*1 FALL TERM, 1915. N.C.]
McCTJRRY V. PURGASON. a, laborers gives Rev., Laws cb. sec. now said engaged cutting or sawing logs a'prior into lumber lien lumber, except against tbe for full value and purchaser, notice thereof. file is true this section has the laborer to proviso requiring
his of such inclined notice claim before a We are justice peace. proviso require filing think that this would not notice orders of court in company operating under the the hands a receiver. But it is in view of what pass point unnecessary regard Revisal, we have said in 1206. application, to the judge The his in the acting entirely authority within exercise of his in rereferring find- discretion the case to the referee a fuller ing and add report, change, and the referee was authorized to correct or Rogers to his former report. Lumber will Company costs of the the Insurance appeal paid jointly by
and the S. Company. modified, judgment J. Kent As above
Affirmed. FREEMAN,
LUCY O. McCURRY v. L. and ALFRED PURGASON Executors.
(Filed December, 1915.) Implied 1. Husband and Wife—Wife’s Consent. Services — passage husband, by conduct, Before the of the Martin act the his could give implied his consent the wife should receive joins another, her services rendered to as where he action his wife’s them, to recover etc. 2. Evidence —Husband and Wife—Deceased—Transactions. disqualified testifying A husband is not interest in his wife’s person, behalf in her action to recover for services rendered deceased possibilities being of his benefited her will in- case of her testacy being too remote. Appeal Brief—Exceptions Abandoned. Error — Exceptions appellant’s not mentioned in brief are deemed abandoned. 4. Evidence —Deceased Persons —Declarations. person In an action to recover for services rendered deceased before death, testimony as to his declarations made to a witness while the held, trading deceased was at his store circumstances case, objectionable hearsay to be evidence. Appeal 6. Instructions —Construed as a Error. Whole— personal In an action the value -of services rendered de- person judge charged jury proof ceased burden of greater weight on the satisfy to offer evidence “sufficient allegations. Construing excerpt them” of the truth charge whole, with the in this case as a no reversible error is found. COURT. IN THE SUPREME V.
McCURKT PüKGASON. *2 for of Actions —Contracts—Consideration Services —Board— 6. limitations Devises—Implied Promise. Wills— lodging an action to for tioard and furnished the deceased the deceased In tending plaintiff, show that there was evidence to plaintiff place, and visited had rented to the of the home husband his stayed periods of for certain and time, with them at certain intervals and leaving plaintiff by promised compensate to for he her, place; death, at had one at his the said the deceased home carry promise; that more than three time executed will out this years plaintiff and before commencement of this action the next away deceased, husband, her of the moved default leaving place, died, provision will and that the testator his carry whether the promise: Held, question the evidence as out his arose under mutually plaintiff and the deceased abandoned and, so, land; plaintiff as if and her husband moved from the when statute; law, if a matter of cause of action was barred her otherwise, right of the de- elect wait until death she had the damages, implied an and recover for the amount of her as ceased pay promise to for the of the value services.rendered. Damages. 7. of Same—Measure lodging plaintiff she Where the to recover for board and entitled supplied person promise at his to leave her his deceased perform, land, lot had failed to by death a certain and of which the deceased performance plaintiff of her before his death had rendered damages part the land to be agreement impossible, of the measure the value devised, expense have incurred less the cost and she would performing to wait her of the when she has elected in until the death of the deceased and sue damages arising from full breach the contract. his Appeal J., August Term, 1915, at defendants from Harding, RUTHERFORD. n of services rendered sued tbe value Civil action. Plaintiff 1905, and from that during year of defendants testator 1908, November, him board to December, furnishing 1910—in time to tended to time. The evidence the rest of the lodging and board Walter husband, had rented testator, 1904, plaintiff’s that the show known home and that after place, of land as McCurry, D. tract visited it, occasionally plaintiff testator possession he had taken early part on the land until the husband at their home and her did not think of his own accord he suggested when'he year for his much with them and not pay he' should so stay deal of “put great to’a trouble and as lodging, plaintiff board and should plaintiff fair to that he account,” on his and it expense some for her giving longer there stay in his “one-half give her, will, and he then offered road,” which he stated she would big get on the south side land son, Dugger Freeman, with his until the lived his death. The testator visiting during though plaintiffs November, latter’s death home lived until there interim, plaintiff’s he moved and,.in from the land lived else- plaintiffs moved December, 1910, 1915. TERM, N.C.]
McCubby Ptjegason. died in 1915. The returned January, jury where. testator following verdict: with the Did the J. Gr. enter into a testator, Freeman, him of him that that if would and take care live
would in his will her services rendered compensate at his death (cid:127) him, alleged? Answer: Yes. testator Did the render service to the defendants’ ? alleged Answer: Yes.
3. In what defendants indebted to amount, any, plaintiff? $500. Answer: limitations,
4. Is barred plaintiff’s claim the statute alleged? No. Ariswer: *3 re- Defendants from after judgment upon appealed verdict
serving their exceptions. No counsel plaintiff. Solomon Gallert for defendants. J., stating after The exceptions ap case: first four this Walker,
peal
taken
were
to the
of the
D.
competency
plaintiff,
male
Walter
MeCurry, husband of his coplaintiff,
testify
as to transactions and
with
regard
communications
the testator in
to the services to recover the
of which
brought.
value
this suit was
ground
objection
earnings
this
is that
testimony
belonged
the wife’s
to her
and
husband,
Syme Riddle,
for this
is
v.
proposition
cited
88 N.
We
C.,
said,
Robinson,
S. v.
620:
is
C.,
“It
settled that
husband is
en
titled to the society and to the services of his wife, and, consequently, to
industry.
fruits
her
She cannot contract to render those services
to another
his consent.
rights
Those
were given
husband,
to the
it
obligation
because of the
imposed by the law
him to
provide for her
support and that
their offspring, and
con
right
Riddle,
Syme
Jordan,
tinues to exist.
v.
C.,
v.
463; Baker
73
Glenn,
145; Hairston
Vasser,
N.
v.
120
341;
Kee v.
N. C.,
37
McDonald,
McKinnon v.
553;
Cunningham
legislation on the question presented, as all the authorities here and elsewhere hold that a confer husband this wife and acquire earn property, any event, rights do creditors Riddle, Syme supra; not intervene. Cunningham v. Cunningham.
30 —170 COURT. IN TI-IE SUPREME
McCtJKRY V. PURGASON. Dunbar, Mulford, Mason v. 481; Peterson v. J., C.,N. 407.” Mich., would therefore, question how panse inquire, We need before the place passage if this transaction had taken affected occurred act). prior Martin It all as the (known statute But stood. we think the law as then governed by that and is time, the husband assented fully in this case show that the admitted facts time, testator, and his conduct wife with the the contract his with has since connection what especially when considered agreement an his equivalent done assent by him, conclusive as own separate her enjoy his his should have and wife the same testator, earnings property .the He has evi sole. if in her own behalf acting had been feme in this to her suit separate full sanction dently given regarded shown that he has and has end, has assisted and aided her -benefit. inception solely as made the contract from its very supra. Electric wife entitled therefore, Price v. We that the hold, for her under the to recover whatever due having It follows that, own and individual benefit. separate husband earnings transaction, in his separate interest wife’s dealings to his and communica witness in her behalf as competent disqualified is not as a witness because tions with the testator. He because, wife’s she dies beneficiary will, under his may become subject to the personal property, pay succeed to intestate, he would mere possibilities too remote debts, ment these speculative to considered. *4 eight exceptions
The taken to the of the testimony plaintiff, next were with to she carefully herself. We have examined them reference what harmless, while to be appear some of answers questions the line, if danger they it; are close to the do not cross but we need others all give warning, hope apparent transgression the of the only the next statute will avoided at the trial. is not mentioned in the exception
The thirteenth brief and there- is, our we remark that fore, rule, abandoned under there was the for a jury, evidence sufficient to the case to the motion carry denied. was, therefore, properly nonsuit The which was taken the court exception, ruling fourteenth to the put Bynum Owens, the witness excluding question the to what the he purchased goods had said to him at time certain the testator is The evidence Sunshine, proposed the untenable. elicited store and was inadmissible. nothing hearsay clearly was more than portion charge The addressed to a exception, fifteenth the of the If we be sustained. consider this jury, court to cannot excerpt the criticism charge subject it is not it alone, any omitted TEEM!, 1915. N. O.]
McCURRY V. PURGASON. weight or evidence, preponder its to the tbe rule as to reference proving the burden on instructing plaintiff while as to ance, jury states sufficiently her. We think it to a necessary recovery by the facts jury it told distinctness, and, the correct reasonable rule and to make out her case plaintiff the burden was proof satisfy them” of weight its evidence, greater offer “sufficient pf when enough, full clear and allegation. certainly truth But it since set having long it charge, construed with other parts a whole. We are permitted tled that the shold be considered as latter viewed, when thus charge, of a away plain meaning to construe only sepa leaves dismembers it and of dissection which any process R., v. R. McNeill C., 389; us. Kornegay rate before parts R., R. v. Lumber An C., objec Aman N. 374. 167 N. C., in S. v. Jim us and overruled tion much was considered by like one Cooper, post, decided at term. regard have said in is covered what we exception sixteenth
The jury instructed the judge it. We think the preceding to the one just issue. respect proof, burden of second as to the substantially we sufficiently explicit, whole, as a charge read When the law. The seven- understood what was jury fully are satisfied the way. is answered the same exception teenth eighteenth now limita exception, come to the as to We statute.of was aban altogether and this whether the contract
tions, depends moved left the land and plaintiffs doned the parties time, home. If contract was abandoned at that mutually another quantum of a meruit that cause of action nature feme accrued rendered, now to recover services has, previously time and years elapsed than three have since that then, and more If of this would be the contract bringing action, before the barred. special recover on the abandoned, was not can mutually will did not the statute action bar, then cause testator. As whether until the death accrue of law and as to what constitutes question fact, a mixed abandoned law, matter of and as to whether there has been being an abandonment how depending upon jury may being question an abandonment Getty, discussed in May facts to be. The subject find the Faw v. Banks Whittington, C., 321; See, also, Banks, is suing in this case indicate that plaintiff and evidence complaint *5 part by the contract perform the that she could
upon
theory
and that her withdrawal from
home
conduct,
the
reason
the testator’s
price
She seeks to
not the
or measure
thereby.
recover,
was caused
place
assump-
on an
implied
for her
but
fixed
contract
by
of value
the
rendered what'they
reasonably
actual services
are
sit to
the
pay
IN THE SUPREME COURT.
McCurky
Ptjrsason.
v.
Owen,
Justice Brown
It was said
Court,
Tussey
worth.
for the
v.
where,
139 N.
462:
C., 457,
pages
“There
a class
cases
circumstances,
rigor
some
of the common-law rule has been
relaxed,
person
a
has been
to recover the actual
permitted
value
his services, although
on his
failing
perform
part.
the entire contract
implies
In
cases the law
a
such remuneration
promise
pay
some
S.,
Jones,
worth. Dumalt v.
23 How.
really
benefit conferred is
U.
authority
But we know of no
claim
support
could recover the full contract
unless
had
con
price,
performed
Justice Smith
tract.
of such
in Chamblee
quotes a number
cases
Chief
Balter,
v.
Mizell v. Wright, S., 49 N. 115 Norrington 188; v. U. C., 249; Morton, Greenwood, Oakley v. Mass., v. 114 Pickering Y., Baker, p. in Justice Smith Chamblee v. 479.” Chief 101: “So stringent was tbe former in an action a practice tbat special pay rendered, contract to for service to be and wbicb was ren dered, no evidence or reduce to defense to tbe admissible prove plain time or misconduct of inattention, neglect, wasted other tbe or tiff, dereliction tbe driven duty, undertaken and tbe defendant was Riddick, a for Hobbs separate action v. 50 is redress. C.,N. otherwise under tbe present system, involving and tbe dispute, entire is opposing demands, now a suit. is some re adjusted single This regarding contracts, laxation of the doctrine and special tbe enforce ment of obligations tbe create. Tbe manifest they injustice, upon grounds, technical for work refusing all done and not completed, goods or supplied short of and of stipulated tbe quantity, tbe allowing them to bis own use party appropriate paying anything, has expressed been often felt and judges, tbe and mode sought wbicb tbe could be remedied.” wrong
We discussed matter so fully this Coal Co. Ice at pp. 579, not improper tbat it is tbat we should reproduce here what was said tbat agreements case: tbe whole go “Where to tbe sides, tbe consideration both tbe promises are one dependent, and of them is a condition precedent other, tbe and full performance required Rintles, before there can be recovery, Lawing as in 97 any C., 350; N. rule if, instance, does work has not apply been done or materials furnished strict contract, accordance with tbe provided Las received parties enjoyed one of tbe any benefit unless full certainly tbe condi performance made a precedent payment. law implies tion promise by party Tbe tbe received, for what been thus pay has and allows him damage has sustained reason tbe breach, justice. exact Turner, in Britton v. language Tbe Court H., Am. (26 Dec., ‘If, seems fit 713), tbe where a contract made such a case.: materials, character received labor thereby tbat a party actually wbicb damage over and above tbe advantage derived a benefit party, tbe other resulted from breach tbe labor done and value received furnish a actually tbe tbe new considera of tbe tion, law raises to tbe extent thereupon promise pay and tbe of such This worth excess. be considered as making reasonable original agreement within new case—one not is en party —and bis for tbe work to “recover on new case” done—not as titled avreed. bnt Hedge, In McClay accepted Iowa, bv tbe defendant.’ yet J., Turner, Dillon, Court, says: Britton v. referring 'That cele COURT. THE SUPREME IN
McCTJERY V. PURGASON.
yet
to be
criticised,
sound,
has been
d-oubted
denied
brated case
professional
their
into
winning-
way
gradually
have been
principles
*7
right
is
upon principle,
It
and
justice
favor.
is bottomed
judicial
found
be
and
illiberal rules as
the technical
more
may
however it
Gerr,
We have we regard very entering, as a as it into question important one, does, and small. will be transactions, large our both It seen that the daily rigid drawn from old and away courts have rule of the gradually of decision more adopted principle harmony common law and right. It must be borne our as held in justice mind, sense Owen, cited Tussey above, and the other cases where the contract it, fixed price, as cannot awarded if special and entire there who seeks to party strict recover it. performance not been TERM, N.C.] V. PXJBGASON.
McCtJBBY
special
treated the
parties
is evidence in this case that the
There
leave
compelled to
an end in
that the
from per
thereby prevented
fault;
the land
the testator’s
willing that it
intestate
forming
contract,
part
wa.s
case,
be the
then
If
shall find this to
then.
the jury
should terminate
but her
worth
can recover the reasonable
the plaintiff
of the abandon
at the time
have accrued to her
cause
action would
did
abandon
contrary, they
on the
If,
ment
would
barred.
of it
on the breach
or
as at
but she relied
end,
treat it
an
his conduct
prevent
of it and
failing
part
by him,
perform
wait
she had the
it,
ing
performance
continued
breach,
suing upon
death before
until the intestate?s
would
that he
in this
it was
the intestate
stipulated by
case
especially
until his.
could
take
be fulfilled
land,
place
devise her the
appears
the will would take effect
that time.
death,
*8
will
which he
re
devising
executed a
her the
afterwards
property,
had
death,
full
his
breach,
but
was no
as he had the
until
voked,
time,
1910,
she had sued him in
Suppose
perform.
his
abandoned,
he had
with
complied
not been
had answered that
by
far as he
a will in her favor' as
undertaking,
could, making
then
land,
not,
so,
if he had
that he would do
and claimed the benefit of
or,
the
of
unexpired period.
the
Could she have recovered? We are
the
Baird,
N. C.,
under
in
73
that,
principle
the
stated
opinion
Buffkin
Co.,
Smith v. Lumber
142
of
290,
26,
at
there is
phase
the
if
which,
by
.it,
case
the facts are found
the
will
jury
present
prevent
Co.,
in Smith v.
the bar
the
We
Lumber
supra,
statute.
stated
at
four remedies for
of a
ruarg.
the
the breach
for
pp. 32, 33,
contract
among
that the
until
party may
them
wait
the end of
sue the
or
delinquent
the term
then
the
the amount
salary,
fixed
in
parties
contract, less,
case,
the
their
in
that
in
which he
any
plaintiff,
amount earned
the meantime
the
could
and,
case,
reasonable
in this
and as
effort,
plain
have earned
to this
her
cost and
tiff,
expense
performing
contract,
less the
the
so
if the
to treat the contract as
breached
plaintiff
merely
that
chosen
and has further elected to wait
his
occurred
intestate,
the
until
death
which
full
would be the
in
compensation,
equivalent
sue
less the
devised,
land
deduction there
money
agreed
proper
be
and in that
there
from,
so,
she had
to do
ease
would
a,s
of action did not accrue
his
statute,
bar of
the cause
until
death.
assumption
plain-
are all based
that the
propositions
These
willing
was at all times
able and
fault,
ready,
but
was not
tiff
supposed
must
that when
part.
contract on
perform
case,
such is
contract,
breached the
that
intestate
defendant’s
it herself and sue for
renounce
immediately
could not
IN THE SUPREME COURT.
McCTJRRY
V.
PUR3AS0N.
damages, for
right.
Hursey’s
ber
Smith
Lumber
supra;
case, 91 S.
(
Cr-ARK, concurring C. result: When the J., Constitution X, sec. oí Art. accordance the sentiment enlightened more age, system abolished the common-law which of a property married woman became the of her husband property marriage, that all provided only she had at property the time of the marriage “be and remain the separate should sole and and prop- estate female,” but, erty also, she should retain all “to property marriage which she become manner may after entitled.” Thus, fullest and most explicit manner, earnings of the wife after marriage guaranteed *9 were to her the Constitution. now, always,
It true that as the husband entitled the services and in l'ke society wife, and, manner, of his she the entitled to services give her society husband; and of but this dees not the wife ownership husband, of her since earnings nor, the of the of 1868, Constitution earnings of her husband. given ownership the to the It was doubtless Riddle, Syme in sheer to this distinction inadvertence that though Court held that the Constitution was as above her earnings the could not have own quoted, wife because no statute Legislature had been that passed the effect. Price v. Electric Tn Co. the maioritv the Court belrl. deference Riddle, only Syme that, earnings the the from taking wife washing, damages leg for her loss of ber but that and nhvsicnl and belonged husband, anguish and loss time
mental to ber llionob seating contrary Wp.ml ihnt the was held in Nates. The other General Iv. at thereafter, shortly eh. enacted Laws wlreb provides session TEEM, N. C.]
PenningeR v. R. R. con- “Tbe of a married woman virtue of earnings by any as follows: personal service, any damages personal injuries, ber and tract her, and alone, sustained can be recovered suing other torts earnings or shall as separate sole property Such as fully had remained unmarried will be thus seen that this matter has settled accord finally It which gave ance with the terms of the to the wife express Constitution, manner, "in any marriage.” right all after she, might acquire earnings of a wife hus depend upon to her does not the consent band, Riddle, Syme was held the Constitution and the earnings statute vests her as the husband has fully already liability his. As no more interferes of each and the of each to other than does duty the constitutional owns her provision that the wife free control property husband.
G.W. PENNINGER v. NORFOLK SOUTHERN RAILROAD COMPANY.
(Filed December, 1915.) — — Negligence Contributory Negligence Crossings—Trials—Evi- Railroads — Questions Jury. dence — damages personal injury In an recover for a inflicted action.to passing the defendant’s track on ccmpany, plaintiff crossing train defendant railroad as tbe was foot, tending show, there was evidence per contra, that, place pub’ic crossing; was a much-used moving speed improper train was from the east at an unusual and giving signals proper warninps; plaintiff that towards without stopped, or ether entering upon track; looked and listened before pile extending view, track, the east there was a of cross-ties 75 feet from the engine obstructing and a traction looking while was west, expected for a train which was from the train from unexpectedly, ran east him he heard wheels of the approaching escape sprang track, cauvht, train from the but his foot causing jerks him to make two or three hard before he could him- free self, preventing doing properly so in time: Eelcl. him from case was jury upon contributory negli- left gence. the determination the issue of Appeal Lane, J., by defendant from April of Mece:- Term, 1915, LENBURG. damages Civil The action was to action. for injuries caused alleged negligence of company. defendant alleged, tending there evidence show that, on or *10 12 March, 1914, about while endeavoring cross defend- village crossing, track at a the suburban of North public ant’s Trvon, C.,N. on and run Charlotte, severely injured one of