Stout v. Perry
| Decision Date | 06 April 1910 |
| Citation | 67 S.E. 757,152 N.C. 312 |
| Parties | STOUT v. PERRY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Chatham County; W. J. Adams, Judge.
Action by A. M. Stout, administrator of Mrs. Susan Johnson deceased, against Ostia Perry and another, administrators of Joshua Johnson, deceased. From a judgment for plaintiff defendants appeal. New trial.
Where a wife appointed her husband to collect notes given on a sale of her land, and directed him how to disburse the proceeds the burden is cast on his administrators sued for the amount collected to prove that he disbursed the proceeds as directed by her.
The plaintiff is the administrator of Mrs. Susan Johnson. The defendants are the administrators of Joshua Johnson. Joshua Johnson and Susan Johnson were husband and wife. The former died October 10, 1906, the latter July 13, 1907. They were married June 27, 1877. On July 26, 1878, the husband and wife executed their agreement to convey a tract of land belonging to the wife to E. E. Dismukes for $900, of which $250 was paid in cash, and the balance evidenced by six notes, the first for $100, due one year after date, and the others for $110 each, one due each year thereafter. On February 3, 1885 the notes having been paid, the deed was executed. J. E. Perry was the draughtsman of the agreement to convey and of the notes, which were made payable to Joshua Johnson, the husband. The defendant proposed to show by Perry that at the time the notes were drawn by him and executed by Dismukes Mrs. Johnson directed that they be made payable to her husband; that she owed antenuptial debts, which she desired to be paid; that she directed her husband to collect the notes, as they fell due, pay her debts, and use a sufficient part of the remainder, if any and if sufficient, to support her mother, who was aged and infirm, and living with Mr. and Mrs. Johnson. This evidence was excluded by his honor upon plaintiff's objection. The defendants excepted. There was a verdict for the plaintiff for $900, and judgment accordingly, from which defendants, having duly excepted, appealed to this court.
Hayes & Bynum, H. A. London & Son, and J. G. Hannah, Jr., for appellants.
R. H. Dixon, W. D. Siler, and N.Y. Gully, for appellee.
The plaintiff contends that the judge's ruling was correct because the contract between the husband and wife was not executed with the formality required by section 2107, Revisal, and the evidence offered did not so tend to prove, but established that it was not so executed. The defendants contend that the evidence tended to prove that the wife created her husband her agent, that it was not a contract to change or impair the body or capital of the wife's personal estate for the husband's advantage, and was not required to be executed with the formality prescribed by that section of the Revisal. That the husband can be appointed her agent by the wife has been several times decided by this court, and seems not to be controverted by the plaintiff. Bazemore v. Mountain, 121 N.C. 59, 28 S.E. 17; Weathers v. Borders, 121 N.C. 387, 28 S.E. 524; Cunningham v. Cunningham, 121 N.C. 413, 28 S.E....
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