Ball & Sheppard v. Paquin
| Decision Date | 28 November 1905 |
| Citation | 52 S.E. 410,140 N.C. 83 |
| Parties | BALL & SHEPPARD v. PAQUIN et ux. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Justice, Judge.
Action by Ball & Sheppard against Paul Paquin and wife to enforce a mechanic's lien on the separate property of the wife under a contract for its improvement. From a judgment for the plaintiffs, defendants appeal. Affirmed.
A demurrer not specifying wherein the complaint fails to state facts sufficient to constitute a cause of action is general and not allowable.
The plaintiffs allege that the feme defendant, Hannah B. Paquin was on or before October 15, 1900, the owner of a lot in the city of Asheville on Haywood street, known as the "Coffin Lot"; that she and the male defendant had begun the erection of a house on the lot to be used as a residence, to be fitted up with lavatories and equipped with a steam-heating apparatus and a number of tubs for both hot and cold baths; that said residence is known as ""The Halthenon"; that on the 15th October 1900, the defendants entered into a contract with the plaintiffs, whereby the plaintiffs were to complete certain plumbing in the building. The terms upon which the work was to be done are set forth, and the defendants "agree that upon completion of the work in a good workmanlike condition they will pay to the said parties of the second part the contract price for the same, as hereinbefore set forth." The plaintiffs were permitted to amend in this court by alleging that said contract was in writing and was executed according to law, and that a charge and lien were created thereby on the land upon which the building was being erected. They allege that the work was performed and the materials furnished by them in accordance with the contract that defendants made payments on the contract price, leaving due thereon at the time this action was instituted the sum of $1,337.04; that prior to the commencement of this action, the plaintiffs filed a lien on the lot and building, in the office of the clerk of the superior court, in accordance with the Constitution and laws of the state, a copy of the lien is attached to the complaint. They demanded judgment for the balance due and the enforcement of the lien.
Defendants answered, saying that they had no knowledge or information sufficient to form a belief as to the allegation in regard to the partnership of plaintiffs; that the male defendant had no interest in the real estate other than as husband of the feme defendant.
They deny the other material allegations of the complaint, and for a further defense say that the defendant Paul B. Paquin entered into the contract with the plaintiffs by which they were to do "the plumbing on the building which was being erected on the property of the defendant Hannah B. Paquin, on Haywood street." They allege that the work was not done according to the contract, and that by reason of the failure to do so the defendants have sustained damage, etc., demanding judgment against the plaintiffs for $443, amount overpaid, and $1,000 damages sustained by the defendants. The plaintiffs filed a reply to the counterclaim. The pleadings are verified. The defendants upon the opening of the cause demurred ore tenus to the complaint for that it did not set forth facts sufficient to constitute a cause of action. His honor reserved the question raised by the demurrer, and submitted a series of issues to the jury presenting the controverted questions of fact. The defendants tendered the general issues which his honor declined to submit, and they excepted. The jury found upon the issues that the plaintiffs furnished, after October 15, 1904, material and labor on the building, the cost price and value of which was $1,222.39; and that the defendants were entitled to recover $50 on their counterclaim. From a judgment on the verdict, the defendants appealed.
Merrick & Barnard, for appellants.
Tucker & Murphy, for appellees.
CONNOR, J. (after stating the facts).
The demurrer is general, in that it does not specify wherein the complaint fails to state facts sufficient to constitute a cause of action. This, under the Code practice, is not allowable. His honor could have overruled it for that cause. Elam v. Barnes, 110 N.C. 73, 14 S.E. 621. We assume, however, that the real ground of the demurrer was that the feme defendant was a married woman. Baker v. Garris, 108 N.C. 218, 13 S.E. 2. The difficulty encountered by the defendant is that it does not appear, on the face of the complaint, that she was a married woman at the date of the contract or the commencement of the action. The pleaders appear to have carefully avoided this allegation. His honor properly overruled the demurrer.
The feme defendant does not plead her coverture, nor does it appear by the answer that she is covert, except that the male defendant informs the court that nothing can be made out of him because he has no interest in the dwelling house and lot, save as the husband of the feme defendant. He says, however, that he alone contracted for the work on the house which the written contract declares was being erected, "by the said Hannah B. Paquin." How all of this is we do not know, except as the jury have found. The plaintiffs put the contract of October 15th in evidence by which it appears that they had theretofore furnished some material, and done some work for the defendants on the dwelling on the lot of the feme defendant "in the city of Asheville on Haywood street, known as the 'Coffin Lot,"D' being erected by the said Hannah B. Paquin. The terms upon which the balance of the work is to be done and material furnished are set forth, and the defendants promise to pay promptly the amount due on the contract. It is signed by the defendants, acknowledged by them, and the private examination of the feme defendant taken and certified by a notary public in the manner and form prescribed for executing deeds of conveyance of real estate. The jury have found that there is due the plaintiff for material furnished and work done on the dwelling, since the execution of the contract, the sum of $1,337. In this court the plaintiffs were permitted to amend the complaint to correspond with the proof.
The defendants contend that they may have, use, and enjoy the labor and material furnished, by which the dwelling is supplied with lavatories, hot and cold baths, and pay nothing for it; that the right to do all of this is secured to them by the Constitution and laws of this state, because the property is the separate estate of the feme defendant. If this contention is correct, it would seem that our Constitution and laws are sadly in need of radical amendment. The appeal renders it necessary to examine the statutory law and decisions of this court relied upon to sustain the defendant's exception to the judgment. It would serve no good purpose to review the numerous cases which have been before this court, in which creditors have endeavored to collect debts from married women. The construction of the Constitution and laws has received the most anxious and careful consideration of the judges who have sat upon this bench. We find that the same effort has been made in England, and in many of the states of the Union, to break away from the common-law conception of the status of married women, in regard to their property rights and contractual capacity. An interesting history of the course of parliamentary and judicial thought and action on the subject is given by Professor Dicey in "Law and Opinion in England," 369; Pomeroy's Eq. (3d Ed.) § 1098 et seq. Mr. Bishop (volume 1, § 847) says: "That since the confusion of tongues in the Tower of Babel, there has been nothing more noteworthy in the same line than the discordant and ever shifting utterances of the judicial mind on the subject." Flaum v. Wallace, 103 N.C. 306, 9 S.E. 567. It is but natural, and not to be regretted, that under our system of jurisprudence, in which, by the operation of the three agencies, legal fiction, equity, and legislation, the law is brought into harmony with society , the movement is slow, and at times unsatisfactory. In no court in this country was the common-law conception of the marital relation with all of its incidents more clearly and tenaciously retained than ours. Prior to 1848 we find no statute interfering with or limiting the common-law right and power of the husband over his wife's property. In respect to dower, the law was so changed that the husband could sell his land without her consent and deprive her of "her third." This was changed by the act of 1866-67, and dower as at common law restored. It is therefore not unnatural that when, by the Constitution of 1868, an entirely new theory was adopted by which it is declared that "the real and personal property of any female in this state acquired before marriage, and all property, real and personal, to which she may after marriage become in any manner entitled, shall be and remain the sole and separate estate and property of such female," etc. (Const. art. 10, § 6), the court should have moved with caution in giving it operation.
It would seem that this language carries with it, as an essential attribute of ownership of the wife, the power to deal with and make contracts in regard to such property except as expressly restricted by the same instrument, as a feme sole. This was clearly intimated in Withers v. Sparrow, 66 N.C. 129. That expression was doubtless taken as an indication that this court would so hold when the question was fairly presented. At the session of 1868-69 we find no legislation upon the subject of married women. The effect of the holding, as foreshadowed in Withers v. Sparrow, supra, would have been to adopt the English and...
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