interest, but we think this cannot be assumed, but that tbe presumption is tbe other way, that tbe jury did not allow interest, nothing having been said by counsel or tbe court with *590respect to it. In adding interest, tbe court was merely complying with tbe statute and following tbe precedents in tbis Court.

It will be noted that in tbis case tbe defendants got tbe benefit of botb tbe labor and money of tbe plaintiff- — -bis labor in tbe service of tbe defendants for four years, and bis money in tbe improvement of tbe bouse and lot that they agreed should be deeded to bim, but wbicb they conveyed to another in tbe wholesale conveyance of their large estate.

Tbe'defendants’ counsel argued strenuously and at some length that tbe contract alleged and proved was unreasonable and improbable, when, as a matter of fact, tbe contention of tbe plaintiff is much more reasonable than to suppose that be would stay with tbe defendants in 1913, after being offered much higher wages, and then continue to stay on during tbe three years following, when labor of tbe commonest sort increased very much in value, and yet, with all tbis change in opportunities be remained “on tbe job” until tbe end, at tbe same old pay, unless there was some other compelling motive keeping bim there, wbicb was bis desire honestly to perform tbe contract, for the breach of wbicb by defendants, and as compensation for bis services, tbe jury found that be was entitled to $1,700, and for tbis sum tbe court gave judgment with interest from October, 1917.

¥e are of tbe opinion that tbe learned judge who presided at tbe trial was right on botb points. Tbe first ground upon wbicb rests tbe verdict, and bis judgment,1 has been settled and established, for many years without much question, and tbe second is equally as clear, and, moreover, has for its support tbe authority of a statute, tbe construction of wbicb cannot now be questioned.

No error.

Adams, J., not sitting.