Gales v. Smith, 611

• Decision Date: 10 December 1958
• Docket Number: No. 611,611
• Court: North Carolina Supreme Court
• Parties: John H. GALES and wife, Juliette S. Gales v. J. O. SMITH.

Page 164

106 S.E.2d 164

249 N.C. 263

John H. GALES and wife, Juliette S. Gales v. J. O. SMITH.

No. 611

Supreme Court of North Carolina.

Dec. 10, 1958

E. J. Prevatte, Southport, for plaintiffs, appellants.

Herring & Walton, Southport, for defendant, appellee.

BOBBITT, Justice.

Evidence offered by plaintiffs tends to show, inter alia, that from October, 1951, until October, 1956, plaintiff John H. Gales successfully cultivated and substantially improved the J. O. Smith farm; that, by his efforts, a tobacco barn and a packhouse were built thereon and new and improved farm machinery of substantial value was acquired; and that the feme plaintiff did the housework and cared for her invalid mother until her death on January 13, 1956. In short, plaintiffs' evidence tends to show that they fully performed all obligations imposed on them by their alleged contract with J. O. Smith.

Did J. O. Smith, in October, 1951, enter into an agreement with plaintiffs, as alleged in the complaint? This issue was raised by the pleadings. The determinative question now presented is whether plaintiffs' evidence was sufficient to require submission of this issue to the jury.

The testimony of plaintiffs tends to show the following:

Plaintiffs were married on September 2, 1950. The feme plaintiff, youngest child of J. O. Smith, was then living with her parents in the J. O. Smith home. After their marriage, John H. Gales, who had been living with his brother in Shallott, completed a crop, worked for a month in a fish factory near Southport, and thereafter worked on a dredge, first in Wilmington, then in Georgetown, South Carolina, then in Brunswick, Georgia. (For his work on the dredge, he 'cleared on the average over $60.00 per week.') Meanwhile, except for occasional week-end trips to Wilmington and Georgetown, the feme plaintiff continued to stay in the home of her parents.

In September, 1951, John H. Gales obtained leave to come home. He stayed until their first child was born. After completion of the job at Brunswick, the dredge was to be transferred to Florida for work that would take more than a year. The feme plaintiff wanted to go to Florida with her husband. It was decided that when he got to Florida he would get an apartment and send for her.

When J. O. Smith 'found out' that plaintiffs were going to leave, he 'talked it over' with John H. Gales. After their conversation, John H. Gales went back to Brunswick; but upon completion of the Brunswick job he notified the Captain that he was going home to farm. He then went to the home of J. O. Smith, where his wife and child were staying, and began farming with J. O. Smith in October, 1951.

Danny Gales, a brother of John H. Gales, testified that, on his way home from Southport, 'while John was still on the dredge,' he stopped at the home of J. O. Smith. He testified that, in the course of their conversation, Mr. Smith stated: 'Danny, I am too old to be working like I am working. Juliette, here, she's here waiting on her mother and tending to her mother. John is supposed to be here. He ought to quit that dredge and come home. At my death I am going to give Juliette the place. John ought to be here working for his interest; it will be something for him in the future; he ought to be here working instead of me working like I am working.' Danny Gales testified further that he told Mr. Smith that he agreed with him and that John would be a big help to him and it would mean something to John and Juliette in the future. Whereupon, so Danny Gales testified, Mr. Smith stated: 'Well, at my death I'm going to give them the place, if he will come home; he ought to come on home and go to work and help me and do that much for his interest.' Danny Gales testified that he visited Mr. Smith again, about three weeks after the conversation referred to, at which time he found that John had quit the dredge and had come in and gone to work at Mr. Smith's.

Danny Gales also testified: 'Several months after the death of Mrs. Orin (Mrs. J. O.) Smith, I met Mr. Smith on the highway close to where he lived and I stopped and shook hands with him. I had not seen him in a couple of months and I asked him how they were all getting along and he did not seem to say much, until finally he said, 'Danny, I am sorry not to give Juliette and John the place.' I asked him why he had decided not to give them the place, and I said that Juliette was mighty good to her mother and that she and John had worked there with him. Mr. Smith then said: 'Well, I am afraid that if I go ahead and give the place to John, that he will mortgage the place and destroy it, do away with the place; I want to keep the place in the Smith family; I don't want it to get out of the Smith family.' I...