In Bailey v. Rutjes, 86 N.C. 520, it is held that however reasonably one of the parties to an agreement may be induced to act with reference thereto in a particular way by the conduct of the other, the latter is not bound by such conduct as evincing the measure of his contractual duty or obligation, unless there is some equitable element or an estoppel involved, which in law binds him (437) by his conduct to assume that duty or responsibility as if he had expressly promised to do so. To the like effect is Thomas v. Shooting Club, 121 N.C. 238. The same idea is differently expressed in Gregory v. Bullock, 120 N.C. 262, namely, when the terms of an agreement are ascertained its effect is determined by the law, and does not depend upon the uncertain or undisclosed notion or belief of either party.
The instruction, properly (21) construed, amounted to saying to the jury that if the minds of the parties did not come to an agreement, there was no special contract, and is sustained both by the elementary principles of the law of contract and the decisions of this Court. Brunhild v. Freeman, 77 N.C. 128; Thomas v. Shooting Club, 121 N.C. 238. The exception cannot be sustained.
Affirmed. Cited: S. v. Suttle, 115 N.C. 788; Shaffer v. Gaynor, 117 N.C. 21; Duncan v. Hall, ib., 446; Hamilton v. Icard, ib., 477; Everett v. Newton, 118 N.C. 923; Walden v. Ray, 121 N.C. 238; Prevatt v. Harrelson, 132 N.C. 252; Lindsay v. Austin, 139 N.C. 469; Berry v. McPherson, 153 N.C. 6; Coxe v. Carpenter, 157 N.C. 560; Locklear v. Savage, 159 N.C. 238; Land Co. v. Cloyd, 165 N.C. 597; Reynolds v. Palmer, 167 N.C. 455; Cross v. R. R., 172 N.C. 120; Waldo v. Wilson, 174 N.C. 628; Alexander v. Cedar Works, 177 N.C. 147. (543)
Affirmed. Cited: Bryan v. Alexander, 111 N.C. 142, 145; Hamilton v. Icard, 114 N.C. 536; Alexander v. Gibbons, 118 N.C. 802; Walden v. Ray, 121 N.C. 238; Hawkins v. Cedar Works, 122 N.C. 89; Wilson v. Wilson, 125 N.C. 528; Bullock v. Canal Co., 132 N.C. 180; Wilson v. Brown, 134 N.C. 404; Monk v. Wilmington, 137 N.C. 327; Jennings v. White, 139 N.C. 27; Campbell v. Everhart, ib., 513; Dobbins v. Dobbins, 141 N.C. 220; Vanderbilt v. Johnson, ib., 373; Chatham v. Lansford, 149 N.C. 365; Thornton v. R. R., 150 N.C. 692; Berry v. McPherson, 153 N.C. 5; Christman v. Hilliard, 167 N.C. 7; Land Co., v. Floyd, ib., 687; S. c., 171 N.C. 545; Cross v. R. R., 172 N.C. 124; Waldo v. Wilson, 174 N.C. 628; Patrick v. Ins. Co., 176 N.C. 665; S. v. Johnson, ib., 724; Alexander v. Cedar Works, 177 N.C. 147. (72)
No error. Affirmed. Cited: Hamilton v. Icard, 114 N.C. 536; Barcello v. Hapgood, 118 N.C. 729; Walden v. Ray, 121 N.C. 238; Cross v. R. R., 172 N.C. 122, 123.
PER CURIAM. No error. Cited: Hill v. Overton, 81 N.C. 395; Freeman v. Sprague, 82 N.C. 368; Scott v. Elkins, 83 N.C. 427; Osborne v. Anderson, 89 N.C. 262; Cowles v. Hall, 90 N.C. 334; Phipps v. Pierce, 94 N.C. 518; Davidson v. Arledge, 97 N.C. 184; Pearson v. Simmons, 98 N.C. 283; Bryan v. Spivey, 109 N.C. 66; Hamilton v. Icard, 114 N.C. 536; Walden v. Ray, 121 N.C. 238; May v. Mfg. Co., 164 N.C. 265. (361)
Judgment affirmed. Cited: Reed v. Earnhart, 32 N.C. 520; Mallett v. Simpson, 94 N.C. 43; Wallace v. Maxwell, 32 N.C. 112; Aycock v. R. R., 89 N.C. 324; S. v. Williams, 94 N.C. 895; Mason v. McLean, 35 N.C. 264; Melvin v. Waddell, 75 N.C. 366; Price v. Jackson, 91 N.C. 14; Cowles v. Hall, 90 N.C. 333; Pearson v. Simmons, 98 N.C. 283; Taylor v. Gooch, 48 N.C. 469; Asbury v. Fair, 111 N.C. 257; Hamilton v. Icard, 114 N.C. 536; Walden v. Ray, 121 N.C. 238. (545)
As to possession of part being possession of the whole of a tract of land under certain circumstances, see Larkins v. Miller, 3 N.C. 345. Cited: Graham v. Houston, 15 N.C. 235; Carson v. Burnett, 18 N.C. 553; Harris v. Maxwell, 20 N.C. 384; Candler v. Lunsford, ib., 544; Wallace v. Maxwell, 29 N.C. 137; S. c., 32 N.C. 112; Reed v. Earnhardt, ib., 528; Taylor v. Gooch, 48 N.C. 469; Davis v. McArthur, 78 N.C. 359; Price v. Jackson, 91 N.C. 14; Dills v. Hampton, 92 N.C. 570; Bryan v. Spivey, 109 N.C. 66; Walden v. Ray, 121 N.C. 238. (578)
In other words, the presumption of contract, arising from acceptance of services, can be rebutted, not by evidence that the plaintiff did not intend to contract, but only by evidence of an agreement or understanding that no contractual obligation was to result. "When the law implies a promise to pay for work done and accepted, and there is no agreed price, the laborer may recover the reasonable value of his services, unless there be some agreement or understanding that nothing is to be paid." ( Thomas v. Thomasville Shooting Club, 121 N.C. 238.) Conversely, where the patient did not expect to pay, it was held in Shelton v. Johnson (1874, 40 Iowa 84) that a physician who is called to a consultation by an attending physician for his own benefit, in accordance with an agreement between the latter and his employer that the attending physician shall pay the expense of consultation, can recover for his services from the employer under an implied contract, notwithstanding the agreement.