#### DOCK BAKER v. A. B. COREY, Executor of Florence Baker, Deceased.

(Filed 14 March, 1928.)

1. Courts — Clerk of Court — Jurisdiction—Judgments by Default Final and Default and Inquiry.

The clerk of the Superior Court has jurisdiction to enter such judgments by default final and by default and inquiry as are authorized by statute. C. S'., 595, 596, 597; 3 C. S., 593.

2. Same.

A judgment by default final may be rendered by the clerk on failure of the defendant to answer where the complaint sets forth one or more causes of action, each consisting of a breach of an express or implied contract to pay a sum of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation.

8. Same — For Services Rendered.

In order for the plaintiff to be entitled to a judgment by default final upon the complaint for the want of an answer in his action to recover from the estate of the deceased for services rendered before her death, in taking care of and providing a support for her, at her request and promise to pay for them, there must have been a definite price fixed upon and understood and agreed to by both of the parties; and where the complaint alleges merely an estimate by the parties of a reasonable price to be paid for such services it supports a judgment by default and inquiry only.

*300.4. Judgments — Setting Aside for Irregularity- — Grounds Therefor — Meritorious Defense.

A judgment by default final entered upon the pleadings for the want of an answer, when it is made to appear on appeal that one by default and inquiry should have been entered, is. an irregular judgment, but on defendant’s motion to set it aside, he must show a meritorious defense.

5. Appeal and Error — Remand for Correct Findings in Action to Set Aside Judgment for Irregularity.

Where the clerk of the court has entered an irregular judgment of default final for the want of an answer to the complaint, and the trial judge has set it aside on that ground alone; and on appeal to the Supreme Court it does not appear that the question of a meritorious defense was considered or passed upon, and that the movant intended to allege one, the case will be remanded for the determination of this question as to whether the defendant has such meritorious defense as calls for the vacating of the judgment of the clerk of the court.

Appeal by plaintiff from Lyon, Emergency Judge, at October Term, 1927, of Pitt.

Remanded.

Tbe plaintiff’s suit to recover for services rendered in supporting and caring for tbe defendant’s testatrix is based upon tbe following allega-, tions:

“2.'Tbat on or about 1 January, 1919, Florence Baker, now deceased, came to tbe borne of tbis plaintiff and stated to bim tbat sbe was getting-very old and feeble; tbat sbe bad no borne to go to and nowbere to live; tbat sbe did bave some personal property in tbe way of money and notes, and tbat if tbe plaintiff would give ber a borne and take care of ber in ber old age and infirmity tbat sbe would pay bim as sbe collected ber money or tbat sbe would leave same when sbe died so tbat be could get whatever amount be was entitled to for taking care of ber.

“3. Tbat in consequence of tbe above statement tbis plaintiff told tbe said-Florence Baker, now deceased, tbat sbe might make ber borne with bim; tbat be would furnish ber board, room and do all tbat be could to take care of ber, and tbat be thought $75 a year would be sufficient to pay said bill, which sbe agreed to pay.”

Tbe plaintiff further alleged tbat tbe services continued through a period of five years and tbat be was entitled therefor to tbe sum of $525. No answer was filed, and tbe clerk gave judgment by default final. On appeal tbe trial judge held tbat tbe judgment should bave been by default and inquiry, and tbat tbe judgment by default final was irregular. Upon tbis ground it was set aside, and tbe plaintiff excepted and appealed.

S. 0. Worthington and Julius Brown for plaintiff.

F. 0. Harding for defendlcvnt.

*301AdaMs, J.

'A clerk of the Superior Court has jurisdiction to enter such judgments by default final and by default and inquiry as are authorized by sections 595, 596, 597 of the Consolidated Statutes. Laws 1919, ch. 156; Ex. Sess., 1921, eh. 92, see. 12; 3 C. S., 593. In section 595 it is provided that judgment by default final'may be had on failure of the defendant to answer where the complaint sets forth one or more causes of action, each consisting of the breach of an express or implied contract to pay a sum of money fixed by the terms of the contract or capable of being ascertained therefrom by computation. In an action based on contract the complaint must set forth not only the agreement of the parties, but the alleged breach, so that the court may determine whether the action as stated can be maintained. Beard v. Sovereign Lodge, 184 N. C., 154; Thompson v. Dillingham, 183 N. C., 566. Where in the absence of a written contract or evidence of indebtedness service is rendered at a fixed price and the price is known to the defendant at the time the service is performed, there is an implied promise to pay the ascertained price for which, upon proper allegations in a verified complaint and want of an answer, judgment by default final may be awarded. Hyatt v. Clark, 169 N. C., 178; Bostwick v. R. R., 179 N. C., 485. But where the price is not ascertained and understood by the parties, and only the reasonable worth of the service is alleged, the plaintiff is entitled to nothing more than judgment by default and inquiry. Witt v. Long, 93 N. C., 389.

While the alleged contract is not clearly expressed, its most reasonable interpretation leads to the conclusion that the parties came to no definite agreement relative to the price at which the plaintiff’s service was to be performed. The' deceased agreed to pay him as she collected her money, or at her death to leave him money and notes out of which he could get “whatever amount he was entitled to for taking care of her.” He “thought $75 a year would be sufficient to pay the bill”; but this allegation is a mere estimate resting in doubt. The testatrix contracted to pay his bill, or the reasonable worth of his services, but there was manifestly no “meeting of the minds” upon a definite price. The facts alleged are analogous to those in Witt v. Long, supra. There the plaintiffs alleged that they had sold and delivered goods to the defendants which were reasonably worth the price alleged, and that the defendants had agreed to pay for them. It was held that the allegation did not imply that the defendants had stipulated to pay the price charged for the goods, but that the goods were reasonably worth the stated price, and that the defendants by receiving them had by implication agreed to pay the sum demanded. We concur in his Honor’s opinion that the judgment was irregular.

*302But irregularity aloue is not sufficient. In Duffer v. Brunson, 188 N. C., 789, it is said: “It is essential for the moving party to show not only that he has acted with reasonable promptness, but that he has a meritorious defense against the judgment. As suggested in Harris v. Bennett, 160 N. C., 339, 347, ‘Unless the Court can now see reasonably that defendants had a good defense that would affect the judgment, why should it engage in the vain work of setting the judgment aside?’ Hill v. Hotel Co., ante, 586; Gough v. Bell, 180 N. C., 268; Rawls v. Henries, 172 N. C., 216; Glisson v. Glisson, 153 N. C., 185.”

Neither in the judgment nor in the statement of the case on appeal is there any reference to the question of a meritorious defense; but defendant’s amended motion may be construed as intended to allege a defense which, if true, would defeat or reduce the plaintiff’s claim. The cause is therefore remanded for determination of the question whether the defendant has such a defense as calls for an order vacating the judgment and granting a trial upon the merits of the controversy.

Remanded.