Noland v. Brown

129 S.E.2d 477 (1963)

258 N.C. 778

Mrs. Raven P. NOLAND v. Canie N. BROWN and his Guardian, First Union National Bank and Trust Company of North Carolina.

No. 98.

Supreme Court of North Carolina.

February 27, 1963.

*479 Don C. Young, Asheville, for plaintiff appellant.

Van Winkle, Walton, Buck & Wall, by Herbert L. Hyde, Asheville, for defendant appellees.

PER CURIAM.

The plaintiff has alleged a single indivisible contract. She avers that she agreed to render twenty-hour nursing service and to supervise defendant's household in consideration of his promise to pay her twenty-two dollars a day (the customary charge for twenty-hour nursing service) for these services. Apparently the supervision of the household was to be an incident to this duty. Plaintiff offered no evidence of the value of the services she actually rendered, no evidence that defendant agreed to pay her twenty-two dollars a day for them, and no evidence that he knew the nursing fee schedule for the area. Plaintiff concedes that she was paid sixteen dollars for each day she lived at the Brown home. She now seeks to recover a balance due under the alleged contract. Therefore, this is not a case for nominal damages. Gales v. Smith, 249 N.C. 263, 106 S.E.2d 164; Robbins v. C. W. Myers Trading Post, Inc., 251 N.C. 663, 111 S.E.2d 884. If plaintiff is to recover she must prove not only the special contract she has alleged but performance of her obligations under it. Everett B. Clark Seed Co. v. Jennette Bros. Co., 195 N.C. 173, 141 S.E. 542; Barron v. Cain, 216 N.C. 282, 4 S.E.2d 618. Proof of both is lacking. Furthermore, plaintiff alleged that her contract specified, and that she performed, twenty-hour nursing service. Her proof showed only eight hours. Nonsuit is proper where there is a material variance between the allegation and proof. Lucas v. White, 248 N.C. 38, 102 S.E.2d 387.

Affirmed.