#### C. S. SOUTHERLAND v. W. T. CRUMP, Executor of J. A. Southerland, Deceased.

(Filed 14 March, 1928.)

Contracts — Actions—Plaintiff Must Show Performance in Order to Recover.

To recover on an express contract with decedent for personal services rendered him prior to his death, plaintiff must show performance on his part.

Appeal by plaintiff from Cranmer, J., at August Term, 1927, of DupliN.

Affirmed.

*857Action to recover upon an express contract alleged to bave been entered into by and between plaintiff and tbe testator of defendant for services rendered by plaintiff to said testator.

From judgment dismissing tbe action, upon motion for nonsuit, at close of all the evidence, plaintiff appealed to tbe Supreme Court.

Oscar B. Turner for plaintiff.

H. D. Williams, Geo. B. Ward and W. H. Weatherspoon for defendant.

Per Curiam.

Conceding that there was some evidence tending to sustain plaintiff’s allegation of an express contract by which defendant’s testator agreed to pay plaintiff for services to be rendered to him by plaintiff, there was no error in the judgment dismissing the action, at the close of all the evidence, under 0. S., 567. There was no evidence tending to show performance by plaintiff of the alleged contract.

In the absence of such evidence, plaintiff cannot recover in this action. The judgment is

Affirmed.