Thomas v. Thomas

401 S.E.2d 396 (1991)

102 N.C. App. 124

Brenda Hall THOMAS, Plaintiff, v. John L. THOMAS, Defendant.

No. 9011DC603.

Court of Appeals of North Carolina.

March 5, 1991.

*397 Bain & Marshall by Elaine F. Marshall and Alton D. Bain, Lillington, for plaintiff-appellee.

Donald E. Harrop, Jr., Dunn, for defendant-appellant.

ARNOLD, Judge.

Defendant argues the trial court erred in awarding plaintiff $25,200.00 quantum meruit for breach of an implied contract. We agree.

Recovery on quantum meruit must rest upon implied contract. Lindley v. Frazier, 231 N.C. 44, 55 S.E.2d 815 (1949). This theory requires the plaintiff to show *398 by the greater weight of the evidence that the services were rendered and accepted by both parties with the mutual understanding that plaintiff would be compensated for her services. Twiford v. Waterfield, 240 N.C. 582, 83 S.E.2d 548 (1954).

In Suggs v. Norris, 88 N.C.App. 539, 364 S.E.2d 159 cert. denied, 322 N.C. 486, 370 S.E.2d 236 (1988), the plaintiff was an employee of the deceased defendant prior to cohabitation, and she continued to perform services in defendant's business during the cohabitation. Unlike Suggs, plaintiff began cohabitating with defendant prior to rendering services. The inference of mutual understanding as to compensation was much stronger in Suggs than in the case sub judice. The evidence presented and the trial court's findings do not warrant such an inference.

Assuming plaintiff's evidence was sufficient to support such an inference, plaintiff's claim would be subject to the three year statute of limitations applicable to contract actions. Hicks v. Hicks, 13 N.C.App. 347, 185 S.E.2d 430 (1971). When indefinite and continuous services are rendered without a definite time for payment having been arranged, payment becomes due as the services are rendered. Doub v. Hauser, 256 N.C. 331, 123 S.E.2d 821 (1962). As a result the cause of action for recovery of compensation under either implied contract or quantum meruit accrues as the services are rendered. Id. Plaintiff's recovery would be limited by N.C. Gen.Stat. § 1-52(1) (1983) to the three year period preceding this action, rather than the entire fourteen years.

To recover more than nominal damages, "plaintiff must prove the value of the services rendered." Johnson v. Sanders, 260 N.C. 291, 295, 132 S.E.2d 582, 586 (1963). Plaintiff failed to offer any evidence as to the value of the personal services rendered. The trial court erred in finding the value of plaintiff's services to be $25,200.00 under either implied contract or quantum meruit. However this holding may not bar plaintiff from recovery in an action in equity for unjust enrichment.

"No contract, oral or written, enforceable or not, is necessary to support a recovery based upon unjust enrichment." Parslow v. Parslow, 47 N.C.App. 84, 88-9, 266 S.E.2d 746, 749 (1980). "The doctrine of unjust enrichment was devised by equity to exact the return of, or payment for, benefits received under circumstances where it would be unfair for the recipient to retain them without the contributor being repaid or compensated." Collins v. Davis, 68 N.C.App. 588, 591, 315 S.E.2d 759, 761, aff'd, 312 N.C. 324, 321 S.E.2d 892 (1984). It may arise "where one's property is improved or paid for in reliance upon the owner's unenforceable promise to convey the land or some interest in it to the contributor." Id. But the contributor must prove the promise. Wright v. Wright, 305 N.C. 345, 289 S.E.2d 347 (1982).

Defendant failed to discuss the remainder of his exceptions on appeal, and they are deemed abandoned. N.C.R.App.P. 28(b)(5). The portion of the judgment awarding plaintiff $600.00 for property damage and recovery of specified personal property is affirmed. The portion of the judgment which awarded plaintiff $25,200.00 as compensation for breach of implied contract is reversed.

Affirmed in part, reversed in part.

JOHNSON and LEWIS, JJ., concur.