
    JENNIE WOOD v. GAITHER WOOD, Administrator or KELLY WOOD.
    (Filed 5 December, 1923.)
    1. Contracts — Quantum Meruit — Services Rendered — Actions.
    Service rendered by a woman to ber husband’s brother, of a household nature, are a sufficient consideration to support his promise “to make ample provision for her and to see that she should be well paid for her services,” upon which her action to recover upon a quantum, meruit will lie.
    2. Same — Limitation of Actions.
    The statute of limitations for services rendered will run against the one claiming compensation therefor upon an implied promise to pay, upon a quantum meruit, three years nest before the commencement of the action, in the absence of a prevailing custom to the contrary, such implied promise being to pay for such services as and when rendered. The suggestion in Sauser v. Sain, 74 N. C., 552, on the point, is overruled.
    3. Same — Instructions—Verdict Directing — Appeal and Error — Prejudice — New Trials.
    In an action to recover upon a quantum meruit for services rendered to a deceased person immediately preceding the time of his death, involving the application of the three-year statute of limitations, the jury found the issue as to amount in a certain sum, and answered the issue as to the statute in the affirmative, whereupon the judge refused to sign judgment upon the verdict, and directed them to retire and find, in addition to their verdict on the last issue, in effect, that the plaintiff’s action was barred “for all time except three years next preceding the death of plaintiff’s intestate”: Selct, prejudicial to the defendant, depriving him of the right to have the jury reconsider their verdict as to- the amount of the damages to be awarded as falling within the statutory period, in view of the direction given by the judge on the last issue.
    
      Appeal by defendant from Ray, J., at May Term, 1923, of Davie.
    Civil action tried upon tbe following issues:
    “1. Did tbe plaintiff and deceased intestate make and enter into tbe contract as alleged in tbe comjDlaint? Answer: No.’
    “2. What amount, if any, is tbe plaintiff entitled to recover? Answer: ‘$1,500.’
    “3. Is tbe plaintiff, in tbis cause of action, barred by tbe statute of limitations? Answer: ‘Yes, for all time except three years next preceding tbe death of defendant’s intestate.’ ”
    Judgment on tbe verdict in favor of plaintiff. Defendant appealed.
    
      B. G. Erode and Graves, Erode & Graves for plaintiff.
    
    
      E. L. Gaither, Hamilton & Morris, and A. T. Grant, Jr., for defendant.
    
   Stacy, J.

In May, 1915, plaintiff and her husband, it is alleged, entered into a contract with one Kelly "Wood, brother of plaintiff’s bus-band, whereby it was agreed that for certain specific services of a household nature, to be rendered by plaintiff, tbe said Kelly Wood would “make ample provision for tbe plaintiff and see that she Aas well paid for her services.” Tbe first issue is addressed to tbis alleged contract, and it is answered in tbe negative.

Failing to establish tbe contract as alleged, plaintiff seeks to recover upon a quantum meruit for services rendered, and tbe second issue is addressed to tbis phase of tbe case. Plaintiff’s right to recover on a quantum meruit, if she can bring herself within tbe principle, would seem to be established by tbe following authorities: Debruhl v. Trust Co., 172 N. C., 839; Winker v. Killian, 141 N. C., 575; Ellis v. Cox, 176 N. C., 616; Shore v. Holt, 185 N. C., p. 313, and cases there cited.

■ But as a general rule, when tbe statute of limitations is pleaded, plaintiff may not recover on a quantum meruit for services rendered more than three years next immediately preceding tbe commencement of her action. Miller v. Lash, 85 N. C., 51; McCurry v. Purgason, 170 N. C., 463. Where tbe law implies a promise to pay for services rendered, in tbe absence of a contrary, prevailing custom, tbe promise is to pay for such services as and when rendered. Hence tbe statute is silently and steadily excluding so much as is beyond tbe prescribed period of limitation. Tbe contrary suggestion in Hauser v. Sain, 74 N. C., 552, is disapproved. “Where services are rendered for a series of years, under no definite contract as to duration, rate or mode of compensation other than that implied by law, tbe promise which tbe law implies is to pay for such services as they are rendered, and tbe statute of limitations begins to run then, or, at least, from tbe end of tbe year in which they were performed.” Miller v. Lash, supra.

Kelly Wood died in tbe spring of 1922, and tbis action was started by tbe issuance of summons on 4 November, 1922. There was evidence tending to sbow tbat plaintiff and her husband left the home of the deceased in the fall of 1921. Thus it would appear from the answer to the third issue that- the amount awarded may be larger than the plaintiff is entitled to recover, even upon the principle stated. .But however this may be, we think the circumstance just mentioned, taken in connection with the following portion of the record, makes it necessary to remand the cause for another hearing:

“The jury, in the presence of counsel for both plaintiff and defendant, returned into open court and delivered in open court their verdict, having answered the first issue ‘Fo’; the second issue ‘$1,500/ and the third issue ‘Yes.’ The court thereupon refused and declined to accept the verdict and instructed the jury to retire and answer the third issue as the court had instructed them, the court writing the answer out for the jury, as follows: ‘Yes, for all time except the three years next preceding the death of defendant’s intestate,’ to which the defendant excepted.”

It will be observed that, under his Honor’s last instruction, the jury was not allowed to reconsider its answer to the second issue after the answer to the third issue had been amended. This was necessary in order to make it the verdict of the jury. The jury at first found that plaintiff’s cause of action was barred by the statute of limitations. This was equivalent to saying that the work, for which she was entitled to compensation, was performed prior to the time not excluded by the statute. Therefore the crucial question as to how much plaintiff is entitled to recover for services rendered within the statutory period has not been answered by the jury.

New trial.  