CAMPBELL
v.
CAMPBELL et al.
No. 102.
Supreme Court of North Carolina.
September 26, 1951.*673 Cooley & May, Nashville, and Hugh G. Horton, Williamston, for plaintiff, appellee.
Peel & Peel, Williamston, for defendant, W. A. Campbell, appellant.
ERVIN, Justice.
The assignments of error raise this single inquiry: Was the plaintiff's evidence sufficient to withstand the defendant's motion for a compulsory nonsuit and to support the verdict in her favor?
*674 The defendant insists that this question should be answered in the negative. He advances these arguments to sustain his position: That the separation agreement of August 28, 1936, embodies the only contract ever made between him and the plaintiff with respect to the support of his minor child; that in consequence the plaintiff's alleged cause of action is necessarily predicated upon the separation agreement; that the plaintiff's own testimony shows that she breached the separation agreement in June, 1945, by refusing to perform her covenant to execute "all such deeds * * * as may be necessary to * * * make effectual" the release of her rights in the defendant's property; and that this violation of the terms of the separation agreement by the plaintiff relieved the defendant from any further liability under his covenant to make periodic payments to plaintiff for the support of his minor child.
The defendant's position is a questionable one even if his assumptions that the plaintiff's claim is necessarily based on the separation agreement and that she has violated such agreement in the manner indicated be accepted as valid. This is true because it can be asserted with much persuasiveness that the plaintiff's covenant to execute such deeds may be necessary to make effectual the release of her rights in the defendant's property and the defendant's covenant to make periodic payments to plaintiff for the support of his minor child are independent rather than interdependent, and that in consequence the breach by the plaintiff of her covenant to execute the deeds will not exonerate the defendant from the performance of his covenant to make the payments. Fifth Avenue Bank of New York v. Hammond Realty Co., 7 Cir., 130 F.2d 993; Hughes v. Burke, 167 Md. 472, 175 A. 335; Moller v. Moller, 121 N.J.Eq. 175, 188 A. 505.
We refrain, however, from expressing any opinion on this precise point, for the very simple reason that the second premise underlying the defendant's position, i. e., that the plaintiff's claim is based on the separation agreement of August 28, 1936, is lacking in validity.
Manifestly the plaintiff's cause of action cannot be made to hinge on the separation agreement. That agreement has been without legal efficacy since October 28, 1936, when the plaintiff and the defendant resumed their marital relation. This is so because a separation agreement is annulled, avoided and rescinded, at least as to the future, by the act of the spouses in subsequently resuming conjugal cohabitation. Reynolds v. Reynolds, 210 N.C. 554, 187 S.E. 768; State v. Gossett, 203 N.C. 641, 166 S.E. 754; Moore v. Moore, 185 N.C. 332, 117 S.E. 12; Archbell v. Archbell, 158 N.C. 408, 409, 74 S.E. 327, Ann.Cas. 1913D, 261; Smith v. King, 107 N.C. 273, 12 S.E. 57. The subsequent separation of the parties on January 1, 1940, did not revive the separation agreement. 42 C.J.S., Husband and Wife, § 601. It is noted that our conclusion on this phase of the litigation conforms to the view expressed in the answer.
The defendant's first premise, i. e., that the separation agreement of August 28, 1936, contained the only contract ever made between him and the plaintiff with respect to the support of his minor child, is likewise without validity.
A contract is an agreement, upon a sufficient consideration, to do or not to do a particular thing. Belk's Department Store v. George Washington Fire Insurance Co., 208 N.C. 267, 180 S.E. 63. Inasmuch as the father is under a primary legal duty to support his minor child, In re Ten Hoopen's Custody, 202 N.C. 223, 162 S.E. 619; State v. Jones, 201 N.C. 424, 160 S.E. 468; Wise v. Raynor, 200 N.C. 567, 157 S.E. 853, the mother's promise to care for and maintain the child is sufficient consideration for the father's undertaking to compensate her for so doing. Hence, an agreement by the father to pay the mother, from whom he is separated, stipulated periodic sums for caring for and maintaining a minor child left in her custody is enforceable against the father at the suit of the mother. Shaw v. Shaw, 24 Del. Ch. 110, 9 A.2d 258; Maxwell v. *675 Boyd, 123 Mo.App. 334, 100 S.W. 540; In re Sears' Estate, 313 Pa. 415, 169 A. 776.
This being true, the testimony of plaintiff at the trial was ample to overcome the defendant's motion for a compulsory nonsuit and to sustain the verdict in plaintiff's favor. It was sufficient to establish the allegation of the complaint that after their final separation the plaintiff and the defendant made a new contract whereby the plaintiff agreed to care for and maintain their minor child and whereby the defendant undertook to pay her the sum of $40 monthly for so doing as long as the child remained with the plaintiff.
No error.
VALENTINE, J., took no part in the consideration or decision of this case.