Mccurry v. Purgason

• Decision Date: 15 December 1915
• Docket Number: (No. 528.)
• Citation: 87 S.E. 244,170 N.C. 463
• Parties: McCURRY. v. PURGASON et al.
• Court: North Carolina Supreme Court

87 S.E. 244

170 N.C. 463

McCURRY.

v.PURGASON et al.

(No. 528.)

Supreme Court of North Carolina.

Dec. 15, 1915.

Appeal from Superior Court, Rutherford County; Harding, Judge.

Action by Lucy O. McCurry against L. Purgason and Alfred Freeman, executors of J. G. Freeman. Judgment for plaintiff, and defendants appeal. Verdict and judgment set aside, and case remanded.

Plaintiff sued for the value of services rendered by her to the testator of defendants during the year 1905, and from that time to December 12, 1910, in furnishing him board to November, 1908, and board and lodging the rest of the time. The evidence tended to show that the testator, in 1904, had rented to plaintiff's husband, Walter D. McCurry, a tract of land known as his home place, and that after he had taken possession of it, the testator occasionally visited plaintiff and her husband at their home on the land until the early part of the year, 1905, when he suggested of his own accord that he did not think it right that he should stay so much with them and not pay for his board and lodging, as plaintiff was "put to a great deal of trouble and expense on his account, " and it was not fair to plaintiff that he should stay there any longer without giving her some compensation for her services, and he then offered to give her, in his will, "one-half of the land on the south side of the big road, " which he stated she would get at his death. The testator lived with his son Dugger Freeman until the latter's death in November, 1908, though visiting plaintiffs during the interim, and in 1908 he movedto plaintiff's home and lived there until December 12, 1910, when plaintiffs moved from the land and lived elsewhere. The testator died in January, i915. The jury returned the following verdict:

"(1) Did the testator, J. G. Freeman, enter into a contract with the plaintiff that, if she would live with him and take care of him, he would in his will at his death compensate her for her services rendered him as alleged? Ans. Yes. (2) Did the plaintiff render service to the defendants' testator as alleged? Ans. Yes. (3) In what amount, if any, are defendants indebted to plaintiff? Ans. $500. (4) Is the plaintiffs claim barred by the statute of limitations as alleged? Ans. No."

Defendants appealed from the judgment upon the verdict, after reserving their exceptions.

Solomon Gallert, of Rutherfordton, for appellants.

WALKER, J. (after stating the facts as above). [1, 2] The first four exceptions in this appeal were taken to the competency of the male plaintiff, Walter D. McCurry, husband of his coplaintiff, to testify as to transactions and communications with the testator in regard to the services to recover the value of which this suit was brought. The ground of the objection to this testimony is, that the wife's earnings belonged to her husband, and for this proposition is cited Syme v. Riddle, 88 N. C. 463. We said in State v. Robinson, 143 N. C. 620, 56 S. E. 918:

"It is settled that the husband is entitled to the society and to the services of his wife, and consequently to the fruits of her industry. She cannot contract to render those services to another without his consent. Those rights were given to the husband, it is said, because of the obligation imposed by the law upon him to provide for her support and that of their offspring, and the right continues to exist. Syme v. Riddle, 88 N. C. 463; Baker v. Jordan, 73 N. C. 145; Hairston v. Glenn, 120 N. C. 341 ; Kee v. Vasser, 37 N. C. 553 ; McKinnon v. McDonald, 57 N. C. 1, 72 Am. Dec. 574; Cunningham v. Cunningham, 121 N. C. 413 . There was no evidence that the husband assented to the contract."

Justice Hoke refers to the same subject in Price v. Electric Co., 160 N. C. 450, at page 452, 76 S. E. 502, 508, in these words:

"Our decisions were rendered prior to the Martin Act, Laws of 1911, chapter 109, which practically constitutes married women free traders as to all their ordinary dealings, and we are not called on to determine the effect of this legislation on the question presented, as all the authorities here and elsewhere hold that a husband may confer this right to earn and acquire property upon the wife, in any event when the rights of creditors do not intervene. Syme v. Riddle, supra; Cunningham v. Cunningham, 121 N. C. 414 [28 S. K. 525]: Peterson v. Mulford, 36 N. J. Law. 481; Mason v. Dunbar, 43 Mich. 407 [5 N. W. 432, 38 Am. Rep. 201]."

We need not pause to inquire, therefore, how this question would be affected if this transaction had not taken place before the passage of the statute of 1911 (known as the Martin Act). It all occurred prior to that time, and is governed by the law as it then stood. But we think the admitted facts in this case show that the husband fully assented to the contract of his wife with the testator and his conduct at that time, and especially when considered in connection with what has since been done by him, is conclusive of his assent and equivalent to an agreement on his part that his wife should have and enjoy as her own separate property the earnings under the contract with the testator, the same as if she had been acting in her own behalf as a feme sole. He has evidently given his full sanction to her separate recovery in this suit, and has assisted and aided to that end, and has shown that he has regarded the contract from its very inception as made solely for her benefit. Price v. Electric Co., supra. We hold, therefore, that the wife is entitled to recover whatever is due under the contract, for her services, for her own separate and individual benefit. It follows that having had no interest in his wife's separate earnings from this transaction, the husband was a competent witness in her behalf as to his dealings and communications with the testator. He is not disqualified as a witness because he may become a beneficiary under his wife's will, or because, if she dies intestate, he would succeed to her personal property, subject to the payment of her debts, as these are mere possibilities and too remote and speculative to be considered.

The next eight exceptions were taken to the testimony of the plaintiff herself. We have examined them carefully with reference to what she said, and while some of the questions and answers appear to be harmless, others are close to the danger line, if they do not cross it, but we need only give the warning, in the hope that all apparent transgression of the statute will be avoided at the next trial.

The thirteenth exception is not mentioned in the brief, and is therefore abandoned under our rule, but we may remark that there was evidence sufficient to carry the case to the jury, and the motion for a nonsuit was therefore properly denied.

The fourteenth exception, which was taken to the ruling of the court, excluding the question put to the witness, Bynum Owens, as to what the testator had said to him, at the time he purchased certain goods at the store in Sunshine, is untenable. The evidence proposed to be elicited was nothing more than hearsay, and was clearly inadmissible.

The fifteenth exception addressed to a portion of the charge of the court to the jury cannot be sustained. If we consider this excerpt from the charge alone, it is not subject to the criticism, that it omitted any reference to the evidence, or to the rule as to its weight or preponderance, while instructing the jury as to the burden on plaintiff of proving the facts necessary to a recovery by her. We think it sufficiently states the correct rule and, with reasonable dis-tinctness, it told the jury that the burden of proof was upon the plaintiff to make out her ease and to offer evidence, "sufficient by its greater weight to satisfy them" of the truth of her allegations. But it is certainly clear and full enough, when construed with other parts of the charge, it having been long since settled that the latter should be considered as a whole. We are not permitted to construe away the plain meaning of a charge, when thus viewed, by any process of dissection, which dismembers it and leaves only its separate parts before us. Kornegay v. Railroad Co., 154 N. C. 389, 70 S. E. 731; McNeill v. Railroad Co., 1G7 N. C. 390, 83 S. E. 704; Aman v. Lumber Co., 160 N. C. 374, 75 S. E. 931. An objection much like this one, was considered by us and overruled in State v. Jim Cooper, 87 S. E. 50, decided at this term.

The sixteenth exception is covered by what we have said in regard to the one just preceding it. We think the judge instructed the jury substantially, as to the burden of proof, in respect to the second issue, when the charge is read as a whole. It was sufficiently explicit and we are satisfied the jury fully understood what was the law. The seventeenth exception is answered in the same way.

We come now to the eighteenth exception, as to the statute of limitations, and this depends altogether upon whether the contract was abandoned by the parties in 1910, when plaintiffs left the land, and moved to another home. If the contract was mutually abandoned at that time, any cause of action, in the nature of a quantum meruit, that the feme plaintiff now has, to recover for services previously rendered, accrued then, and as more than three years have elapsed since that time, and before the bringing of this action, she would be barred. If the contract was not mutually abandoned, and the plaintiff can recover on the special contract, then the statute will not bar, as the cause of action did not accrue until the death of the testator. As to whether the contract was abandoned, is a mixed question of law and fact, as to what constitutes an abandonment being matter of law, and as to whether there has been an abandonment being a question depending upon how the jury may find the facts to be. The subject is discussed in May v. Getty, 140 N. C. 310, 53 S. E. 75. See, also, Faw v. Whittington, 72 N. C. 321; Banks v. Banks, 77 N. C. 186. The complaint and evidence in this case...