#### W. H. NORTON v. CARRIE ELLIOTT McLELLAND, Executrix, et al.

(Filed 10 April, 1935.)

Wills B c—

In an action to recover the reasonable value of services rendered deceased under an oral contract to devise lands, the value of lands promised to be devised is competent as affording some estimate of what the parties themselves contemplated such services probably would be worth.

Appeal by defendants from *Stack, J.,*at November Term, 1934, of IREDELL.

Civil action to recover for services rendered by plaintiff to "W. D. McLelland during the last five years of his life, it being alleged that in 1926 the said *W.*D. McLelland entered into an agreement with the plaintiff to devise him fifty acres of land, known as the Bradshaw Place, in consideration of services rendered and to be rendered.

It is admitted that *W.*D. McLelland died in 1931 without devising the Bradshaw Place to plaintiff.

Upon denial of liability and issues joined, the jury returned the following verdict:

“Are the defendants indebted to the plaintiff for services rendered to their testator, as alleged in the complaint, and if so, in what amount? A. '$1,0007 ”

Judgment on the verdict, from which the defendants appeal, assigning errors.

*Scott & Collier for plaintiff.*

*Burke & Burke, Burén Jurney, Jack Joyner, and Lewis & Lewis for defendants.*

Stacy, 0. J.

The case was tried upon the theory that when services are performed under an agreement that compensation is to be provided therefor in the will of the party receiving the benefit, and no such pro*138vision is made, an action in *assumpsit*will lie to recover for tbe breach *(Lipe v. Trust Co.,*207 N. C., 794), and that tbe value of tbe property, agreed to be devised, may be considered in connection with other evidence, on tbe issue of *quantum meruit*or tbe reasonable value of tbe services rendered. *Grantham v. Grantham,*205 N. C., 363, 171 S. E., 331.

Tbe value of tbe property is allowed to be shown in evidence as affording some estimate of what tbe parties themselves contemplated such services probably would be worth. *Faircloth v. Kenlaw,*165 N. C., 228, 81 S. E., 299; *Deal v. Wilson,*178 N. C., 600, 101 S. E., 205. Tbe decisions have established tbe competency of this evidence, which we are disposed to follow, notwithstanding *the cogency*of the reasons advanced against its reception.

Speaking directly to tbe question in *Faircloth v. Kenlaw, supra, Walker, J.,*delivering the opinion of tbe Court, said: *“We*take this to be tbe true and tbe sensible rule, that in a suit for work and labor performed, under a contract void by tbe statute of frauds, evidence of tbe terms of tbe contract with reference to plaintiff’s compensation is admissible to show the value of his services, as agreed upon by the parties, but is only evidence, and not controlling as matter of law. It is for the jury to consider in making their estimate, and they may award such sum as they may find, upon all the evidence, including that drawn from the contract, is a reasonable value of the services *(Moore v. Nail Co.,*76 Mich., 606; *Schauzenbach v. Brough,*58 Ill. App., 526); tbe inquiry at last being, What are tbe services really worth? And tbe contract price is some evidence upon that question, it being in tbe nature of an admission or declaration of tbe parties as to tbe value, and having no more effect as evidence. It is certainly not conclusive upon the jury. Browne on tbe Statute of Frauds (5 Ed.), sec. 126.”

Tbe rule of evidence thus established in this jurisdiction was reaffirmed in *Deal v. Wilson, supra, Grantham v. Grantham, supra,*and *Lipe v. Trust Co.,*206 N. C., 24, 173 S. E., 316.

The matters presented have been so recently discussed in tbe cases cited that further elaboration would seem to be supererogatory.

A careful perusal of tbe record leaves us with tbe impression that no reversible error was committed on tbe trial, hence tbe verdict and judgment will be upheld.

No error.