Coley v. . Dalrymple

Stacy, C. J. The outcome of the case depends upon whether it is made to rest on special contract or on implied assumpsit or quantum meruit. Lawrence v. Hester, 93 N. C., 19. If on the former, it must fail. Graham v. Hoke, 219 N. C., 755, 14 S. E. (2d), 790. If on the latter, it may survive in part. Hayman v. Davis, 182 N. C., 563, 109 S. E., 554. I. The Special CouNT. The record is wanting in sufficiency to establish any express contract, such as alleged in the complaint, or to support the jury’s finding on the first issue. Hence, the principal' question, debated on argument and in briefs, namely, whether, in the circumstances, plaintiff can recover for his wife’s services, rendered as his assistant or to him, and not with a view to a charge by her in her own name, is not perforce presented for decision. McCurry v. Purgason, 170 N. C., 463, 87 S. E., 244; Switzer v. Kee, 146 Ill., 577, 35 N. E., 160; Stevenson v. Akarman, 83 N. J. L., 458, 85 Atl., 166, 46 L. R. A. (N. S.), 238, and note; Anno. 46 L. R. A. (N. S.), 238; L. R. A., 1917 E, 288; 41 C. J. S., 413; 27 Am. Jur., 68. While the statute provides that the earnings of a married woman “by virtue of any contract for her personal earnings” shall be her sole and separate property “as fully as if she had remained unmarried,” G. S., 52-10, still this does not relieve her of her marital obligations, or deny to her the privilege of sharing in the family duties and aiding in such work as the helpmeet of her husband, when minded so to do. Helmstetler v. Power Co., 224 N. C., 821; Kelly’s “Contracts of Married Women,” 153. A married woman is still a feme covert with the rights, privileges and obligations incident to such status under the law. Buford v. Mochy, 224 N. C., 235, 29 S. E. (2d), 729. Nor is the plaintiff in position to insist on the promise, if made by defendant’s intestate, that she would devise the place to him, or see that it went to him at her death, in exchange for services to be rendered to her and to filer husband. Neal v. Trust Co., 224 N. C., 103, 29 S. E. (2d), 206. In the first place, it is not according to the allegations of the complaint, Whichard v. Lipe, 221 N. C., 53, 19 S. E. (2d), 14; and, secondly, it rests only in parol. Price v. Askins, 212 N. C., 583, 194 S. E., 284; Grantham v. Grantham, 205 N. C., 363, 171 S. E., 331. It is not subject to specific enforcement. Daughtry v. Daughtry, 223 N. C., *70 528, 27 S. E. (2d), 446; G. S., 22-2. “Recovery is to be bad, if allowed at all, on the theory of the complaint, and not otherwise.” Balentine v. Gill, 218 N. C., 496, 11 S. E. (2d), 456. II. The GeNeeal Count. The complaint is broad enough, however, to support a recovery on implied assumpsit or quantum meruit, and there is evidence to warrant the submission of the case to the jury on this theory. Neal v. Trust Co., supra; Lindsey v. Speight, 224 N. C., 453, 31 S. E. (2d), 371; Grady v. Faison, 224 N. C., 567; Price v. Askins, supra; Edwards v. Matthews, 196 N. C., 39, 144 S. E., 300; Brown v. Williams, 196 N. C., 247, 145 S. E., 233; Norton v. McLelland, 208 N. C., 137, 179 S. E., 443; Lipe v. Trust Co., 207 N. C., 794, 178 S. E., 665; McIntosh on Procedure, 420. See Graham v. Hoke, supra, and Hayman v. Davis, supra. “Where the plaintiff alleged a contract to pay for services performed, and, upon the trial, failed to prove a special contract, but did prove the performance of the services and their value: Held, that he was entitled to recover upon quantum meruit without amending the complaint.” Third headnote, Stokes v. Taylor, 104 N. C., 394, 10 S. E., 566. See Roberts v. Woodworking Co., 111 N. C., 432, 16 S. E., 415, and McIntosh on Procedure, 421. It will be noted that plaintiff was a tenant on his mother-in-law’s farm. They lived in separate houses, though not far apart. The services rendered by plaintiff and members of his family to his father and mother-in-law were not as members of his own household so as to indulge the presumption of gratuitous attention prompted by natural ties of affection. Staley v. Lowe, 197 N. C., 243, 148 S. E., 240; Winkler v. Killian, 141 N. C., 575, 54 S. E., 540. The inference is permissible that compensation was reasonably intended on the one hand and expected on the other. Francis v. Francis, 223 N. C., 401, 26 S. E. (2d), 907; Landreth v. Morris, 214 N. C., 619, 200 S. E., 378; Nesbitt v. Donoho, 198 N. C., 147, 150 S. E., 875. The services rendered by plaintiff’s wife, which were performed outside the home and not within the scope of her household or domestic duties, would properly be recoverable on implied assumpsit or quantum meruit in her own name. G. S., 52-10; Neal v. Trust Co., supra; Burton v. Styers, 210 N. C., 230, 186 S. E., 248; Patterson v. Franklin, 168 N. C., 75, 84 S. E., 18; Croom v. Lumber Co., 182 N. C., 217, 108 S. E., 735; Helmstetler v. Power Co., supra; 27 Am. Jur., 69; 41 C. J. S., 741-742. The case will be remanded for trial on the theory of implied assumpsit or quantum meruit. While the third issue may have been submitted *71 with this theory in mind, yet the verdict as rendered is insufficient to dispose of the matter. Lipe v. Trust Co., 206 N. C., 24, 173 S. E., 316; Lawrence v. Hester, supra. Where a case has been tried on a misapplication of the pertinent principles of law, the practice is to remand it for another hearing. Moffitt v. Glass, 117 N. C., 142, 23 S. E., 104; McGill v. Lumberton, 215 N. C., 752, 3 S. E. (2d), 324; S. v. Williams, 224 N. C., 183, 29 S. E. (2d), 744. Accordingly, it is so ordered here. New trial.