Mr. and Mrs. P. G. BLANTON
v.
Barbara Taylor BLANTON.
No. 784DC438.
Court of Appeals of North Carolina.
March 6, 1979.*533 Corbett & Fisler by Robert Hugh Corbett, Burgaw, for plaintiffs.
No appearance by defendant-appellee.
ROBERT M. MARTIN, Judge.
Plaintiffs contend that it was error for the trial judge to enter dismissal against them. They argue that they proved sufficient facts to entitle them to recover the monies they purportedly loaned to defendant, characterizing their action as being one in the nature of the common law count of assumpsit; specifically, plaintiffs sought to prove indebitatus assumpsit, a subcategory of the general assumpsit count, and special assumpsit.
The action of assumpsit is an action for the recovery of damages for the nonperformance of an oral or simple written contract; this contract may be express or implied, and may be for the payment of money. Ordinarily, only the count of special assumpsit would lie to prove a right of recovery under a written contract whereas, in general assumpsit, the court, in its equitable powers, will either construct a contract from the facts proved, if sufficient facts are proved (a promise implied in fact), or will impose a contract upon the facts proved where such a contract may be said to exist as a matter of law (a promise implied in law). At common law, plaintiff would have been required to elect either special or general assumpsit upon which to proceed, the two counts normally not being found to lie on the same set of facts. See, generally 7 C.J.S. Assumpsit §§ 1-9 (1937), 5 Strongs N.C. Index 2d Money Received §§ 1-3 (1968). Our present liberal rules of pleading will, however, allow plaintiff to plead both general and special assumpsit without requiring his election of a theory of the case.
In this action, the trial court sat as both judge and jury. Accordingly, the proper scope of our review will be to determine if competent evidence existed to support his findings of fact, and whether he then properly reached his conclusions of law upon those facts. The findings of fact by a trial court in a nonjury trial have the force and effect of a verdict by a jury and are conclusive on appeal if supported by competent evidence, even though the evidence might sustain findings to the contrary. Williams v. Pilot Life Ins. Co., 288 N.C. 338, 218 S.E.2d 368 (1975); Henderson Co. v. Osteen, 38 N.C.App. 199, 247 S.E.2d 636 (1978). Accordingly, we will analyze the evidence presented at trial in the light of plaintiffs' theories of the case to determine if the trial judge did, in fact, err.
First, was any promise implied on the evidence as a matter of law? We think not. Plaintiff contended that, since defendant and her husband were both actively engaged in the operation of the chicken business, defendant and her husband were partners, and that any indebtedness incurred for the benefit of the business by one partner would jointly and severally obligate the other partner. While it is true, from the record, that defendant worked in the chicken business, and her name was on a joint checking account which was used for the business, this evidence, standing alone, is not sufficient to support a finding that defendant and her former husband were partners.
North Carolina has no community property law. The domestic services of a wife, while living with her husband, are presumed to be gratuitous, and the performance of work and labor beyond the scope of her usual household and marital duties, in the absence of a special contract, is also presumed to be gratuitous. Smith v. Smith, 255 N.C. 152, 155-56, 120 S.E.2d 575, 579 (1961).
*534 No evidence of any "special contract" was adduced to support plaintiffs' allegation of partnership between defendant and her (then current) husband; therefore, the trial judge could properly conclude that there was no partnership. The principles of agency cited by plaintiff accordingly are not applicable and no promise implied in law will be found to lie upon the assumpsit indebitatus count as pleaded.
Second, will the facts proved support the imposition of a contract based upon a promise implied in fact? Again, we think not. No evidence of any affirmative undertaking, either oral or written, on the part of defendant to repay the monies supposedly lent to her and her husband appears of record. The evidence clearly shows that the loans were negotiated between Bobby Blanton and his parents (the plaintiffs in this action) without any participation by defendant at all. Her signature does not appear on any documents or negotiable instruments drawn by reason of the loan transactions. The only evidence by which plaintiffs seek to make defendant liable on this debt consists of testimony of defendant's ex-husband as to certain statements and silences by defendant, who was physically present at the time some of the transactions were discussed between Bobby Blanton and plaintiffs. While these statements are perhaps sufficient to raise inferences that defendant acquiesced in the transactions, they do not compel a finding of liability based upon acquiescence. The inference will permit, but does not compel, the finding based upon it. See, Cogdell v. R.R., 132 N.C. 852, 44 S.E. 618 (1903); 2 Stansbury N.C. Evidence (Brandis Rev.) § 215 (1973). The trial judge's conclusions will not, therefore, be disturbed and the assignments of error are overruled.
And last, was there evidence which would require the trial court to render judgment for plaintiffs on the allegations amounting to a count of special assumpsit? We think not. Plaintiffs have vigorously contended that, because defendant signed a separation agreement in which she agreed to assume the lawful debts of the chicken business, a written contract existed which would require the court to find liability on the part of defendant. However, since the chicken business was a sole proprietorship, not operated in any corporate or partnership form, debts of the business would actually be in personam debts of Bobby Blanton, and the only debts which defendant would be assuming under the separation agreement would be those encumbrances secured by the physical assets of the chicken business. As we do not find that the business was a partnership, for the reasons stated above, no liability for this debt may be found to have attached to defendant by reason of the separation agreement. These assignments of error are overruled.
We have carefully considered the remaining assignments of error by plaintiffs and find them to be without merit. Plaintiffs were required to carry the burden of proof on the existence of facts which would warrant the equitable imposition of a contract by the court in general assumpsit, as well as on the existence of a contract to support recovery on special assumpsit. Having failed to meet either burden, plaintiffs are left with a well-pleaded but deficient cause of action on all counts, and the trial judge correctly determined that dismissal would lie against them. The judgment of the trial court is affirmed.
Affirmed.
MITCHELL, J., concurs.
ERWIN, J., concurs in the result.