Neal v. Wachovia Bank & Trust Co.
| Decision Date | 08 March 1944 |
| Docket Number | 737. |
| Citation | 29 S.E.2d 206,224 N.C. 103 |
| Parties | NEAL v. WACHOVIA BANK & TRUST CO. (two cases). |
| Court | North Carolina Supreme Court |
The plaintiffs in the above actions, husband and wife, brought separate actions against the executor of Mrs Pegram's will, each suing upon a quantum meruit for services rendered the decedent during a long period of years prior to her death. The complaints are identical except for changes of persons in reference to the different plaintiffs and the nature of the services performed. The suits were consolidated for convenience in hearing, but their separateness is preserved for application of the principles of law and procedure in pleading.
In brief, the complaints set up particulars as to the length and character of the services and their reasonable value. Each complaint further alleges that Mrs. Pegram orally agreed with the plaintiffs, husband and wife, that in return or compensation for the services performed by them she would take care of them in her will; and would will to them her homeplace on Glenn Avenue, or its value in money at her death; and that, in breach of the agreement, she left a last will and testament in which she failed to provide for either of them in any manner whatsoever. In her action Mrs. Neal alleges her services were reasonably worth $7,080, and having sued within six months from the rejection of her claim by the executor, demands judgment for that amount.
Joseph A. Neal alleges that his services were reasonably worth the sum of $3,776, and demands judgment for that amount. Joseph A. Neal was permitted to amend his complaint by alleging that his services were worth $15 per week.
In each case the defendant executor answered, denying the material allegations of the complaint; and, further answering, pleaded the three year statute of limitations in bar of the action.
The cases came on for a hearing at June, 1943, term of Forsyth Superior Court, at which time, after the pleadings had been read, counsel for the defense demurred, ore tenus, in each case for that the complaint failed to state a cause of action, in that it affirmatively appears from each complaint that such cause of action as the plaintiff had, if any, was a joint cause of action and not a separate cause of action. The court, being of that opinion, dismissed both actions, and the plaintiff in each case excepted and appealed.
Fred S. Hutchins and H. Bryce Parker, both of Winston-Salem, for plaintiffs, appellants.
Womble Carlyle, Martin & Sandridge, of Winston-Salem, for defendant, appellee.
Summarizing the situation with which we have to deal, we observe that the plaintiffs in these separate actions have sued upon implied assumpsit for services rendered the decedent. The complaint in each case, however, discloses a parol contract to convey by will specific real estate--the homeplace on Glenn Avenue--or its value in money, and the death of the promisor, testate, without doing either. The defendant answered, denying the contract. Subsequently the defendant demurred to the complaints, ore tenus, upon the ground that plaintiffs had no separate cause of action, but must sue, if at all, in a joint action upon the contract disclosed in the complaints--which, it is contended, contemplates joint employment, joint performance, and common or joint compensation.
The position of the defendant is anomalous, since in the previously filed answer it denies the contract and in the demurrer, in effect, admits it, and draws the legal conclusion that plaintiffs can recover only for its breach. We might work out the rights of the parties on different lines and perhaps reach a different conclusion if it were not for the involvement of the statute of frauds in the controversy, and the necessity of determining its effect on plaintiffs' cause of action, and of clarifying the function of the parol contract, as a part of the declaration, when it is found to be void under the statute.
The demurrer is addressed, as we have seen, to the right of plaintiffs to maintain separate actions on the quantum meruit for the services rendered the decedent. The plaintiffs' right to maintain these actions is predicated on the theory that the contract is void and unenforceable under the statute, leaving to them the right to sue on quasi-contract or implied assumpsit for the value of the services. Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331; Price v. Askins, 212 N.C. 583, 194 S.E. 284; Ebert v. Disher, 216 N.C. 36, 3 S.E.2d 301; Daughtry v. Daughtry, 223 N.C. 528, 27 S.E.2d 446. If, indeed, plaintiffs are relegated to action upon the contract, their present separate actions in assumpsit must fail, since, at least, the contract provides for common or joint compensation. But, if the oral contract is obnoxious to the statute of frauds, and that issue is raised, the plaintiffs may separately sue upon the quantum meruit for the services rendered by them respectively, without relying upon the contract. Grantham v. Grantham, supra. Recital in the complaint of a parol contract void under the statute of frauds does not, ipso facto, bind the plaintiffs in their choice of action. It is common and approved practice in suits to recover for services rendered under such a contract to recite the contract, not by way of reliance upon its terms, or to recover for its breach, but to rebut any presumption which might arise that the services were gratuitous, or in support of the contention that they were rendered and accepted in expectation that they would be paid for. Grantham v. Grantham, supra; Price v. Askins, supra. 'The contract itself 'falls out of view as a ground of legal remedy and appears only to give color to the conduct of the parties in furnishing and accepting the services rendered. It affords the means of determining that the service was not a gift but a sale.'' 2 Page on Contracts, Sec. 1415; Gay v. Mooney, 67 N.J.L. 27, 29, 50 A. 596. Parol evidence of the contract is competent for that purpose. The position of the defendant on its demurrer is, therefore, not aided by its previously filed answer denying the contract. Such denial is one way of invoking the statute of frauds and puts the defendant in position to administer the coup de grace by excluding the parol evidence offered in its support. Under this state of the pleadings, the plaintiffs will not be forced to the vain expedient of suing upon the contract to test its validity, and of suffering defeat, before bringing action on the quantum meruit, if upon such denial, it appears as a matter of law that the contract is within the statute, and void. Price v. Askins, supra, 212 N.C. page 587, 194 S.E. 284, and cases cited; Grantham v. Grantham, supra.
Mrs. Pegram promised the plaintiffs that she would reward them for their services by making a will conveying to them her 'home on Glenn Avenue, or its value in money.'
In what way is the present contract affected by the statute of frauds? The answer to that question depends upon whether with respect to the 'promise'--which is in the alternative--the contract is regarded as separate or entire. To guard against a hasty conclusion, we may add that the use of the disjunctive does not necessarily mean that the promise is separable in law. It depends upon other factors which we must consider--principally, the relation of the alternative engagements to each other, if any exists.
The contract to devise real estate is within the statute of frauds. Grantham v. Grantham, supra; Price v. Askins, supra; Norton v. McLelland, 208 N.C. 137, 179 S.E. 443; Shore v. Holt, 185 N.C. 312, 117 S.E. 165. A contract to bequeath personalty, standing alone, is not. Halsey v. Snell, 214 N.C. 209, 198 S.E. 633, 635; Burton v. Styers, 210 N.C. 230, 186 S.E. 248; Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241, L.R.A.1917A, 1.
Questions as to separability more often arise when the contract has two or more distinct items, both in the agreement to perform and in the promise of compensation, capable of 'apportionment' or separate allocation the one to the other as indicated in the contract itself. The practical effect of the severance in such a case is to divide the contract into several smaller contracts, rejecting those which appear to be offensive to the statute. The doctrine of separability, it is apparent, must be applied with caution even in this instance, and the hand of the Court is often stayed by its inability to make a contract for the parties and by the serious question whether the parties would have entered into the contract at all with that part held to be within the statute eliminated. These inhibitions follow the doctrine of separability in whatever form presented and must be hurdled in the case at bar before that part of the promise falling within the statute of frauds is pruned from the agreement and its alternative enforced.
Upon the general question of separability where the promise presents alternatives, one within the statute and one without, there is a sharp division of authorities. Some have taken the more mechanical view that as the option to convey or will, real estate has not been exercised, the alternative as to the personalty survives and is enforceable. (It may be noted here that the option as to the personalty has just as much expired as that relating to the realty.) Others have taken the broad view that the option presented is personal to...
To continue reading
Request your trial