Bazemore v. . Mountain , 121 N.C. 59 ( 1897 )

This action is brought against the defendants, W. E. Mountain and Patty W. Mountain, his wife, for supplies furnished on Spruill, a tenant of thefeme defendant. The allegations of the plaintiff are that the defendant Patty is the owner in her own right of valuable real estate, consisting mainly of farming lands, upon which she has mules and farming implements suitable for its cultivation; that her husband is of no account, has no income and does not contribute anything to the support of his wife and family, and they have no means of support except from the rents of the land of the feme defendant; that she was unable to rent her land without making advancements to the renter to enable him to cultivate the crops. This she could not do, as she had neither the supplies nor the money to buy them, and could only do so by procuring some one else to furnish them for her; that the defendant W. E. Mountain was the agent of the feme defendant, and as such agent he contracted with the plaintiff to furnish the supplies sued for in this action. And his Honor says, in making up the case on appeal, that there was evidence tending to prove all these facts.

At the close of the evidence the Court intimated an opinion that the plaintiff had not made a case and could not recover. Upon this intimation the plaintiff submitted to a judgment of nonsuit and appealed.

As the evidence must be taken in its strongest light against the defendant, everything it tends to prove must be taken as proved in the consideration of this appeal. White v. R. R., post, 484.

It must therefore be taken as facts proved that the defendant W. E. Mountain was the agent of the feme defendant, Patty; that she was the owner in her own right of a valuable landed estate, suitable for farming purposes, stocked with mules and furnished with farming implements; that her husband was of no account, had no income and contributed nothing to the support of his family, the feme defendant and (61) their children; that the rents from these lands were the only means the feme defendant had of supporting herself and family; that she could not rent her lands without furnishing supplies to her tenants to aid in making the crops; that she did not have the supplies to furnish, nor the money with which to buy them, and the only means she had of furnishing supplies was by contracting with some one else to do so for her, and that W. E. Mountain, as agent of the feme defendant, contracted with the plaintiff to furnish the supplies sued for to one Spruill, the tenant of the feme defendant, and they were furnished under that contract.

Taking these facts to have been proved by the evidence, as we must do in this appeal, there is error.

The husband may be agent of his wife. Witz v. Gray, 116 N.C. 48. If the feme defendant could make this contract with the plaintiff, she could make it by her agent. If it was for the support of herself and family, she had the right to make the contract, and her separate personal estate is liable for its payment. Code, sec. 1826; Flaum v. Wallace, 103 N.C. 296.

The only remaining question, and the one upon which we suppose his Honor based his ruling, is, Was this contract for the benefit of the feme defendant and her family? And when we consider that the only means of support she had was the rent from her lands, that she was unable to rent them without furnishing supplies to her tenants, for which she as landlord would have a first lien for their payment, as they were her supplies, though delivered to defendant's tenant by the plaintiff, and that she had no means of furnishing them, except by a contract with some one else to do so for her, we must hold that this contract was for the benefit of the feme defendant and her family, and that under section 1826 of the Code she is bound by the contract, and that her separate personal estate is liable for the same.

The judgment of nonsuit must be set aside and a new trial (62) awarded.

Error.

Cited: Weathers v. Borders, post, 388; Cunningham v. Cunningham, post, 417; Sanderlin v. Sanderlin, 122 N.C. 4; Rawlings v. Neal, ib., 176;Moore v. Wolf, ib., 717; Johnson v. R. R., ib., 958; Whitley v. R. R., ib., 990; Roscoe v. Lumber Co., 124 N.C. 45; Gates v. Max, 125 N.C. 141;Bazemore v. Mountain, 126 N.C. 315; Brinkley v. Ballance, ib., 395; Stoutv. Perry, 152 N.C. 313.