Graham v. Hoke, 246.

• Decision Date: 31 May 1941
• Docket Number: No. 246.,246.
• Citation: 219 N.C. 755,14 S.E.2d 790
• Court: North Carolina Supreme Court
• Parties: GRAHAM. v. HOKE.

14 S.E.2d 790

219 N.C. 755

GRAHAM.

v.HOKE.

No. 246.

Supreme Court of North Carolina.

May 31, 1941.

Appeal from Superior Court, Lee County; Q. K. Nimocks, Jr., Judge.

Action by Lillian Graham against Margaret Hoke, administratrix of the estate of J. G. Phillips, deceased, on a written agreement. From a judgment overruling a demurrer to the complaint, defendant appeals.

Reversed.

Hastings, Booe & Abbott, of Winston-Salem, for plaintiff-appellee.

K. R. Hoyle, of Sanford, for defendant-appellant.

SCHENCK, Justice.

The pertinent portions of the complaint are as follows:

"3. That on January 26, 1925, the deceased, J. G. Phillips, entered into a written agreement with the plaintiff, in which he promised the plaintiff $2,000.00, to be paid to her out of his estate at his death, said agreement is hereby incorporated by reference in as full and ample a manner as if set out word for word in these pleadings, and which contract will be offered in evidence at the trial of this cause.

"4. That prior to the execution of the agreement referred to above, and as consideration for same and for about two years beginning in 1919, immediately after the death of J. G. Phillips' second wife, the plaintiff worked for J. G. Phillips in his store in Sanford, and also helped keep house and care for his three children. That J. G. Phillips induced plaintiff, in the Fall of 1921, to go to the Mary Potter Boarding School and take a three-month special course in cooking and sewing; and in the Spring of 1922 the plaintiff, at the request of J. G. Phillips, went to Morris-town, Tenn, and kept house for J. G. Phillips and his invalid third wife. From 1922 until death of J. G. Phillips' third wife, in 1924, plaintiff cared for J. G. Phillips' invalid wife and his home in Morristown, and after her death, and upon request of J. G. Phillips, came with J. G. Phillips to Winston-Salem and kept J. G. Phillips' house and cared for J. G. Phillips' children. During all this time plaintiff was not receiving any weekly pay, but was treated as a member of J. G. Phillips' family, J. G. Phillips informing her that she would be taken care of at his death and giving her the contract referred to in paragraph 3 of this complaint as evidence of his promise and intentions."

The alleged "written agreement" is in words and figures as follows (italics indicate handwriting in ink, the balance of instrument being a printed form):

"Winston-Salem, N. C.

Jan. 26, 1925 No.--

Wachovia Bank and Trust Company Pay To The

Order of Lillian Graham at my death $2000.00 Two Thousand Dollars out of my estate payable $500 at each payment till all has been paid.

J. G. Phillips".

The defendant demurred to the complaint upon the grounds that it does not state facts sufficient to constitute a cause of action.

The "written agreement" alleged in the complaint cannot be construed ex vi termini as a valid contract to pay...