#### HANES FUNERAL HOME, Inc., v. JAMES T. SPENCER and MRS. C. C. ZIMMERMAN, Guardian of MRS. PATTIE B. RIDDICK.

(Filed 4 January, 1939.)

1. Appeal and Error § 37e—

The findings of fact of the court under agreement of the parties are as conclusive as the verdict of the jury.

2. Frauds, Statute of, § 5—

Evidence in the record on this appeal held sufficient to support finding that contract of defendant’s ward, entered into while competent and before appointment of guardian, to pay expenses for the funeral of the wife of a close friend, is an original promise which is not required to be in writing within the statute of frauds. C. S., 987.

Appeal by defendant, Guardian, from Hill, Special Judge, at September 1938, Civil Term, of Guilfoed.

Civil action instituted in tbe municipal court of tbe city of Greensboro to recover on contract for funeral expenses.

Plaintiff, in its amended complaint, alleges, and offered evidence tending to show that on 26 March, 1935, Mrs. Pattie B. Riddick purchased from it, and agreed to pay for certain articles, services, and cash advances amounting to $740.66 for the funeral of the'wife of her close relative, defendant, James T. Spencer. Plaintiff also alleges that, while the contract was made with Mrs. Pattie B. Riddick, the defendant James T. Spencer is liable as a matter of law.

Defendant, Guardian, appointed 1 January, 1936, denies liability, and avers that the account is not the obligation of Mrs. Pattie B. Riddick, and that her promise to pay therefor is not in writing as required by the Statute of Frauds, O. S., 987, which she pleads in bar of plaintiff’s right to recover.

From judgment against defendants in said municipal court, defendant, Guardian, appealed to the Superior Court of Guilford County. There the parties, having waived jury trial and consented that the judge should hear the evidence, find the facts, and render judgment, C. S., 568, the court finds, inter alia, “the facts to be as alleged in plaintiff’s amended complaint; and, without limiting the generality, that Mrs. Pattie B. Riddick, the defendant’s ward, on March 26, 1935, while competent, and before the appointment of a guardian, entered into an original, express contract with the plaintiff for the purchase of the articles, services, and advances set out in said amended complaint, and that the said articles, services, and advances were duly delivered, rendered, and paid by the plaintiff; that the said Mrs. Pattie B. Riddick agreed to pay the plaintiff the prices charged therefor; . . .”

*703From judgment for plaintiff, tbe defendant, Guardian, appeals and assigns error.

Yorh & Boyd for plaintiff, appellee.

B. 0. Everett for defendant, appellant.

Pee CuRiAM.

Tbe findings of fact by tbe judge, wben there is evidence to support them, are as conclusive as tbe verdict of a jury. Matthews v. Fry, 143 N. C., 384, 55 S. E., 787.

There is abundant evidence in tbe record on this appeal to support tbe findings of tbe judge.

Tbe general rule is that if tbe promise to pay is an original undertaking, it need not be in writing.

Tbe judgment below is

Affirmed.