#### CHARLES H. LIPE v. CITIZENS BANK AND TRUST COMPANY et al.

(Filed 27 February, 1935.)

1. Wills B b — Executors and Administrators D b—

When a person performs services under an oral agreement, express or implied, that compensation therefor should be provided in the will of the person receiving the services, and no such testamentary provision is made, a cause of action accrues against the estate for breach of the contract or for the value of the services rendered.

2. Limitations of Actions B a—

A cause of action for breach of a contract to devise or for the value of services rendered in reliance upon such agreement accrues upon default, which may arise from abandonment or anticipatory breach, but which usually arises upon failure to make testamentary provision as promised.

3. Wills B c—

Plaintiff alleged that he performed services in reliance upon testatrix’ oral agreement to will him all of her property. Testatrix’ estate consisted largely of real estate: Held, upon the facts disclosed by the record, plaintiff’s recovery was properly limited to the reasonable value of the services rendered.

Appeal by defendants from Harding, J., at June Term, 1934, of Cabarrus.

Civil action to recover for services rendered by plaintiff to Alice J. Bost during tbe last nineteen years of ber life, it being alleged tbat in 1910 tbe said Alice J. Bost “asked tbe plaintiff to look after and manage ber affairs in general and render sucb other services, and to do other work for ber, as she from time to time might request, and told him if be would do so,-that she would make ber will leaving all ber property to him.”

*795Alice J. Bost died in 1929, leaving a will in wbieb sbe bequeathed to tbe plaintiff tbe sum of $3,000. Sbe left an estate, consisting largely of real property, valued at approximately $16,000. Among tbe assets was a note of $250, executed by tbe plaintiff to tbe deceased, and upon wbieb interest bad been paid up to 26 March, 1928.

Upon denial of liability and issues joined, tbe jury returned tbe following verdict:

“1. Did defendant’s testate, Alice J. Bost, and Chas. H. Lipe enter into a contract, as alleged in tbe complaint? Answer: 'Yes.’

“2. Did defendant’s testate, Alice J. Bost, breach said contract? Answer: 'Yes.’

“3. Did tbe plaintiff Chas. H. Lipe render services to said Alice J. Bost in good faith, relying on her contract and agreement with him, as alleged in tbe complaint? Answer: 'Yes.’

“4. What amount, if any, is plaintiff entitled to recover? Answer: '$3,875.’

“5. Is tbe plaintiff’s action barred by tbe three-year statute of limitations; as alleged in tbe answer? Answer: 'No.’

“6. What sum, if any, is tbe plaintiff indebted to tbe defendants by reason of tbe note set up in tbe counterclaim? Answer: '$250.00, with interest at 6 per cent from 26 March, 1928.’ ”

Tbe court instructed tbe jury that tbe plaintiff was not seeking to recover damages for breach of tbe alleged contract, but for tbe reasonable value of tbe services rendered by him to tbe said Alice J. Bost under tbe contract during tbe last nineteen years of her life. Exception.

Upon tbe 5th issue, relating to tbe statute of limitations, tbe jury was instructed as follows: “The court charges you, gentlemen, upon all tbe evidence, if you believe it to be true, it would be your duty to answer tbe fifth issue 'No’; and tbe court has already answered it 'No’ for you.” Exception.

Judgment on tbe verdict for plaintiff, from which tbe defendants appeal, assigning errors.

Hartsell & Hartsell and Growell & Crowell for plaintiff.

Z. A. Morris, Jr., and H. S. Williams for defendants.

Stacy, C. J.

This is tbe same case that was before us at tbe Fall Term, 1933, opinion filed 28 February, 1934, and reported in 206 N. C., 24, 173 S. E., 316.

It is established by tbe decisions in this jurisdiction:

1. That when services are performed under an oral agreement, express or implied, that compensation is to be provided therefor in tbe will of tbe party receiving tbe benefit, and no such provision is made, an action will lie to recover for tbe breach, or to prevent an unjust enrichment, if *796need be, on the part of the recipient of such services. Grantham v. Grantham, 205 N. C., 363, 171 S. E., 331; Hager v. Whitener, 204 N. C., 747, 169 S. E., 645; Redmon v. Roberts, 198 N. C., 161, 150 S. E., 881; Brown v. Williams, 196 N. C., 247, 145 S. E., 233; Deal v. Wilson, 178 N. C., 600, 101 S. E., 205; Patterson v. Franklin, 168 N. C., 75, 84 S. E., 18; Whetstine v. Wilson, 104 N. C., 385, 10 S. E., 471; Miller v. Lash, 85 N. C., 52.

2. That the cause of action accrues at the time of default, which may arise from abandonment or anticipatory breach (Shore v. Holt, 185 N. C., 312, 117 S. E., 165), but which usually results from failure to make testamentary provision as promised. Harrison v. Sluder, 197 N. C., 76, 147 S. E., 684; Fertilized Co. v. Eason, 194 N. C., 244, 139 S. E., 376; Brown v. Williams, supra; Patterson v. Franklin, supra; Helsabeck v. Doub, 167 N. C., 205, 83 S. E., 241; Freeman v. Brown, 151 N. C., 111, 65 S. E., 743; Whetstine v. Wilson, supra; Miller v. Lash, supra.

3. That the measure of damages, or recoverable compensation, on facts such ,as disclosed by the present record, is the reasonable value of the services rendered. Grantham v. Grantham, supra; Nesbitt v. Donoho, 198 N. C., 147, 150 S. E., 875; Patterson v. Franklin, supra; Haircloth v. Kenlaw, 165 N. C., 228, 81 S. E., 299; 25 R. C. L., 307.

Applying these principles, as gleaned from the authorities, to the facts of the instant case, it would seem that the rulings, both as to the measure of recovery and the statute of limitations, are amply supported by the decisions. Nothing was said in Hayman v. Davis, 182 N. C., 563, 109 S. E., 554, or in McCurry v. Purgason, 170 N. C., 463, 87 S. E. 244, which militates against any of the conclusions above stated, but, in reality, all that was said in these cases, when properly interpreted, fully accords with said conclusions. The verdict and judgment will be upheld.

No error.