21 S.E. 191 | N.C. | 1895
It is an elementary principle that every person who is not at the time laboring under some total or partial disability, such as infancy, insanity or coverture, has the legal capacity to enter into any agreement not prohibited by law, and that the lawful contracts of persons having the capacity to enter into them are binding upon and enforcible against the parties to them. It is equally familiar learning that all contracts between persons capable of entering into them, and (415) not in conflict with the State or Federal Constitution, in contravention of common or statutory law, or condemned as contrary to public policy or good morals, are lawful.
The plaintiff corporation and the defendant executrix both being capable of contracting, entered into an agreement, wherein it was especially stipulated that she, by signing a promissory note as executrix of her deceased husband, should not be held liable in her individual capacity. Such was the obvious purpose with which the words "Mrs. L. L. Morehead, executrix of Eugene Morehead, but not personally," were inserted in the body of the note, where the parties promising are named, and when she signed and the bank accepted the note both must have understood and assented to it, interpreted according to its plain meaning. 7 A. E., 337, note 2. It was intended by the parties that she should incur no personal liability by signing in her representative capacity, and, if such a purpose can be carried into effect without running counter to any rule prescribed in furtherance of public policy, the plaintiff has no right to demand a personal judgment against her. The law does, for sufficient reason, sometimes restrict the right to limit one's liability by contract. As, for instance, where a railroad company attempts to stipulate against liability as a common carrier for injury due to its own negligence, this limitation is held to be void as against public policy. But on the other hand, where personal representatives, in the exercise of a power contained in a devise or acting under an order or decree of Court, have been required to execute conveyances of land, it has been the habit, in order to avoid raising the question of personal liability on the usual covenants of a deed, to specially stipulate that the executor or *224
(416) administrator agrees to warrant and defend, etc., only in his representative capacity and to the extent to which he is empowered to do so. The doctrine under which the personal representative, who merely promises to pay by signing or by also inserting his name in the body of the instrument in his representative capacity, has been held personally liable was founded upon the old principle that he thereby acknowledged that he had assets of the estate in his hands and that the assets were the consideration of the note. Sleighter v. Harrington,
The point directly raised in this case is one of the first impression in this State, and we prefer to let our decision rest upon sound reason and *225 approved elementary principles, rather than to go out in search of analogous cases or authority from other courts. We have not, however, found any authority in conflict with the conclusion we have reached.
The appeal is from the refusal to give a personal judgment against the executrix. The judgment against the executrix in her representative capacity is not drawn in question. It is not material therefore to discuss the other question suggested on the argument, whether, as executrix, the feme defendant would be held liable, if the question were raised on this or the original note of her testator.
The judgment of the court to the effect that the executrix is not personally liable is affirmed.
Affirmed.
Cited: Mitchell v. Whitlock,
(418)