Harrell v. WB LLOYD CONST. CO.

255 S.E.2d 280 (1979)

41 N.C. App. 593

David HARRELL, T/A Harrell Sand and Septic Company v. W. B. LLOYD CONSTRUCTION COMPANY.

No. 786DC814.

Court of Appeals of North Carolina.

June 5, 1979.

*281 Cherry, Cherry & Flythe by Larry S. Overton and Thomas L. Cherry, Ahoskie, for plaintiff-appellee.

Smith, Anderson, Blount & Mitchell by James G. Billings and James K. Dorsett III, Raleigh, for defendant-appellant.

HARRY C. MARTIN, Judge.

We conclude plaintiff's action is one in quantum meruit. Plaintiff did not allege an express contract, nor was evidence of an express contract offered. Quantum meruit is an equitable principle that allows recovery for services based upon an implied contract. The law implies a promise to pay for services rendered by one party to another where the recipient knowingly and voluntarily accepts the services and there is no showing that the services were gratuitously given. Johnson v. Sanders, 260 N.C. 291, 132 S.E.2d 582 (1963).

Defendant contends the trial court erred in denying its motion to dismiss. Plaintiff established the existence of an implied contract for defendant to pay plaintiff for services rendered. Plaintiff further established that defendant did not pay plaintiff for all services rendered and thereby breached the implied contract. Defendant accepted plaintiff's work and paid plaintiff $1,000, contending it was payment in full. However, plaintiff's evidence indicated additional work was performed after this payment. Where plaintiff establishes an implied contract and its breach, plaintiff is entitled at least to nominal damages. Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968); Gales v. Smith, 249 N.C. 263, 106 S.E.2d 164 (1958). Therefore, the trial court's denial of defendant's motions to dismiss was proper.

Defendant contends the trial court's award of damages was error because plaintiff's exhibit A (ledger sheets showing an account of work plaintiff contends it performed) was erroneously admitted and relied upon by the court. We hold the trial court's award of damages was improper because it is not supported by competent evidence of the reasonable value of plaintiff's services. Plaintiff must allege and *282 prove that the services were rendered and accepted, and the value thereof. Helicopter Corp. v. Realty Co., 263 N.C. 139, 139 S.E.2d 362 (1964). The measure of damages under an implied contract is the reasonable value of the services accepted and appropriated by the defendant. Turner v. Furniture Co., 217 N.C. 695, 9 S.E.2d 379 (1940); Forbes v. Pillmon, 22 N.C.App. 69, 205 S.E.2d 600 (1974).

The general rule is that when there is no agreement as to the amount of compensation to be paid for services, the person performing them is entitled to recover what they are reasonably worth, based on the time and labor expended, skill, knowledge and experience involved, and other attendant circumstances, rather than on the use to be made of the result or the benefit to the person for whom the services are rendered. [Citations omitted.]

Turner v. Furniture Co., supra, 217 N.C. at 697, 9 S.E.2d at 380.

"Damages are never presumed. The burden is always upon the complaining party to establish by evidence such facts as will furnish a basis for their assessment, according to some definite and legal rule." The amount to be paid is not the value of the services to the recipient, [citation omitted] nor should his financial condition be taken into consideration in determining the value of the services performed. [Citation omitted.] Many factors serve to fix the market value of an article offered for sale. Supply, demand, and quality (which is synonymous with skill when the thing sold is personal services) are prime factors. The jury [here the trial judge], when called upon to fix the value, must base its decision on evidence relating to the value of the thing sold. Without some evidence to establish that fact, it cannot answer. To do so would be to speculate. [Citations omitted.]

Cline v. Cline, 258 N.C. 295, 300, 128 S.E.2d 401, 404 (1962); Burns v. Burns, 4 N.C.App. 426, 167 S.E.2d 82 (1969). Plaintiff did not offer evidence as to the reasonable value or market value of its services, but merely stated what it was charging for these services as shown on plaintiff's exhibit A.

New trial.

PARKER and MITCHELL, JJ., concur.