Lipinsky v. . Revell

83 S.E. 820, 167 N.C. 508, 1914 N.C. LEXIS 159

• Court: Supreme Court of North Carolina
• Decided: December 23, 1914
• Status: Published

Opinion

BROWN, J.

Tbis is an action to recover of the feme defendant $247.30 for merchandise sold and delivered to her. On the trial the plaintiff introduced verified account in evidence under Eevisal, sec. 1625. "We think the verification in due form and sufficient to make out a prima facie case. Knight v. Taylor, 131 N. C., 84.

The feme defendant in her answer denies that she is indebted to the plaintiff, admits the receipt of some of the goods charged against her, and admits that she has paid no part of said account, and avers that the goods so purchased by herself from the plaintiff were for necessaries, and that her husband, and not herself, is liable therefor.

The plaintiff offered evidence tending to establish his cause of action against the feme defendant. The defendants offered no evidence, but were permitted to put the plaintiff on the stand and cross-examine him.

The court charged the jury as follows: “If you are satisfied from the greater weight of the evidence in this case that the plaintiff S. Lipinsky sold and delivered to the defendant Mrs. Caroline E. Eevell articles of merchandise as set out in this statement of account: that at the time said sales were made she promised and agreed to pay the prices shown on this account; that she has not paid them, then you should answer the issue '$247.30, with interest.’ If you are not so satisfied, you will answer the issue 'Nothing,’ ” to which charge defendants except.

We find no error in this instruction. This debt was contracted in 1912, since the ratification of the Martin act, page 109, Public Laws 1911. That act completely emancipates the feme covert. Now she may deal and contract without her husband’s consent as freely as if she was unmarried, except in dealing with her husband under Eevisal, sec. 2107, and in the conveyance of her real estate.

It is true, the husband is liable for the support of his family, and may yet be subjected to the payment, under proper circumstances, for necessaries. Berry v. Henderson, 102 N. C., 528; Farthing v. Shields, 106 N. C., 296. But now the wife may purchase not only necessaries, but other articles, in her own name and on her own credit, and the creditor may recover of her for them without making the husband party defendant. This ease was properly tried on that theory, and in any view of the evidence, if believed, the feme defendant is liable for the debt. The plaintiff made no claim against the husband and asked no judgment against him.

The husband was not a necessary or even a proper party to this action, and consequently was not made a party. But at February Term, 1914, he was allowed to file answer. The answer was not filed until 8 April, 1914, beyond the time allowed. This answer undertook to plead a counterclaim in favor of the husband exclusively against the plaintiff.

At April Term, 1914, his Honor made tbis order: “Tbis cause coming on to be beard upon motion of tbe plaintiff to strike out tbe answer filed by O. D. Bevell in tbis action, and it appearing tbat tbe said O. D. Bevell was made a x>arty defendant on account of sections 408 and 2103 of tbe Bevisal of 1905, and tbat tbe plaintiff demands no relief against tbe said O. D. Bevell: It is ordered tbat tbe answer of tbe said O. D. Bevell be stricken out.”

To tbe foregoing order tbe defendants excepted.

It is not clear to us bow tbe defendant’s busband is in any way injured by tbe ruling of tbe court. His answer only sets up a counterclaim to a claim for wbicb b'e is admitted by tbe plaintiff not to be liable, and no judgment bas been taken against bim. Tbe plaintiff alleges no cause of action against tbe busband, and bow can be counterclaim against tbe plaintiff, when tbe plaintiff claims nothing of bim?

It is admitted tbat tbe plaintiff is abundantly solvent and tbe courts are open to bim to bring bis suit against tbe plaintiff whenever be will.

Tbe costs of tbis Court will be taxed against both appellants.

No error.