We think that plaintiff’s evidence was sufficient to sustain the allegations in the pleadings. Defendant’s intestate, James L. Hager, was a bachelor and an old man when he died. The testimony of J. B. Readling was to the effect that the relationship between plaintiff, Jas. L. Hager and John D. Hager “Was like unto p'arent and child.” F. O. Sherrill testified, in part as to statements made by Jas. L. Hager in reference to John D. Hager: “He has agreed to live with me and take care of me and I am to give him what property I have got.” Bob Alley testified, in part: “I am getting old and feeble and not able to work. I am going to give him what I have out there to keep me.” Joe Graham testified, in part: “That they went in halves on the Washam place and that he wanted Johnsie to live with him . . . said that he was going to give him the property that he had left to take care of him and wait on him.” Anne Bell Hager testified, in part: “We were discussing a neighbor who died and left his property without a will. We were discussing that on the porch with one of the neighbor boys, and after Uncle Jim and I went back in the house Uncle Jim made the remark: What a pity this man didn’t leave a will’; that that was one thing that he intended to do, and that he intended to will it to Johnnie, because he had'agreed to, because Johnnie had helped take care of him and would take care of him the rest of his life. . . . He was just one of the family and very near and dear to all of us.”
There was other evidence to like effect and corroborative. We think there is sufficient definite and certain evidence to show a contract.
At the close of plaintiff’s evidence and at the close of all the evidence, the defendant made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions and in this we can see no *751error. The plaintiff relied on tbe contract as set forth in his complaint, and the evidence was sufficient to sustain the contract, and the jury so found.
In Miller v. Lash, 85 N. C., at p. 54, the principle is thus stated: “The authorities cited in the argument for the plaintiff seem to establish the proposition that where personal services are performed by one person for another during life under a contract or mutual understanding, fairly to be inferred from their conduct and declarations and the attending circumstances, that compensation therefor is to be provided in the will of the party receiving the benefit of them, and the latter. dies intestate or fails to make such provision, the subsisting contract is then broken, and not only will the action then lie for the recovery of their reasonable value freed from the operation of the statute, but it could not be maintained before. It is equally plain that if the services were given in the mere expectation of a legacy, without a contract express or implied, and in reliance upon the gratitude and generosity of the deceased, the action cannot be sustained.”
In Brown v. Williams, 196 N. C., 247, at p. 250, we said: “There is nothing to indicate, in the expressions made by defendant’s testator, any certain or definite promise or contract, either express or implied, to make a testamentary provision in his will in favor of plaintiff. The expressions were not even made to plaintiff, but to others. It was an appreciation and intention, but not an obligation.”
In the present case, the evidence was sufficient, both direct and circumstantial, to indicate that it was an obligation and a contract. Plaintiff relied on the express and implied agreement and acted under it, which defendant’s intestate breached, to his damage. The plaintiff, under the statute, C. S., 1795, could not, and did not, testify.
In Insurance Co. v. R. R., 195 N. C., 693, at p. 695-6, we find: “One of the leading cases in this State, discussing declarations against interest, is Smith v. Moore, 142 N. C., 277. In that case Walker, J., writing for the Court, said: ‘Declarations of a person, whether verbal or written, as to facts relevant to the matter of inquiry, are admissible in evidence, even as between third parties, where it appears: (1) That the declarant is dead. (2) That the declaration was against his pecuniary or proprietary interest. (3) That he had competent knowledge of the fact declared. (4) That he had no probable motive to falsify the fact declared.’ Roe v. Journegan, 175 N. C., 261; Carr v. Bizzell, 192 N. C., 212.”
We think the evidence of the witnesses above mentioned, and as to what they testified, competent. The testimony of certain witnesses as to declarations of defendants’ intestate not made in the presence or hearing of plaintiff, were hearsay and incompetent, and were properly ex-*752eluded by the court below. Chandler v. Marshall, 189 N. C., 301; Carpenter v. Power Co., 191 N. C., 130. The statute of frauds set up by defendant is not applicable to the facts in this case.
In Redmon v. Roberts, 198 N. C., 161, at p. 164-5, speaking to the subject, it is written: “This Court and the courts generally have upheld and enforced oral contracts to devise or convey land in consideration of services rendered . . . (citing authorities). The theory upon which the reason is based, is that the party breaching the contract has received the benefit thereof, and that it would be an act of bad faith to plead the statute of frauds as a bar to recovery. This principle was declared in Deal v. Wilson, supra (178 N. C., 600), as follows: ‘"We there said that where the defendant has promised, in consideration of services to be rendered, that he will transfer to the plaintiff certain property, which he afterwards refuses to do, and, instead of fulfilling his contract, sets up the statute of frauds as a bar to any recovery on the same, he acts in bad faith, and his conduct having deceived the plaintiff, who, relying upon the assurance that the contract would faithfully be performed, had been induced to part with his money or to render services of value to the defendant, the latter may recover compensation for the loss he has sustained.’ ”
We think the charge on the measure of damages, as follows, correct: “The measure of damages, for breach of contract like this to devise, is the value of the property agreed to be devised and this would be as of the date of the death of James L. Hager, in this case. . . . Now, gentlemen of the jury, when the law lays down as measure of damages, in such a ease, the value of the property agreed to be devised, as of the date of the death of James L. Hager — by the word 'value’ the law means what is called the 'market value’ or the fair, open market value of the date of the death of deceased — James L. Hager — in this case, and the fair, open, market value of any piece of property is what it will bring upon the open market for cash paid to one who is not required to sell, or there is no particular reason when he desires or feels he should sell that particular piece of property, and purchased by one who is willing to purchase, but has no particular reason why it is necessary for him to have that particular piece of property.”
“The measure of damages for the breach of contract to devise is the value of the property agreed to be devised.” Bowling v. Bowling, Admr., 300 S. W., 876 (Ky.); Redmon v. Roberts, supra. The amount under conflicting evidence in this case ivas for the jury to determine.
The plaintiff did not rely on quantum meruit, but his contract with defendant’s intestate. There was sufficient competent evidence as to the contract and the jury found under proper instructions there was a contract. The exceptions and assignments of error by defendant as to *753admissions and exclusion of evidence cannot be sustained. The court below placed the burden of proof properly. Wbat was a contract was defined in conformity with, well-settled law of tbis jurisdiction. Tlie contentions of tbe parties and the charge was fair and just to the litigants. It appears that the material contentions of defendant have been heretofore passed upon by this Court. We can see no prejudicial or reversible error.
No error.