Wilson v. Wilson

Higgins, J.,

dissenting: The plaintiff attached the separation agreement to- her complaint and made it a part of her -alleged cause of -action. The agreement wais executed in accordance with the formalities required by law. Among -other ¡things, it provided:

“WITNESSETH: WHEREAS, the parties hereto are husband and wife, having been lawfully married on the 23rd day of December 1952, but WHEREAS, by -reason of irreconcilable differences and -disagreements, the parties- sepiarated on the 20th day o-f January 1962, and have since said date lived continuously ■separate and 'apart from each other -and are presently living separate and -apart from each -other; and WHEREAS, the parties -h-ave agreed that they will -continue to live separate and ap-art from each other in the future, each being of the opinion that it will pro-mote their happiness and welfare to live separate and apart in the future”;

The agreement required the -defendant to convey -to- the plaintiff the home held by 'them -as an estate by entireties, the deed to be, -and presumably w-as, delivered simultaneously with the execution -o-f the separation agreement. All the personalty belonging to- -the parties was given to the plaintiff except -one incomplete set of dishes, one empty bookcase, one ro-l-l-away bed, -the 1961 Chevrolet, -and “his personal clothing -and his purely personal -belongings.” In so far as the record discloses he left the home without anything els-e -of value except Ms ability to work. He agreed to pay to the plaintiff $100.00 each month for 18 months. At the time she -instituted this suit she -had been paid $800.00, and -three of the remaining payments were then past due.

Under the facts alleged, the plaintiff was entitled to- maintain an action for the recovery -of $300.00 -and interest for breach of contract -and she would have been entitled to -amend 'her 'complaint after it was filed, alleging any additional payments that were past due up to the time -o-f the trial. Failure to -meet the payments -does not entitle the plaintiff to have the contract -declared void. A breach o-f the contract *48 its cause far rescission, only when the contract is indivisible and the breach defeats it. Childress v. Trading Post, 247 N.C. 150 , 100 S.E. 2d 391 . By rescission the whole transaction moist be avoided. A party miay not rescind in part and affirm in part. “The nonperformance on one side must go to the entire .substance <of tire 'contract and to the whole consideration, so that it may safely be inferred . . ., if .the act to be performed on the one side is not done, there is no. consideration for t'he stipulation on the other side.” Jenkins v. Myers, 209 N.C. 312 , 183 S.E. 529 ; New Orleans v. R.R., 171 U.S. 334 . Cancellation or rescission of a 'contract even when .tire contract is procured by fraud (not even suggested here) requires' the return of all ¡consideration. Kee v. Dillingham, 229 N.C. 262 , 49 S.E. 2d 510 . The plaintiff does not offer to return anything.

Assuming all plaintiff’s factual allegations are true, she is entitled to- maintain a cause of action for breach of contract. Instead, she sues for .alimony 'and counsel fees. Her factual allegations show that in so doing she attempts to. assert a defective cause of action. Judge Johnston wias correct in so bolding.

Valid contracts between husband -and wife executed while they are living in a state of separation are binding in the same manner as other contracts. However, in so far as the contract is executory and relates to obligations and duties growing out of the marriage, the resumption of the marriage relationship restores the rights incident thereto. Fuchs v. Fuchs, 260 N.C. 635 ; Hutchins v. Hutchins, 260 N.C. 628 .

The defaidant’s failure to pay does not add one cent to the amount he is 'due under the contract, and as the parties agreed so shall they be bound. I vote to affirm.

Bobbitt, J. joins in this dissenting opinion.