Coley v. Dalrymple, 236.

• Decision Date: 21 March 1945
• Docket Number: No. 236.,236.
• Citation: 225 N.C. 67,33 S.E.2d. 477
• Parties: COLEY. v. DALRYMPLE.
• Court: North Carolina Supreme Court

33 S.E.2d. 477

225 N.C. 67

COLEY.

v.DALRYMPLE.

No. 236.

Supreme Court of North Carolina.

March 21, 1945.

Appeal from Superior Court, Lee County; Jeff D. Johnson, Jr., Special Judge.

Civil action by Lee Coley against John A. Dalrymple, administrator and another to recover for services rendered by plaintiff and his wife and children to defendant's intestate during the last three years of her life. Verdict and judgment for plaintiff, and defendants appeal.

New trial.

Civil action to recover for services rendered by plaintiff and his wife and children to plaintiff's mother-in-law, Mrs. J. F. Coley, during the last three years of her life, it being alleged that in 1934 the said Mrs. J. F. Coley "contracted with the plaintiff to move in a house on the place owned by her and promised and agreed to pay the plaintiff for his work and the work and services of the plaintiff's wife and their children in looking after, caring for and waiting upon her."

It is in evidence that in September, 1934, the plaintiff moved with his family from Raleigh to his mother-in-law's farm in Lee County and worked as a "half-share tenant" until the death of his mother-in-law on February 15, 1941. The evidence further tends to show that plaintiff's father and mother-in-law were in poor health; that plaintiff and his wife and children ministered to their many wants, looked after them in their afflictions, cared for plaintiff's mother-in-law in her last years when she was sick, in bed, and needed assistance, and discharged many onerous duties of a menial nature, under such circumstances and in such manner as reasonably called for compensation, which were intended to be given and expected to be received. Most of the work for which plaintiff seeks to recover was done by his wife.

There is also evidence to the effect that plaintiff's mother-in-law "told him (the plaintiff) that if he would come back she would see that the place went to him at her death, if he would look after her and Mr. Coley."

Upon denial of liability and issue joined, the jury returned the following verdict:

"1. Did the plaintiff and Mrs. J. F. Coley, deceased, enter into an express contract, under the terms of which it was agreed that the plaintiff should move into a house on her place and be paid by her for his work and the work and services of his wife and children in looking after and caring for and waiting upon her, as alleged in the amended complaint? Answer: Yes.

"2. Did the plaintiff and his wife and his son, in performance in said contract, render to Mrs. J. F. Coley during the last three years of her life services which were not paid for or settled for; and, if so what was the reasonable value of such services? Answer: $1,200.00.

"3. Did the plaintiff and his son, during the last three years of the life of Mrs. J. F. Coley (whether under express contract for pay or not) perform services for Mrs. J. F. Coley which she knowingly accepted and did not pay or settle for; and, if so, what was the reasonable value of such services? Answer: $300.00."

From judgment on the verdict for $1,-200, the defendants appeal, assigning errors.

K. R. Hoyle, of Sanford, for appellants.

Gavin, Jackson & Gavin, of Sanford, for appellee.

STACY, Chief Justice.

The outcome of the case depends upon whether it is made to rest on special contract or on implied assumpsit or quantum meruit. Lawrence v. Hester. 93 N.C. 79. If on the former, it must fail. Graham v. Hoke, 219 N.C. 755, 14 S.E.2d 790. If on the latter, it may survive in part. Hayman v. Davis, 182 N.C. 563, 109 S.E. 554.

I. The Special Count.

The record is wanting in sufficiency to establish any express contract, such as alleged in the complaint, or to support the jury's finding on the first issue. Hence, the principal question, debated on argument and in briefs, namely, whether, in the circumstances, plaintiff can recover for his wife's services, rendered as his assistant or to him, and not with a view to a charge by her in her own name, is not perforce presented for decision. McCurry v. Purgason, 170 N.C. 463, 87 S.E. 244, Ann.Cas.l918A, 907; Switzer v. Kee, 146 111. 577, 35 N.E. 160; Stevenson v. Akarman, 83 N.J.L. 458, 85 A. 166, 46 L.R.A, N.S., 238, and note; Annotations: 46 L.R.A., N.S, 238, L.R.A. 1917E, 288; 41 C.J.S., Husband and Wife, § 17, p. 413; 27 Am.Jur. 68. While the statute provides that the earnings of a married woman "by virtue of any contract for her personal [earnings]" shall be her sole and separate property "as fully as if she had remained unmarried", G.S. § 52-10, still this does not relieve her of her marital obligations, or deny to her the privilege of sharing in the family duties and aiding in such work as the helpmeet of her husband, when minded so to do. Helmstetler v. Duke Power Co., 224 N.C. 821, 32 S.E.2d 611; Kelly's "Contracts of Married Women", 153. A married woman is still a feme covert with the rights, privileges and obligations incident to such status under the law. Buford v. Mochy, 224 N.C. 235, 29 S.E.2d 729.

Nor is the plaintiff in position to insist on the promise, if made by defendant's intestate, that she would devise the place to him, or see that it went to him at her death, in exchange for services to be rendered to her and to her husband. Neal v. Wachovia Bank & Trust Co, 224 N.C. 103, 29 S.E.2d 206. In the first place, it is not according to the allegations of the complaint, Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 114; and, secondly, it rests only in parol. Price v. Askins, 212 N.C. 583, 194 S.E. 284; Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331. It is not subject to specific enforcement. Daughtry v. Daughtry, 223 N.C. 528, 27 S.E.2d 446; G.S. § 22-2. "Recovery is to be had, if allowed at all, on the theory of the complaint, and not otherwise." Balentine v. Gill, 218 N.C. 496, 11 S.E.2d 456, 457.

II. The General Count.

The complaint is broad enough, however, to support a recovery on implied assumpsit or quantum meruit, and there is evidence to warrant the submission of the case to the jury on this theory. Neal v. Wachovia Bank & Trust Co, supra; Lindsey v. Speight, 224 N.C. 453, 31 S.E.2d 371; Grady v. Faison, 224 N. C. 567, 31 S.E.2d 760; Price v. Askins, supra; Edwards v. Matthews, 196 N.C. 39, 144 S.E. 300; Brown v. Williams, 196 N.C. 247, 145 S.E. 233; Norton v. McLelland, 208 N.C. 137, 179 S.E. 443; Lipe v. Citizens' Bank & Trust Co, 207 N.C. 794, 178 S.E. 665; Mcintosh on Procedure, 420. See Graham v. Hoke, supra, and Hayman v. Davis, supra. "Where the plaintiff alleged a contract to pay for services performed, and, upon the trial, failed to prove a special contract, but did prove the performance of the services and their value: Held, that he was entitled to recover upon quantum meruit without amending the...