{
  "id": 11273298,
  "name": "J. C. BUSHNELL v. J. R. BERTOLETT and Wife, Mamie T. Bertolett",
  "name_abbreviation": "Bushnell v. Bertolett",
  "decision_date": "1910-12-07",
  "docket_number": "",
  "first_page": "564",
  "last_page": "566",
  "citations": [
    {
      "type": "official",
      "cite": "153 N.C. 564"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "150 N. C., 782",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "72 N. C., 183",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "118 N. C., 273",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 1
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    {
      "cite": "135 N. C., 661",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8660698
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      "opinion_index": 1,
      "case_paths": [
        "/nc/135/0661-01"
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    {
      "cite": "140 N. C., 89",
      "category": "reporters:state",
      "reporter": "N.C.",
      "weight": 3,
      "opinion_index": 1
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    {
      "cite": "128 N. C., 431",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 1
    },
    {
      "cite": "126 N. C., 396",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 1
    }
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  "last_updated": "2023-07-14T20:39:54.157289+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "J. C. BUSHNELL v. J. R. BERTOLETT and Wife, Mamie T. Bertolett."
    ],
    "opinions": [
      {
        "text": "Brown, J.\nTbis 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. Tbe defendant accepted and paid for $40.00 worth of trees and refused to accept and pay for the others. Tbe following is the alleged contract or order for the trees.\nMemo, of Apple Trees \u2014 Season 1907-8.\n800 Delicious apple trees.\n600 Stamen winesaps.\n600 Grimes golden.\n450 Rome Beauties.\n5 Jonathan.\n5 Senators.\n5 Benoni.\n5 Livland Raspberry.\n5 Jeffries.\n(Signed) Mes. J. R. Bebtolett.\nAssuming for the sake of argument that the husband consented in writing to the above order, yet the contract is one that cannot be enforced against the feme defendant and bis Honor should have sustained the demurrer.\nThis 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.",
        "type": "majority",
        "author": "Brown, J."
      },
      {
        "text": "Clark, C. J.,\ndissenting. This Court held in Brinkley v. Ballance, 126 N. C., 396: \u201cAn examination of the Constitution, Art. 10, sec. 6, and of the statute, Code, 1826, shows no foundation for the 'charging\u2019 of the wife\u2019s property as laid down in some decisions of a former Court.\u201d It was further said: \u201cThe wife admits she got the goods and of the value charged. She got them on an order written by husband as agent, and he signs his name.\u201d The Court proceeds to intimate that this was the husband\u2019s written consent under Code, 1826, and hence \u201cthe contract is valid and binding on the wife, and in holding that no recovery could be had against her, nor against either her personal or real property, there was error.\u201d This is direct authority for the action of the judge below.\nIt is true that there are numerous authorities to the contrary, but the most diligent research has not yet found any statute which authorizes or requires that a wife \u201ccharge her property in equity.\u201d The result of this \u201cjudicial legislation\u201d has been the complicated status of our law as to married women which requires four pages of fine print in Professor Mordecai\u2019s Table set out in 128 N. C., 431-434.\nIn Ball v. Paquin, 140 N. C., 89, Judge Connor -says: \u201cIn the absence of controlling decisions to the contrary, we should unanimously hold that she (the wife) could make all manner of contracts with the written assent of her husband, and that for breach of them her property was liable as if she were a feme sole. The cases which came to this Court during the years 1868-1876 clearly indicate that such was the construction of the statute by the profession and laymen.\u201d And in the same case, on page 96, he said: \u201cWe hope that the subject of the powers and rights of married women in respect to their property and contracts, may attract the attention of the General Assembly and be brought into harmony with the best modern thought and conditions.\u201d\nIn Vann v. Edwards, 135 N. C., 661, Walker, J., in a very full and clearly expressed opinion bolds that under our Constitution a \u201cmarried woman may dispose of ber property by gift or otherwise without the assent of ber husband except in a' conveyance of the realty.\u201d As the power to contract is much less than that of disposing of property, it is an anomaly that there should be any restriction upon a married woman\u2019s right to contract. The statute, however, Revisal, 2094, does require the husband\u2019s assent in some cases, but dispenses with it in many others.\nBut there is no statute to be found, which, in any case whatever, restricts a married woman from contracting with the assent of her husband nor which requires her to \u201ccharge her property in equity.\u201d As the Court said in Ball v. Paquin, supra, we would hold, unanimously, that these are not required, but for the decisions which have been rendered to the contrary. In Ball v. Paquin, supra, in Bank v. Howell, 118 N. C., 273, and in other cases, this Court has suggested that the Legislature bring the status of the law as to married women into conformity with the spirit and the letter of the Constitution of 1868. After a lapse of 42 years, it is to be hoped that this will be done, in view of the anomalous condition of the law on the subject and the repeated suggestions of the Court.",
        "type": "dissent",
        "author": "Clark, C. J.,"
      }
    ],
    "attorneys": [
      "Smith & Schenck for plaintiff.",
      "Charles F. Toms for defendant."
    ],
    "corrections": "",
    "head_matter": "J. C. BUSHNELL v. J. R. BERTOLETT and Wife, Mamie T. Bertolett.\n(Filed 7 December, 1910.)\nMarried Women \u2014 Executory Contracts \u2014 Separate Realty \u2014 Charge\u2014 Husband\u2019s Written Consent.\nA married woman\u2019s 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.\nAppeal from Councill, J., at the May Term, 1910, of Henderson.\nCivil action beard upon demurrer to tbe complaint. His Honor overruled tbe demurrer and defendant appealed.\nTbe facts are sufficiently stated in tbe opinion of Mr. Justice Brown.\nSmith & Schenck for plaintiff.\nCharles F. Toms for defendant."
  },
  "file_name": "0564-01",
  "first_page_order": 612,
  "last_page_order": 614
}