CABARRUS MEMORIAL HOSPITAL v. Whitley

197 S.E.2d 631 (1973)

18 N.C. App. 595

CABARRUS MEMORIAL HOSPITAL v. William WHITLEY.

No. 7319DC410.

Court of Appeals of North Carolina.

July 11, 1973.

*632 Hartsell, Hartsell & Mills by W. Erwin Spainhour, Concord, for plaintiff-appellant.

Williams, Willeford & Boger by John R. Boger, Jr., Concord, for defendant-appellee.

BALEY, Judge.

The plaintiff assigns as error the failure of the court to set aside the verdict of the jury and grant a new trial upon the ground that the jury disregarded the instructions of the court with respect to the amount which could be awarded as recovery. The court instructed the jury if it believed the evidence of the plaintiff to award recovery of $3,369.50, the amount requested in the complaint, or nothing at all.

The determination of this question requires an interpretation of the agreement signed by the defendant in which he promised to pay the hospital expenses of his stepfather, Walter Alexander Edgison, from date of admission to discharge. We hold that this agreement was an executory contract which involved continuing performance from day to day with no time fixed for its duration and was subject to termination by either party upon reasonable notice. The time of "discharge" was uncertain and within the control of either party with or without the consent of the other. Plaintiff-hospital could not be forced to render services indefinitely upon a mere promise to pay, and the defendant could not be obligated to pay for an indeterminate period. The only reasonable intention that can be imputed to the parties is that the contract may be terminated by either on giving reasonable notice to the other.

In North Carolina, a contract which calls for continuing performance and does not establish any time duration is terminable at will by either party assuming proper notice is given. Fulghum v. Selma *633 and Griffis v. Selma, 238 N.C. 100, 76 S.E.2d 368.

"`Where the parties to a contract express no period for its duration, and no definite time can be implied from the nature of the contract or from the circumstances surrounding them, it would be unreasonable to impute to the parties an intention to make a contract binding themselves perpetually. In such a case the courts hold with practical unanimity that the only reasonable intention that can be imputed to the parties is that the contract may be terminated by either, on giving reasonable notice of his intention to the other.'" Fulghum v. Selma, supra at 104, 76 S.E.2d at 371. See also Rubber Co. v. Distributors, 253 N.C. 459, 117 S.E.2d 479; Atkinson v. Wilkerson, 10 N.C.App. 643, 179 S.E.2d 872.

The evidence is undisputed that the defendant notified the hospital on 3 July 1969 that he would no longer be responsible for the accumulating charges and attempted to discharge his stepfather from the hospital. The hospital chose to honor the request of the patient's son, a third party who had assumed no responsibility under the original contract, that his father remain in the hospital even though the defendant had requested his discharge. Plaintiff acted at its own risk and could not hold the defendant responsible for additional expenses which accrued after the notice and attempted discharge but only for the amount of the hospital bill to the date of the attempted discharge.

The objections of the plaintiff to the admissibility of evidence of the notice to the hospital on 3 July 1969 and the attempted discharge of the patient in order to terminate defendant's obligation to pay cannot be sustained. The evidence was both relevant and material to show that defendant's actions would prevent the plaintiff from continuing to perform services in the expectation of receiving payment from the defendant and would permit the plaintiff to protect itself from future loss. See Stansbury, N.C. Evidence, § 78 (Brandis Revision, 1973).

The instructions of the court with respect to the issue of damages were erroneous, and the jury disregarded them. There was evidence before the jury to sustain a finding of some amount less than $3,369.50. The hospital bill of the patient offered in evidence by the plaintiff was itemized and indicated the amount due at the end of each day. The jury found that "[d]efendant should be liable for payment up to July 3, 1969." According to the hospital bill this was $1,069.85. Although there is some question about the application of Medicare funds, the defendant has not appealed from the judgment. The court in its discretion accepted the verdict of the jury and awarded judgment for $1,069.85. We find no abuse of discretion and hold that his refusal to grant the motion for a new trial was proper. Robinette v. Wike, 265 N.C. 551, 144 S.E.2d 594; 7 Strong, N.C.Index 2d, Trial, § 48.

The result in this case although obtained in unorthodox manner affords substantial justice between the parties. We find no prejudicial error.

No error.

BROCK and VAUGHN, JJ., concur.