We think the Court should have sustained the demurrer, upon the géneral ground that the complaint fails to state facts sufficient to constitute a cause of action. It is not alleged that the defendant Walker employed the plaintiff to do the service for his child for which she claims compensation, or that he promised expressly, or by implication, to pay her for the same; nor are facts alleged upon which the law implies his liability and obligation to pay therefor. It is not alleged that the father abandoned or neglected his child; that he would not, or could not, protect and provide for and support her; or that he knew of, recognized, approved of and accepted the services of the plaintiff; that he was so in default, or promised to pay for the plantiff’s services, is left to mere inference and remote implication. If it be granted that a father is legally bound to provide for, protect and support his child, it must be alleged, in a case like this, that he failed to do so, or that he promised expressly, or by clear implication, to pay for the services for which compensation is demanded. The facts stated in the fourth paragraph of the complaint are too indefinite, indirect and inconclusive to constitute or be treated as a substitute for a material part of the allegation of a cause of action. Moreover, it appears from the complaint, that at the time the services were rendered, the father was insane and an inmate of the insane asylum, and, at least, prima facie incapable of promising to pay the plaintiff for her services.
Besides, it appears from the complaint, that the plaintiff cared for and supported the child of her sister 'at the latter’s request, made shortly before she died, as a work of benevolence and charity, for which she made no charge and expected no pecuniary compensation. She promised her sister not simply to care for, but to care for and support her child; she *132said nothing of compensation at the time she made the promise, or at any time afterwards, until she brought this action, so far as appears. She does not allege or intimate that she charged the father for her services, or that she expected compensation from him. It seems that, at first, the father was poor and insane; that afterwards, in some way, he came to have property, and the plaintiff then, and not until then, determined to ask for the compensation she seeks to recover by this action. This she cannot do. She could not support the child from motives of charity and love for her departed sister without any intention of charging the father for the same, and afterwards, when he came to be the owner of property, compel him to pay her for her good work of love and charity. She had, in such case, no valid claim at law or in equity. University v. McNair, 2 Ired. Eq., 605; Hedrick v. Wagoner, 8 Jones, 360; Miller v. Lash, 85 N. C., 54; Young v. Herman, 97 N. C., 280.
There is error. The order overruling the demurrer must be reversed, and the case disposed of according to law. To that end let this opinion be certified to the Superior Court. It is so ordered.
Error.
Avery, J., dissented.