Price v. Askins
| Decision Date | 15 December 1937 |
| Docket Number | 599. |
| Parties | PRICE v. ASKINS et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Union County; Frank M. Armstrong, Judge.
Action by Edward Price against Alma F. Askins, administratrix of the estate of H. N. Askins, and others. Verdict and judgment for plaintiff, and defendant appeals.
Modified and affirmed.
In husband's action for services rendered deceased wife's testimony as to a conversation she heard wherein deceased agreed to will husband specified realty was competent, since statutory prohibition against the testimony of a "person interested in the event" extends only to those having a direct, legal, or pecuniary interest and not to wife's sentimental interest in her husband's suit. C.S. §§ 1795, 1801.
In husband's action for services rendered intestate on alleged special oral contract to convey specific real property as compensation for services rendered, or, in the alternative, on a quantum meruit basis, defendant's general denial, being in effect a plea of the statute of frauds, barred recovery on the special oral contract, and hence plaintiff was required to recover for services on quantum meruit, and the real property and any inchoate right the wife might have in recovery of it was eliminated, so that the wife was competent to testify in support of her husband's action, since she was not a "person interested in the event" of the action. C.S. §§ 988, 1795.
Action to recover upon alleged contract for personal services.
These facts appear to be admitted: H. N. Askins, Sr., resident of Chesterfield county, S. C., died intestate in June 1936 leaving Alma F. Askins, his widow, and two children, Florence Neal and H. N. Askins, Jr., as his only heirs at law. Alma F Askins qualified as administratrix of the estate of said intestate on July 9, 1936, in said county and state. The intestate died seized of several tracts of land in Union county, N.C. H. K. Helms was appointed and qualified as ancillary administrator on December 19, 1936, in superior court of Union county, N. C.
Plaintiff instituted this action on December 16, 1936, against the administratrix appointed in South Carolina and the two children of H. N. Askins, and filed complaint in which he alleged in substance that H. N. Askins, Sr., entered into a special oral contract with him by which he was employed to attend to the wants of, render assistance to, and look after, said Askins when called on by him when indulging in alcoholic liquor and sick therefrom, and as consideration therefor "said Askins would give the plaintiff a home, a good home with a well of water and some 50 or 75 acres of land," the purpose and intent being that Askins would make a will devising to plaintiff the land; that plaintiff moved on to the lands of said Askins, worked as tenant, and fully complied with all the terms of the contract from then until the death of Askins; that a short time before his death Askins pointed out to plaintiff and to others the line which would separate from his other lands, the boundary of about 75 acres of land which he expected and had agreed to give plaintiff, and that if plaintiff be not entitled to recover on special contract, that he recover on quantum meruit for services rendered in reasonable sum of $1,500.
At the time of instituting the action, writ of attachment was issued and levy made on all the lands of which H. N. Askins died seized in Union county, N. C.
Pending publication of notice of summons and of attachment, the defendants named therein on January 4, 1937, entered special appearance and moved to dismiss the action and attachment. The motion was denied and appeal taken.
On January 11, 1937, attorneys representing the South Carolina administratrix gave notice to H. K. Helms, ancillary administrator, that the administration in South Carolina was in process of settlement, that the estate was insolvent, and that it would be necessary to sell lands in Union county, N. C., to make assets.
On February 6, 1937, by order, H. K. Helms, administrator, was made party defendant, and as such he filed answer denying the material allegations of the complaint.
At the February term, 1937, of superior court, "by consent the motion to vacate and dismiss is overruled and the objection is withdrawn and Alma Askins, individually, makes herself a party defendant," and she and other defendants were granted time in which to answer or demur. On March 16, 1937, Alma F. Askins, H. N. Askins, Jr., and wife, Mrs. H. N. Askins, Jr., Florence Neal and husband, ------- Neal, filed answer denying the material allegation of the complaint.
At the trial below plaintiff offered evidence tending to support the allegations of his complaint.
Over objection by defendant, plaintiff's wife was permitted to testify that in 1928 she heard a conversation between H. N. Askins and the plaintiff as follows: "Him and Ed was sitting in the room there one day talking, and he asked Ed, told Ed if he would take care of him he would give him a house and farm, about 50 to 75 acres, to take care of him, and Ed agreed to do that."
Defendant further excepted to introduction in evidence of attachment proceedings.
The case was submitted to the jury on the following issues:
(1) Did the defendant's intestate H. N. Askins and Edward Price enter into the contract alleged in the complaint?
(2) Did the defendant's intestate H. N. Askins breach said contract, as alleged in the complaint?
(3) Did the plaintiff Edward Price render services to the said H. N. Askins in good faith, relying on his contract and agreement with him, as alleged in the complaint?
(4) What amount, if any, is the plaintiff entitled to recover?
Defendants objected to the submission of those issues, and tendered others which were refused and defendants except.
The jury answered the first three issues in the affirmative and the fourth "$1,350.00."
Upon the verdict judgment was rendered and the following inserted therein: "And that this judgment shall be a prior lien by reason of the attachments hereinbefore issued and by reason of the appearances herein of Alma F. Askins, widow, and Harold Askins and Florence Neal, heirs at law, on all of the assets of the estate of H. N. Askins in North Carolina against any claims or demands against said estate by the said Alma F. Askins, widow, and Harold Askins and Florence Neal, heirs at law."
Defendants appealed to the Supreme Court, and assigned error.
Coble Funderburk and O. L. Richardson, both of Monroe, for appellants.
Vann & Milliken, of Monroe, for appellee.
These are the principal questions arising on this appeal: (1) In action by husband to recover for personal services, is wife competent to testify to a transaction between husband and a deceased person? C.S. § 1795. (2) Where right to recover on special oral contract to convey real property as compensation for service rendered by husband is denied, is wife competent to testify to such contract on husband's claim for compensation on quantum meruit? (3) Do issues submitted fully present controversy? (4) Was refusal of motion to nonsuit proper? (5) Is plaintiff entitled to lien by virtue of attachment, and by reason of personal appearance of heirs at law?
We answer the first four "Yes," and the fifth "No."
1. Defendant's contention that the wife of plaintiff is incompetent to testify to conversation she heard between plaintiff and intestate, C.S. § 1795, is untenable. In Burton v. Styers, 210 N.C. 230, 186 S.E. 248, 249, Devin, J., said: "It has been consistently held by this court that the prohibition against the testimony of a 'person interested in the event' extends only to those having a 'direct legal or pecuniary interest,' and not to the sentimental interest the husband or wife would naturally have in the law suit of the other." Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241, L.R.A.1917A, 1; American Agricultural Chemical Co. v. Griffin, 204 N.C. 559, 169 S.E. 152; Hager v. Whitener, 204 N.C. 747, 169 S.E. 645; Vannoy v. Stafford, 209 N.C. 748, 749, 184 S.E. 482; C.S. § 1801.
2. The defendant challenges the testimony of the...
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