Opinion
(Filed 7 December, 1910.)
Married Women — Executory Contracts — Separate Realty — Charge — Husband's Written Consent.
A married woman's separate real estate is not responsible for damages arising from the breach of her written agreement of purchase of personal property, though the husband had given his written consent.
APPEAL from Councill, J., at May Term, 1910, of HENDERSON.
The defendant demurred to the complaint. This was overruled and defendant appealed.
The facts are sufficiently stated in the opinion of Justice Brown.
Smith Schenck for plaintiff.
Charles F. Toms for defendants.
This action is brought for the purpose of charging the estate of the feme defendant with the sum of $330.75 for a breach of contract in refusing to take and pay for a lot of apple trees. The defendant accepted and paid for $40.00 worth of trees and refused to accept and pay for the others. The following is the alleged contract or order for the trees.
"Memo. of Apple Trees — Season 1907-8. 800 Delicious apple trees. 600 Stamen winesaps. 600 Grimes golden. 450 Rome Beauties. 5 Jonathan. 5 Senators. 5 Benoni. 5 Livland Raspberry. 5 Jeffries.
MRS. J. R. BERTOLETT."
Assuming for the sake of argument that the husband consented in writing to the above order, yet the contract is one that can not be enforced against the feme defendant and his Honor should have (565) sustained the demurrer.
This is in conformity with a uniform line of decisions, many in number, beginning with Harris v. Jenkins, 72 N.C. 183, and ending with Bank v. Benbow, 150 N.C. 782.
Reversed.