84 S.E. 18 | N.C. | 1915
Lead Opinion
after stating the case: Under the law, as it has heretofore prevailed in this State, a husband is entitled to his wife’s earnings, the proceeds of her labor, where they are living together as man and wife, and we are not called on to determine whether the principle is altered or in any way affected by our recent legislation on the rights and capacities of married women, notably the statute known as the Martin Act, Laws 1911, eh. 109, by which married women are practically constituted free traders as to all their ordinary dealings, as all the authorities here and elsewhere agree that the husband may confer upon the wife the right to her earnings, and when he has done so, these earnings are then properly regarded as her separate estate, which she is entitled to recover by action in her own name. Price v. R. R., 160 N. C., 450; Symme v. Riddle, 88 N. C., 463; Hinckly v. Phelps, 84 Mass., 77; Bowman v. Ashe, 143 Ill., 649; 21 Cyc., pp. 1385-1395.
There was no necessity, therefore, that the husband should appear as a party, the evidence tending to show that he had' conferred upon the wife, in this instance, the right to earnings acquired under the contract with her father. Eevisal, sec. 408, subsec. 3. The matter, however, is of no especial moment, as the husband, in any event, is only a nominal party, and neither judgments nor arbitration proceedings with parties affecting him alone should be allowed to interfere with her rights to recover, if she has a good cause of action in her own name. Walker v. Phil., 195 Pa. St., 168; Beromo v. Lumber Co., 129 Cal., 232; Kelly v. Hancock, 75 Ala., 229; 23 Cyc., 1242; Womack v. Esty, 201 Mo., 467, reported, also, in 10 L. R. A. (N. S.), pp. 140-146.
She is not, therefore, directly affected, and we do not find anything in her speech or conduct which calls for or permits the application of the principle of an estoppel in pais. The estate has not been damaged nor have its representatives been in any way misled to their pecuniary injury by anything she has said or done in the matter. LeRoy v. Steamboat Co., supra; Boddie v. Bond, 154 N. C., 359, and 158 N. C., pp. 204 and 206.
From a perusal of the proceedings, it will appear that on the hearing before the arbitrators the husband represented that his wife had made a claim of him, as guardian, for $1,117.50, for services rendered the father, of which he had paid $586.52, and asked that this amount be allowed him as a voucher on his account as guardian. The arbitrators heard the testimony and only allowed him $196.65, and his wife returned to the husband the balance of the payment. This account should be deducted from her present claim, not because she is barred by the action of the arbitra
Eeversed.
Lead Opinion
CLARK, C. J., concurring. Civil action to recover for services rendered F. M. Jenkins, now deceased, and for board and lodging him for six years, four months, and nineteen days.
The action was originally instituted by A. J. Patterson against F. M. Jenkins, who was her father. Afterwards, and over protest of plaintiff and also of himself, J. D. Patterson, the husband, was made party coplaintiff. F. M. Jenkins, having died, his executors were made parties and the action proceeded with against them as executors.
The suit was for services rendered and board and lodging of F. M. Jenkins for six years and over, at about $20 per month, and there was evidence of plaintiff tending to show that, on 14 January, 1906, F. M. Jenkins, having tried some of his other children, came to the house of feme plaintiff, who was his daughter, and they made arrangement that if she would give him a home and care and provide for him, he would leave her all of his property; that the husband assented, and it was a part of the agreement that the compensation was to belong to the wife; that, under the agreement, F. M. Jenkins stayed at plaintiff's home for six years, four months, and nineteen days, when he became dissatisfied and left, living thereafter with some of the others until he died, not long thereafter, a year or more; that the father, F. M. Jenkins, was an old man, needing much attention, and for the last year and more of his stay was almost helpless, and that an average charge of $20 per month was very reasonable; that some time after leaving plaintiff's house F. M. Jenkins conveyed a portion of his real estate to his wife, and later, had given about one-third of the money he then had to some other relation, and, in his will, had left the bulk of his property to others, giving only *136 a nominal amount to plaintiff A. J. Patterson; that during the very latest part of his stay with plaintiff J. D. Patterson, the husband, in consultation with some of the other near relatives and heirs at law, had qualified and acted as guardian of F. M. Jenkins; that said Patterson was removed a short while after Jenkins left, and, there being a dispute as to a proper settlement of the guardianship matters, J. D. Patterson and F. M. Jenkins referred the matters in dispute between them to three arbitrators, who heard evidence and made an award, in effect, that Patterson owed and should pay to F. M. Jenkins $389.87 as a settlement of guardian account and should turn over to said Jenkins a certain deed of trust which was a subject of difference between them.
(77) In the hearing before the arbitrators J. D. Patterson presented a bill for board and lodging which his wife had claimed of him as guardian, to the amount of $1,117.50, and on which he had paid her $586.52, leaving a balance due her on account of $530.98. The arbitrators allowed J. D. Patterson credit by reason of the claim of $196.65 and made the award as heretofore stated. That when the award was announced Mrs. Patterson paid back to her husband all of the money paid to her by him, except the $196.65, for which he had been allowed credit.
It appeared that Mrs. Patterson had been examined as a witness before the arbitrators, but all the evidence tended to show that she was not a party to said proceeding, nor had she appeared therein nor authorized anyone to appear for her or submit her claim to the action to the board of arbitrators.
At the close of the evidence, or during the trial, the court having intimated an opinion adverse to plaintiffs, they submitted to a nonsuit and appealed.
after stating the case: Under the law, as it has heretofore prevailed in this State, a husband is entitled to his wife's earnings, the proceeds of her labor, where they are living together has man and wife, and we are not called on to determine whether the principle is altered or in any way affected by our recent legislation on the rights and capacities of married women, notably the statute known as the Martin Act, Laws 1911, ch. 109, by which married women are practically constituted free traders as to all their ordinary dealings, as all the authorities here and elsewhere agreed that the husband may confer upon the wife the right to her earnings, and when he has done so, these earnings are then properly regarded as her separate estate, which she is entitled to recover by action in her own name. Price v. R. R.,
There is no necessity, therefore, that the husband should appear as a party, the evidence tending to show that he had conferred upon the wife, in this instance, the right to earnings acquired under the contract with her father. Revisal, sec. 408, subsec. 3. The matter, however, is of no especial moment, as the husband, in any event, is only a nominal party, and neither judgments nor arbitration proceedings with parties affecting him alone should be allowed to interfere with her rights to recover, if she has a good cause of action in her own name. Walker v. Phil., 195 Pa. St., 168;Beromo v. Lumber Co.,
Again, while services rendered by an adult child for a parent, (78) or a parent for such a child, when living together as members of the same family, are presumed to be gratuitous, the presumption is a rebuttable one, and is overcome by proper proof that they were given and received in expectation of pay (Winkler v. Killian,)
She is not, therefore, directly affected, and we do not find anything in her speech or conduct which calls for or permits the application of the principle of an estoppel in pais. The estate has not been damaged nor have its representatives been in any way misled to their pecuniary injury by anything she has said or done in the matter. LeRoy v. Steamboat Co., supra;Boddie v. Bond,
From a perusal of the proceedings, it will appear that on the hearing before the arbitrators the husband represented that his wife had made a claim of him, as guardian, for $1,117.50, for services rendered the father, of which he had paid $586.52, and asked that this amount be allowed him as a voucher on his account as guardian. The arbitrators heard the testimony and only allowed him $196.65, and his wife returned to the husband the balance of the payment. This account should be deducted from her present claim, not because she is barred by the action of the (79) arbitrators, but because she has received that much on account. In addition, there is no mutuality of stake or obligation between the real party in interest in this action, the feme plaintiff, and the defendants, in reference to this award. Not being a party, if the arbitrators had allowed her claim, she could not have enforced it, and no more should she be concluded. It is perhaps the controlling feature in the law of estoppel, and, on the facts in evidence as they now appear, we are of opinion that the interests of feme plaintiff are not affected by the action of the arbitrators, and she is entitled to have her claim submitted to the jury.
Reversed.
Concurrence Opinion
concurring: The General Assembly has by express enactment recognized and prescribed that married women are entitled to their 'own earnings. Laws 1913, ch. 13, provides: “The earnings of a married woman by virtue of any contract for her personal service, and any damage for personal injuries, or other torts sustained by her, can be recovered by her suing alone, and such earnings or recovery shall be her sole and separate property as fully as if she had remained unmarried.”
This seems to have been clearly provided by the Constitution, Art. X, sec. 6, which provides: “The real and personal property of any female in this State, acquired before marriage,'and all property, real and personal, to which he may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female.” But it being thought that Price v. Electric Co., 160 N. C., 450, filed 20 November, 1912, threw some doubt upon the proposition, the General Assembly very promptly after it convened passed as one of its first statutes chapter 13, Laws 1913, above set out, thus placing the matter beyond controversy.
