In a few cases it has been held, apparently, that even though the plaintiff intends not to charge for his services, he may recover if the defendant is unaware of such intention:
Thomas v. Thomasville Shooting Club, 1897, 121 N. C. 238; 28 S. E. 293: Action for services rendered in securing hunting ground leases. Faircloth, C.J. (p. 240): "In apt time, the defendant asked the court to instruct the jury that if the plaintiff, when he got the leases, expected to make no charge, but expected remuneration afterwards by employment from the defendant, he could not recover for getting up the leases. This prayer was refused, but in lieu thereof his Honor charged that:' If Thomas did not intend at the time to charge for getting up the leases, and this was known to the defendant, then he could not charge and recover for the same; but, if it was not known to the defendant that Thomas did not intend to charge, then Thomas could afterwards sue for and recover for his services in getting up the leases.' We see nothing prejudicial to the defendant in the charge as given, which included, in substance, the defendant's prayer, or so much thereof as he was entitled to. 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." 1
In other words, the presumption of a contract, arising from the acceptance of services rendered, can be rebutted, not by evidence that the plaintiff did not intend to contract, but only by the establishment of an "agreement or understanding" that no contractual obligation was to result. This seems to go too far. Indeed, it is difficult upon any ground to support the decision. The plaintiff's lack of intent to contract is fatal to the theory of a genuine implied contract. Nor do the elements of quasi contractual obligation appear to be present, for one who renders services without the intention to charge therefor can hardly be said to rely upon a supposed right to compensation. If the decision is to be upheld, it must be upon the theory that the plaintiff rendered the services with the intention of acquiring a contract right to compensation, but with the further intention not to enforce that right in case his expectation of subsequent employment should be realized. Cases of this sort will be considered in the following section.
1 Also: Hay v. Walker, 1877, 65 Mo. 17, (clerk and bookkeeper). And see Prince v. McRae, 1881, 84 N. C. 674, (physician).