National Exchange Bank v. Rook Granite Co.

Hoke, J"., after stating the case. "Where an attachment or the levy on property under it forms the sole basis of the court’s jurisdiction, the authorities are very generally agreed that the discharge of the writ requires the dismissal of the action. 4th Cyc., pp. 805, 806; 3 A. & E., p. 244. There would seem, therefore, to be no valid objection to the judgment, so far as the form is concerned. We are of opinion, however, that on the facts presented there was error in the ruling that the property of defendant M. W. Rook was not subject to attachment. While the common-law disability of married women to bind themselves, personally, *45 by their contracts has heretofore very generally obtained in this State (see Doughton v. Sprinkle, 88 N. C., 300; Baker v. Garris, 108 N. C., 218), it has been held in several cases, that where a non-resident feme covert has entered into an ordinary business contract in a jurisdiction where she has full contractual capacity, the obligation will.be binding here, and the holder may avail himself of any and all remedies provided by our laws for the enforcement of his rights. Wood v. Wheeler, 111 N. C., 231; Taylor v. Sharp, 108 N. C., 377. The case of Armstrong v. Best, 112 N. C., 59, to which we were referred, is not in contravention of this position. In that case the feme covert, having her residence and domicile in this State, had ordered goods for her business in Goldsboro, N. O., and same were shipped to her by plaintiffs, from Baltimore, Md. It was held that no recovery could be had here. The ruling was made on the ground that, by the law of her domicile, the feme covert was not allowed to bind herself personally, and that this disability being an established principle of our domestic policy would so far attach that the courts of this State would not aid in the enforcement of such an greement; but the case is in full recognition of the decision we make on the facts presented here, that a feme covert, having her domicile elsewhere, who makes a contract, binding where made, will be bound here, and the obligations arising from such a contract may be enforced by action in our courts. In the citation from Prof. Mordecai’s Law Lectures, p. 342, that the doctrine, as far as determined by our Court, may be thus summed up: “The contracts of married women who are domiciled out of the State will be enforced in this State according to the lex loci contractus, except in so far as such contracts affect real estate situate in this State,” the learned author, no doubt, refers to contracts directly affecting real estate, in which case the lex rei dice always governs, as in Wood v. Wheeler, 106 N. C., 512, and so interpreted, the reference is in support of the present ruling. It was earnestly contended for defendant that as the notes purport to bear date at Washington, D. C., this will be taken prima facie as the place of the making, and in the absence of allegation or evidence to the contrary, the common-law disability as to *46 feme covert will be presumed to obtain; and in that view, the defendant M. W. Rook would not be bound. But the position cannot be sustained. As a general rule, a contract is said to be executed where the same becomes a binding agreement between the parties. In Paige on Contracts, sec. 1118, the author says “The general rule is, the place where the last act is done which is necessary to give the contract validity is the place of the execution of the contract. . . . Illustrations of the principle are often found in insurance contracts. If the parties to insurance contracts are in different jurisdictions, the place where the last act is done which is necessary to give validity to the contract is the place where it is entered into.” And the decisions fully support the statement. Equitable Insurance Co. v. Clements, 140 U. S., 226; Scudder v. Bank, 91 U. S., 406; Ivy v. Kern County Land Co., 115 Cal., 196; Ford v. Insurance Co., 69 Ky., 133. There are affidavits in the record, and thus far uncontradicted, that the notes sued on were endorsed and delivered in the State of Maryland, and that in said State a married woman had full capacity to bind herself by contract. On these facts the said notes are a Maryland contract and must be so construed and dealt with till the contrary is made to appear. The precise question as to future transactions certainly would seem to be no longer of much importance, as the General Assembly, at the last session, has removed the contractual disability of married women as to all ordinary business contracts. The exception being that as to contracts between husband and wife, the provisions and limitations of Revisal, sec. 2107, are retained, and as to conveyance of her realty, the same must be executed with the written assent of her husband and her privy examination thereto is still required. There was error in discharging the attachment, and the judgment to that effect is reversed. Reversed.