Thayer v. Thayer

• Decision Date: 22 April 1925
• Docket Number: 390.
• Parties: THAYER v. THAYER.
• Court: North Carolina Supreme Court

127 S.E. 553

189 N.C. 502

THAYER v. THAYER.

No. 390.

Supreme Court of North Carolina

April 22, 1925

Appeal from Superior Court, Davidson County; McElroy, Judge.

Action by Carl Thayer, Jr., by his next friend, Mamie G. Hall against Carl Thayer. Judgment for plaintiff, and defendant appeals. No error.

Statute inapplicable to minor.

See also, 187 N.C. 573, 122 S.E. 307.

The complaint, in substance, alleges that Carl Thayer, Jr., is a minor, without guardian and Mamie O. Hall has been duly appointed his next friend by the court; that Carl Thayer, the defendant, is the father of Carl Thayer, Jr., born out of wedlock; Mamie O. Hall being his mother; that the defendant Carl Thayer, contracted with the mother of the plaintiff (Mamie O. Hall) that he would support plaintiff and educate him, all of which he has failed to do; that the support and education of the plaintiff would reasonably cost $50 per month; that the defendant, as plaintiff is informed and believes, is worth more than $40,000 and well able to support and educate the plaintiff; that the plaintiff should have allotted for his support at least the sum of $50 per month, this amount to be used for his support and education.

Defendant in his answer admits that Carl Thayer, Jr., is a minor. Denies he is the father of Carl Thayer, Jr. Denies the agreement to support and educate him. Defendant, for a further defense, says: (1) If any promise had been made, it is barred by the three-year statute of limitation and pleads same; (2) pleads C. S. chap. 6, "Bastardy," the method prescribed by law to establish paternity, and the three-year statute of limitation, C. S. § 274, Carl Thayer having been born in the year 1914.

In an amended answer, defendant alleges that Mamie O. Hall, mother of Carl Thayer, Jr., after she became of age, indicted defendant for seduction under promise of marriage, and a settlement was made to include all civil liability and in full of all damages due her on account of any alleged seduction, bastardy, and any civil claim, and a written receipt to this effect was signed by Mamie O. Hall; that prior to the indictment the defendant had paid Mamie O. Hall $1,000 in full settlement of all civil liability claimed by her against defendant.

The issues submitted to the jury and their answers thereto were as follows:

"(1) Is the plaintiff the illegitimate child of the defendant as alleged in the complaint? Answer: Yes.

(2) Did the defendant, Carl Thayer, prior to the birth of the plaintiff, contract to and with Mamie Hall, the mother of the plaintiff, to take care of the plaintiff and educate him? Answer: Yes.

(3) If so, has the matter been compromised and settled by and between the said Mamie Hall and the defendant? Answer: No.

(4) Has the bastardy proceedings ever been had establishing the paternity of the plaintiff? Answer: No.

(5) Has more than three years elapsed since plaintiff's birth? Answer: Yes.

(6) Is plaintiff's cause of action on the contract barred by the statute of limitation? Answer: No."

The judgment of the court below on the verdict was as follows:

"His honor holding as a matter of law that the plaintiff has no cause of action on the grounds found in the first issue, since no bastardy proceeding has ever been had under the statute, but that the plaintiff is entitled to support under the issues as found by the jury, and the court further finding as a fact that this suit had been pending for 18 months, and that the defendant has paid in the sum of $100 and that $350 is a reasonable amount to be paid since the action has been pending, and that $25 a month is a reasonable amount to be paid hereafter for the benefit of plaintiff until some further order is made:

It is therefore considered, ordered, and adjudged that the plaintiff [[[[defendant?] contracted with Mamie Hall, mother of the plaintiff, in December, 1913, to take care of the plaintiff and educate him as found by the jury, and the court further adjudges and orders that the defendant pay into the court, or to some guardian for the plaintiff, the sum of $350 for the benefit of the plaintiff to the present, and that from the present time on until the further order of the court that he pay to the clerk of the court of Davidson county, or a guardian if he shall have one appointed, the sum of $25 per month. It is further ordered and adjudged that the plaintiff recover its costs of the defendant to be taxed by the clerk.

It is further adjudged that this judgment is a lien on all the lands owned by the defendant in Montgomery and Scotland counties, but since defendant may want to sell his timber it is understood and agreed that it is not a lien on the timber on the 450-acre Coggins tract, and that he shall have a right to dispose of same if he should so desire, and this cause is retained on docket for further order."

There are 24 exceptions and assignments of error by defendant. The material assignments of error and necessary facts will be considered in the opinion.

J. A. Spence, of Ashboro, J. M. Daniel, Jr., of Lexington, R. T. Poole, of Troy, and Phillips & Bower, of Lexington, for appellant.

Walser & Walser, Spruill & Olive, and Z. I. Walser, all of Lexington, for appellee.

CLARKSON J.

This case was before this court before (187 N.C. 573, 122 S.E. 307), on the question of venue.

This is an action brought by an illegitimate child, under age, by his next friend, his mother, to enforce an alleged contract made by his mother to compel the reputed father to support and educate him. The jury found that the plaintiff, Carl Thayer, Jr., was an illegitimate child of Carl Thayer, who had contracted with Mamie O. Hall, his mother, prior to his birth, to take care of and educate him. All the issues, as appear in the record, were found against defendant.

The court below construed the complaint as alleging two causes of action: (1) To establish paternity; (2) for breach of contract. The court below submitted the first issue as to paternity of plaintiff over objection and protest of defendant. But the court held in the judgment, as a matter of law, that plaintiff could not maintain his cause of action embraced in the first issue. The plaintiff has not appealed. No appeal having been taken by plaintiff as to the first cause of action, if there was one under the pleadings, this case is res judicata. We think that on all the issues found against the defendant, the evidence was competent, and the charge of the court was in accordance with law.

We will only deal with the law in reference to the second cause of action--"For breach of contract."

The defendant contends that--

"As to the second cause of action the plaintiff alleges a contract made with his mother six months before he was born. Such a contract must be supported by sufficient or meritorious consideration. What consideration is there moving from the plaintiff in this action to the defendant? None whatever. Love and affection for an illegitimate child is not a meritorious consideration for the reputed father."

The contention of defendant cannot be sustained, from the evidence of Mamie O. Hall (who was married to one Godwin last July), and to whose testimony the jury gave credence. She testified, in substance: That she had one child, Carl Thayer, Jr., who was 11 years old, born June 7, 1914. That she had known defendant practically all her life and they lived in the same vicinity and for years they went with each other. In 1913 the defendant had connection with her several times--more than four in the month of September and October. She had nothing to do with any other man, and was about 17 years old at the time. The plaintiff, Carl Thayer, Jr., was born June 7th, afterwards, and the defendant is his father. "I next saw defendant in December, along about the 18th of December, at my father's home. He came and talked with me about the child, and I told him my condition. He said he would take care of this child. Said he would marry me, and take me to Virginia where his work was next year, and I should not be left. He promised to marry me in 1913 when he found out my condition. He said, 'We will marry December 23d,' and that he would take this child and take care of him. My mother heard him say this. That he would support the child and care for him and educate him comfortably. Defendant said, 'You know my property is here, and my father is here and is old, and I cannot afford to go away and leave you in this condition,' and he said, 'Mamie, I love you, and cannot leave you, and will take care of you and the child with my property.' This was before the child was born."

The entire evidence shows that after the agreement of defendant was made, the cohabitation ceased. Under the facts found by the jury, the single question presented here was: Was the agreement supported by sufficient or meritorious consideration? At the time the promise was made, Mamie O Hall (now Godwin) was with child. Defendant was the reputed father and promised to marry her, the marriage to take place December 23d. The child was born afterwards on June 7th. If this promise had been fulfilled, Carl Thayer, Jr., would have been a legitimate child. By both the civil and canon law the subsequent marriage of the parents legitimized their offspring born before marriage. 1 Black. Com. 454; Fowler v. Fowler, 131 N.C. 169, 42 S.E. 563, 59 L. R. A. 317. He would have had inheritable blood. By Laws 1917, ch. 219, § 1, C. S. § 279, subsequent marriage now makes the illegitimate child legitimate, with all the rights as if born in lawful wedlock. At the time the promise was made, the law gave the mother certain rights, C. S. § 267, and if under said section the paternity of the child was established, "then he shall stand charged with the maintenance...